Thursday, May 19, 2011

Another NLRB Facebook Case

Another day, another NLRB social media complaint. Yesterday, the NLRB issued this press release announcing a complaint against Hispanics United of Buffalo. Here's the fact pattern:
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.
Section 7 of the National Labor Relations Act (NLRA) protects employees' rights to engage in concerted activity addressing wages and working conditions.

This is just the latest NLRB complaint addressing social media. Last month, the NLRB Office of General Counsel issued this advice memorandum addressing a Twitter firing. The memo explained in that case, that even if the employer had an overly broad social media rule:
[I]f the Employer implemented an unlawful rule, the Charging Party was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. for engaging in misconduct.
Therefore, firing an employee who made inappropriate comments was OK. For more on the Twitter case, read Proof that a Twitter Firing can Withstand NLRB Scrutiny from Eric Meyer on The Employer Handbook.

You can also see my earlier coverage of another NLRB Facebook case: Is Facebook a Protected Activity and NLRB Settles Facebook Case.

So, what are some take-aways? Well, there are two NLRB targets right now: Social Media Policy and Enforcement. Policies should make clear that NLRA rights are still protected. It's not yet clear how best to accomplish this. A disclaimer is one option... something that clarifies employees can engage in concerted activity pertaining to terms and conditions of employment. As for enforcement, employers need to stop and think before firing an employee for social media activity: Is this employee raising issues with the terms and conditions of employment? Also, watch out for co-workers "chiming in" with comments/responses... concerted activity is always a stronger argument when, ya know, there are multiple employees acting in concert.

This whole NLRB social media push is just starting to play out. Hopefully, more guidance is on the way. For now, employers need to recognize that social media is just another form of communication and the NLRB will enforce employee rights to organize and raise workplace concerns.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.