The National Labor Relations Board (NLRB) has issued another complaint (and accompanying press release) alleging unlawful termination of an employee for posting photos and comments on Facebook.  http://www.nlrb.gov/news/chicago-car-dealership-wrongfully-discharged-employee-facebook-posts-complaint-alleges The complaint, which is similar to other complaints filed by the NLRB in the past months, alleges that a Chicago area BMW dealership illegally fired an employee after that individual posted information critical of the dealership.  In case you’ve missed the ever-escalating activity on this issue, here’s a summary:

  • Earlier this year, in a highly publicized matter, the National Labor Relations Board (NLRB) pursued an employer in Connecticut after that company fired an individual for posting a negative comment about her supervisor on her own Facebook page, using her home computer to do so.  That case ultimately was settled, and no administrative or judicial determination was made on the issue.  However, the employer has since revised its policy to be less restrictive.
  • In April of this year, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB that would have included an accusation that the company inappropriately reprimanded a reporter for a message posted on Twitter.  As part of the settlement of that matter, the company agreed to negotiate a new social media policy that would more effectively protect employees’ rights to communicate regarding work conditions.
  • On May 9, 2011, the NLRB issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the NLRA when it fired five employees after they used Facebook to criticize working conditions.  A hearing on the matter is scheduled in Buffalo, NY, for June 22, 2011.

In this most recent case, a car dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model.  A Huffington Post reporter summarizes the issue this way:  “[The salesman] and a few co-workers apparently felt that Sam's Club hot dogs and bottled water were no way to hype a luxury car -- and they thought their sales might suffer because of it. The salesman's critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.” http://www.huffingtonpost.com/2011/05/24/facebook-posting-worker-fired_n_866353.html  Other employees had access to that Facebook page.  When the dealership’s management asked the salesman to remove the posts, he immediately complied. Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated.

According to the NLRB, the employee’s Facebook posting was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), because it related to a discussion among employees about the terms and conditions of their employment.  Under the NLRA, employees’ communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity.

The dealership, through its attorney, has stated that the salesman was fired for reasons other than the protected communication.  http://www.dealer-magazine.com/digital-dealer/blogs/new-directions-with-arnold-tijerina/blog/breaking-news-nlrb-files-complaint-against-luxury-car-dealership-for-unlawful-termination-over-employees-fb-post/0523e19d83.html

Unless this matter is settled, the case will be heard by an administrative law judge on July 21, 2011, in the Chicago Regional office of the NLRB.

Clearly, the NLRB has increased its focus on social media communications, and is taking the position that employer policies cannot impose limitations on electronic communications to the extent that those postings include discussion regarding the terms and conditions of employment.  Based upon that increased focus, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.