Hispanics United of Buffalo (HUB) has been ordered to reinstate five employees who were terminated after posting complaints about their work on the social networking website Facebook. The judge found that the terminations violated the National Labor Relations Act (NLRA).

The case, involved a HUB employee who was allegedly critical of her co-workers’ performance. A fellow employee shared her alleged criticisms via Facebook, prompting numerous responses from co-workers that included complaints about workload and other aspects of their jobs. HUB fired the employees for harassment.

Administrative Law Judge Arthur Amchan found that the exchange was protected concerted activity under the NLRA because it was a discussion among co-workers regarding terms and conditions of employment, including their job performance and staffing levels. The fact that the workers “were not trying to change their working conditions and . . . did not communicate their concerns” to HUB was irrelevant, the judge ruled. Interestingly, the judge noted that “whether the comments and actions of the five terminated employees took place on Facebook or ‘around the water cooler’ the result would be the same.”

The increasing popularity of online media has given water cooler carping a new, more prominent platform, one which employers should approach with great caution. As this case shows, the NRLA’s provision protecting “concerted activities for the purpose of collective bargaining or other mutual aid or protection” may be construed very liberally.