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Buffalo Case Highlights the Need to Examine Policies Concerning Social Media in the Workplace.
November 2, 2011, 9:22 am
By Hugh C. Carlin Esq. and Trevor M. Torcello Esq.
The issue of whether employees' posts on social networking sites, such as Facebook, are protected activity under Federal Labor Laws has been the subject of much debate for the past several years. A recent decision from an administrative law judge in Buffalo, has built on past decisions of the National Labor Relations Board (“NLRB”), and found that a community based not-for-profit, Hispanics United of Buffalo (“HUB”) violated federal law when it fired five employees for participating in a Facebook discussion that criticized the job performance of another HUB employee.
In prior decisions, the NLRB has found that social networking posting may be protected under the National Labor Relations Act (“NLRA”) if the posts concern issues such as wages, hours and the conditions of employment. Here, the Administrative Law Judge concluded that the posts were “engaged in with the object of initiating or insuring group action” concerning these protected areas, and thus also protected.
In support of the decision, the judge noted that testimony provided that at least one of the terminated employees had indicated a desire to discuss her concerns with her supervisor, and the fact that none of the posts at issue were made on computers owned by HUB and were made on a Saturday when no one was working. The judge dismissed HUB’s argument that its decision to terminate the employees stemmed from HUB’s policies on bullying and harassment and suggested that HUB’s enforcement of its bullying and harassment policy was not uniform.
By contrast, the NLRB has indicated an employer can avoid liability if it can establish that the employee’s conduct interfered with his work or the work of others or with the employer’s operations and that the interference, rather than violation of the rule or policy, was the reason for discipline. The above highlights the complex and developing issues of social media in the workplace. Please contact Hugh Carlin or Trevor Torcello to discuss any concerns your company may have and the review or implementation of its social media policy.