NLRB decides first Facebook case

The NLRB has concluded that the firing of a car salesman occurred because he posted to Facebook photos about a dangerous accident which occurred at another dealership owned by his employer. The accident involved a Land Rover driven over a wall and into a pond after a test drive. The same day the salesman posted the accident photos he posted sarcastic comments about a "cheap" party given by his employer at a sales event announcing new BMW models. The latter photos were arguably protected concerted activity "because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions."

The NLRB affirmed the ALJ's conclusion that the Land Rover incident was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

While the discharge was upheld, the employer's rule requiring "courtesy" in employee to employee communications was overly broad, leading to a finding of a violation and an order requiring the employer to remove the rule from its handbook.

Facebook stands up to employers

Facebook has announced it may sue employers who require applicants or employees to provide their Facebook password. Not so sure Facebook would win, but who wants the honor of being the test case?

Another NLRB Complaint issued over Facebook firing

The Chicago Regional Office of the NLRB has issued a complaint against a luxury car company for firing an employee who posted a "concerted" protest about a promotional event which could adversely affect compensation for sales employees. Our previous posts on this issue are here. This is one area of law that has evolved rapidly. Employers should seek legal advice before making employment decisions about computer use/social media or blog postings. It isn't as simple as conventional wisdom may suggest.

Facebook as protected concerted activity II.

A Facebook post by an employee of a non-profit employer criticized the staff for not doing enough to help the clients served by the organization. The post drew comments from five other employees who defended their job performances and criticized terms and conditions of employment. The employer discharged the five for harassing the original poster. The NLRB issued a complaint alleging the activity discussing workplace terms and conditions was protected concerted activity. A trial is set for June 22. A previous case against a different employer settled.

Why unions don't use social media.

Social Media is designed for organizing in general and its uses for labor organizing are immense. Just as the internet has changed the way election campaigns are run, social media can change the way communication of the information of organizing and campaigning is distributed and received. Here's a piece on why labor does not get social media. The post is important stuff for the future. But the poster misses the current problem. The putative recipients of social media communications are not positioned to receive the information. They lack access at work, or perhaps have no access at all. That will change as technology gets ever cheaper, and smart phones more easily available. Employers have you thought about cell phone use and social media policies in the workplace?

Facebook and subpoenas

A Facebook attorney spoke at a recent legal technology conference providing details of its aggressive resistance to requests for user's Facebook account information. Both providers as well as persons seeking information from providers with electronic data need to understand the Stored Communications Act.