Thursday, December 20, 2012
The Board recently released its decision in Hispanic United of Buffalo, in which it clarified the analysis for Facebook and other social media cases. The facts are fairly typical for the increasing number of Facebook cases. One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss. The co-worker posted a message on her Facebook page noting the criticism, saying she had "about had it," and asking her fellow co-workers how they felt. Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers. The employer fired all five for bullying the critical employee on Facebook.
All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations--Meyers Industries--is applicable. There wasn't much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it's newer and cooler than more traditional forms of communication. This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it's obviously a lot more helpful for the Board to make that clear.
There was a dissent by Member Hayes, who did not think that the activity was intended for mutual aid and protection. The dispute largely boiled down to how important was the fact that the coworkers didn't expressly determine that their posts were intended as a defense against possible consequences resulting from the criticism (only the original poster knew that the criticism was going to be provided to the employer). The majority believed that it was enough that the coworkers were acting collectively to defend themselves against criticism that might affect their employment. But, this is really more of a case-specific issue; the takeway from the decision is that the Meyers analysis applies to social media.
Hat Tip: Bill Herbert