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National Labor Relations Board Hears Its First Social Media Termination Case

Facebook Pictures Cost Salesman His Job

The National Labor Relations Board recently ruled on its first social media case earlier this month and employers can breathe a sigh of relief.  In Knauz BMW, the NLRB ruled that the employer was justified in terminating one of its salesmen after certain pictures and comments regarding incidents at the dealership were posted on Facebook.    

The dealership owned both a BMW and Land Rover business located next to each other.  The salesman worked at the BMW dealership.  The first incident involved a sales event hosted at BMW where the dealership served hot dogs, chips and cookies to those in attendance.  This employee, along with others, did not like the choice of food given the fact that high-end vehicles were being sold.

The salesman posted pictures of the event on Facebook with the comment “No, that’s not champagne or wine, it’s 8 oz of water, pop or soda would be out of the question.” 

Five days later, at the adjacent Land Rover dealership, a customer’s 13 year old son accidentally stepped on the gas pedal of a Land Rover, running over his father’s foot, thereafter driving down a hill and landing in a small pond.  This same employee posted photos of this incident on his Facebook page with sarcastic comments regarding the child and the cost of the vehicle.

The interesting twist in this case, according to the NLRB, involved the question of “whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous occurrence at the adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event.”  

The administrative law judge determined that the latter activity might be protected under the NLRB because “it involved co-workers who were concerned about the effect of low-cost food on the image of the dealership and, ultimately, their sales and commissions.”  The judge ruled that the salesman was fired solely for the Land Rover posting and the NLRB agreed.

The NLRB also considered a “courtesy” rule the dealership had listed in its employee handbook, which read, “everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or other language which injures the image or reputation of the dealership.”  The NLRB ruled that the language was unlawful because employees “would reasonably believe that it prohibits any statements of protest or criticism,” even those protected by the National Labor Relations Act.

The NLRB ordered the dealership to remove the unlawful rules and furnish employees with inserts or new handbooks.

An important lesson to be learned regarding the use of social media. What do you think of these decisions?

Richard P. Hastings is a Connecticut personal injury lawyer at Hastings, Cohan & Walsh, LLP, with offices throughout the state. He has been named a New England Super Lawyer and is the author of the books: "The Crash Course on Child Injury Claims"; "The Crash Course on Personal Injury Claims in Connecticut" and "The Crash Course on Motorcycle Accidents." He has also co-authored the best selling book "Wolf in Sheep's Clothing- What Your Insurance Company Doesn't Want You to Know and Won't Tell You Until It's Too Late!" He can be reached at 1(888)CTLAW-00 or by visiting www.hcwlaw.com.

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