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NLRB Backs Employer in Facebook-firing decision

Eric Meyer, a partner in the Philadelphia firm Dilworth
Paxson, provides an interesting analysis of a recent NLRB decision that upheld
an employer’s firing of a car salesman based on photos posted to his Facebook
page. The photos involved a Land Rover that was accidently driven over a wall
and into a pond during a test drive (by a 13 year old), along with sarcastic
commentary. The NLRB upheld the firing because the posted activity was not
“concerted or protected” under the National Labor Relations Act. The NLRA only
protects activities taken by a group (or on behalf of a group) that involve
discussing and improving employees’ terms and conditions of employment.

Here, the salesman made the posts to his Facebook page
without any discussion with other employees, and the post did not have any
connection to his terms of employment. However, the court did state that the
company policy asking employees not to be disrespectful or to use language that
would injure the company was in violation of the NLRA because the company could
interpret statements of criticism as injurious to the company even though those
statements, if made by a group, would be protected by the NLRA.

Meyer provides three helpful takeaways from the
decisions. First, that individual employees who complain about workplace
conditions can be disciplined. Second, that employers who intend to terminate a
complaining employee need to determine whether he or she acted alone or in a
group, as group activity is protected under the NLRA. Third, that the NLRA
applies to both union and non-union private-sector employees. Overall,
employees should always be cautious of what they post on their Facebook pages,
as only group organizing seems is protected from employer retaliation.
Generally posting sarcastic commentary about your employer online is a bad
idea.