In a case of first impression, an administrative law judge for the National Labor Relations Board (NLRB) concluded that an employer unlawfully terminated five non-union employees for work-related comments they made on Facebook.

The employees worked for Hispanics United of Buffalo, Inc. (HUB), a not-for-profit corporation that provides social services in upstate New York. After one of their co-workers became increasingly critical of their job performance and told them that she was going to raise her concerns with their supervisor, the employees posted several comments on a personal Facebook page. The postings began with the following statement: “[This] coworker feels that we don’t help our clients enough at HUB. I about had it! My fellow coworkers how do u feel?” The five employees each posted comments in response, including, “What the f*** . . . try doing my job I have 5 programs,” and “What the hell, we don’t have a life as is, what else can we do?” The comments were made on a non-work day and posted on the employees’ personal computers.

The employees’ supervisor subsequently notified them that their Facebook postings constituted bullying and harassment in violation of the employer’s harassment policy, and terminated their employment. The employer did not dispute that the employees were discharged solely because of their Facebook comments and conceded that they would have been terminated even if their comments had been made “around the water cooler,” rather than online. The terminated employees filed an unfair labor practice charge with the NLRB, alleging that their firings were unlawful under the National Labor Relations Act (NLRA).