January 3, 2013


For those who thought that the NLRB was done with its intrusion into rational decisions made in non-union workplaces (see recent post here), think again.  A recent decision from the Board found employees’ comments on Facebook were protected speech and consequently ordered that the terminated employees be offered reinstatement and paid lost wages.

In Hispanics United of Buffalo, employees working for a non-profit agency frequently griped about the poor performance of their co-workers.  On a non-workday, Lydia Cruz-Moore sent a text message to her co-worker Marianna Cole-Rivera, stating her intention to discuss employee performance with the agency’s Executive Director. Cole-Rivera responded via text message, asking Cruz-Moore whether she really “wanted [the Executive Director] to know … how u feel we don’t do our job …”.  Using her own computer at home, Cole-Rivera then posted a message on her own Facebook page stating, “Lydia Cruz, a coworker feels that we don’t help our clients enough at [the employer]. I about had it! My fellow coworkers how do you feel?”

Four off-duty employees responded by posting messages on the same Facebook page using their home computers. They objected to Cruz-Moore’s assertion that they were not doing their jobs. Cruz-Moore demanded Cole-Rivera “stop with ur lies about me” in a Facebook posting.  The off-duty employees individually responded with their own general complaints on Facebook, some laced with profanity, about the stressful nature of the job and their shared frustration with the agency’s clients.

Cruz-Moore then complained to the Executive Director about the tempest her original text message had created.  Cruz-Moore printed the Facebook comments and delivered them to the Executive Director.  Immediately thereafter, the Executive Director terminated Cole-Rivera and her four co-workers who had posted the responsive Facebook messages on the basis that the comments constituted “bullying and harassment” of Cruz-Moore in violation of the agency’s zero-tolerance policy.

The Board examined whether the Facebook comments constituted concerted activity and, if so, whether the activity equated protected speech under the National Labor Relations Act (NLRA) for which the employees could not be terminated.  The Board found that it was and ordered the employees reinstated.

The Board declared that Cole-Rivera’s post and the responses were protected because they were made for their “mutual aid and protection.”   Among other things: (1) Cole-Rivera solicited their views about the criticism; (2) they were defending themselves against the accusation of substandard performance; (3) the employees believed Cruz-Moore planned to complain to the Executive Director about them; and (4) the postings focused on job performance.  The Board also found no significance to the fact that the postings were made by the employees from their home computers, pointing out that while the mode of communication was novel, the same rules apply as if the employees were talking around the water cooler.

As for the company’s assertion that the comments were harassment and bullying which violated its zero-tolerance policy, the Board gave it short shrift.  The Board found that the right to “free exercise of protected speech” trumped the company’s right to maintain a workplace free of harassment and bullying.  And, the Board substituted its own judgment for the employer’s, finding that the Facebook comments could not reasonably be construed as a form of harassment or bullying within the meaning of the policy.  So, while every court holds employers to a “reasonable investigator” standard when handling complaints of harassment, the Board apparently believes that it can superimpose its judgment for that of otherwise reasonable employers.  Remarkably, the Board also ordered the terminated employees be reinstated, thus creating the possibility, if not the likelihood, that those same employees would clash with Cruz-Moore upon their return.

As with many of the Board’s recent decisions, this too will likely be challenged and may well be reversed.  Still, because of the Board’s sharp focus on this 21st century workplace issue, employers should take caution when disciplining or terminating employees for comments on Facebook or other social media websites that are critical of their employer.


Category: Social Media,