Friday, September 30, 2011

BREAKING: NLRB Judge Rules on Facebook Case

The NLRB just issued a press release announcing: Administrative Law Judge rules Chicago car dealership had overly broad employee policy, but discharged employee’s activity not protected. You can read the full decision here. Note that this was one of the cases covered by the NLRB's social media memo, in which they concluded that the employee was engaged in concerted, protected activity under the NLRA.

The employee had posted photos and mocking commentary of a car accident that took place at the car dealership (apparently a car went into a pond). The administrative law judge was not amused:
I find that Becker’s posting of the Land Rover accident on his Facebook account was neither protected nor concerted activities, and Counsel for the General Counsel does not appear to argue otherwise. It was posted solely by Becker, 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.
There was some other Facebook activity that was arguably protected (Update: the Judge in fact notes that he found it to be concerted, protected activity) but the Judge ruled that the employee was fired for the accident-related Facebook posting.

The Judge did order the employer to post notice that it will not enforce the overly broad provisions of its handbook, and alerting employees to their NLRA rights.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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