When the media first began covering the NLRB's
settlements involving discipline of employees for using Facebook, the
impression that was given was that the settlements reflected established NLRB
policy. In reality, the settlements were no more than that; the employer
position in a given case had not been litigated--employer defenses and
explanations were not presented.
The NLRB treatment of the discipline of employees as violations of the National
Labor Relations Act is now reaching the stage where there are adversarial hearings
before administrative law judges. Employers are defending their
actions, and, in at least one case for now, winning.
In Karl Knaus Motors, inc., JD(NY)-37-11, an administrative law
judge found that the termination of a salesman for posting pictures on
his Facebook page did not violate the Act. The NLRB's initial
press release in May concerning the issuance of a complaint stated that the
salesman was terminated for posting pictures and comments critical of the food
and beverage served at a customer event. At the hearing, a far different
picture emerged. In addition to the customer event, the salesman posted
commentary and pictures about an unfortunate at a Land Rover dealer owned
by his employer on his Facebook page.
A salesperson was showing a Land Rover to a customer and allowed the customer's
13 year child to sit in the driver's seat while the salesperson was in the
passenger seat. The child pressed the accelerator, and the car drove down
a small hill, over the foot of the customer, and into a pond. The
salesperson was thrown into the water.
The salesman posted pictures of the car in the water on his blog and stated in
part: This is your car: this is your car on drugs.
At the hearing, witnesses for the employer testified that it was the Land Rover
picture, not the food, that led to the termination. The judge found that
the Land Rover posting was neither protected nor concerted. The judge
stated, "It is so obviously unprotected that it is unnecessary to
discuss whether the mocking tone of the posting further affects the nature of
Employers need to recognize that the law under the NLRA concerning the use of
social media as protected, concerted activity is evolving. As was shown
in Knaus, the mere fact that conduct arose on Facebook does not mean
that it is automatically protected under the NLRA.
For additional Labor and Employment law
insights from John
Holmquist , visit the Michigan Employment Law
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