As reported in EmployNews over the past several years, employer control of employee social networking outside of work has emerged as one of the hottest areas of employment law. The National Labor Relations Board has struggled to adapt its rules and precedents regarding concerted employee activity to social networks, which may be seen by a wide range of persons outside of the company. Employers understandably want to protect their brand images from negative and derogatory employee comments, but are faced with growing concerns over legal liability for attempts to discipline employees for social networking policy violations.

Earlier this week in the first Facebook case heard by the full Board, the NLRB affirmed dismissal of an unfair labor practice charge filed against a BMW dealer that fired an employee following disparaging remarks made on his Facebook page. The online comments made a number of disparaging remarks regarding refreshments served by the dealership during a new product reception. The employee also ridiculed an affiliated Land Rover dealership and posted pictures of a test drive accident at that dealership.

The Board affirmed the ALJ's decision that the termination was primarily motivated by the Land Rover postings, and that these comments were not protected under federal labor law. While the comments about the reception could arguably be deemed protected complaints about terms and conditions of employment, the Land Rover comments were little more than ridicule, and did not involve anything that would have affected the employee's employment at the BMW dealership.

While the employer prevailed in this case, it does not provide employers with much guidance or comfort with respect to their social networking policies. The complaints about the reception were deemed protected conduct, even though they had only a very tangential effect on salespersons' compensation. When faced with factual situations involving ridicule of issues or persons more directly related to the employee's own place of employment, the Board can be expected to back the employee. Absent clear guidance from the NLRB on the permissible extent of social networking disciplinary actions, these cases are likely to be decided on a case-by-case basis.