The NLRA protects the rights of employees to “engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. §157 (2006). The NLRB has traditionally interpreted this provision as protecting employees’ right to discuss the terms and conditions of employment over the “water cooler,” reasoning that such conversations are a first step toward collective action.
In Hispanics United of Buffalo, Inc. v. Ortiz, 2011 WL 3894520 (N.L.R.B. Div. of Judges Sept. 2, 2011), an Administrative Law Judge (ALJ) extended this reasoning to find an employees’ work-related Facebook posts also constituted “protected concerted activity.” In Hispanics United, employee Lydia Cruz-Moore spoke to her coworker, Mariana Cole-Rivera, about her coworkers’ poor job performance. Cole-Rivera subsequently posted on her Facebook page: “A coworker feels that we don’t help our clients enough…I about had it! My fellow coworkers how do you feel?”
Four employees responded to Cole-Rivera’s post by defending their job performance and emphasizing the difficulty of their jobs. When Hispanics United learned about the Facebook posts, it fired Cole-Rivera and the four other posters, claiming that the comments harassed Cruz-Moore.
The ALJ ruled that the employees’ discharge violated the NLRA, reasoning that Facebook posts are analogous to workers who criticize their employers at work. The ALJ ordered the employer to reinstate and provide backpay to the fired workers and to post a notice at their plant informing other workers of the violation.