The National Labor Relations Board (NLRB) ruled that an employer’s termination of five employees over posts to the social media service Facebook violated the National Labor Relations Act (NLRA). In re Hispanics United of Buffalo and Ortiz, Case No. 03-CA-027872, decision and order (NLRB, Dec. 14, 2012). It rejected the employer’s argument that the employees’ posts violated its zero-tolerance policy regarding harassment of other employees. The ruling affirmed an earlier finding by an Administrative Law Judge (ALJ) that the employees’ posts were concerted activity protected by the NLRA.
Marianna Cole-Rivera and Lydia Cruz-Moore were employees of Hispanics United of Buffalo, Inc. (HUB), a nonprofit organization providing assistance to domestic violence victims and others. The two communicated frequently via telephone and text message, and Cruz-Rivera reportedly criticized other coworkers on a regular basis. Cole-Rivera reportedly received a text message from Cruz-Moore on Saturday, October 9, 2010, when neither person was at work, saying that Cruz-Moore intended to report her concerns about other employees’ performance to HUB’s executive director.
After replying to Cruz-Moore via text, Cole-Rivera posted a message to her Facebook page saying that Cruz-Moore felt that other employees “don’t help [their] clients enough,” id. at 2, and asking for other employees’ thoughts. Four HUB employees, all off-duty, responded with comments on the Facebook post. Cruz-Moore complained to the executive director and provided a printout of the post and its comments. The following Monday, the executive director fired Cole-Rivera and the other four employees for violating HUB’s “zero tolerance” policy towards “bullying and harassment.” Id.
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