Employment Law Report

NLRB Administrative Law Judge Finds Discharges Over Facebook Postings Illegal

By Edwin S. Hopson

In the first ruling regarding discipline of employees for Facebook postings, a National Labor Relations Board Administrative Law Judge in Hispanics United of  Buffalo, Inc., JD 55-11 issued September 2, 2011, found this non-profit organization unlawfully discharged five of its employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues. After hearing a co-worker criticize other employees for allegedly not doing enough to assist the non-profit organization’s clients, the employee posted those same allegations on her Facebook page from her personal computer. That initial post prompted responses from other employees who defended their job performance and criticized working conditions at the non-profit organization. The employer brought the five employees in and discharged them.  It claimed that the discharges were due to the nature and tone of the postings which it characterized as bullying and harassment. 

The Administrative Law Judge, however, held that the remarks posted by the five employees was protected under Section 7 of the National Labor Relations Act (“Act”) and that, therefore, the discharges were violations of Section 8(a)(1) of the Act.  He ordered the five employees to be reinstated with backpay

The non-profit organization has a right of appeal to the Board in Washington,D.C.