Last month, EmployNews reported the first decision by a federal administrative law judge upholding the National Labor Relation Board's position that an employee's private Facebook postings complaining about her co-worker were protected concerted activity under federal labor laws. Last week in a separate case, another ALJ concluded that Facebook postings mocking an accident at an adjacent business did not enjoy the same protection from disciplinary action by the employer.

In Knauz Motors, Inc., the aggrieved employee was a car salesman who posted a number of comments relating to his employment. Some complained about the inadequacy of a recent sales promotion event by the dealership. Others posted pictures and made light of a test drive accident at a nearby dealership. After being fired following the postings, the employee filed a complaint with the NLRB, contending that the termination violated his rights under Section 7 of the NLRA.

The ALJ disagreed, holding for the employer. In his decision, the judge agreed that the employee's postings criticizing the sales event were protected communications. However, he concluded that the employee was terminated not for these postings, but based on the pictures and taunts relating to the accident. The ALJ did not consider these Facebook postings to constitute protected activity relating to the employee's own terms and conditions of employment.

While the employer prevailed in this case, the ALJ agreed with the NLRB's basic position that Facebook postings involving complaints about work, co-workers and working conditions can be protected activity. Employers can take disciplinary action based on such postings, but only in the event that (1) they do not involve complaints about work; or (2) the postings are so insulting or abusive that they exceed developing standards regarding how far employees' rights extend in this area. As the NLRB and federal courts hear more of these cases, employers may have a better idea as to where these lines should be drawn.