Employers find themselves in uncharted territory when it comes to responding to social media activity by their employees, particularly in the wake of a series of reports issued by the National Labor Relations Board’s acting general counsel. But on September 28, 2012, in the Board’s first decision involving a discharge for Facebook postings, the NLRB found that an Illinois BMW dealership did not violate the National Labor Relations Act when it fired a salesman for photos and comments posted to his personal Facebook page. The employee’s posts concerned two incidents that occurred on the same day.
As an initial matter, the Administrative Law Judge had to decide which of the two postings triggered the termination. The ALJ found that one posting – which included photos and sarcastic comments about the dealership serving hot dogs, chips, and bottled water at a sales event announcing a new BMW model – might have been protected activity under the NLRA. But, the ALJ found (and the NLRB agreed) that the salesman was fired solely for his other posting – which included photos of a Land Rover accidently driven over a wall and into a pond at an adjacent dealership owned by the same employer, along with sarcastic commentary. The NLRB found that the Land Rover photos and comments were not concerted or protected activity under the NLRA because they were posted solely by the employee and had no connection to any of the employees’ terms and conditions of employment.
However, employers should also note that the Board’s decision also included a finding that the dealership’s “courtesy” rule was unlawful. In particular, the NLRB reasoned that employees would reasonably believe that the policy prohibited any statements of protest or criticism, even those protected by the Act. This component of the decision is consistent with the NLRB’s recent trend of invalidating social media policies and finding components of such policies to be overly broad.