Nonprofit must rehire workers fired for Facebook comments

NLRB judge's ruling sets some rules for companies seeking to implement social media policies

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Their comments, some of which were profanity-laced, led to the termination of all five workers from HUB.

The nonprofit said that the comments violated its policies and represented bullying and harassment of the employee who was the subject of the original post.

In his ruling, Amchan said that the Facebook comments constituted a form of "protected concerted activity."

Labor laws give employees the "right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," Amchan said.

An employee's actions are protected if it is aimed at "initiating or inducing group action," the judge said. In this case, it is conceivable that the Facebook comments were a first step by the employees toward taking group action to defend themselves against the co-worker who had criticized their work, he said.

Such concerted actions are protected regardless of whether the action is initiated around the water cooler or on Facebook, Amchan wrote. Employers are acting illegally if they try to restrain or interfere with such activity, he said.

The decision is an important one for both employers and employees. The ruling shows that while work-related comments made by employees on social media sites are protected many cases, they are not protected in all instances.

In the August report, the The NLRB's Division of Advice found that in four cases, employees had engaged in "protected concerted activity" when they discussed the conditions and terms of their employment on Facebook.

One of those cases involved an employee who called his supervisor a "scumbag" on his personal Facebook page. Another involved an employee at a car dealership who posted several photographs and sarcastic comments on his Facebook page about the quality of refreshments served by his employer during an important new car launch.

However, in five cases involving Twitter and Facebook posts, the NLRB sided with the employers and found that employees acted improperly when posting work-related content on social media sites.

In a case involving a reporter who was fired for using Twitter and other social media sites to publicly post work-related information that included criticism of copy editors at the workplace, the NLRB concluded that the employer had acted properly because the reporter's social media activity did not constitute concerted activity -- it was not directed at other employees and was not aimed at initiating action.

In another incident, the NLRB ruled that a customer service employee's profanity-laden comments on Facebook about the management at the retail store he worked for was not protected because they were individual gripes and not concerted activity.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar's RSS feed . His email address is jvijayan@computerworld.com.

Copyright © 2011 IDG Communications, Inc.

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