The National Labor Relations Board (NLRB) is back at it again, and so are the writers on the LexBlog Network. Over the past year, the NLRB has slowly painted a picture of how the Board views “protected concerted activity” with respect to social media, but it wasn’t until last Friday that the NLRB had taken any stance outside of issuing advice memorandums. Right before Labor Day weekend was set to begin, an Administrative Law Judge (ALJ), Arthur J. Amchan, issued his decision in Hispanics United of Buffalo, Case No. 3-CA-27872 (PDF), after holding a hearing from July 13th-15th.
As an avid user of Facebook, I’ve seen more than one friend air out a compliant aimed at management or corporate policies. While I seriously doubt these comments led to any sort of legal action, it’s becoming more common to hear of instances where status updates or wall postings on Facebook have caused employers to take action against employees.
The Hispanics United of Buffalo case follows a familiar story-line, but an ALJ creating precedent protecting speech on a social media website makes this a news-worthy decision. While the timing of the story took away some of its buzz, members of the LexBlog Network are beginning to dive into the decision, and analyze what this means for employers and employees.
Seth Borden of Labor Relations Today, and a partner at McKenna Long & Aldridge LLP starts the discussion with a detailed breakdown of the case and the ALJ’s conclusion:
“The first Administrative Law Judge ruling has come down in a social media case before the National Labor Relations Board. In a September 2, 2011 decision in Hispanics United of Buffalo, 3-CA-27872, an ALJ has ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker’s complaint about their job performance.
One of the employer’s domestic violence advocates frequently complained about her co-workers not doing enough to help the organization’s clients. One Saturday, off-clock, at home, a co-worker posted a message on her own Facebook page identifying the employee’s criticism and seeking her co-workers’ opinions about it. At least five co-workers responded, posting defenses and and commentary on staffing levels and other working conditions.”
Michael Schmidt editor of the Social Media Employment Law Blog and member of Cozen O’Connor’s Labor & Employment Practice Group, follows with his analysis of what employers should take from this case:
“This post-hearing decision, while novel, is not terribly surprising, particularly in light of what we have seen from the NLRB over the past year. The facts here appear to be on one extreme side of the spectrum, where you have more than just an individual ranting about more than just a personal dispute, and a “concerted” discussion being had about general job conditions. Still, this decision does suggest that “concerted activity” protection will trump certain general employment policies maintained by an employer, particularly when there is an insufficient showing that employee conduct in violation of such policies was truly significant.”
Over at the Connecticut Employment Law Blog, Daniel Schwartz cautions against reading too much into this judgement, and looks at the impact on Connecticut employers:
“Frankly, given the positions staked out by the NLRB, the ALJ’s decision isn’t particularly surprising. For well over a year, the NLRB has been seeking to have an expansive interpretation of what it means to be engaged in “protected concerted activity” and social media just falls within that view.
Remember too, that we have yet to see a full NLRB decision on the topic and have not seen any appeals to federal court either. Nevertheless, this ALJ decision will certainly be used in other cases as precedent.
Employers in Connecticut have long had to worry about the free speech rights of employees. Conn. Gen. Stat. Sec. 31-51q grants private employees some free speech rights. The scope of what that section means is actually the subject of two appeals to the Connecticut Supreme Court that were argued earlier this year.”
And this isn’t the only news the NLRB has been making. Recently, the Board made waves with a series of decisions that would seem to be pro-union in nature, as well as adding to the list of required notices in workplaces.
Thomas Pence on Foley & Lardner‘s Labor & Employment Law Perspectives questions whether or not this lean to the left will persist:
“Because members of the Board are appointed by the president (subject to approval by the U.S. Senate), historically the Board generally tilts to some extent either pro-employer or pro-union depending on who is in the White House. That is certainly true today — a majority of the members on the current Board have very pro-union backgrounds, and the decisions being issued by the Board reflect a rather dramatic pro-union bias. There were four significant examples of this pro-union tilt in just the last week:
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How long will this pro-union tilt continue? If a Republican is elected president in 2012, there would likely be a shift back in the direction of employers. But in the shorter term, it is possible the Board will lose its ability to issue decisions at the end of 2011. The Board is normally supposed to have five members. Currently, there are only three members, and the term of one of those members expires at the end of the year. At that point, unless the Republicans in the Senate decide not to block other nominees, there will be only two members on the Board, which is not a sufficient quorum to make decisions.”
And Jim Shore of Stoel Rives discusses the NLRB’s issuance of a final rule requiring employers to post notice of employee rights under the National Labor Relations Act (“NLRA”):
“The notice must be posted by no later than November 14, 2011. The new rule is one of many new developments arising from the current NLRB’s implementation of the Obama administration’s labor policy.
This new notice is a form designed by the NLRB. Among other things, it contains:
· A summary of employee rights under the NLRA, including the right to discuss wages and working conditions with co-workers or a union, form or join a union, take collective action to improve working conditions, and engage in other protected activities.
· Examples of violations of those rights, and an affirmation that unlawful conduct will not be permitted.
· Information about the NLRB, the NLRB’s contact information, and details on how to file an unfair labor practice charge with the NLRB.
· A statement about the employer’s obligation to bargain in good faith if a union has been selected by employees.”
What does all this mean? Personally, I tend to agree with Mr. Daniel Schwartz. While this news does give lawyers more courtroom fodder when trotting out new cases involving social media and employment law, it’s not at all shocking. The NLRB has been moving in this direction for the past year, and a decision by an ALJ doesn’t carry the same weight as a full decision by the NLRB or a federal appeals court. Until something like that happens, we’re still in no-man’s land the next time a “Facebook firing” comes around.
#NLRBfacebookfiring