By: Paul H. Burmeister

In one of the first rulings by the NLRB in a case involving social media, the Board agreed with the order of the ALJ that the firing of an employee for certain Facebook posts were not protected, concerted activity under the NLRA and the termination did not violate Section 7 of the Act. Karl Knauz Motors, Inc.  (PDF)

The employee was a salesman who worked for a BMW dealership in Lake Bluff, Illinois.  He posted several pictures and comments on his Facebook page about two recent events concerning his employer. First, the employee complained about the refreshments served at an ‘Ultimate Driving Event’ touting the release of a new BMW sedan, which occurred several days before.  Second, the employee posted pictures and unflattering comments about an accident at an adjacent dealership, also owned by the same auto group. The pictures and comments were posted several days following the events.  Shortly thereafter, the dealership notified the employee that it was terminating his employment. The dealership said that it was doing so because of his Facebook posts regarding the accident at the adjacent dealership; not because of his complaints about the refreshments at the sales event.

The Administrative Law Judge determined that the Facebook posts mocking the dealer’s choice of refreshments were concerted protected activities because the situation he complained about could have had an effect on his compensation.  By contrast, the ALJ determined that the posts about the Land Rover accident were done as a ‘lark’ and were “obviously unprotected” under the Act. The ALJ determined that the dealership’s decision to fire the salesman was based on the posts about the accident; not the posts about the refreshments. As a result, the ALJ determined that the decision did not violate the Act. The Board adopted the ALJ’s decision.

Despite an interesting factual backdrop to this case, cutting-edge social media issues involved, and substantial interest from the legal community, the NLRB sidestepped any direct comments on the dealership’s decision to discipline based on Facebook comments made by the employee while not on work time or premises. While this case is somewhat short on future guidance of Facebook post discipline by employers, it does mark the first such case involving social media discipline heard by the NLRB. Currently, the NLRB appears to be satisfied that social media related discipline can be protected under the NLRA and that this area of law is still developing. Stay tuned for further developments.

Management Missives

  • Management should be on the alert that employee actions and discipline based on social media activity is subject to the National Labor Relations Act.
  • Management should consider revisiting any portion of its employee handbook regarding social media policies and determine if any of the language in the handbook may be deemed restrictive of an employee’s rights under the Act. These include rights to discuss or even complain about the employer on the employee’s social media page and any statements that such social media discussions and posts may result in discipline or termination of employment.
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