Wyatt Employment Law Report


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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.


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NLRB Issues Complaint Over Discharges for Facebook Postings

By Edwin S. Hopson

On May 18, 2011, the National Labor Relations Board announced that its Regional Director inBuffalo,New Yorkhad issued a complaint alleging that a non-profit entity–Hispanics United ofBuffalo–that provides social services to low-income persons, has unlawfully fired five employees for criticizing working conditions, including work load and staffing issues, on Facebook.

 One employee, in advance of a meeting with management to discuss her working conditions, posted on Facebook her coworker’s claim that employees were not doing enough to help Hispanics United ofBuffalo’s clients.  Her initial post reportedly prompted responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. Hispanics United discharged the five employees claiming that their comments constituted harassment of the employee originally mentioned in the post.

 The NLRB Regional Director claims that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, since it is claimed that it involved a conversation among coworkers about their terms and conditions of employment.  A hearing on the complaint is set before NLRB Administrative Law Judge on June 22, 2011, in Buffalo.


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NLRB Case Involving Facebook Posting Has Been Settled

By Edwin S. Hopson

On February 7, 2011, the National Labor Relations Board announced that a complaint that had been issued against an ambulance service, American Medical Response of Connecticut, asserting that the company had unlawfully discharged one of its employees for posting a negative remark about a supervisor on her personal Facebook page had been settled. 

The NLRB’s Hartford, Connecticut Regional Director had issued a complaint on October 27, 2010, drawing national attention.

The Board’s complaint had also alleged that the company’s handbook contained overly-broad rules in its employee handbook directed at blogging, Internet posting, and communications between employees.  It also alleged that the company had illegally denied union representation to the employee during an investigatory interview.

Under the terms of the settlement approved by the NLRB’s Regional Director, the ambulance service, among other things, agreed to revise its handbook rules to eliminate improper restrictions on employee discussions regarding wages, hours and working conditions, both while at work and while away from work.

 The company also agreed that future employee requests for union representation would not be denied and that employees would not be threatened with discipline for requesting union representation. The issue of the employee’s discharge was resolved through a separate, private agreement between the employee and the company, according to the NLRB’s press release.


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Court Allows Discovery of Social Networking Postings in Discrimination Case

By Debra H. Dawahare 

The United States District Court for the Eastern District of Indiana has recently ruled that complainants in a discrimination case must produce information posted on their MySpace and Facebook pages, in response to the defendant company’s discovery requests.  

In Equal Employment Opportunity Commission v Simply Storage Mgmt. LLC, et.al., 2010 WL 3446105 (S.D. Ind. May 11, 2010), the EEOC objected to these discovery requests: 

REQUEST NO. 1:  All photographs or videos posted by [complainant] or anyone on her behalf on Facebook or MySpace from April 23, 2007 through the present.

REQUEST NO. 2:  Electronic copies of [complainant’s] complete profile on Facebook and MySpace (including all updates, changes or modifications to [complainant’s] profile) and all status, updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including but not limited to “How well do you know me” and the “Naughty Application”) for the period from April 23, 2007 to the present.  To the extent electronic copies are not available, please provide the documents in hard copy form.

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NLRB Issues Complaint Over Employee’s Posting on Facebook

By Edwin S. Hopson and Kim Koratsky

On November 2, 2010, the National Labor Relations Board (NLRB) announced that its Hartford, CT Regional Director had issued a complaint against an ambulance service, American Medical Response of Connecticut, asserting that the company had unlawfully discharged one of its employees for posting a negative remark about a supervisor on her personal Facebook page.  The NLRB also alleged that the employer denied the employee union representation during its investigatory interview and that it was maintaining and enforcing an overly broad internet policy.

The New York Times is reporting that this is the first case where the NLRB has stepped in to contend that criticism of an employer on a social networking site is generally a protected activity and that employers could be violating the law by punishing employees for such statements.

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