An NLRB administrative law judge has ruled that a Chicago-area luxury car dealership did not violate federal labor law when it terminated a salesman who posted pictures and comments about an accident on his Facebook page. The judge rejected the NLRB’s argument that the termination was motivated by other Facebook postings by the employee related to a customer event that mocked the quality of the food and beverages provided.
KPA’s partner law firm Ford & Harrison represented the dealership. Frequent guest speaker at KPA’s webinars Jim Hendricks, was the attorney of record. A full review of the case is available at http://www.fordharrison.com/shownews.aspx?Show=764
When firing for a Facebook post what many private sector employers do not realize is that – employee may engage in “protective concerted” activity” under the National Labor Relations Act (NLRA) . Facebook posts and the subsequent “wall” posting and comments and other social media communications can be protected concerted activity within the meaning of Section 7 of the NLRA.
While the firing of the sales person was upheld in Chicago, in another case involving Facebook posts the firing were deemed illegal. In a case a case called Hispanics United of Buffalo, administrative law judge Arthur Amchan said HUB violated the National Labor Relations Act when it fired five employees who commiserated about their jobs on Facebook. Judge Amchan’s ruling endorsed the NLRB’s stance that employees are protected from retribution for job-related postings.
So can you fire for a Facebook post?
According to Jim Hendricks “Employers, especially non-union employers, must be mindful of the concept of protected concerted activity before taking adverse action against an employee. Also, employer policies and practices need to keep pace with emerging technology, including social media. This remains a largely uncharted area of the law. If one of your employees publishes something offensive or confidential on Facebook, Twitter, or YouTube, proceed with caution before taking action.employer policies and practices need to keep pace with emerging technology, including social media. This remains a largely uncharted area of the law. If one of your employees publishes something offensive or confidential on Facebook, Twitter, or YouTube, proceed with caution before taking action.”
