Standing Strong: Counsel Financial is fully operational & here to assist you with your financing needs.

Learn More

Does NLRB Decision Make Trash-Talking in Social Media a Protected Activity?

Counsel Financial

In light of the recent National Labor Relations Board (NLRB) decision in In re Hispanics United of Buffalo, Inc., No. 03-CA-027872, companies, both with and without unions, may want to take some time to reexamine their social media policies. Although the National Labor Relations Act of 1935 (NLRA) was enacted to prevent workers from being retaliated against for forming unions, the recent decision expands that protection to just about any worker who engages in “concerted activity” within the meaning of the act.

In a text message, Lydia Cruz-Moore told coworker Mariana Cole-Rivera of her intentions to tell Executive Director Lourdes Iglesias her concerns that the housing department employees at Hispanics United were failing to provide adequate and timely assistance to clients. Prompted by the text, Cole-Rivera posted a message on her Facebook page which read: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do you feel?”

Four off-duty employees responded to Cole-Rivera’s Facebook post, all of whom expressed objections to the contention that their work was of poor quality. After seeing the conversation thread, Cruz-Moore complained to Iglesias. Upon returning to work on Monday, Iglesias fired Cole-Rivera and her four co-workers, stating they were in violation of the company’s zero tolerance policy on harassment and bullying. This prompted the terminated employees to file an unfair labor practice charge with the NLRB, claiming that they were fired for engaging in “concerted activity” under the act.

The NLRB in In re Hispanics United of Buffalo, Inc. found that the Facebook posts written by those five terminated employees constituted “protected activity” under Section 8(a)(1) of the NLRA, and, as such, the terminations were violations of the NLRA. In making their decision, the Board considered whether the terminations met four elements that were set forth in the controlling case, Meyers Industries, 268 NLRB 493 (1983), including whether: (1) the employee’s activities were considered “concerted” for the “purpose of mutual aid or protection” under Section 7 of the NLRA; (2) the employer knew of the concerted nature of the employee’s activity; (3) the activity was protected under the NLRA; and (4) the termination was motivated by the concerted activity. This definition was expanded in Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), to include “circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.”

The Board found that the terminated employees were, in fact, taking a step toward group action in order to defend their job performance, which they reasonably could have believed was about to be attacked, despite not expressly stating so. Previously, in Relco Locomotives, Inc., 358 NLRB No. 37 (2012), the Board had decided that the goal of initiating concerted activity does not have to be stated explicitly, but rather, can be inferred from the surrounding circumstances.

Hispanics United argued that the terminated employees were employed at-will and as such, were rightfully discharged for their violations of the company’s zero tolerance policy. However, this argument was rejected by the Board, who reasoned that Hispanics United must follow Board law in applying their policies.

Hispanics United was ordered to offer the terminated employees full reinstatement to their former jobs or equivalent positions, removing any record of the unlawful discharges. Their seniority and privileges were not to be affected, and the company was ordered to make the employees whole for any loss of earnings and/or benefits, plus interest, resulting from their period of unemployment. Hispanics United is pursuing an appeal.

Though this decision seems strange to many, particularly to companies without unionized employees, both employers and employees alike should take precautions. Even in light of this decision, employees should not feel like they have been given the go-ahead to trash talk their employers on social media websites; instead, as is always prudent, they should continue to use caution in how they represent themselves online, and companies should remind their employees of this, without infringing on their rights.

Counsel Financial provides working capital credit lines up to $5 million exclusively for the plaintiffs' bar. Explore all of our financial solutions designed for contingent fee practice.