The sword and shield of social networking: harming employers' goodwill through concerted Facebook activity.

• Author: Merabet, Stephanie M.

"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)

1. 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. (20) It has long been recognized that employers have a legitimate business interest in maintaining their reputation. (21) By qualifying disparaging comments as protected concerted activity within the meaning of section 7, the NLRB disregarded employers' interests and stripped them of legal recourse for situations in which their employees publically mistreat or abuse them on Facebook, or through other readily available social-media platforms. (22) This Note will begin by discussing the purpose of the NLRA and the policies underlying its enactment. (23) It will then address how Hispanics United fits into that statutory framework and will recognize the disastrous impact the decision will have on employer rights in conflicts involving employee conduct on social-media websites. (24) Finally, this Note will explore legal avenues employers can pursue to defend their reputation without engaging in behavior that might constitute an unfair labor practice, and will conclude by suggesting a test for the NLRB to use in these types of cases. (25)

2. HISTORY

   1. Development of National Labor Law

      Historically, American employment law was premised on the at-will employment doctrine, which permitted any party to terminate the employment relationship at any time, and for any reason. (26) Employment at will in the United State is traceable as far back as the industrial period, when courts revered the constitutional freedom to contract, and respected the employer's and employee's rights to contract for certain terms and conditions of employment. (27) The blanket application of the at-will doctrine permitted employers to control and exploit their employees by imposing unreasonable terms at their unregulated discretion, and by terminating employees without just cause. (28) As a result, employees were unable to request improved wages or working conditions, and were often forced to accept oppressive employment terms and conditions. (29)

      Prior to the enactment of any national labor regulations, the desires of financially superior employers controlled employment relationships by dictating terms and conditions of employment and abusing the at-will employment doctrine. (30) When employees combined their bargaining power and collaborated with one another to demand satisfactory working conditions, the government often indicted them under criminal and civil conspiracy theories. (31) Both courts and employers became increasingly hostile towards labor organization, and for a period of time, authorities considered men who joined together to increase the quality of their working conditions to necessarily be involved in illegal activity. (32)

      The need for national labor reform became apparent in light of societal animosity towards organized labor, and, accordingly, in 1932 Congress passed the Norris-LaGuardia Act. (33) Through the Act, Congress sought to foster a laissez-faire system of labor relations that freed unions from excessive injunctions, and provided employees with more power in the employment relationship. (34) The Norris-LaGuardia Act bars courts from issuing injunctions or restraining orders arising from labor disputes, which are defined broadly to include all controversies regarding terms and conditions of employment. (35) Most notably, based on public policy grounds, the provisions outlawed so-called "yellow-dog contracts" that conditioned employment on an employee's agreement not to unionize, thereby signaling a drastic shift from previous jurisprudence upholding the validity of such contracts as an exercise of the employee's freedom to contract. (36) The Norris-LaGuardia Act marked the first major step towards protecting employee rights within national labor law. (37)

      Congress enacted the NLRA in 1935 to further prevent employer domination, strengthen employee rights, and equalize bargaining power within the employment relationship. (38) Serving as "the worker's law," the NLRA defines and protects the rights of employees, employers, and labor organizations in order to eliminate harmful employment practices that are detrimental to society and injurious to a stable economy. (39) Regardless of whether they are affiliated with a labor union, employees are protected so long as their employer is subject to the NLRA and does not otherwise fall within a narrow class of exceptions. (40) To ensure employee protection, employers are barred from chilling, interfering, or prohibiting employees from exercising their rights, and thus cannot fire, demote, or take other adverse action against employees engaged in protected activity. (41)

      Congress also created the NLRB, a quasi-judicial federal agency, to enforce the NLRA. (42) The NLRB is composed of five members who are appointed by the President with the consent of the Senate, and hold staggered terms in their positions to ensure that the Board is not completely subject to political persuasion. (43) The NLRB promotes an employee's right to organize by determining whether employees have freely elected to secure union representation. (44) The NLRB also promotes the peaceful resolution of labor disputes by enforcing the provisions of the NLRA and correcting unfair labor practices committed by both private-sector employers and unions. (45) Once the NLRB determines that an employer violated the NLRA by committing an unfair labor practice, the NLRB may force the employer to remedy its conduct by ordering it to: cease and desist, post notice advising other employees of the improper conduct, reinstate the terminated employee, and issue the employee back pay. (46)

      The Taft-Hartley amendments to the NLRA addressed employer concerns that emerged following its enactment. (47) The amendments specifically affirmed an employee's right to refrain from organizing, and codified several employer rights, including the ability to engage in free speech without fear of such expression constituting evidence of an unfair labor practice. (48) Section 10(c) of the Taft-Hartley Act confirms that employers may terminate...