NLRB Comments on Social Media Communications as Protected Activity or Not

On January 25, 2012, National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon issued its second report on social media.  As the pace of technology continues to accelerate, judicial bodies continue to encounter new factual situations that have begun to shape the law concerning social media.  The report was issued in the form of an Operations Management Memo, covering 14 cases, which can be found here. Many of the cases address and clarify the lawful scope of employers’ media policies. The other cases cover whether or not it was lawful for the employer to discharge an employee based on his or her social media conduct. 

As indicated on the Board’s website, the report underscores two general ideas employers should keep in mind when making employment policies or taking employment actions based on social media:  1)  Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; and 2)  An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

In September of 2011, a regional judge decided an interesting social media case, finding that the firing of a worker for posting negative comments on Facebook was lawful.  In this case, it’s important to distinguish that the employee made two separate postings, and one was found to be protected concerted activity while the other was not.  Because the employer successfully argued that they fired the employee based only on the non-protected Facebook post, the firing was upheld as lawful. 

The case began in May of 2011, when the NLRB filed a complaint against Chicago-area car dealership Knauz BMW.  The complaint sought relief for a salesman fired by the dealership who posted negative comments about the dealership on Facebook.  An NLRB administrative law judge (ALJ) decided on September 28, 2011 that Knauz BMW lawfully fired the salesman, and that the dealership did not violate the National Labor Relations Act (NLRA).  Karl Knauz Motors Inc. (NLRB ALJ, No. 13-CA-46452).  The ALJ adjudicated the case in a New York field office. 

Under the NLRA, employers cannot fire or take another adverse employment action against an employee who engages in “protected concerted activity.”  “Concerted activity” generally refers to the activities of two or more employees who act together to improve conditions of their employment.  The NLRA protects this kind of activity regardless of the presence of a union at the workplace involved.  Some cases even protect the actions of a single employee as concerted.  When an employee acts alone in this regard, the NLRB may consider the actions concerted, and therefore protected, if the employee is acting on behalf of herself in addition to other employees to improve working terms or conditions. 

The then-dealership salesman grumbled about two separate decisions of his employer.  First, the dealership served free hot dogs and bottled water as a promotion for a new luxury BMW.  The fired salesman posted pictures of the hot dogs on Facebook, complaining that a few measly hot dogs would surely fail to entice potential BMW-buyers.  The salesman’s coworkers apparently shared his criticism of the dealership’s promotional tactic.

Second, a truck at a dealership owned by the same company ended up in a pond when a salesman permitted a customer’s child to occupy the driver’s seat.  The fired salesman posted a photo of the truck after it had rolled into the pond, and again included critical commentary. 

The dealership fired the Facebook-posting salesman, purportedly on the basis of his posting of the truck in the pond only. 

Relying on the fact that protected concerted activity includes conversations between workers about conversation, the judge ruled that the fired salesman’s posting about the hot dog promotion was protected.  The judge reasoned that the hot dog promotion was intended to entice buyers, and the salesman’s skepticism of it’s ability to do so was a comment on the effect of the event on his compensation.  Further, the salesman talked about the hot dog promotion with other workers before and after the event, making the actions concerted.  Though disparagement is not protected under the NLRA, the judge ruled that the salesman’s comments failed to rise to the disparaging level. 

The judge also ruled that salesman’s comments related to the truck in the pond were not concerted activity, and thus not protected.  The judge made a factual finding that the employer fired the salesman based only on the truck in the pond posting, and not on the hot dog promotion posting.  Therefore, the judge held that the firing of the salesman did not violate the NLRA, and was thus lawful. 

The case should serve as a warning to employees quick to comment on their employer’s shortcomings or to make negative criticisms public.  Today, when publishing written opinions on Twitter, Facebook, and other social media sites is both easy, public, and instantaneous, employees should be cautioned to control their impulses to post. 

Another account of the case can be found at this link.

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