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Employees Can Be Fired for Facebook Posts at Work: NLRB

By Deanne Katz, Esq. on November 05, 2012 | Last updated on March 21, 2019

Almost exactly a year after the NLRB's first ruling on whether employees can be fired for what they post on Facebook, the NLRB has issued a new ruling that further clarifies the its stance.

The case involved a car salesman who was fired for photos taken at his workplace and posted on Facebook, Inside Counsel reports. The pictures were accompanied by sarcastic remarks made by the employee. When Knauz BMW, the dealership where he worked, found the pictures, the salesman was fired.

The unidentified man filed a complaint with the NLRB, likely based on last year's ruling. But the board's decision in October may have come as a surprise.

Back in September 2011, the NLRB said employees could not be fired for complaining about their jobs on Facebook, Reuters reported. The presiding judge noted that employee speech is protected, especially if the speech is a protest or criticism.

But the new NLRB ruling came to a different conclusion, albeit on a different issue: The board ruled that employees can be fired for posting pictures from work onto Facebook.

That doesn't apply to all pictures and comments made on Facebook about an employee's workplace. The photo that led to the firing caused embarrassment to the dealership rather than merely complaining or criticizing the employer, an important distinction noted by the judge.

The ex-employee had actually posted two pictures online. One complained about the snacks provided at a company event; the other was a picture of an embarrassing and dangerous accident at work.

Evidence indicated the employee was fired only for the second picture. If the first one had been the reason for his termination, it wouldn't have been acceptable, according to Inside Counsel.

While this was a necessary clarification, it isn't all that surprising. True to its previous decisions, the NLRB does not support firing employees for criticizing their employers, but it does allow firing employees for statements that damage the company's business.

The dealership won the case, but it also lost when it came to their employment policy. The NLRB struck down a rule that required all employees to be "courteous," because it appeared to prohibit criticism, reports Inside Counsel. That's something to remember next time you're reviewing the employee handbook.

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