[authors: Josh Meeuwse and Jennifer Dunn]
On October 1, 2012, the National Labor Relations Board (NLRB) issued another decision addressing the intersection between the National Labor Relations Act (the Act), social media, and handbook policies prohibiting discourteous behavior. The NLRB reviewed two separate but equally important issues in Karl Knauz Motors, Inc., where it analyzed whether the employer unlawfully fired an employee after he posted photos on Facebook, and also examined whether a courtesy policy in the employer’s handbook violated the Act.
The case arose when Robert Becker, a BMW salesman at Karl Knauz Motors, was fired after he posted several photos and comments on Facebook regarding incidents that happened at work. One incident involved an accident with a Land Rover, when a salesperson allowed the 13-year-old son of a customer to sit behind the wheel after a test drive. The boy apparently hit the gas, drove over his parent’s foot, over a wall, and then into a pond. Becker posted a picture of the Land Rover in the pond, and a caption criticizing his co-worker’s decision to let the boy sit in the car. The other incident involved a luxury car sales event hosted by Karl Knauz Motors. Becker criticized the company for serving hot dogs, chips, and bottled water at a luxury car event, and posted several pictures of the fare with sarcastic comments, mocking the inexpensive food and beverages. Both sets of photos were posted on the same day and Becker was terminated shortly thereafter. He filed a charge with the NLRB, claiming that he was discharged for engaging in protected concerted activity because his posts were made in an effort to improve working conditions.
The NLRB held that the posts about the Land Rover incident were not protected concerted activity because they were posted solely by Becker without any discussion or connection to any of the other employees’ terms and conditions of employment. The evidence showed that Karl Knauz Motors discharged Becker only because of the posts about the Land Rover incident (not the sales event incident), so consequently, his discharge did not violate the Act. Although the hearing officer found that Becker’s posts about the inexpensive food at the sales event were protected concerted activity, the NLRB did not address the issue because it was irrelevant, given that he was not discharged for these posts.
Despite finding for the employer on the posting issue, however, the NLRB held that the courtesy policy in the company’s handbook was unlawful. Karl Knauz Motors’ handbook had a rule requiring courteous behavior, which also prohibited disrespectful behavior or language that damaged Karl Knauz Motors’ reputation. Specifically, the policy stated:
Courtesy: 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 NLRB, relying on its very recent decision in Costco Wholesale Corporation held that the policy language was unlawful because employees could “reasonably construe” the language prohibiting “disrespectful” conduct and “language which injures the image or reputation of the Dealership,” to include statements made to co-workers and others about improving the employees’ working conditions. The NLRB criticized the rule for two reasons. First, the handbook did not contain any language informing employees that statements protected under the Act were not prohibited under the courtesy policy. Second, according to the NLRB, employees could reasonably assume, based on a fair reading of the rule, that the company would regard statements of protest or criticism as disrespectful or injurious to its reputation. Member Hayes, in a dissent, argued that the first section of the rule (which encouraged courteous behavior) showed that the rule was a “common-sense behavior guideline for employees.” The NLRB majority disagreed. The majority noted that the first part of the rule proscribes a manner of speaking (i.e., discourteously), whereas the second part of the rule proscribes specific content (i.e., content that would damage the employer’s reputation) so they addressed different issues. Because the second part could be broadly interpreted to prohibit protected activity, the policy violated the Act.
This case illustrates that although employers must act cautiously when disciplining employees for comments on social media, they may still discharge employees for inappropriate comments that are not protected under the Act, including postings on social media that are made without any connection or relation to other employees’ terms and conditions of employment (provided the termination does not violate other laws). It also shows, however, that the NLRB will continue to scrutinize handbooks closely, and reject any policy that could potentially be interpreted to prohibit protected concerted activity by employees.