Social Media and the NLRB: Getting Both Sides of the Story

Social Media and the NLRB: Getting Both Sides of the Story

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 the posting."

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 Connection.

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