NLRB Ruling on Facebook Firing
When can an employee be terminated for inappropriate Facebook posts? A recent case involving a wrecked Land Rover and some cheap snacks at a neighboring BMW dealership sheds a bit of light on this issue.
In August, I discussed the issue of employers firing their employees due to social media posts and how that may violate the National Labor Relations Act (the “NLRA”). For a quick review, the NLRA does not allow an employer to take actions or have a policy that has the may actually or potentially “chill” an employee’s right to engage in protected concerted activity – basically, concerted activity means discussing work conditions with other employees. The Act is violated if employees would reasonably interpret the language of a policy to prohibit Section 7 activity or if the policy has been applied to restrict the exercise of Section 7 rights (this is referring to Section 7 of the NLRA). So if an employer’s social media policy could be interpreted or applied in such a way that prohibits the exercise of Section 7 rights, it could be struck down by the National Labor Relations Board (the “NLRB”).
Side note: we’ll discuss the NLRA, and the NLRB, but fortunately there’s no NLRC. That’s just a little alphabet joke for my faithful readers. Moving on…
One recent case on point, Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker. concerned a Chicago-area BMW car dealership. (Link to a PDF of the NLRB ruling here.) The NLRB was asked two questions: (1) whether a salesman was fired for posting pictures of an embarrassing accident that happened at an adjacent Land Rover dealership, or for posting photos with comments poking fun at a luxury BMW car event; and (2) Whether the BMW dealership’s policy violated the NLRA.
The BMW salesman who was fired had posted pictures of two different events on his Facebook page. One set of pictures was of a Land Rover vehicle that had been driven over a wall and into a pond at the LR dealership across from the BMW dealership. (A Land Rover salesman had let his 13 year old son drive the vehicle.) The other set of pictures was of a BMW event and the food and drinks on display. Employees had posted comments on these pictures, making fun of the “cheap” food (hot dogs, chips) that was being offered at a dealership that sold high-priced cars. Both sets of photos were posted on the same day, and the BMW salesman was fired a week later. Note: both the BMW dealership and the Land Rover dealership were owned by the same person.
The judge at the NLRB administrative hearing determined that the pictures of the food at the BMW event, and the comments underneath them by other employees, might have been protected under the NLRA. The BMW employee and his commenting co-workers could reasonably have been concerned about the effect of the low-cost food on the image of the dealership, which could in turn affect their sales and commissions. However, neither the judge, nor the NLRB, who reviewed the case afterwards, found that the pictures and comments of this marketing event actually caused the employee to be discharged.
The NLRB (and the judge) instead found the salesman was fired due to the Land Rover photos. The NLRB found this was not concerted protected activity under Section 7 of the NLRA because it was posted solely by the employee, as a joke, and there was no discussion of the pictures with any other employees on the salesman’s Facebook page. Furthermore, there was no connection of the pictures with the employee’s terms and conditions of employment, unlike the pictures of the food at the marketing event. Instead, the photos were of another workplace entirely.
However, this wasn’t a complete win for the employers. The Board still found their social media policy to be unlawful. The policy stated the following: “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” (Italics mine.)
Two of the three members of the NLRB thought this language would lead employees to reasonably believe that it prohibited statements of protest and criticism of their employment, including those statements protected by the NLRA. Accordingly, the Board ordered the BMW dealership to remove the policy from the employee handbook and give employees new handbooks or inserts.
One NLRB member dissented from this decision because he felt the policy was just a “common sense behavioral guideline for employees,” and that nothing in the rule mentions a restriction on the content of conversations.
Thus, even though the employee’s termination was upheld, the BMW dealership still did not achieve a complete victory, and certainly this process involved a great deal of cost, time, stress, and unwanted publicity. This is yet another illustration of the need for employers to be extremely careful about their social media policies and enforcement thereof.