As we reported in a previous post (http://188.8.131.52/~m2dlawto-the-employer-its-insubordination-to-the-nlrb-its-protected-conduct), the National Labor Relations Board has lately been focusing on employee rights under Section 7 of the National Labor Relations Act, which protects “concerted” employee activities engaged in for “mutual aid and protection.” Now, for the second time in less than a year, the Board is litigating Section 7 violations against an employer for terminating an employee because of a Facebook post that the Board says reflected concerted, protected activity.
In this most recent case, the Board asserts that a salesman at a car dealership in Chicago and several of his co-workers were upset with the quality of food and drinks (hot dogs and bottled water) served at a dealership promotional event. Allegedly the salesmen complained that the lame refreshments could affect their sales commissions. Subsequently, one of the salesmen criticized the event through photos and commentary on his Facebook page, which was accessible to other employees. (It is currently unclear who else had access to the page.) Although the dealership asked the salesman to remove the post and he complied, it terminated his employment shortly thereafter.
While the Facebook post seemingly disparaged the dealership in a semi-public way, that does not appear to matter to the Board – instead, the Board alleges that the salesman’s post constituted concerted, protected activity because “it involved a discussion among employees about their terms and conditions of employment.” The matter is set to be litigated later this summer. The Board’s press release summarizing the complaint is attached here: http://nlrb.gov/news/chicago-car-dealership-wrongfully-discharged-employee-facebook-posts-complaint-alleges.
The Bottom Line for Employers:
While this matter is yet to be litigated, this most recent NLRB complaint reflects the great tension between what the Board views as concerted, protected activity, on the one hand, and an employer’s interest in precluding disparagement of its products or services, on the other. As this is a rapidly evolving area of the law with highly fact-specific precedent, employers are advised to keep up with legal developments and to carefully consider situations in which the discipline of an employee for insubordination or disparagement via social media activity might nonetheless implicate Section 7 rights because the activity involves communications among employees regarding the terms and conditions of work. Note that Section 7 applies in both unionized and non-unionized workplaces.