ALJ rules that Facebook posts are not protected activity

By Correy Stephenson The Daily Record Newswire In the continuing stream of cases dealing with Facebook firings, a car dealership that fired a salesman who complained on Facebook about his employer's choice of fare at a party did not violate his rights, an Administrative Law Judge of the National Labor Relations Board has ruled. Chicago-area BMW salesman Robert Becker was terminated for Facebook posts criticizing the quality of food and beverages at a dealership event and a recent accident at an adjoining Land Rover dealership. Becker complained that sales commissions would suffer as a result of the sub-par event, which was held to promote a new BMW model. He posted pictures on Facebook and commented about how only hot dogs and bottled water were offered to customers who attended the event. On the same day, he also posted pictures of an accident at the Land Rover dealership. A salesman allowed a 13-year-old behind the wheel of a car and it was driven into a pond. Becker posted photos of the accident and sarcastic comments. A manager asked Becker to remove the posts (which were accessible by other employees), and although he immediately complied, he was terminated, according to the NLRB, which filed a complaint in May. The employee's Facebook posting was a protected concerted activity, the NLRB said in a press release, "because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments." Although ALJ Joel P. Biblowitz agreed that Becker's posts about the event were protected activity, he said the salesman was fired for posts about an accident at the dealer's Land Rover dealership. And because he worked for the adjoining BMW dealership, the posts about the incident at Land Rover "had no connection to any of [his] terms and conditions of employment," the ALJ wrote, and were therefore not protected activity. The decision is the latest example of the NLRB's focus on employees and social media, although case results have been mixed. Last month, a different ALJ ruled that employees who were fired over comments made on Facebook were illegally terminated, ordering the company to reinstate the five employees as well as awarding them backpay. The agency itself issued a report in August, detailing 14 rulings involving the use of Facebook or Twitter. The report found that the NLRB's investigations had mixed results, with four cases involving employees engaged in "protected concerted activity" because they were discussing the terms and conditions of employment with fellow employees and five cases involving employee social media use that was not protected. Published: Thu, Nov 3, 2011