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An Employer Wins A Battle in the Social Media War as NLRB Upholds Employee Facebook Posting Related Discharge

Earlier this week the National Labor Relations Board (NLRB) upheld a car dealership's discharge of a salesman for posting photos and comments to his Facebook page. The NLRB's decision is a welcome victory for employers after a long series of employer unfriendly pronouncements from the NLRB. Over the last year or two, the NLRB has provided employers with a series of memoranda designed to highlight the acceptable parameters for employer policies and employee discipline for social media postings. With each additional bit of guidance, an employer's ability to deal with problem social media postings appeared to become increasingly more difficult. While the NLRB should (and will) ensure that employees engaging in protected and concerted activity are not discriminated against, there have to be some boundaries to the types of comments an employee can post for the whole world to read that concern the employer.    

In this particular case, the employee salesman posted two different sets of photos and comments to his Facebook page. One set of photos and comments centered around a dealership event related to the roll out of a new luxury vehicle. The photos and comments were mocking and sarcastic in tone and focused upon the employer's decision to serve hot dogs, chips, and water at the event as opposed to something more appropriate for a luxury event like "champagne or wine". The second set of photos and comments were related to an accident that occurred during the test drive of a new vehicle and were also sarcastic and mocking in tone. Following the postings, the salesman's employment with the dealership was terminated. The evidence introduced at the NLRB hearing established the termination decision was based upon the photos and comments about the accident. In reviewing the Facebook posting(s), the NLRB found no protected or concerted activity with respect to the posting(s). As a result of this finding, the employee's termination of employment was upheld.  

While the decision in this particular case ended up favorable for this employer, other employers should not be so quick to view the outcome in this case as a major shift at the NLRB in favor of employers. This is simply a case where the employee tried to stretch his inappropriate and distasteful comments and photos into concerted and protected activity - and failed. In looking at the facts of this case, the NLRB's decision is not surprising. What employers can take from this decision is that the National Labor Relations Act (NLRA) will protect an employee's actions if they are taken on behalf of a group of workers (concerted) and related to the terms and conditions of employment (protected). This employee showed poor judgment in the tone and tenor of his messages as well as the choice of topics to talk about. While the NLRB did not reach the issue of the hot dog comments because it was not considered as part of the basis for the termination decision, there was some NLRB commentary on the topic. The NLRB comments make it clear that the Board may very well have extended the complaints about the type of food served to be protected activity (related to terms and conditions of employment) due to the impact of the menu selection upon the image of the dealership and indirectly the sales and commissions the employees would receive. The NLRB further observed that the employee acted alone and on what appeared to be a lark, thus pushing the activity outside the envelope of concerted activity. 

It is pretty easy to see how, with a few slight factual differences, this could be a completely different case. Assume for a moment the employee's tone on the hot dog posting is respectful in his postings. Toss in a few "likes" on the post and/or a few co-worker comments on the post, and this goes from a single employee on a lark making fun of his employer to a protected and concerted effort by an employee to ensure sales events are done in a manner to maximize employee compensation and employer sales. With those couple of tweaks to the facts, the car dealership would be reinstating the employee with backpay for his time off of work.





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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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