Is the NLRB following a Mayan calendar? It seems there is a flurry of activity coming from the board as we head into the calendar-year end. Included in that activity is the release of Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012). This case has been on the radar for many social media and labor law followers because it was one of the first to address a discharge from employment on the basis of social media activity.
The board decisions from earlier this year on social media were not especially instructive on the issue of how social media statements may be construed as protected concerted activity. Hispanics United is different in that it squarely addressed this question. Unfortunately, and as expected by many NLRB followers, things did not turn out well for the employer.