|October 4, 2012|
Previously published on October 3, 2012
Executive Summary: In its first published discipline/discharge decision involving employee Facebook access, the National Labor Relations Board has upheld the termination of an employee whose Facebook posts mocked an accident on his employer's property.
Robert Becker was a salesman for Knauz BMW. In June 2010, Knauz BMW was preparing for its BMW Ultimate Drive Event, including the launch of the redesigned BMW 5-Series. At a pre-Event meeting, the sales manager infomed the sales force that the dealership was bringing out a hot dog cart in case customers got hungry. At least two salespeople, including Becker, griped that the dealership should offer better food for the Event. During the Event, Becker took pictures of the hot dog cart and posted them on his Facebook page along with some sarcastic comments a few days later.
Knauz BMW is located in an autopark adjacent to Knauz Land Rover. A few days after the BMW Event, there was an accident at the Land Rover dealership. Becker was at work when the accident took place. He quickly grabbed his camera and took pictures of the accident. The same day he posted the Event pictures on his Facebook page, he also posted his pictures of the accident along with some mocking comments.
Knauz learned about Becker's Facebook postings the next day, and soon after terminated him for the accident-related postings. Becker filed an unfair labor practice charge alleging that he was fired for engaging in protected concerted activity under the National Labor Relations Act. The NLRB General Counsel claimed that Becker's Event-related posts about the hot dog cart represented employee complaints related to their compensation. One component of salesperson compensation was customer satisfaction, and the General Counsel's theory was that the dealership's choice of food could have a negative customer impact. Therefore, alleged the General Counsel, terminating Becker for his Event-related posts was retaliation for protected concerted activity.
Administrative Law Judge Rules For Dealership
The case was tried before a NLRB administrative law judge in July 2011. FordHarrison partner Brian Kurtz was one of the attorneys who represented Knauz BMW at the hearing. The judge upheld Becker's termination, finding that Becker was fired because of his offensive, unprotected accident-related Facebook postings. The judge also ruled, however, that Becker's postings about the hot dog cart constituted protected concerted activity. The General Counsel appealed Becker's termination; Knauz BMW appealed the judge's finding that the Event-related postings were protected under the Act.
The Board's Decision
The Board unanimously adopted the judge's conclusion that Knauz BMW lawfully terminated Becker for his accident-related Facebook postings. The Board passed on whether the food-related posts were protected under the Act because its ruling on the termination made that issue unnecessary to its disposition of the case.
Knauz BMW was the Board's first social media discipline/discharge decision, but it certainly will not be the last. There is a growing backlog of social media cases pending before the NLRB that will hopefully address many unanswered questions, such as:
- is an employee engaged in concerted activity if he "retweets" on Twitter or simply "likes" another's Facebook post?
- is an employer engaged in unlawful surveillance if it reviews an employee's unrestricted Facebook page or Twitter account?
- to what extent can employers restrict social media access in the workplace?
- are there evidentiary challenges to introducing social media activity at a hearing?
Employers' Bottom Line:
The NLRB is more and more focused on the rights of nonunion employees. Employers, especially nonunion employers, must be mindful of the concept of protected concerted activity before taking adverse action against an employee. Workplace policies and practices need to keep pace with the law, including the Board's recent ruling on employer social media policies. If one of your employees publishes something offensive or confidential on Facebook, Twitter, or YouTube, proceed with caution before taking action.