Another Employer Finds Itself in Trouble Over Facebook Posting

The NLRB, this time through its regional office in Buffalo, New York, has issued another complaint (pdf) against an employer in a case involving Facebook postings.  The employer alleged to have violated the NLRA is Hispanics United of Buffalo, Inc., a non-profit organization. 

According to the NLRB, employee "A" posted allegations of employee "B" to employee A’s Facebook page.  The comments from employee B alleged that the employer did not do enough to help its clients.  Employee A’s post then generated additional posts from other employees, who defended their job performance and complained instead about workload and staffing issues.  Hispanics United, upon learning of the posts, discharged employee A and the other employees (five employees in all) who responded to that post.  The employer appears to have reasoned that employee A’s comments, and those of the other employees, constituted "harassment" of employee B.

As with the complaint previously issued by the Hartford regional office (covered last November on this blog), it is important to note that the complaint against Hispanics United is only an assertion that the employer violated the NLRA.  It doesn’t constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful.  Nonetheless, it is a reminder for the labor professional of some important points: 

• Protected, concerted activity.  As this blog previously noted, "concerted activity" can be alleged to occur in a number of different contexts.  In the Hartford case, the concerted activity was complaining about one’s immediate supervisor.  In this case, the concerted activity was the discussion of working conditions, specifically those dealing with workload.  Employers need to be vigilant in watching for disciplinary actions that could implicate protected, concerted activity.
• "Harassment" is not necessarily a defense.  Many employers maintain policies that are designed to prevent harassment in the workplace.  The Hispanics United complaint demonstrates that sometimes such a policy may not be a permissible basis on which to discipline an employee.  
• New media; old law.  Protection of concerted activity by employees is a bedrock principle of the NLRA.  The Buffalo complaint reinforces the observation this blog made when the Hartford complaint was announced:  lest there be any doubt, the regional offices will apply these "old" laws to new forms of employee communication just as aggressively as they did in the days of the water cooler conversation.