Facebook Suit Highlights Employers' Misunderstanding of Labor Laws

A complaint recently filed by federal labor officials against a Buffalo, N.Y., nonprofit highlights misunderstandings that many employers have about workers' activities that are protected by law.

In a statement Wednesday, the National Labor Relations Board said it was challenging the dismissal of five employees of Hispanics United, a social-service organization, for firing five workers over statements that they posted on social networking website Facebook.

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The case involves an employee who, prior to meeting with Hispanics United management about working conditions, posted to her Facebook page a co-worker's allegation that employees didn't do enough to help the organization's clients.

That post in turn generated comments from other employees who defended their work and criticized working conditions, including workload and staffing issues. Upon learning of the posts, Hispanics United fired the five employees, claiming that their comments constituted harassment of the employee originally mentioned in the post.

In its statement, the NLRB said that the Facebook postings were "protected concerted activity" under the National Labor Relations Act, "because it involved a conversation among co-workers about their terms and conditions of employment, including their job performance and staffing levels."

That's a point often lost on many employers, says Laura Hertzog, an employment-law expert at Cornell University's ILR School in New York City.

Rule Covers More Than Union Activity

Employers often misconstrue a certain section of the National Labor Relations Act, believing it only applies to workers governed by collective-bargaining agreements.

"If you read it quickly, people think it applies to union activity," Hertzog says. Though Section 7 -- the segment in question -- explicitly lists union-related activities that are protected, it also notes other protected activities. "And that's the piece that [employers] seem to miss," she says.

Specifically, the law says that employees are permitted to engage in "other concerted activities," as noted in the NLRB statement, which essentially means "employees doing something together," Hertzog says.

The law extends that protection not only to union activities but to other mutual aid and protection, which Hertzog says is "actually defined pretty broadly." It includes, for example, two or more employees talking about wages, hours and work conditions.

Hertzog says the law generally doesn't generally apply to those workers in supervisory roles, and wouldn't include discussions of things such as products made by the company that the workers are employed by.

Based on her reading of the NLRB complaint, Hispanic United failed to recognize that the employees were engaging in protected activities, Hertzog says. Further, she says that Hispanics United's claim that the five employees harassed the first person doesn't hold water.

Harassment Is No Justification

Harassment involves much more than simply being mean to somebody, Hertzog says. "People are mean to each other in the workplace all the time." And although employers are required to stop harassment, she says, "they're not required or justified in doing something illegal to stop somebody being mean to somebody else."

The case is to go before an NLRB administrative judge in Buffalo on June 22, unless the parties involved settle before then.

The Hispanics United complaint is the latest in a string of cases involving employer actions taken against employees for posting comments on Facebook, Twitter and other social networking sites.

The latest of those involves a high school coach and substitute teacher in suburban Boston who was fired Wednesday after he posted what school officials said were "inappropriate communications" to students on Facebook.

School officials said that police have begun an investigation in the wake of the dismissal. The teacher, Jon O'Keefe, was terminated after students complained about the comments to school officials Monday afternoon.

Next: 10 Workplace Rights You Think You Have -- But Don't

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David Schepp

Staff Writer

David Schepp has spent more than a dozen years covering business news for the electronic and print media, including Dow Jones Newswires, BBC News, Gannett Co., and most recently at AOL's DailyFinance. Nearly 10 years ago, he started writing a weekly People@Work column, looking in depth at issues facing workers in today's workplace. The syndicated column appeared in newspapers and websites nationwide before it made its debut on DailyFinance in 2010. Schepp now continues that tradition at Aol Jobs, covering the jobs beat and providing readers insight and analysis into the nation's challenging employment scene.

Schepp holds a Bachelor of Arts degree in journalism from Metropolitan State College of Denver.

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The company policy manual says you can be fired for this "legal act" that of
conversation among co-workers about their terms and conditions of employment.
Let the fine be large enough...........to stop these illegal acts....

May 24 2011 at 11:34 AM Report abuse rate up rate down Reply
Donna Jean

A proper Union can really help a Company while making sure the Employees are treated properly. Do you really think your Employer has any idea what your Supervisor is doing? All levels of Management tries to hide problems. Management can be fired for any reason so Management tries to keep their Supervisors in the dark.

Do you know you have to be paid overtime after 40 hours a week. Your Employer can not work you 30 hours one week and 50 hours the next week and refuse to pay you overtime. Check out Department of Labor, Wage and Hour division at DOL.gov or check with your own States labor department.

May 24 2011 at 11:13 AM Report abuse rate up rate down Reply

Those who are anti-union never worked at Wal-Mart or Burger barn for a part-time, minimum wage, no benefit,no future job, with crappy treatment because someone else will take your job. Matter of fact the emplpyer hopes you leave before too long so you don't ask for a raise or better conditions. Employers will try to take employees back to the 1860's with no benefits, 7 day workweek ,no vacation ,unsafe conditions and any other way to make the workers suffer. Employers hate their employees and wish they could eliminate them. If they cannot eliminate them they want to treat them as poorly and pay as little as they can. I am not a liberal but 64 year old who ran small bsiness and then worked as an hourly employerre for 20 years.

May 24 2011 at 10:48 AM Report abuse +2 rate up rate down Reply
1 reply to dodie1990's comment

They have already done that ... look at the conditions they created when they sent our jobs overseas ... India ... China ... Mexico ... South America ... Third world countries with third world conditions. Now those workers are pushing back. That's the reason for the current uptick in hiring here. No corporations are trying to create second world countries and the US is where they are going first. Look at the salaries they are offering ... 1980's rates. Hey, it's 2011.
Workers of the world unite.

May 24 2011 at 10:54 AM Report abuse +1 rate up rate down Reply

To each his own, pog mo thoin (pronounced hone) ... and workers of the world unite.

May 24 2011 at 10:41 AM Report abuse rate up rate down Reply

Let's get some more labor laws on the books. Barack, see to it that more cumbersome labor laws
are established so companies will outsource more and destroy more American dreams, families and
" The Road to Hell is paved with good intentions"

May 24 2011 at 10:37 AM Report abuse -1 rate up rate down Reply
Don Collins

there has not been one person I talked to who was anti-union that had a paid vacation, medical, dental, life insurance, or any other benefit a full time worker is entitled to unless your in management. So yes do away with the unions and work for the 'MAN' at poverty level rates so you can go out and buy that new car. I'm talking to idiots like Lenny and his peace sign symbol that added his idiotic comment.

May 24 2011 at 9:36 AM Report abuse +1 rate up rate down Reply
1 reply to Don Collins's comment

You obviously don't get around much................

May 24 2011 at 10:16 AM Report abuse -4 rate up rate down Reply

This is not a case of "protected concerted activity." When a number of employees for a company goes to a public forum and publicizes aspects of that company's policies and protocols, that is a PUBLIC PROTEST. Did these 5 employees file complaints with management before they made them public? No following chain of command, no mercy. Why is it the federal government's business in this anyway? Moreover, why the heck do we taxpayers have to pay for the federal government to perpetrate this interference in private industry? Of course, when I say government, in this case I mean a union puppet parading as a government organization named National Labor Relations Board.

May 24 2011 at 9:31 AM Report abuse -1 rate up rate down Reply
2 replies to Angela's comment

Angela ... you really have to read that ... Bill of Rights thing. Amendment number 1, the very first one ... freedom of speech ... freedom of assembly ... what a concept.

May 24 2011 at 10:56 AM Report abuse rate up rate down Reply

The company policy manual says you can be fired for this "legal act" that of
conversation among co-workers about their terms and conditions of employment.
Let the fine be large enough...........to stop these illegal acts....

May 24 2011 at 11:35 AM Report abuse rate up rate down Reply

In the corporate autocracy that we've become, the people who own & run this country ( the big corporations who own most of our politicians ) want us to become " one nation under educated " so they can continue to get over on us. The dumber people are the easier it is to fool them , it's been going on since early civilization. And looks like it'll continue as long as there are angry , emotional, naive , under educated voters out there who continue to vote with their emotions rather than their heads . I think Will Rodgers said it best " we have the best politicians money can buy " and we do nothing about it !

May 24 2011 at 9:15 AM Report abuse +2 rate up rate down Reply

These employers today, my gosh, no common sense.

May 24 2011 at 8:43 AM Report abuse +2 rate up rate down Reply

Time to end unions.

May 24 2011 at 7:25 AM Report abuse -1 rate up rate down Reply
2 replies to Lenny's comment

Yeah , end the unions lets go back to the good old days working 12 -14 hrs. for minimum wage, unions who needs them ( damn )

May 24 2011 at 9:22 AM Report abuse +3 rate up rate down Reply

union workers are rated " just cause " workers and have employee rights. We non union workers have no employee rights. We don't need to end the unions we need to end the "at will" agreements that strip employees of their rights to fair treatment in the workplace. The agreement gives the employer unprecedented power that they are not entitled to.

May 24 2011 at 9:23 AM Report abuse +4 rate up rate down Reply
1 reply to eledude's comment

I couldnt agree more!!!!!!

May 24 2011 at 9:49 AM Report abuse +3 rate up rate down

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