Thursday, May 19, 2011

Another NLRB Facebook Case

NLRB The NLRB has just announced that it has another complaint involving Facebook.  Much like the earlier case, which caught a significant amount of attention, this case isn't that novel aside from the collective action happening to involve social media.  According to the Board's description:

The National Labor Relations Board has issued a complaint alleging that Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The complaint was issued May 9 by Rhonda Ley, NLRB Regional Director in Buffalo, New York.

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The complaint alleges that the 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.  Unless the case is settled, the complaint will be the subject of a hearing before an administrative law judge on June 22, 2011, in the Buffalo office of the NLRB.

Even more than the previous case, there doesn't seem to be a lot of legal issues here.  There is perhaps an argument that the intitial posting isn't protected, but the following messages seem classic concerted and protected communications.  The one question I have is whether they used any of the employer's equipment or networks, which could raise a Register-Guard problem.  Barring that, this seems to come down to whether the GC can prove its allegations about why the terminations occurred and whether there really was enough harassment to render the communications unprotected.


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