The Board recognizes that under the National Labor Relations Act, employees have the right to discuss terms and conditions of their job. So, when employees post comments on Facebook about work, they are involving the NLRA, a 1930’s era statute. One employee at a BMW dealership suggested a dealership picnic for customers was poor marketing. Since, the dealership served hot dogs and bottled water (that’s not champagne or wine, noted the salesman). The salesman also posted a mocking comments ("Oops") when a customer’s son drove a Land Rover into a brick wall and into a pond. The salesman was fired. He claimed he was fire due to these comments. he argued the comments were protected speech under the NLRA, since they concerned work.
But, the NLRB then found that the comments about the marketing event (i.e., the picnic) did not cause the salesman’s termination. The hot dog comments did not cause the termination, said the Board. So, it did not address that issue. But, the comment about the son driving the Land Rover into a wall was not protected speech. That was not about work. So, the salesman could have been fired for posting those comments.
The Board found that the dealership’s "Courtesy" rule regarding employee communications was overbroad and could inhibit communication regarding working conditions. The Board ordered the dealer to issue new policies regarding employee communications. See Workplace Prof blog for more.
The NLRB normally deals with labor union issues. But, we are finding significant guidance for the non-labor union world regarding Facebook.