Five employees unlawfully fired following Facebook posts
In the first ruling of its kind, a U.S. National Labor Relations Board Administrative Law Judge (ALJ) has found that a Buffalo, New York nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.
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.
On October 9, 2010 at 10:14 a.m., employee Mariana Cole-Rivera posted the following message on her Facebook page from her home:
“Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?”
Cole-Rivera’s coworkers commented on the posting, with replies like:
“What the Hell, we don’t have a life as is, What else can we do???”
“I think we should give our paychecks to our clients so they can “pay” the rent, also we can take them to their Dr’s appts, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries … (insert sarcasm here now)”
On October 12, HUB Director Lourdes Iglesias met individually with five of the employees who had made the Facebook posts on October 9 and fired each one of them. She told them that the posts constituted bullying and harassment and violated HUB’s policy on harassment. Iglesias did not terminate the employment of her secretary, Jessica Rivera, who had also entered a post on 35 Cole-Rivera’s Facebook page on October 9.
Administrative Law Judge Arthur Amchan issued his decision, 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 ordered that Hispanics United reinstate the five employees and awarded the employees back pay 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.
The decision is available online. (PDF)
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