On September 28, an Administrative Law Judge for the National Labor Relations Board issued his ruling in a case involving the termination of an employee at a car dealership for postings he made on his Facebook page about events at work. The postings included pictures and comments on two subjects: (1) serving hot dogs and fruit at an important customer roll-out event and (2) an accident at the owner’s neighboring dealership where a salesperson let a 13-year old behind the wheel of an SUV. The judge found that terminating the employee because of the postings did not violate the NLRB because it was primarily based on the SUV accident which did not involve any protected concerted activity. Good news, right?
Maybe not. It appears from the opinion that only a very narrow set of facts will allow an employer to get out of an NLRB charge related to comments and postings on Facebook or other social media.
In this case, the comments about the accident were not protected because the postings did not stem from any prior discussions with fellow employees, and did not have any connection to the employees’ terms or conditions of employment. However, the judge stated that the comments about the food served at the customer event were concerted activity, because more than one employee made comments at work about the food being served. In addition, the concerns raised about the food were protected activity because customers could be unimpressed with the food being offered, which in turn could result in lower auto sales, which in turn affects the compensation earned by the employees.
This seems like a huge leap. Based on this analysis, a comment by a single employee could be concerted protected activity as long as even a tenuous link can be made to any condition or term of employment. The judge even stated that it was unlikely that a customer would decline to purchase a car from the dealership solely because of the unimpressive food at the event, but it was possible, therefore the comments were protected.
The ruling also has ramifications for employers' policies. Here, the employer's policies prohibited employees from being "disrespectful" in their communications with other employees. The judge found that this policy violated the NLRB because defining the term "respect" in regards to possible union activity would be "inherently subjective." In addition, the judge concluded that policies prohibiting employees from participating in unauthorized interviews and from responding to outside inquiries were unlawful because they could be reasonably interpreted as prohibiting employees from speaking with union representatives, lawyers or Board agents. Employers should evaluate their policies about employee communications and responding to outside inquiries to ensure they don’t infringe on the ever-expanding realm of protected activities.