NLRB Judge Rules that Employee’s Comments on Facebook Were Not Protected

We’ve been following the NLRB’s increased focus on social media since the Board issued its first complaint involving Facebook postings nearly a year ago. Recently, we blogged about the first decision from an NLRB Administrative Law Judge involving comments posted on Facebook. In that case, the ALJ found that the comments were protected under the Act and ordered the employer to reinstate the terminated employees.

This week, a second social media decision was issued. In Karl Knauz BMW, a former salesperson alleged that he was terminated after he posted pictures and comments on Facebook complaining that the hot dogs and bottled water served at a sales event introducing the new BMW 5-series were not in keeping with the luxury brand’s status. He claimed these postings and subsequent comments were protected under the Act because other employees participated in the discussion and the genesis for the posting was a concern that the sales event’s culinary offerings could hurt sales and affect employees’ commissions. The ALJ agreed that this posting was protected. The Judge also found that the employer’s social media policy was overbroad and ordered the employer to post a notice.

However, this was not the only time the employee took to Facebook to post about his employer. He also posted pictures of an accident where a child ran over his parent’s foot while behind the wheel of a Land Rover. The Judge found that this posting was not protected by the Act because it had no connection to his or other employees’ terms and conditions of employees and was posted solely by him. Because the Judge found it to be clearly unprotected by the Act, he did not reach the issue of whether the mocking tone in the post could result in an otherwise protected comment losing the Act’s protection. The ALJ concluded that it was this posting that resulted in the employee’s termination, and therefore there was no violation of the Act.

We will continue to monitor and report on these types of cases as they make their way to the Board and the courts of appeals.