{"id":3537,"date":"2011-10-03T22:18:11","date_gmt":"2011-10-04T02:18:11","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3537"},"modified":"2016-11-16T20:36:56","modified_gmt":"2016-11-17T01:36:56","slug":"can-you-complain-about-work-over-facebook","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/can-you-complain-about-work-over-facebook\/","title":{"rendered":"Can You Complain About Work Over Facebook?"},"content":{"rendered":"

On September 2nd<\/sup>, an Administrative Law Judge for the National Labor Relations Board (NLRB) decided the \u201cfirst case involving Facebook<\/a> to have resulted in an ALJ decision following a hearing.\u201d\u00a0 Until this decision, the Board\u2019s activity had been limited to issuing complaints against employers, and producing reports and advice memoranda.\u00a0 In the case, Hispanics United of Buffalo,<\/em> Judge Arthur Amchan stated that \u201cthe only substantive issue in this case, other than jurisdiction, is whether by their postings on Facebook, the five employees engaged in activity protected by the [National Labor Relations] Act (NLRA).\u201d\u00a0 Their employer had fired the five employees for their Facebook posts.<\/p>\n

At issue was a Facebook conversation between co-workers.\u00a0 Their employer, Hispanics United of Buffalo (HUB), is a not-for-profit corporation which renders social services for economically disadvantaged clients.\u00a0 One HUB employee, Lydia Cruz-Moore, had frequently criticized the job performance of her fellow staff members.\u00a0 After Cruz-Moore told a co-worker that she was going to discuss these criticisms with HUB\u2019s executive director, that co-worker posted the following message on her Facebook page:<\/p>\n

\u201cLydia Cruz, a coworker feels that we don\u2019t help our clients enough at HUB I about had it!\u00a0 My fellow coworkers how do u feel?\u201d<\/em><\/strong><\/p>\n

Responses from co-workers included the following:<\/p>\n

\u201cWhat the Hell, we don\u2019t have a life as is, What else can we do???\u201d<\/em><\/p>\n

\u201cI think we should give our paychecks to our clients so they can \u2018pay\u2019 the rent, also we can take them to their Dr\u2019s appts, and served as translators (oh! We do that).\u201d<\/em><\/p>\n

The original poster responded: \u201cLol.\u00a0 I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do . . . I\u2019m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human : ) love ya guys.\u201d<\/em><\/p>\n

The original post and all responses occurred on a Saturday, which was not a work day for any of the employees involved.\u00a0 None of the employees used HUB\u2019s computers to post these Facebook messages.\u00a0 Three days later, HUB\u2019s executive director fired five of the employees who had posted comments, explaining to each discharged staff member that the posts violated HUB\u2019s policy on harassment (harassment against Cruz-Moore).<\/p>\n

Section 7 of the National Labor Relations Act extends protections to most private sector employees<\/a>, including the right to engage in \u201cconcerted activities for the purpose of collective bargaining or other mutual aid or protection<\/em>.\u201d\u00a0 Workers do not need to be actively trying to change workplace conditions or policies for such NLRA protections to apply, as employees are also protected in simply discussing concerns that they feel are affecting their employment.\u00a0 Thus, this protection is fairly broad as long as the activity is concerted<\/em>; the activity must be either a group effort or an individual effort that initiates or induces group participation.\u00a0\u00a0 Section 8(a)(1) is the enforcement mechanism for Section 7 protections, prohibiting employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. Based upon such protections, Judge Amchan held:<\/p>\n

\u201cEmployees have a protected right to discuss matters affecting their employment amongst themselves.\u00a0 Explicit or implicit criticism by a co-worker for the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. \u00a0By terminating the five discriminatees for discussing Ms. Cruz-Moore\u2019s criticisms of HUB employees\u2019 work, Respondent violated Section 8(a)(1).\u201d<\/p><\/blockquote>\n

Judge Amchan articulated the facts of this case in such a way that the legal analysis could then be presented as a straightforward application of Section 7 protections: he establishes that there was “concerted activity” and that the subject matter was related to mutual aid and protection, and therefore the Facebook conversation was protected.\u00a0 Nonetheless, the law on social media is sure to see rapid development due to social media’s increasing prevalence and thus the potential for many situations that will call into question the definitions involved in understanding Section 7 rights.\u00a0 According to Nielson\u2019s Third Quarter 2011 Social Report<\/a>, nearly four-fifths of internet users visit social networks and blogs.\u00a0 Facebook reaches 70 percent of active U.S. internet users, and Americans spend more time on it than any other U.S. website.\u00a0 In August, the NLRB\u2019s General Counsel released a report<\/a> that examined recent case developments \u201carising in the context of today\u2019s social media.\u201d\u00a0 The new challenge presented by social media is articulated in many of these cases: social media platforms can make it difficult to differentiate between \u201cconcerted activity\u201d and activity which is not concerted and thus unprotected — that which is engaged in \u201csolely by and on behalf of the employee himself.\u201d<\/p>\n

For example, the August report examined one case in which a bartender was discharged for posting a message on his Facebook page in which he complained about his employer\u2019s tipping policy. \u00a0There, the employee had not discussed his posting with any coworkers, nor had any of them responded to his posting.\u00a0 Thus, the NLRB advised the parties involved that the activity was not protected.<\/p>\n

The report also mentioned a case in which a BMW salesman expressed concerns about the actions of his employer: inviting customers to an event but only providing hot dogs and other cheap food and beverages to the customers at the event.\u00a0 The employee’s concern was that the inexpensive food would send the wrong message to the company’s clients and accordingly have a negative effect on his sales and work conditions.\u00a0 The employee had discussed the planned food choices with several of his co-workers, who shared his frustration.\u00a0 He further expressed these concerns by posting pictures of the event on Facebook.\u00a0 An advisory opinion by the NLRB reasoned that in posting them, he had \u201cexpressed the sentiment of the group,\u201d<\/em> and that the activity \u201cwas a direct outgrowth of the earlier discussion among the salespeople.\u201d<\/em>\u00a0 For this reason, the NLRB concluded the activity was \u201cclearly concerted\u201d<\/em>, that the employee had been discharged based on this activity, and that therefore the discharge was in violation of Section 8(a)(1) of the NLRA.***<\/p>\n

These NLRA protections are essential.\u00a0 They give employees very basic rights: the ability to at least discuss their workplace concerns with co-workers and management. \u00a0Such rights are important because when an employee is fired at work, and cannot demonstrate NLRA protection or discrimination by the employer on the basis of race, sex, age, etc., the employee is typically out of luck.\u00a0 In the vast majority of states, the default employment relationship is at will<\/em>, meaning that an employee can be fired for good cause, bad cause, or no cause at all outside of the aforementioned protections. \u00a0Some states have common law exceptions to the at will<\/em> doctrine that try to limit the bad cause or no cause firings, but such exceptions are extremely narrow in scope.\u00a0 As a result, the NLRA provisions are critical.<\/p>\n

However, online forums such as Facebook may pose a serious threat to the countervailing interest of employers: the ability to operate a business without being unnecessarily restricted from disciplining or cutting ties with employees who damage their company\u2019s reputation through the use of social media.\u00a0 Judge Amchan stated that \u201cdiscussing\u201d employment conditions is protected \u201cregardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.\u201d<\/em>\u00a0 This broad language could easily be stretched to provide protection to employees in situations where a Facebook post could formally be viewed as a dialogue about work conditions, but the employees involved were primarily intending to embarrass or make fun of the employer.\u00a0 Should NLRA protection turn on whether the Facebook post receives a \u201cLike\u201d or a few one-line lighthearted responses by friends who happen to be co-workers?<\/p>\n

The NLRB report states that employees would go too far if their action took the form of an \u201copprobrious\u201d public outburst to a coworker, or a comment that was extremely disloyal, reckless, or maliciously untrue.\u00a0 However, the two cases that provide the authority for these limits were decided by the NLRB in 1979 and 1953, so social media cases are sure to rewrite the boundaries of how far an employee can go before his employer\u2019s interests overrides his NLRA protections.\u00a0 Stay tuned as this interesting set of issues will continue to challenge and redefine our interpretations of the National Labor Relations Act.<\/p>\n

[***Interestingly, this case was later brought before an Administrative Law Judge, who released his decision last Wednesday<\/a>.\u00a0 The judge agreed that posting the photos on Facebook was protected activity.\u00a0 However, he held that a separate Facebook post by the same employee was not protected and that this second post was the actual reason for his termination.\u00a0 Thus, he was not reinstated.\u00a0 In the second post, the employee posted pictures of a car in a pond, taken after a customer had accidentally driven a Range Rover at a dealership into the pond (the employee did not actually work at the Range Rover dealership, which was across the street from the BMW dealership that he worked at, but this dealership was owned by the same employer).\u00a0 The judge held this Facebook post was not protected because \u201cit was posted solely by Becker . . . without any discussion with any other employee of the Respondent, and had no connection to any of the employees\u2019 terms and conditions of employment.\u201d]<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

An Administrative Law Judge for the National Labor Relations Board (NLRB) recently decided the \u201cfirst case involving Facebook to have resulted in an ALJ decision.” Judge Arthur Amchan stated that \u201cthe only substantive issue in this case . . . is whether by their postings on Facebook, the five employees engaged in activity protected by the [National Labor Relations] Act (NLRA).\u201d Judge Amchan stated that \u201cdiscussing\u201d employment conditions is protected \u201cregardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.\u201d Should NLRA protection turn on whether the Facebook post receives a \u201cLike\u201d or a few one-line lighthearted responses by friends who happen to be co-workers?<\/p>\n","protected":false},"author":52,"featured_media":3541,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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