The NLRB continued its efforts to poke employers who discipline or discharge employees who make disparaging comments on Facebook.  According to a May 24 press release, the NLRB issued yet another Complaint against an Illinois car dealer, Knauz BMW, after it terminated a salesman for content he posted on Facebook.  The press release states the salesman “posted photos and commentary on his Facebook page critical that only hot dogs and bottled water” were being served at a dealer sales event.  The press release notes further that some of the salesman’s co-workers “had access” to the comments.  A trial date has been set for July 21.

By now these cases seem fairly routine, innocuous almost.  This is because there are so many out there now.  Anecdotally, labor law practitioners now report dozens of Facebook related cases are pending in various Regions of the NLRB.  We know the legal principles are straightforward:  as a general matter employers may not punish employees who discuss working conditions with other employees  We also know that the NLRB Acting General Counsel takes the position that comments made on Facebook are akin to a discussion among employees at a “watercooler.”

The real question is whether any or all of these cases are an expansion of the rights of employees to discuss workplace issues.  In this most recent case, the employer was confronted with a salesman, the public-facing representative of its workforce, posting pictures and commentary that showed its business in a negative light.  The details of the case are largely unknown, but the way it is portrayed in the press release simply seems to be a stretch that there is a “discussion” among employees because other employees “had access” to the Facebook page. One hint that this particular case may be less compelling than others is the fact the employee was terminated almost one year ago, so the case has been pending for quite a while.

We will never know if these cases truly represent an expansion of what is considered protected activity until some get tried before an Administrative Law Judge.  It will be interesting, for example, to see if the “watercooler” argument can, well, hold water.   Is a Facebook posting truly just a modern day discussion among employees that moved from the watercooler to social media?  Frankly, that seems to blow the concept of such a discussion out of proportion.  Facebook’s own statistics show that an average user has 130 friends.  If we take this as a baseline for the salesman discharged in this case, then the negative comments about the employer potentially reached 16,900 people, some of whom may be customers, potential customers and competitors.  At what point does a comment made by a salesperson, a person hired to espouse the positive nature of the service and product the customer will receive for his or her patronage, become unprotected because it was blasted to the entire world?  Would it be protected activity for an sales employee to rent a billboard (one of those electronic ones, mind you, we are in the 21st century) on a street where fellow employees have “access” that states “hot dogs and bottled water” is insufficient for a sales event?  One would think not, but there really is little difference between that and a posting on Facebook, a social media tool that has 500 million users.

We’ll keep you posted on further developments, but given the latest trend, employers need to continue to be mindful of the NLRB’s position on such postings.


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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.