NLRB Says Facebook Firing is Lawful, But Social Media Policy is Not

by Pierce Atwood LLP
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[author: Katy Rand]

The National Labor Relations Board (NLRB) recently issued its first decision regarding an employee’s termination due to posts on Facebook.  The decision, a mixed bag for employers, demonstrates—again—the NLRB’s increasing scrutiny of personnel policies, while providing little guidance about the outer limits of what constitutes protected concerted activity under Section 7 of the National Labor Relations Act (NLRA).

The complainant in Karl Knauz Motors, Inc., a car salesman, was terminated after he posted photographs publicizing an automobile accident near the dealership where he worked, with the caption: “This is your car: This is your car on drugs.”   In assessing whether the termination was lawful, the NLRB emphasized that the post did not involve discussion with other employees—it was posted “as a lark”—and had no connection to the employee’s terms and conditions of employment.   The NLRB concluded that the employee’s posting was therefore “obviously unprotected” and that the employer was free to take action against the employee because of it.

The NLRB also concluded that the accident posting was the sole reason for the termination, and therefore declined to consider whether the employee’s other postings, which criticized the refreshments offered at a dealership sales event, constituted protected activity.  The administrative law judge, whose decision the NLRB reviewed, had concluded that the postings were protected because the complainant and a co-worker discussed their disapproval of their employer’s decision to have a hot dog cart (rather than more upscale catering) and because the success or failure of the event could impact the employees’ compensation.   

If the NLRB stopped there, the decision would probably not have been worthy of an alert.  However, in keeping with its recent decisions and guidance memoranda from its General Counsel, the NLRB proceeded to examine, and find unlawful, a portion of the employer’s social media policy that required employees to be “courteous, polite, and friendly” on line.   Reasoning that such a broad prohibition against “disrespectful” conduct and language could reasonably be construed to chill protected Section 7 activity and finding nothing in the handbook indicating that protected communications were not covered, the NLRB found that the employer’s policy violated the NLRA.

Employers that have not already done so should examine their social media and other policies to see whether they might be construed to chill protected activity.  Requirements that employees be “polite” and “respectful” will not survive NLRB scrutiny without language and concrete examples, clarifying that protected communications are exempt.  This recent decision affirms that, to be protected, the communication must involve at least one other employee and relate to the terms and conditions of employment.  Because the NLRB declined to judge the refreshment-related postings, however, employers are left to wonder whether—and perhaps should assume that--protected concerted activity really stretches that far.    A communication’s connection to terms and conditions of employment is not always obvious.  Employers should therefore exercise extreme caution whenever terminating an employee for something he or she has said, whether in the office or on-line.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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