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May 19, 2011

NLRB Alleges Buffalo Nonprofit Unlawfully Terminated Employees for Facebook Comments

On May 18, 2011, the National Labor Relations Board (the “Board” or “NLRB”) announced that it had issued a complaint against Hispanics United of Buffalo for terminating the employment of five employees who posted comments on Facebook criticizing working conditions.   The Board’s news release is available online here.  The NLRB claims that the nonprofit organization terminated employees who commented on Facebook about a co-worker’s allegation that employees did not do enough to assist the organization’s clients.  In their Facebook posting, those five employees defended their job performance and criticized working conditions, including their work load and staffing issues.  The organization purportedly claims that the Facebook postings constituted harassment of the co-worker originally mentioned.   

The National Labor Relations Act makes it an unfair labor practice to take an adverse employment action against employees for engaging in protected concerted activity.  Employees engage in protected concerted activity when two or more employees communicate with each other about wages, hours, and other terms and conditions of employment.  The Board considers the Facebook comments to have been a conversation among co-workers about their terms and conditions of employment, and thus protected concerted activity. 

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This new complaint is the latest sign that the Board intends to vigorously protect the social media activities of all workers, regardless of union status.  We recommend that all employers review their social networking policies to ensure that the policy does not prohibit lawful activity.  If you should have any questions regarding this case or your social networking policies, please contact us.