Think Twice Before Firing Employees for Posting Comments on Facebook

In a precedent-setting case, a judge for the National Labor Relations Board (NLRB) ruled that an employer unlawfully terminated five employees for work-related comments they posted on Facebook.

The employees worked for Hispanics United of Buffalo, Inc. (HUB), a nonprofit organization that provides social services in upstate New York.  The issues arose after a co-worker criticized the employees’ job performance, and threatened to bring the matter to the attention of their supervisor.  In response, one employee started a discussion chain on his personal Facebook page, commencing with the following statement:

“[This] coworker feels that we don’t help our clients enough at HUB.  I about had it!  My fellow coworkers how do u feel?” 

The other terminated employees each posted responsive comments, including, “What the f*** . . . try doing my job I have 5 programs,” and “What the hell, we don’t have a life as is, what else can we do?”  The employees posted the comments on a non-work day from their homes using their personal computers.

Their employer subsequently determined that their online postings regarding their co-worker’s comments constituted “bullying and harassment” in violation of HUB’s harassment policy, and fired them.  The terminated employees filed an unfair labor practice charge with the NLRB, alleging that their firings were unlawful under the National Labor Relations Act (NLRA).

The NLRB sided against the employer, reasoning that employees have a protected right to discuss matters affecting their employment, and that criticism by a co-worker regarding job performance is protected by Section 7 of the NLRA, which states that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Here, the judge concluded that, because the employees’ Facebook postings were in reaction to their co-worker’s work-related criticisms, they constituted protected communications, and that the employees’ conduct was “concerted” because they were taking group action to defend themselves against accusations threatened to be reported to their supervisor.  As to the asserted reasons for the terminations, the judge determined that the postings did not constitute harassment of a co-worker in violation of company policy.

The terminations were ruled unlawful, and HUB was ordered that the employees be reinstated with backpay.

Analysis and Advice:  It seems as though office politics played a large part in the decision to terminate these employees.  Someone obviously took these comments personally, and sought revenge.  Politics have no place in the workplace.  The petty animosities created by political games can and will cost you money, one way or another.

Before initiating any disciplinary action against an employee based on comments posted in a social media site, be certain to view the situation objectively.  Consult with an attorney or another disinterested party.  If any comments are being made concerning your business, view them in light of their source.  The statements may make you angry, and your fury may be justified but your employees’ right to make those comments may be protected under the law, and terminating them may result in a long and expensive battle.

 



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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