By Nelson Cary and Ashley Manfull

On September 2, 2011, an NLRB Administrative Law Judge (ALJ) issued the first decision on the question of employees’ Facebook posts. The decision, applying a liberal interpretation of protected, concerted activity under the NLRA to the online activities of employees, comes on the heels of the Office of the General Counsel’s report on social media cases issued last month. 

In Hispanics United of Buffalo, Inc. and Carlos Ortiz, ALJ Case No. 3-CA-27872, the ALJ ruled that five employees of a non-profit organization were unlawfully terminated for engaging in protected, concerted activity based on a series of Facebook posts which were made outside the workplace during non-working hours. The facts of the case are summarized in a prior blog post.

In finding a violation, the ALJ found the employees’ Facebook discussion constituted protected, concerted activity under Section 7 of the NLRA. When the first employee enlisted the support of her fellow employees to respond to criticism regarding their job performance, she was engaged in concerted activity just as much as “ordinary group activity” that does not take place online.

Applying a very liberal interpretation of concerted activity, the ALJ ruled that it was irrelevant that the employees were not trying to change their working conditions and did not communicate their concerns to their employer. The ALJ held that it was sufficient that the employees were taking a first step towards group action to defend themselves from a coworker’s accusations which they “could reasonably believe” the coworker may communicate to management.

Ultimately, the ALJ concluded that by discharging the five employees, the employer prevented them from taking any further group action regarding their coworker’s criticisms. It was irrelevant that there was no express evidence that the employees even intended to take further action in response to the criticism. The ALJ ordered HUB to reinstate the five employees with full back pay.

Under the NLRB’s process, the ALJ’s decision is now subject to appeal to the full NLRB. Thus, it is possible that the NLRB might rule differently, or the case may be settled before the NLRB has an opportunity to issue an opinion that would provide firm guidance. Nonetheless, the ALJ’s opinion is one that could be followed by other ALJs confronted with similar questions.

Practicing labor professionals know that issues surrounding employee rights with respect to social media are gaining increased attention. This is an area of the law that will continue to develop as more complex issues arise. Before addressing any issue with an employee regarding the use of social media during non-working hours, labor relations professionals should keep these recent developments in mind and thoroughly analyze the possibility of protected, concerted activity challenges to employee discipline.