[authors: Esra A. Hudson and Justin Jones Rodriguez]
As a powerful tool to reach a wide audience and a vehicle for users to reveal otherwise private information, social media creates fertile ground for litigation, particularly in the employment and labor context. In the first decision of its kind, the National Labor Relations Board (the "Board") recently upheld an Administrative Law Judge ("ALJ") decision that an employee's firing for his postings on Facebook did not violate the National Labor Relations Act (the "NLRA") because the postings were not protected or concerted activity. See Karl Knauz Motors, Inc., Case No. 13-CA-046452, 358 NLRB No. 164 (Sept. 28, 2012).
Section 7 of the NLRA invests employees with the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." It is an unfair labor practice for employers to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Accordingly, the issue in Karl Knauz Motors was whether the employee's termination interfered with or restrained the employee's exercise of Section 7 rights.
The employer in Karl Knauz Motors owned BMW and Land Rover dealerships located directly across the street from each other. When the BMW dealership hosted an all-day event to introduce clients to a new model, the General Sales Manager told salespeople that the dealership would serve hot dogs, cookies, and premade Costco snacks at the event. Concerned about the cheap refreshments and the negative effect that they could have on clients (and ultimately sales and commissions), one employee, Robert Becker, took mocking photos of coworkers posing with the food. Five days later, Becker saw a customer's 13-year-old son drive a car from the Land Rover dealership into a pond in front of the lot.
Becker posted photos of the accident and the hot dog photos from the BMW event on Facebook. Becker's General Sales Manager called him at home and told him to remove the photos and comments, and Becker immediately complied. Nevertheless, Becker was later terminated for embarrassing the dealership and its CEO.
The ALJ held, and the Board agreed, that the posts about the Land Rover incident were not protected concerted activity because Becker posted them on his own without discussion with other employees or any connection to terms or conditions of employment. On the other hand, the ALJ determined that Becker's posts related to the BMW event constituted protected concerted activity because they related to a concern over commissions. Nonetheless, the ALJ found, and the Board agreed, that there was no NLRA violation in Becker's termination on the grounds that he was fired solely for the Land Rover posts, and not for the BMW posts.
Importantly, although the Board affirmed the ALJ's decision that Becker's termination did not violate the NLRA, the Board also held that the company's courtesy policy underpinning the termination was unlawful. 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 Board criticized the rule for two reasons. First, the rule (and the employee handbook in general) was void of any language that informed employees that it would not apply to statements within the NLRA's protective umbrella. Second, a fair reading of the rule could lead an employee to believe that any critical statements about the company could be construed as "disrespectful," and thus, justify disciplinary action. Therefore, the policy was unlawful because employees could construe it to prohibit protected activity.
Although this decision makes it clear that there are circumstances in which employers may discipline employees for their social media posts, employers should proceed carefully and consult counsel when disciplining employees for their social media content and in drafting their social media policies. Karl Knauz Motors is certain not to be the Board's last word on social media and the workplace.