Earlier this year, reports of a Connecticut ambulance company firing an employee who had complained about her supervisor on Facebook, grabbed the headlines. The National Labor Relations Board (NLRB) complained that the firing was illegal. And although the company contended that it did nothing wrong, free speech advocates spewed hellfire and brimstone. Ultimately, the bloodlust subsided when that case settled.
Several months later, the NLRB is at it again. However, this time, for the first time, an NLRB Administrative Law Judge (ALJ) has found, after a full hearing, that an employer unlawfully fired employees for Facebook postings. Oh, by the way, the employer involved is non-union. More on this important decision and what it means for private employers after the jump.
The right to free speech versus the right to engage in concerted activity
Before I dispense with the facts of the case, I need to dispel a popular misconception. Employees in the private sector have no constitutional right to free speech. Period.
Employees in either union or union-free businesses do, however, have the right to engage in concerted activity. Concerted activities are those engaged in with or on the authority of other employees, and not solely by or on behalf of the employee himself. Put simply, concerted activity is a call to action. Examples include two or more employees: (a) addressing their employer about improving their working conditions and pay; or (b) discussing pay or other work-related issues with each other. Even individual action can be concerted so long as it is engaged in which the object of initiating or inducing group action.
If an employer disciplines an employee for engaging in concerted activity, that employer — union or non-union — has violated Section 8(a)(1) of the National Labor Relations Act (NLRA).
What did the employer here do and where did it go wrong?
The facts of Hispanics United of Buffalo, Inc. boil down to these few:
- Hispanics United of Buffalo, Inc. is a non-union employer;
- Employee 2 posts a complaint about Employee 1 on Facebook;
- Employees 3, 4, 5, and 6 comment on the post and, in doing so, complain about working conditions;
- The Facebook comments are largely sarcastic and include profanity; and
- The company fires Employees 2-6 solely for their Facebook comments.
According to the ALJ, the behavior of Employees 2-6 constituted protected concerted activity because they had exercised their right to discuss matters affecting their employment amongst themselves — whether “at the water-cooler”, or online. It did not matter that Employees 2-6 were not trying to change their working conditions and that they did not communicate their concerns to their employer. Their activities were nonetheless protected. Therefore, the employer may not discipline them for taking those actions.
A few takeaways from this case.
Before employers everywhere complain that the sky is falling, here are three points to help regain some perspective.
- Individual employees don’t have carte blanche to talk smack online. See this July 29 post. One employee merely griping about his employer does not reach the level of protected concerted activity. Be wary, however, when a group of employees engage in an online dialogue about the workplace. And when you fire all of them together, look out.
- Employees who break the law generally don’t get saved by the “protected concerted activity” defense. For example, those who use Facebook to unlawfully discriminate or harass cannot be saved by claiming that those posts constitute protected concerted activity.
- The law is just beginning to develop. Understatement of the year. This is the first case decided on the issue of Facebook firings in the context of concerted activity. While employers should take note and learn from it, I can’t imagine it will be too long before an NLRB decision is appealed to a federal court. We’ll see what happens then.
However, let’s emphasize again that the National Labor Relations Act applies to union and non-union employers alike. It just so happens that it is more likely that the NLRB will get involved in the union setting because the union will have filed an unfair labor practice charge with the NLRB. However, if that same charge is filed in a non-union workplace, the NLRB will get involved — as it did here.