On September 2, 2011, a National Labor Relations Board Administrative Law Judge declared that a Buffalo, New York not-for-profit employer violated the National Labor Relations Act when it discharged a group of employees who engaged in a Facebook discussion in which they criticized their supervisor and complained about poor working conditions. The employer discharged five employees on the grounds that their behavior was harassing, and, among other things, caused the supervisor to have a heart attack, creating liability for the employer. The ALJ found that the Facebook communications were protected concerted activity within the meaning of Section 7 of the NLRA, and ordered the employer to reinstate the five discharged employees, with backpay. In reaching his conclusion, the ALJ stated that the conversations were about terms and conditions of employment, job performance and concerns related to understaffing. While the Facebook postings contained disparaging and harsh remarks about the supervisor and employer, the ALJ found that they were protected nevertheless. The lines between harassing and protected concerted activity continue to become more gray and unsettling.
Action Items for Employers: As a result of the decision, employers should proceed with caution. In monitoring, managing and disciplining employees for their use of social media, employers should consult with counsel and consider whether certain uses of social media are protected by the NLRA. Additionally, employers should have their social media policies reviewed and revised to reduce the likelihood that activity protected by the NLRA is not among their policies' prohibited uses of social media.