A National Labor Relations Board administrative law judge has ruled a Chicago-area BMW car dealership did not wrongfully terminate an employee for his Facebook postings, the agency said in a written statement released Sept 29.
The dealership's lawyer, however, criticized the ruling as being confusing for employers.
Judge Joel Biblowitz's Sept. 28 ruling said two incidents preceded salesman Robert Becker's termination from Lake Bluff, Illinois-based Karl Knauz Motors Inc. in June: In a Facebook posting, he had mocked his employer for the fact that during an "Ultimate Driving" event at the dealership, clients received only cookies and chips and an "overcooked wiener and stale bun"; and, also on Facebook, he posted pictures and comments about an accident at the dealership next door, owned by the same company, that occurred in June when a 13-year-old was allowed to sit in the driver's seat of a car, stepped on the gas pedal and drove it into a pond. No one was hurt.
The judge concluded that the hot dog issue, which had been discussed previously at a staff meeting, was a protected activity, "as it could have had an effect upon his compensation."
"Although Becker's Facebook account of the event clearly had a mocking and sarcastic tone that, in itself, does not deprive the activity of the protection" of the National Labor Relations Act, according to the ruling.
However, the judge said Becker's posting of the accident was unprotected. "It was posted by Becker, apparently, as a lark, without any discussion with any other employee of the respondent, and had no connection to any of the employee's terms and conditions of employment," Biblowitz said.
He also concluded that sections of the firm's employee handbook were overly broad, although they have since been rescinded. He ordered a notice be posted at the dealership informing employees of their right to engage in protected concerted activity.
Knauz BMW's lawyer, James Hendricks Jr., a partner with Ford & Harrison in Chicago, said the ruling is confusing.
The judge made a ruling on two Facebook postings, but said one is a concerted activity and the other is not.
"I don't think it gives any direction to an employer as to how they go about disciplining an employee or not" based upon a social media posting.
It means employers will be driven "to use attorneys to make what should be a simple business decision for fear of having to go before a federal agency," Hendricks said.
Last month, in a decision that has received widespread attention, an NLRB judge ruled a Buffalo, New York, not-for-profit unlawfully discharged five employees after they posted comments on Facebook about their working conditions.