The Sword and Shield of Social Networking: Harming Employers' Goodwill through Concerted Facebook Activity

By Merabet, Stephanie M. | Suffolk University Law Review, Fall 2013 | Go to article overview

The Sword and Shield of Social Networking: Harming Employers' Goodwill through Concerted Facebook Activity


Merabet, Stephanie M., Suffolk University Law Review


"Protected concerted activity usually isn't viewed as a carte blanche right to free speech, especially in an at-will-employment state. However, if successful, ... this case may end up being just that." (1)

I. Introduction

In early labor and employment law history, employers enjoyed unfettered power under the at-will employment doctrine, which allowed employees to be terminated for any reason, so long as they were not hired for a fixed term. (2) Seeking to remedy the harsh conditions imposed on working men, congress altered the employment dynamics by equalizing the previously employer-dominated at-will employment relationship. (3) Congress enacted the National Labor Relations Act (NLRA) to safeguard employee rights and prevent abuse by employers who enjoyed greater bargaining power. (4) Considered the heart of the NLRA, section 7 codifies the protections guaranteed to private sector employees--including the right to engage in protected concerted activity? Congress simultaneously created the National Labor Relations Board (NLRB) to ensure proper administration and enforcement of the NLRA and to provide employees with a forum to voice alleged violations. (6)

Congress has since amended the NLRA to better clarify the rights of both employers and employees, and to further strengthen the employment relationship. (7) For example, section 10(c) of the Taft-Hartley Act expressly reserves for employers the right to suspend or discharge employees for just cause, and also announces that the NLRB cannot impose an order of reinstatement or back pay. (8) The purposes of the NLRA in defining and protecting the rights of employees and employers are: encouraging meaningful bargaining, minimizing disputes, and eliminating harmful practices. (9) Although the NLRA is remedial (rather than criminal) in nature, increasing awareness about each party's rights and obligations facilitates dispute resolution in the employment relationship because all parties have an incentive to avoid violating the Act from the outset. (10) The NLRB attempts to balance the rights of employers and employees in order to make decisions that further the policy of industrial stability. (11)

On December 14, 2012, the NLRB sparked unease among employers when it affirmed an administrative law judge's (ALJ) ruling in Hispanics United of Buffalo, Inc. (Hispanics United) (12) that employee comments published on Facebook criticizing employment-related matters, could constitute protected concerted activity. (13) In reaction to a coworker's threat to raise concerns about poor job performance to a supervisor, Mariana Cole-Rivera complained about the coworker, by name, on her Facebook page and solicited responses from other coworkers. (14) The employer, Hispanics United of Buffalo, Inc. (HUB), terminated Ms. Cole-Rivera and four employees who responded to the post for harassing their fellow coworker in violation of HUB's policy against harassment. (15) Instead of promoting corrective action that would protect workers from being bullied, the NLRB determined that the employees' discharge amounted to a violation of section 8(a)(1) of the NLRA because the Facebook comments constituted protected concerted activity. (16) The comments received section 7 protection because they contained complaints about terms and conditions of employment, and were concerted because they provoked responses from several coworkers. (17) By qualifying disparaging Facebook comments as concerted activity, the NLRB granted almost complete immunity to public posts made by employees, so long as they provoke feedback from more than one employee. (18) The decision in Hispanics United leaves both the bullied employee's and the employer's online reputations unprotected, and further renders employers helpless in preventing exposure of their personal gripes with employees on the Internet. (19)

Hispanics United shifts the balance of power in favor of employees at the expense of employers. …

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The Sword and Shield of Social Networking: Harming Employers' Goodwill through Concerted Facebook Activity
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