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Although this column usually focuses on recent employment discrimination cases, employers and their counsel should be equally aware of recent decisions of the National Labor Relations Board that could impact workplace decisions. Of particular note is a recent board decision in In re Hispanics United of Buffalo, No. 03-CA-027872 (Dec. 14 2012), in which the board found that employees’ Facebook postings in response to a co-worker’s criticism of their performance was “protected activity” under Section 8(a)(1) of the National Labor Relations Act — and that their termination for the postings violated the act.

One employee critical of her co-workers

Mariana Cole-Rivera and Lydia Cruz-Moore were co-workers employed by Hispanics United, an agency that provides aid to victims of domestic violence in the Buffalo, N.Y., area. The two frequently communicated by various methods and a common topic was Cruz-Moore’s criticism of their co-workers for not doing enough to help their clients. This criticism reached a crescendo on a Saturday afternoon when Cruz-Moore sent a text message to Cole-Rivera that she intended to discuss her concerns with their supervisor when they returned to work the following Monday.

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