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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An administrative law judge for the National Labor Relations Board (NLRB) ruled that a Buffalo-based nonprofit organization acted illegally when it fired five employees last October for posting work-related comments on Facebook.

The case is the first involving Facebook comments to be decided by an administrative law judge, according to the NLRB.

In a 14-page ruling earlier this month, Judge Arthur Amchan ordered Hispanics United of Buffalo Inc. (HUB) to immediately reinstate all five employees and to pay them all back pay and benefits.

"Employees have a protected right to discuss matters affecting their employment amongst themselves," Amchan said in his ruling. "The Facebook posts were related to a co-worker's criticisms of employee job performance, a matter the [fired employees] had a protected right to discuss."

The NLRB statement announcing the outcome of the case includes a link to the judge's ruling.

HUB is a nonprofit organization that provides housing, counseling, translation, and interpretation services for economically disadvantaged people in the Buffalo, N.Y., area.

This is among a growing number of similar cases brought before the NLRB's Division of Advice over the past year.

In August, the NLRB's Office of General Counsel released a report summarizing the outcome of its investigations into 14 complaints involving use of Facebook, Twitter and other social media sites during the previous year. (The full report can be found here.)

NLRB decisions in those cases were split; some favored workers and others favored employers.

The decisions "make clear that an employer must tread very carefully in seeking to promulgate policies which regulate the activities of employees on social media sites," said Leah Williams, an associate with law firm Baker Hostetler in a blog post.

"Any policy which seeks to regulate discussion among employees concerning the workplace or their terms of employment will be deemed unlawful and overbroad by the NLRB to the extent that it regulates protected concerted activity," she wrote.

The HUB case stems from a complaint filed by one of the workers fired last year.

The incident started when a HUB employee posted comments about a co-worker on her personal Facebook page. The comments were related to criticism that the co-worker had made about the work ethics of some employees at HUB.

The posting elicited Facebook comments from four other HUB employees, who defended their work and criticized the working conditions and workload at HUB.

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