Social service provider told to re-hire staff sacked for Facebook comments

The US National Labour Relations Board (NLRB) ruled that Hispanics United of Buffalo (HUB), a social service provider, had to offer five people it had previously sacked their jobs back. The NLRB said HUB had not been justified in sacking them.

"[HUB], having discriminatorily discharged employees, must offer them reinstatement and make them whole for any loss of earnings and other benefits," the NLRB said in its ruling (14-page / 158KB PDF).

HUB sacked Mariana Cole-Rivera, Carlos Ortiz de Jesus, Ludimar Rodriguez, Damicela Rodriguez and Yaritza Campos in October 2010 following Facebook posts each had made on the previous Saturday.

Lydia Cruz-Moore, another HUB employee who worked at a different unit, had told Cole-Rivera that she was going to tell HUB Executive Director Lourdes Iglesias that she had concerns about staff in HUB's housing unit.

Cole-Rivera posted on Facebook that Cruz-Moore thought staff did not help HUB's clients enough and asked her co-workers to comment. Ortiz de Jesus, Rodriguez, Rodriguez and Campos were among those who responded with varied comments about their existing workload, service provision and work-life balance, the ruling said.

Cruz-Moore accused Cole-Rivera of "lies" and complained to HUB's Director Lourdes Iglesias about the posts. Iglesias sacked the five employees, claiming they had bullied and harassed Cruz-Moore and violated the firm's harassment policy. Iglesias said he had to sack the five employees because Cruz-Moore had suffered a heart attack as a result of their harassment which the company had to payout compensation for, the ruling said.

Ortiz de Jesus appealed to the NLRB to overturn HUB's decision claiming the company had violated the National Labor Relations Act.

Under the Act it is an unfair practice "to interfere with, restrain or coerce employees in the exercise of the rights ... [of employees who] have the right to self-organisation, to form, join, or assist labor organisations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection".

The sacked employees had claimed that their activity was "protected" under the Act and that, as a result, HUB had violated the Act by terminating their employment, the ruling said.

The NLRB said that the Act affords employees a "protected right to discuss matters affecting their employment amongst themselves".

"Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected," the ruling said.

"That is particularly true in this case, where at least some of the [sacked employees] had an expectation that Lydia Cruz-Moore might take her criticisms to management. By terminating the five [sacked employees] for discussing Ms. Cruz-Moore's criticisms of HUB employees' work,

[HUB] violated [the National Labor Relations Act]," the ruling said.

The NLRB said that because HUB had accused the five sacked employees of bullying and harassment it had to decide whether the conduct was "so opprobrious" that the employees should "lose protection under the Act". The NLRB said the employee's conduct was acceptable because they had been entitled to discuss the work-related issues, had done so in a reasonable way and had done so outwith the work place and outside working hours.

"Applying these factors, there is no basis for denying any of the five [sacked employees] the protection of the Act," the ruling said.

The NLRB said that HUB could not prove that the five staff members broke any company rules or policies, the NLRB said. The NLRB said that the employees' postings did not amount to harassment of Cruz Moore, and that there was "no probative evidence" that any health issues Cruz Moore had were related to the Facebook postings.

"There is no probative evidence as to the nature of Ms. Cruz-Moore's health problem following the Facebook posts nor is there any probative evidence as to a causal relationship between Ms. Moore's heart attack (assuming she had one) or other health condition and the Facebook posts," the ruling said.

The NLRB said HUB had used the Facebook postings as an excuse to cut staff numbers. It issued a number of orders to the company, including telling it to offer the sacked employees their jobs, or equivalent roles, back. HUB was also ordered to compensate the employees for lost earnings and benefits, remove any record of their "unlawful" sackings from their personal records and told not to sack others for "engaging in protected concerted activities".

Ben Doherty, employment law expert at Pinsent Masons, the law firm behind Out-Law.com, said that whilst the case was interesting the ruling was unlikely to be replicated in the UK.

"There have been a number of cases in the UK employment tribunals involving claims brought by employees who have been dismissed for comments posted on social media sites and, from memory, none of those have resulted in the employees being re-instated," Doherty said.

"The UK does not have an equivalent law as relied on in this case, protecting employees who hold conversations about their terms and conditions and, given the public nature of this conservation, it is likely that a UK employer would consider taking disciplinary action in respect of a similar conversation," he said. "If the employer can demonstrate that the conversation damaged their reputation they may be able to fairly dismiss the employees."

"From an employer's perspective the case is a useful reminder that social media issues can cause problems in work. It is important that employers have a policy setting out what they consider to be acceptable use of social media by its employees.  From an employees’ perspective the case is a useful warning that they should not post something on a social media site that they would not want their employer to read," he said.