by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap

Two weeks ago, we wrote about a decision from an Administrative Law Judge (ALJ) (available here) finding that the National Labor Relations Act (NLRA) protected an employee’s Facebook comments made about his employer.  Last week, an ALJ issued another decision involving social media and the NLRA, finding that an employee had engaged in some protected activity, but that he was ultimately fired for other, unprotected activity.  In Karl Knauz Motors, a former salesperson claimed that he was fired after he posted pictures and comments on Facebook criticizing his employer’s choice of serving hot dogs at a sales event introducing the new BMW 5-series.  The National Labor Relations Board (NLRB) recently issued a report related to social media (found here), in which it noted the employee’s posts in the BMW case were protected activity because they related to the terms and conditions of employment.

While the ALJ agreed that the employee had engaged in protected activity in discussing the sales event, the Judge held that the employer actually terminated the employee for his other Facebook posts, which mocked a co-worker for allowing a teenager to test drive a Land Rover, who ultimately drove the car into a nearby pond.  The Judge found that the NLRA did not protect such a posting because it had no connection to the terms and conditions of employment, and was posted solely by the employee, not as part of a discussion with other employees.  Therefore the employer did not violate the NLRA when it fired the employee.

In addition to the Facebook postings, the Judge also considered whether four provisions of the employer’s handbook violated Section 7 of the NLRA.  The Judge dismissed the complaint regarding a provision that encouraged employees to have a good attitude at work, because it could be read to protect the relationship between the dealer and its customers, rather than to restrict employees’ Section 7 rights.  However, the Judge held that the three remaining provisions, which each limited employees’ right to speak about employment, violated the NLRA because they all could be read as curtailing employees’ Section 7 rights, and if employees complied with these restrictions, they would not be able to discuss working conditions with union representatives or lawyers.

Based on this ALJ decision, employers should continue to exercise caution when making employment decisions based on social media comments.  There continues to be a fine line between protected activity and unprotected activity when it comes to employees’ social media comments about their employers.  In addition, employers should review and possibly revise their handbooks to ensure they cannot be read as restricting employees’ Section 7 rights.