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

by Pierce Atwood LLP

[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.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP

Pierce Atwood LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.