A salesperson for a BMW dealership posted mocking comments and pictures on his Facebook page about the food the dealership served at a promotional “Ultimate Driving Event” held to introduce clients to the new BMW Series 5. The salesperson was disappointed that his dealership chose to serve hot dogs, bags of Doritos, cookies, and mini water bottles purchased from the local Sam’s Club at an event where the dealership should have been trying to impress its clients. The Facebook postings complained that the choice in food was not befitting an event centered on a luxury car product, a viewpoint that the salesperson discussed with his colleagues before he posted them. The negative Facebook postings were accompanied by photos of the salesperson and his colleagues posing in mocking fashion with various food items at the event.
The BMW dealership eventually discovered the Facebook postings, and fired the salesperson for demeaning the company. The salesperson challenged the legality of his termination, claiming that his Facebook postings were protected activity since he was venting about workplaces issues.
Who won this issue?
The salesperson did. A judge in New York found that the Facebook postings were protected under Section 7 of the National Labor Relations Act (NLRA), since the cheap food selection could have resulted in less car sales and therefore reduced commissions for the salesperson and his colleagues. The judge noted that of the salesperson’s 95 “friends” on Facebook, 16 of them were co-workers at the dealership. Therefore, the postings could be seen as facilitating a discussion among employees of the dealership about workplace issues.
Legal issues such as this involving social media in the workplace are becoming more prevalent every day. Section 7 of the NLRA applies to all employees and workplaces, not just unionized ones, and prohibits any conduct by an employer that restricts an employee’s ability to commiserate with other employees about workplace issues such as compensation. Not too long ago, the main concern here would have been employees griping around the water cooler. But with the advent of social media such as Facebook and Twitter, employees are using online postings to air their employment grievances, creating a major legal dilemma for employers who attempt a heavy-handed approach in response. Companies need to take great care and work with experienced employment counsel in crafting an effective social media policy.