Discharging Employees for Concerted Harassment and Bullying Unlawful

By Karla Sanchez

The National Labor Relations Board (“Board”) has ruled again on social media issues.  In this case, five employees were discharged for their on-line responses to a coworker.  Hispanic United of Buffalo, Inc., 359 NLRB No. 37 (December 14, 2012).  The co-worker had complained that people in the office were not performing their jobs.  One of the five employees posted the work-related criticism, and added: “[m]y fellow coworkers how do u feel?”   The other four employees responded; each objecting to the accusations that they did not do their job.

The original job-critic naturally complained to management that she had been slandered, defamed, and harassed by these Facebook posts, and the employer discharged the five coworkers for bullying and harassing the critic.  However, the Board has found that the employer could not discharge the five coworkers, despite allegations of harassment, defamation, and slander, because their Facebook posts constituted protected concerted activities under the National Labor Relations Act (“Act”).  Because the five employees were posting about the terms and conditions of employment and for “mutual aid and protection,” their communications were protected by the Act.

Keep this in mind in the future when employees gang up against a co-worker.

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