Can you legally fire one of your employees for a Facebook post critical of your small business? No, according to the National Labor Relations Board (NLRB), which issued a complaint in late May against an Illinois BMW dealership, alleging that the dealership unlawfully terminated an employee for making critical comments about the dealership on Facebook.
The NLRB’s complaint alleges that a car salesman posted complaints about the quality of food and drink served at a dealership event promoting a new car. Other dealership employees had access to the salesman’s Facebook page. The following week, management asked the salesman to remove the posts, and the salesman complied. However, soon after, the dealership fired the salesman.
According to the NLRB, the employee’s Facebook posts were protected “concerted activity” under the National Labor Relations Act (NLRA), because they were part of a discussion among employees about the terms and conditions of their employment. An NLRB administrative law judge was scheduled to hear the case on June 21.
The BMW dealership case comes on the heels of other NLRB complaints against employers for penalizing employees based on critical Facebook comments, blog posts, or other social networking activity. For instance, in February, a Connecticut employer settled a NLRB complaint alleging that the company fired an employee for posting a negative comment about her supervisor on Facebook. And in April, the NLRB filed a complaint alleging that a media company violated federal law by restricting its employees’ ability to use Twitter to discuss working conditions with coworkers.
The NLRB’s actions do not mean that every social media post an employee makes is protected by law. In fact, the NLRB recently held that a Tuscon-area newspaper did not violate the law when it fired an employee for unprofessional and inappropriate tweets that included remarks about how Tuscon was “slacking” because there were no overnight homicides and sexual innuendo to describe the employee’s television viewing habits.
While unprofessional and inappropriate conduct may not be protected, the intersection of social media and the NLRA is an evolving area of the law, and it is not yet clear when a Facebook post or tweet crosses the line from protected concerted activity to punishable offense. If your small business is concerned about the social media activities of one of your employees, proceed with caution, because the employee’s actions may be protected by the NLRA.
By: Guest blogger Steven Koprince, an attorney with Petefish, Immel, Heeb & Hird, LLP in Lawrence, KS. Mr. Koprince’s practice emphasizes government contracts and small business law.