Judge rules in favor of employees fired over Facebook post, orders them back to work

The National Labor Relations Board has weighed in on the role of social networking at the office, determining that employees can't be fired for what they post on Facebook -- as long as they use the platform to talk about improving their workplace. The NLRB's ruling, announced on Wednesday, stems from an incident last year, when an employee at the Hispanics United of Buffalo non-profit organization went on Facebook to complain about a co-worker who accused her of slacking off at the office. Other colleagues soon chimed in on the woman's wall post with a slew of profanity-laced comments, before the targeted employee noticed the thread and reported it to a supervisor. Citing the agency's zero-tolerance policy on cyber harassment, the boss fired the five employees who participated in the online discussion -- including one who went on to file a complaint with the NLRB.

Last week, administrative law Judge Arthur Amchan finally issued a verdict in the case, determining that the employees retained the right to talk about "their terms and conditions of employment," as stipulated under the National Labor Relations Act. Because this particular Facebook thread involved discussion of "job performance and staffing levels," Amchan ordered Hispanics United to reinstate the employees. The decision marks the first time that an administrative judge has ruled on a Facebook-related workplace case, though the NLRB says it's received "an increasing number of charges related to social media in the past year" -- so it likely won't be the last. You can read the Board's statement in full, after the break.

Show full PR text

Administrative Law Judge finds New York nonprofit unlawfully discharged employees following Facebook posts

September 07, 2011

In the first ruling of its kind, a National Labor Relations Board Administrative Law Judge has found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

The NLRB has received an increasing number of charges related to social media in the past year, as that means of communication grows in popularity. The Office of General Counsel issued a report last month outlining some of the cases. This is the first case involving Facebook to have resulted in an ALJ decision following a hearing.

The case involves an employee of Hispanics United of Buffalo, which provides social services to low-income clients. After hearing a coworker criticize other employees for not doing enough to help the organization's clients, the employee posted those allegations to her Facebook page. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. Hispanics United later discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The case was heard by Administrative Law Judge Arthur Amchan on July 13-15, 2011, based on a complaint that issued May 9 by Rhonda Ley, NLRB Regional Director in Buffalo, New York.

Judge Amchan issued his decision on September 2, finding that the employees' Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. The judge also found that the employees did not engage in any conduct that forfeited their protection under the Act.

Judge Amchan orderedthat Hispanics United reinstate the five employees and awarded the employees backpay because they were unlawfully discharged. The judge's decision also requires that Hispanics United post a notice at its Buffalo facility concerning employee rights under the Act and the violations found. Hispanics United has the right to appeal the decision to the Board in Washington.