[authors: Leslie A. Eaton, Claire Ana-Perot Tracey]

The National Labor Relations Board’s most recent decision demonstrates that not all employee social media posts are protected by the National Labor Relations Act. Questions remain, however, about the extent to which employees can be disciplined over social media activity.

In a decision made public on Monday, the NLRB issued its inaugural opinion on an employee termination arising from a Facebook post. The NLRB upheld the decision of an administrative law judge in favor of the employer, a BMW car dealership, after the NLRB determined that the employee’s Facebook posting that resulted in his firing was nothing more than “a lark,” and did not constitute protected, concerted activity.

The NLRA protects workers who seek to improve or discuss employment terms and conditions, including such discussions in social media forums. In Monday’s decision, the Board found that employee Robert Becker’s Facebook postings about an accident at a neighboring Land Rover dealership also owned by his employer were “obviously” not protected – because he did not mention his employer, and there was no connection to terms and conditions of employment.

The NLRB’s decision turned on which of two Facebook postings by Becker resulted in his firing. The NLRB found that the dealership fired Becker because of his comments involving a car accident at the adjacent, commonly owned Land Rover dealership. Becker posted photos of the accident with the caption: “This is your car: This is your car on drugs.” Becker’s post continued:

This is what happened when a salesperson sitting in the front passenger seat (former salesperson, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father's foot and into the pond in all about 4 seconds and destroys a $50,000 truck.

Becker contended that he was fired primarily for another post he made the same day that focused on the dealership’s decision to serve hot dogs, chips, and water to the attendees of a key event, the roll-out of the new 5-series BMW. In that thread, Becker posted:

I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years …. The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch … but to top it all off the Hot Dog Cart.

The administrative law judge had noted that Becker’s comments on his employer’s choice of fare were in fact concerted activity because they related to people’s perception of BMW and therefore were tied to Becker’s compensation structure, specifically, his ability to meet his sales quota. In reviewing the decision, the Board declined to address the issue, providing no further guidance on whether or not this posting was protected, concerted activity under the NLRA.

The NLRB also found that the dealership’s employment policy requiring “courtesy” chilled employees’ right to protected activity under the NLRA. The Board found that the policy could be construed as a prohibition against disrespectful conduct and injurious language against the employer, which is unlawful.

We can expect the NLRB to continue to address the topic of employee rights as they relate to social media. Employers should review their employee handbooks and employment policies to ensure compliance with the NLRA and the NLRB’s jurisprudence. Employers should also consider training managers about permissible and prohibited conduct under the NLRA. Finally, employers should consider conducting their own education programs, including reminding employees of social media policies.

Ballard Spahr’s Labor and Employment Group routinely assists employers in NLRB compliance and training. If you have questions or concerns regarding these developments, please contact Leslie A. Eaton at 303.299.7302 or eaton@ballardspahr.com, Claire Ana-Perot Tracey at 410.528.5516 or traceyc@ballardspahr.com, or the member of Ballard Spahr’s Labor and Employment Group with whom you work.