About 16 months ago, the National Labor Relations Board (“NLRB”) made quite a stir when one of its Administrative Law Judges ruled that it was unlawful for a non-profit to fire 5 workers for violating the agency’s anti-harassment policy when the harassment – done on Facebook – was determined to constitute protected concerted activity over working conditions. We’ll give you one guess as to how the appeal to the full Board turned out.

Not surprisingly, just before Christmas, the NLRB upheld the Judge’s determination in the Hispanics United of Buffalo (HUB) case that the firings were unlawful and that the five employees should be reinstated. Our prior post on the Judge’s decision in 2011 can be found HERE, but as a refresher, this was the case where one employee, a domestic violence advocate, made a Facebook posting from her home stating that another advocate “feels that we don’t help our clients” and asking her coworkers how they felt about that remark. Several coworkers responded to the posting, also while outside of work. The responsive postings were critical of the second advocate, and some included profanity. The conduct was serious enough that the affected employee told her employer that she suffered a heart attack as a result of everything.

After the victim complained to HUB’s executive director about the Facebook postings, an investigation was undertaken, and the executive director ultimately terminated the employment of five of the employees who had made the Facebook postings on the grounds that the postings constituted harassment and bullying in violation of employer policies. However, the Administrative Law Judge determined that the postings were concerted activity and about working conditions. He also concluded that there was no evidence linking the heart attack to the conduct, and that there was no evidence of a policy violation. Thus, he concluded that terminating the 5 employees was unlawful and ordered their reinstatement.

In affirming the decision, the Board made clear that protected concerted activity under Section 7 of the National Labor Relations Act includes electronic and social media communication – even if done on non-work time – just like it does if employees are discussing working conditions at the water cooler. It backed the Judge’s conclusion that there was no record evidence that the employee subject to the comments suffered a heart attack, and obviously concluded that the employer’s motivation was not a policy violation after all.

While some prior Board law has concluded that employers may have substantial and legitimate business reasons which outweigh employee Section 7 rights, other Board cases have held that legitimate managerial concerns to prevent harassment do not justify policies that discourage Section 7 rights by subjecting employees to discipline on the basis of the subjective reactions of others to their protected activity. In this case – and admittedly looking strictly from the outside in – the Employer probably could have done a better and more thorough job investigating the employee’s allegation of a heart attack and making sure its policy applied strictly before taking action.

That said, the Board’s decision in this case puts employers in a very tough spot. Employers have legitimate interests in developing and consistently enforcing policies to manage their workplace – including anti-harassment policies. Now, when on-line social media conduct violates those policies, employers must think twice about enforcing them if the activity at-issue is concerted or a call to action, and involves wages, hours or terms and conditions of employment.

Worse, as most employers know, employees discuss (i.e., complain about) working conditions with each other often, and it’s no surprise that so much of that dialogue now occurs on social media. With people feeling much more comfortable saying and doing things on-line than they do in person, it’s not a stretch to think employers are going to get increasingly caught between a rock and a hard place in the world of Web 2.0 trying to balance violations of their policies with the right of their employees to Section 7 protection for their social media remarks.

At bottom, employers need to be certain that when they act on a claimed policy violation for on-line conduct, they have a very strong argument that the employee conduct at-issue is a true policy violation. They also need to make sure that the policy itself is valid and wouldn’t reasonably be construed as interfering with Section 7 rights, since that has been such a big issue with the Board the last year or so.

With President Obama winning another term and administrative enforcement – especially from the NLRB – expected to remain a key part of his administration’s agenda, employers need to tread very carefully in 2013 when dealing with social media discipline. Consultation with competent counsel before taking action is advised.