Employees Fired for Facebook Posts Awarded Backpay

An administrative law judge recently found that an employer violated the National Labor Relations Act when it fired five employees for posting Facebook comments about a co-worker’s criticism of their work. The co-worker, Lydia Cruz-Moore, told the employees that she was going to tell a manager that they were not doing their jobs correctly. One employee posted a message on her own personal Facebook page regarding the complaint, and other employees, including Cruz-Moore, also posted comments. After Cruz-Moore informed the manager about the postings, the five employees who had posted comments were fired. The administrative law judge found that the employees had engaged in protected activity under the National Labor Relations Act, which guarantees the right of employees to engage in concerted activity for their mutual aid or protection. The judge found that the Facebook comments constituted concerted activity, even though the comments were not directed at the employer and were not intended to change the employees’ working conditions. The judge noted that the National Labor Relations Board has held that employee conversations about their concerns, including concerns about performance reviews or criticism, can be protected. The judge issued an order recommending that the employees be reinstated and offered back-pay and lost benefits.

TIP: Although the contours of what may constitute “protected activity” are still developing, employers should exercise caution in making employment decisions based on employees’ use of social media because such use may constitute concerted activity protected under the National Labor Relations Act.