NLRB Administrative Law Judge finds that company violated the National Labor Relations Act for terminating employees based on Facebook posts.

On September 2, 2011, an NLRB Adminstrative Law Judge issued a decision finding that a nonprofit organization violated the National Labor Relations Act (the "Act") and unlawfully discharged five employees based on comments made on Facebook.

Hispanics United of Buffalo, Inc. is a non-profit company in Buffalo, New York, that provides social services to disadvantaged clients. An employee of the company posed a question on her Facebook page, as follows: "Lydia Cruz, a coworker feels that we don't help our clients enough at HUB I about had it! My fellow coworkers how do u feel?" Four of her co-workers replied to the Facebook post, and a discussion ensued, in which the discussion generally focused on work and staffing issues.

The Facebook posts were all made on a Saturday morning, and from the home computers of each employee. Three days later (on October 12, 2010), the company fired all five of the employees, on the grounds that the posts constituted bullying and harassment, and violated the company's harassment policy. The company did not dispute that the Facebook posts were the sole reason that the five employees were terminated.

In the NLRB's first case involving Facebook to go to a hearing and result in a Judge's decision, the Judge determined that the Facebook posts related to working conditions, that the employees had engaged in activity protected by the Act, and that the nature of the Facebook posts did not rise to the level of misconduct that should forfeit the protections of the Act. Specifically, the Judge found that "[e]mployees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected [by the Act]."

Accordingly, the Judge determined that the company violated the Act and discriminatorily discharged the five employees. The Judge ruled that the company must offer the five employees reinstatement, and pay them for all of their lost earnings and other benefits, with interest compounded daily. The Judge also ruled that the company must post a certain notice regarding employee rights under the Act and the details about the violations that had been found. The company, of course, has the right to appeal the Judge's decision.

A full copy of the ALJ's decision (including a complete copy of the Facebook discussion) can be found here.