Partner Richard M. Betheil, a member of Pryor Cashman’s Labor & Employment Group, was quoted by SHRM, the Society for Human Resource Management, in its September 8, 2011 article “Firing Employees for Facebook Posts Violated NLRA.”

On September 2, 2011, a National Labor Relations Board (NLRB) administrative law judge (ALJ) found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including workload and staffing issues. (Hispanics United of Buffalo Inc., NLRB ALJ, No. 3-CA-27872, Sept. 2, 2011 (released Sept. 6, 2011))

After hearing a co-worker criticize other employees for not doing enough to help the organization’s clients, an employee of Hispanics United of Buffalo posted those allegations to her Facebook page. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including workload and staffing issues. Hispanics United later discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The case was heard by an ALJ on July 13-15, 2011, and the decision issued on Sept. 2^nd, found  that the employees’ Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), because it involved a conversation among co-workers about their terms and conditions of employment, including their job performance and staffing levels. The ALJ also found that the employees did not engage in any conduct that forfeited their protection under the act.

Betheil believes the board’s view is that employers cannot prohibit employees from communicating through social media sites such as Twitter and Facebook. “I think the first lesson employers should take from this is that they must be very careful in reacting to social media posts. The NLRB has made it clear that they will be aggressive in applying pre-existing law in the social media context,” he noted.

Furthermore, he concluded the case will eventually end up before the 2nd U.S. Circuit Court of Appeals, which has not always been sympathetic to the NLRB.

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