The National Labor Relations Board recently adopted the decision of an administrative law judge finding that an employer lawfully discharged an employee for a Facebook post made about a car accident at the workplace (an auto dealership). The administrative law judge held that the employee's post about the accident was not protected by the National Labor Relations Act, as it was not a discussion with any other employee and did not address the terms and conditions of his employment. The administrative law judge found that a separate Facebook post made by the employee, complaining about the quality of food served to customers at a marketing and sales event, was protected under the Act as a concerted activity. However, the judge also found that the employer fired the employee solely based on the non-protected post about the car accident, and therefore the termination did not violate the Act. In adopting the administrative law judge's finding, the NLRB did not determine whether the post about the marketing and sales event was protected. For more information on this topic, please click here for a recent briefing published by Winston & Strawn LLP.

Tip: Employers may be able to discipline or discharge employees for activity on social media that is not protected by labor law. However, employers should seek the advice of counsel before doing so, as it may not always be clear what social media activity is protected. Employers should also examine their social media and confidentiality policies to determine whether they conflict with federal labor law.