Social Media Update - The NLRB Upholds Employer-Friendly Ruling in First Decision Involving Firing Over a Facebook Posting

by Manatt, Phelps & Phillips, LLP

[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.

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.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, 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.