How Does Latest NLRB Ruling Apply to Background Checks?
September 19, 2011
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.