The complaint was filed out of the NLRB Office Region 13 Chicago. I contacted Regional Director James Barker who indicated that a formal press release will be issued in the next day or so in regards to this complaint.

I spoke with legal counsel for the dealership, James Hendricks, seeking more information about the case. While he couldn’t get too specific as they are taking this to trial, he was able to give me a brief summary of the facts regarding the case. When asked what the salesperson posted on Facebook that is involved in this complaint, Mr. Hendricks indicated to me that the salesperson posted a picture of an accident involving another salesperson while on a test drive with a customer that occurred at an adjacent dealership owned by the same company as the one he was employed by.

Mr. Hendricks’ position is that the employee in question was not terminated for that action (posting on Facebook) but for different reasons.

“We advise all of our dealer clients to have a social media policy in place that contains a disclaimer that nothing within their policy is meant to violate the employee’s section 7 rights under the National Labor Relations Act”, said Mr. Hendricks. Section 7 is the core of the NLRA as it defines protected activity including employees’ right to organize, take part in grievances, protests and strikes.

There is very little information available as of now but this is certainly something dealerships should be watching. The National Labor Relations Board has recently begun taking an active interest in employers in regards to terminations and disciplinary actions taken against employees, most recently including an April 27, 2011 settlement by the NLRB with build.com and a February 8, 2011 settlement with American Medical Response of Connecticut, Inc. both of which involved employees being terminated due to Facebook posts that were made. In both of those cases, it was determined by the NLRB that the activity was protected activity since the employees were discussing workplace conditions with fellow co-workers.

There have been plenty of cases in which terminations related to social media activity by employees were upheld by various legal entities. The fact that the NLRB seems to feel that this activity (posting photos of an accident that occurred at your workplace by a co-worker which involved a customer) is protected in some way will be something we need to watch. The trial date is set for July 21, 2011.

UPDATE: After breaking the news on this matter on Dealer magazine, new information was brought to my attention. I re-contacted the dealership’s attorney to clarify facts in this case. According to the attorney, the NLRB’s position is that the employee was terminated due to posting a comment on Facebook relating to what he considered poor quality food and beverages offered to dealership customers at a sales event, however, the dealership’s position is that the employee was terminated due to the posting of the photograph which I described earlier.

(Article mentioned by Dave Jamieson of the Huffington Post).