NLRB Agrees that Employee’s Facebook Post Is Unprotected, But Employer’s "Courtesy" Policy Is Unlawful

On September 28, 2012, the National Labor Relations Board (“NLRB” or “Board”) unanimously upheld the firing of a BMW salesman for posting work-related photos and comments on his Facebook page. At the same time, however, they also ruled (in a split 2-1 decision) that the dealership violated federal labor law by maintaining an overbroad policy on employee courtesy.  Karl Knauz Motors, Inc., Case 13–CA–046452 (NLRB 2012).

Firing Employees Over Facebook Posts Is Risky Business

The National Labor Relations Act (“NLRA”) protects the activities of two or more employees (both union and non-union) who are discussing or trying to improve their terms and conditions of employment — even if the activity takes place on Facebook. What’s more, even a single individual’s actions might be protected if those actions are undertaken on behalf of a group of employees.

The first issue was the salesman’s Facebook post of photos of the refreshments offered at the dealership’s recent sales event, which the salesman found unsuitable. He included comments such as “No, that’s not champagne or wine, it’s 8 oz. water” and “[t]he small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club…were such a nice touch.”

The second Facebook post included photos of an accident at the adjacent Land Rover dealership owned by the same employer. A customer’s 13-year-old son had been allowed to sit behind the wheel where he apparently hit the gas, ran over his parent’s foot, and drove into a pond. The salesman also included the sarcastic commentary: “OOPS.”

As to the food-related post, the Board concluded that it may have been protected by the NLRA because it spoke on behalf of co-workers concerned about how their image affected sales and commissions. Nevertheless, the Board declined to rule definitively on this issue because the Board determined that it was the posting on the Land Rover post that ultimately caused the salesman’s discharge. In that regard, the Board ruled that the Land Rover post was not protected because it was not concerted and it did not relate to the salesman’s terms and conditions of employment. Instead, they concluded:

“It was posted solely by [the salesman], apparently as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.”

Split Panel Strikes Down Employer’s “Courtesy” Policy as Overbroad

In this same case, the Board ruled that the dealership violated the law by maintaining an overbroad policy on employee courtesy that read:

“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 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 Board ruled that banning “disrespectful” conduct and language that might injure the “image or reputation” of the employer could reasonably be construed by employees “as encompassing Section 7 activity, such as employees’ protected statements — whether to coworkers, supervisors, managers, or third parties who deal with the Respondent — that object to their working conditions and seek the support of others in improving them.” The Board concluded “[N]othing in [the dealership’s] rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad breach.”

Bottom Line

The new guidance provides additional insight into the NLRB’s treatment of social media under the NLRA, as well as the consequences of drafting and circulating policies that are too broad, thereby unlawfully prohibiting protected concerted activity.