It is often difficult to discern whether the employee’s conduct online—whether it be posting pictures, writing comments about the work environment or the employer, will constitute protected concerted activity. This determination will determine what actions, if any, an employer may take against an employee when s/he as posted online content, and more broadly, the cases which follow can allow an employer to craft legally permissible policies and handbooks.
No protected concerted activity:
For example, in Karl Knauz Motors, Inc., 358 NLRB 164 (2012), a BMW automobile dealership (the Respondent) discharged a sales representative for photos and comments that he posted to his Facebook page. The first post was about a sales event for a new model and included sarcastic comments about the quality of the food (hot dogs, chips, and bottled water) being served at a marketing event for a luxury automobile.
The second incident involved an accident at an adjacent dealership in which a customer’s 13-year old child was sitting in a vehicle’s driver’s seat when the vehicle accelerated over the customer’s foot and into a pond while the child was inside. The employee posted photos and comments mocking the incident on his Facebook page. A competitor told the Respondent about the posts and the employee was discharged. The Board determined that these comments and photos which led to his termination did not amount to protected and concerted activity under the Act.
Additionally, in Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the employer discharged an employee for her Facebook posts regarding work. After discussing nonwork issues with a private group of 10 current and former coworkers, the employee turned to the conversation to work and wrote: “They [the employer] are full of s**t…They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F***…FIRE ME…Make my day…”
The employer found about this posting the following day. It terminated her, stating that it was “obvious” she was no longer interested in working there and the employer was concerned about having the employee work with customers given her feelings about her job. The Board held that the employee did not engage in protected concerted activity and, therefore, the employer did not violate the Act when it terminated her employment. Although the postings referenced her work situation, her comments amounted to nothing more than individual griping rather than any shared concerns about working conditions.