|October 5, 2012|
Previously published on October 2, 2012
The National Labor Relations Board (NLRB) is on a roll. Just a few weeks after issuing its first decision finding that a company's social media policy violated the National Labor Relations Act (NLRA), the NLRB yesterday released its first decision addressing the legality of an employment discharge over an employee's social media postings.
Fodder for Facebook: Land Rovers in Ponds and Hot Dogs to Sell BMWs
In Karl Knauz Motors, decided on September 28 and released on October 1, the NLRB adopted the findings of an administrative law judge (ALJ) that a car dealership lawfully discharged one of its salesmen because of certain Facebook postings regarding an accident at an affiliated dealership. The NLRB concluded that those postings were not protected by the NLRA. In commenting on photos he took of a Land Rover that was driven into a pond by a customer's son, the salesman wrote: "This is your car: This is your car on drugs." The salesman continued: "This is what happens when a sales Person sitting in the front passenger seat...allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything." In response, the employer fired the salesman because his actions damaged the reputation of the company and the individuals involved, and because the salesman showed no remorse for his actions.
While the car dealership maintained, and the ALJ agreed, that these postings were the sole reason for discharge, these were not the only Facebook postings that the salesman made around the same time as the postings described above. Another set of postings involved photos and comments about the dealership serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. Among other things, the salesman wrote: "The small 8 oz bags of chips, and the $2.00 cookie plate from Sam's Club, and the semi fresh apples and oranges were a nice touch...but to top it all off...the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bun." The ALJ found that these postings were protected, concerted activities because customers could have been disappointed by the food options at the event and this could have impacted the salesman's compensation. In its decision, the NLRB did not decide whether the "hot dog" postings constituted protected concerted activity under the NLRA.
Overbroad Policy Language
In addition to the NLRB's conclusion regarding the legality of the car salesman's discharge, the NLRB also concluded that a "courtesy" rule in the car dealership's employee handbook was overly broad and could be construed by employees as prohibiting NLRA-protected conduct. The handbook language at issue provided:
(b) Courtesy: Courtesy is the responsibility of every employee. Every employee is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
The NLRB found the second section of the rule—regarding not being "disrespectful" or damaging the dealership's image or reputation—violated the NLRA because the rule "proscribes not a manner of speaking, but the content of employee speech—content that would damage the [dealership's] reputation." The NLRB ultimately ordered the dealership to remove the courtesy rule from its employee handbook and give employees inserts or new handbooks. The NLRB did not address other policy language that was at issue before the ALJ.
What This Means for Employers
The Karl Knauz Motors decision is the first in what will likely be many more decisions by the NLRB as the NLRB's regional offices continue to issue complaints over so-called "Facebook firings" (other cases are currently pending before the NLRB). The decision is also consistent with the NLRB's increased focus on social media postings and policies, as reflected in the many cases detailed in three reports issued by the NLRB's Acting General Counsel since August 2011.
Before disciplining or discharging a union or non-union employee over a social media posting, employers should consider whether the posting constitutes protected concerted activity under the NLRA and consult with legal counsel. In addition, social media policies should be narrowly written to ensure they do not run afoul of the NLRA. Such policies should make clear that employees may engage in protected concerted activity without penalty. Again, counsel should be consulted when drafting or revising a social media policy.