Administrative Law Judge finds New York nonprofit unlawfully discharged employees following Facebook posts

In the first ruling of its kind, a National Labor Relations Board Administrative Law Judge has found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.  

The NLRB has received an increasing number of charges related to social media in the past year, as that means of communication grows in popularity. The Office of General Counsel issued a report last month outlining some of the cases. This is the first case involving Facebook to have resulted in an ALJ decision following a hearing.

The case involves an employee of Hispanics United of Buffalo, which provides social services to low-income clients. After hearing a coworker criticize other employees for not doing enough to help the organization’s clients, the employee posted those allegations to her Facebook page.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. Hispanics United later discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The case was heard by Administrative Law Judge Arthur Amchan on July 13-15, 2011, based on a complaint that issued May 9 by Rhonda Ley, NLRB Regional Director in Buffalo, New York. 

Judge Amchan issued his decision on September 2, finding that the employees’ Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.  The judge also found that the employees did not engage in any conduct that forfeited their protection under the Act.

Judge Amchan orderedthat Hispanics United reinstate the five employees and awarded the employees backpay because they were unlawfully discharged.  The judge’s decision also requires that Hispanics United post a notice at its Buffalo facility concerning employee rights under the Act and the violations found.  Hispanics United has the right to appeal the decision to the Board in Washington.