How Does Latest NLRB Ruling Apply to Background Checks?

Nick Fishman

I’ve been reading a lot about a recent NLRB case which focused on their contention that an employee should not have been fired for posting negative comments on Facebook about her employer and co-workers.  And while this ruling has no bearing on pre-employment screening, I wonder how it could.

Here are the specifics according to the National Law Review:

In May 2010, HUB hired Lydia Cruz-Moore, a domestic violence advocate who worked one day per week at HUB’s offices. Cruz-Moore complained about the job performance of some of her co-workers to another employee, Mariana Cole-Rivera. Cruz-Moore also told Cole-Rivera that she was going to discuss her concerns about the other employees’ job performance with management.

From her home computer, Cole-Rivera posted on her Facebook page that Cruz-Moore believed HUB employees “don’t help [their] clients enough” and asked her coworkers “how do u feel?” In response, several employees posted complaints about Cruz-Moore’s criticisms, some of which included profanity. Three days later, Cole-Rivera and four of the other employees who posted on Facebook were fired for bullying Cruz-Moore and violating HUB’s “zero tolerance” anti-harassment policy.

An administrative law judge in Buffalo, New York ruled that the termination violated the rights of Ms. Cole-Rivera and her cohorts citing the following reasons:

  • “It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to Respondent…. I find that the discriminatees’ discussions about criticisms of their job performance are also protected.”
  • “[A]n employer violates Section 8(a)(1) in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”
  • “Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

Okay fine.  So whether you agree with this ruling or not, it begs the next question.  What happens if one of Ms. Cole- Rivera’s future prospective employers performs a social media search or Google search and finds out about this ordeal?  There’s a better than good chance that she would be deemed a malcontent or bad apple.  And here’s the question: would it be fair game?  If you ask me, I would say yes (this from the guy who has been warning employers about the use of social media checks).  To me, she should not have used a public forum to air these concerns.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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  • Since Facebook offers options for how widely a post is disseminated, I think it would have been more prudent for her to have voiced her concerns and asked for feedback by making the post a limited distribution.

    The only way to create change is to voice your concerns. It sounds like she was not the one who used profanity. And she may have been soliciting feedback in order to gain more ideas about whether this environment was too toxic.

  • Your pal Mike

    It is an NLRA violation to discriminate in hiring against someone because of their past union-organizing or participation. While the ALJ seems to recognize that this employee wasn’t organizing, he did find that she engaged in protected activity. Interestingly, had she simply complained publicly and not found support from her coworkers, it probably wouldn’t have been protected activity under te NLRA’s recent rulings. Crazy but true.

    • Nick Fishman

      Good point Mike. I hadn’t considered the NLRA thing, however if an employer performs that type of search on their own, they’ll just find another reason not to hire her.

  • Harry Snow

    I agree that it wasn’t wise of Ms. Cole-Rivera to publically express her concerns using social media. I think she had better options that she failed to exercise. When she decided to post her concerns publically, she accepted the consequences of her actions. I think it is reasonable to believe that a future prospective employer may be reluctant to offer her a job. I would be more concerned about her ability to make sound judgments and decisions, more so than if her behavior was malcontent or whether she is a bad apple. The thing to keep in mind is that she felt that the level of services being provided to domestic violence victims could have been better. It is a shame that she used poor judgment when deciding to publically post her concerns. I would encourage any future employer to conduct a thorough background check on Ms. Cole-Rivera instead of using this incident as a standalone factor for denying her employment.

    • Nick Fishman

      You know, Harry, you are exactly right. She probably had the best intentions in mind to improve the domestic violence services of her organization. She definitely should have considered a less public forum for doing so.

  • Mariana Cole-Rivera

    hum…..?