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By H. Andrew Matzkin and Tyrone P. Thomas

On-line postings of employees related to the workplace are of obvious interest to employers. However, there are risks to employers who discipline employees for posting statements relating to the conditions of their workplace. An administrative law judge recently held that a New York nonprofit organization unlawfully terminated five employees for Facebook comments regarding their work conditions. As a result, all employers should review their social media policies and analyze the manner in which they conduct investigations of statements published on social networking sites.

The matter before Administrative Law Judge Arthur Amchan of the National Labor Relations Board (“NLRB”) arose from statements of five employees of Hispanics United of Buffalo, an entity providing social services to low-income clients. One of the organization’s employees posted allegations to her Facebook page about the failure of co-workers to adequately serve Hispanic United’s clients. Predictably, this post generated responses from other employees defending their performance and critical of working conditions, including staffing and workload. Hispanic United terminated the employment of five employees who participated in the discussion on the basis that their comments constituted harassment of the employee first mentioned in the posting.

In a ruling that sets new precedent for the NLRB, Judge Amchan found the Facebook discussion to be protected concerted activity under Section 7 of the National Labor Relations Act because it involved communications among employees about their terms and conditions of employment. Specifically, the communications addressed the issues of job performance and staffing levels. Judge Amchan also found the employees had not engaged in conduct which would forfeit the protections of the Act, ordered the reinstatement of the five employees, and awarded back pay to the terminated employees.

Other employers have similarly faced adverse decisions involving statements on social media. A Connecticut employer was unsuccessful last year in defending an allegation of unfair labor practice which involved, among other things, an employee calling their supervisor a “scumbag” and derogatory term for male genitalia. The NLRB found a violation of Section 8(a) as the basis of the employee’s complaint regarding his supervisor was being denied union representation in connection with drafting an incident report. It should be noted that employees can lose protection under the National Labor Relations Act if they engage in outrageously disgraceful conduct during the course of the protected activity, but the NLRB did not find the employee’s conduct to rise to this level.

As all employers are increasingly faced with the issue of managing statements made by employees in public forums and specifically, social networks, the Hispanics United decision is noteworthy. Employers should also be aware that the National Labor Relations Act protects both organized and non-organized employees, and, among other things, protects the rights of all employees (whether or not unionized) to discuss and engage in other concerted activity relating to their working conditions. Indeed, the Hispanics United ruling serves as a notice to all employers that this will be a growing and continuing concern.

Employers should consult with their legal advisor on the content and application of their social media policies for compliance with federal and state labor laws. In addition, employers should exercise care before investigating or disciplining employees for comments published on social networking sites.

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  ford | Washington www.mintz.com

We are quite proud of this accomplishment as we celebrate our eighth year in business this month. An even greater accomplishment was moving from number 21 to 17 on the list this year! We are cognizant of the fact that this has ONLY been made possible thanks to the loyalty of our client base, and the hard work and dedication of our staff. So, to our staff and our clients, a heartfelt THANK YOU for giving us the continued opportunity to work with you.