As if compliance officers do not have enough on their plates.  I have written about this before – the risks of interfering with employees’ “protected activity” on social media.  What a nightmare and what a maze of confusion!

The National Labor Relations Board, which has been re-energized under the Obama Administration, affirmed an Administrative Law Judge’s ruling that the nonprofit, Hispanics United of Buffalo, Inc. violated the National Labor Relations Act by terminating five employees for comments they made on Facebook in response to a coworker’s criticism of their job performance.

Two coworkers employed by HUB to assist victims of domestic violence regularly frequently communicated with each other using text messages outside of work.  One weekend day one of the coworkers received a text (“recipient” from the other coworker (“sender”) criticizing the recipient’s job performance and stating that the sender planned to report the recipient to the Executive Director of the organization.

The recipient then posted a note on her Facebook page stating: “[Sender], a coworker feels that we don’t help our clients enough…I about had it! My fellow coworkers how do u feel?”

Four off-duty employees responded to the note on Facebook objecting to the criticism of their work by the [sender]. The [sender] responded on Facebook and demanded that the [recipient] “stop with ur lies about me.”  The [sender] then complained about the Facebook comments to the executive director of the organization.

The executive director then fired the recipient and the four coworkers for “bullying and harassing” the [sender] on Facebook citing its “zero tolerance” for harassment policy. None of the employees were represented by a union.

The Board upheld the ALJ’s determination that the executive director’s action violated the NLRA because:

(1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act;

(2) the employer knew of the concerted nature of the employee’s activity;

(3) the concerted activity was protected by the Act, and

(4) the discipline or discharge was motivated by the employee’s protected, concerted activity.

The primary issue was whether the employees’ Facebook postings constituted concerted activity. The Board upheld the ALJ’s determination that the employees’ comments of protest with other employees was concerted activity because the communications related to an employment complaint against one employee, and the postings were an important step in defending themselves against the accusations which they had reason to believe the [sender] was going to make to management.

The Board rejected the organization’s claim that the employees were fired pursuant to the “zero tolerance policy” because “legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity.”

The NLRB’s decision is a step closer to creating a “zone of protected activity” over every discussion or communication about employment even when it has nothing to do with a union or union activity.  Moreover, the NLRB has demonstrated that it will protect communications which are remotely connected to “organizing” or group activity.  Employers need to tread carefully when any potential disciplinary action is based on communications among employees, especially in these days where social media is so pervasive and accessible to so many employees.