Social Media: Still an Area of Emerging Case Law

Author: Hans & Associates, P.C.

Courts continue to draw lines in employer-employee social media cases, defining which communications are protected under labor law and which are fair game for terminating employees.

Business Management Daily recently reported a National Labor Relations Board (NLRB) ruling that addressed two instances of Facebook postings by the same employee. In the case Karl Knaus Motors Inc., the Knaus dealership had terminated the employee based on a Facebook post. An interesting aspect of this case is that it provided examples of communications that were protected and unprotected by labor law.

One of the employee’s postings made fun of the BMW dealership’s plan to serve free hot dogs and bottled water at an event, suggesting that the unsophisticated food would be unappealing to potential customers of substantial means. The second post contained a picture of a BMW that a customer’s young son had inadvertently driven into a pond.

Food at the sales event had been a discussion topic at a company sales meeting prior to the employee’s Facebook posting. The judge ruled that this post related to employee compensation based on the fact that sales people make commissions on car sales and inappropriate sales events might adversely affect their sales. The judge’s ruling also set another important precedent — that a concerted activity did not require two or more persons protesting at the same time about working conditions. The prior sales meeting discussion established the fact of food discussion being a concerted activity. Despite the fact that no other employee engaged in a Facebook discussion, the post was a concerted activity.

However, the child who drove the BMW into the pond was not a prior topic of concerted activity. The NLRB ruled that the company was within its legal rights to fire the employee over that Facebook post.

Consult your NY labor lawyer

Before taking disciplinary action or terminating an employee over a social media posting, discuss the issue with your New York labor lawyer.  Social media is new legal ground and courts are still setting precedents as more and more cases emerge.

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