Judge Orders Reinstatement of Employees Who Were Terminated For Facebook Postings

As we previously reported here, the National Labor Relations Board has recently filed complaints against a number of employers alleging the employers unlawfully terminated or disciplined employees who posted on social media websites, such as Facebook, statements critical of their working conditions.  In one press release, the NLRB states such discussions were "protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels."

In a recent case against Hispanics Untied of Buffalo (HUB), an administrative law judge hearing the NLRB's complaint, in a ruling the NLRB described as "the first of its kind," ordered HUB to reinstate five employees who HUB terminated after the employees posted on Facebook statements critical of their working conditions.  HUB is a nonprofit organization that provides social services to disadvantaged clients.  Comments posted on Facebook in response to a Facebook posting by a co-worker regarding another co-worker's criticism of her work performance reportedly include, among others the following inflammatory statements:

I think we should give our paychecks to our clients so they can 'pay' the rent, also we can take them to their Dr's appts, and served as translators (oh! We do that).  Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery ship and organized the food in their house pantries . . . (insert ignore sarcasm here now).

The administrative law judge ruled the terminations violated Section 8(a)(a) of the National Labor Relations Act because the administrative law judge found that the employees' Facebook postings amounted to "protected concerted activity.  Section 7 of the NLRA states "employees shall have the right to self-organization, to form, joint, or assist labor organizations, to bargain collectively through representation of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . ."

 As we previously observed, employers should be aware that both the NLRA and the California Labor Code generally prohibit discipline of or discrimination against employees for disclosing to others the amount of their wages or information about the employees' working conditions. In light of those prohibitions and in light of the recent enforcement activity by the NLRB, employers should consult with experienced employment and labor law counsel when considering discipline of employees on  account of  communications related to or potentially related to employees' wages, hours, and/or working conditions.

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