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.

 

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.