As discussed at the Firm's annual employment law seminar, employees who post certain comments on Facebook and Twitter may be protected from termination. During May, regional directors of the National Labor Relations Board ("NLRB") issued two new complaints against companies for terminating employees who posted comments on Facebook pages. In Chicago, the Regional Director issued a complaint against Knauz BMW. One of the salesmen complained that Knauz – located in an especially tony northern suburb of Chicago – offered only hot dogs and bottled water to customers during an event promoting the sale of a new model of the BMW. (Foie gras and profiteroles would have been better!) Other salesmen were also unhappy. The salesman posted photographs and critical comments on Facebook. Although he removed the posts when requested to remove them, Knauz terminated his employment. The Regional Director alleges that the salesman was engaged in concerted, protected activity when he complained about his working conditions and that Knauz terminated him for posting these complaints which were accessible by other employees.
Earlier in the month, the Regional Director in Buffalo, New York, took similar action regarding Hispanics United of Buffalo. On her Facebook page, one employee posted complaints of a second employee about the non-profit organization's alleged failure to provide services to its clients. Other employees responded. After Hispanics United discovered the posts, it terminated five employees for allegedly harassing the second employee. The Regional Director disagreed, finding, first, that the five employees engaged in concerted, protected activity and, second, that there was sufficient evidence to believe that Hispanics United terminated them because of their exercise of their right to participate in the conversations on Facebook.
As with all complaints by regional directors of the NLRB, these are merely complaints which start the litigation process. Both cases have been assigned to administrative law judges ("ALJ") who will hold hearings – under oath – and will issue decisions. These decisions are appealable to the NLRB's Board in Washington, D.C. and to the federal appellate courts. Although the cases may well settle without a formal decision by an ALJ or the Board, these decisions are new reminders that employers need to tread carefully when terminating employees who use social media to post comments about their employers, supervisors and fellow employees. To avoid adverse decisions and the costs of litigation, we urge companies to seek a due diligence analysis from your employment lawyer before making a final decision impose discipline, including termination.