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.
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.
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