NLRB Sues New York Non-Union Employer For Terminating Employees After They Complained About Working Conditions on Facebook
On May 9, 2011, The National Labor Relations Board ("NLRB") issued a complaint alleging that Hispanics United of Buffalo, Inc., a New York non-profit organization that provides social services to low-income clients, unlawfully discharged five employees after they complained about their working conditions in a Facebook discussion.
In this case, an employee was scheduled to meet with management to discuss working conditions. The day before the meeting, the employee posted on her personal Facebook page a comment by a co-worker that employees were not doing enough to help the organization's clients. Other employees posted comments, in which they defended their performance, and criticized working conditions, staff levels and workloads. When the employer learned of the postings, it fired the five employees who made the comments on the basis that their comments constituted harassment of the co-worker originally mentioned in the post.
However, the NLRB alleges that the Facebook discussion among coworkers, addressing working conditions like performance and staffing, constituted protected concerted activity within the meaning of Section 7 of the National Labor Relations Act ("NLRA") because it involved a conversation among co-workers about their terms and conditions of employment. The NLRA provides that "employees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection." 29 U.S.C. ยง 157.
It is well established that the NLRA's protection extends beyond the context of labor unions. Speech of an individual employee is "concerted" as long as it is engaged in with the object of initiating or inducing group action. N.L.R.B. v. Caval Tool Div., 262 F.3d 184 (2d Cir. 2001). When an individual expresses dissatisfaction with terms and condition of employment in front of his fellow employees, "the object of inducing group action need not be express." Timekeeping Sys., Inc., 323 NLRB 244, 247 (1997).
The courts and the NLRB have repeatedly found that individuals who challenge working conditions through online conversations are engaged in concerted activity. In Care Ambulance Service Inc. and Elizabeth Tello, an Individual, 2007 WL 3070947 (2007), two employees were exchanging email messages that involved shared concerns about working conditions, including their concern that other employees were receiving preferential treatment from management. The NLRB found that because the employees' "were voicing their concerns for the purpose of mutual aid or protection activity," the email exchange fell comfortably within the definition of concerted activity.
In American Postal Workers Union and Cheryl Alves, an Individual, 2006 WL 2559848 (2006), another case involving conversations online, the NLRB found that the purpose of the employees' emails was to express their concerns that they, as field employees, were being treated differently than headquarters employees. Since the employees' online activity directly related to their conditions of employment, it also constituted protected concerted activity under the NLRA.
If you believe that your employer retaliated against you for engaging in some "concerted activity," it's smart to immediately contact a New York employment attorney to preserve your rights.
