Be careful what you post on Facebook! Although courts and law makers are making gallant strides to protect our privacy interests in social media you can still cross the line. On October 1, 2012, The National Labor Relations Board (NLRB) issued another decision addressing the National Labor Relations Act (NLRA), social media, and handbook policies prohibiting or limiting social media use. In Karl Knauz Motors, Inc., the NLRB reviewed two separate issues: 1) whether the employer unlawfully fired an employee after he posted pictures on Facebook; and 2) whether a courtesy policy in the employer’s handbook violated the NLRA.
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. Incident #1: 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. Incident #2: Karl Knauz Motors (employer) hosted a luxury car sales event. 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. Becker posted both sets of pictures and comments were posted on the same day and he was terminated shortly thereafter.
Becker 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.
Did the employer unlawfully fired an employee after he posted pictures on Facebook? 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.
Did a courtesy policy in the employer’s handbook violate the NLRA? 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 handbook should have contained language informing employees that statements protected under the NLRA were not prohibited under the courtesy policy. This would have help to combat the reasonable assumption by employees, 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.
What to remember: Although employers must act cautiously when disciplining employees for comments on social media, employees must still be aware of what they post on social media. They may discharged for inappropriate comments that are not protected under the NLRA, 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). This decision makes clear 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.
I think this decision was very necessary to remind employees that despite privacy rights afforded for social media use this is still a public forum and users must exercise discretion. There are consequences for all of our actions and bashing your employer in context that has nothing to do with working conditions or terms of employment is probably not the best use of your timeline. It is important for the NLRB to also provide protections for employers. On the other hand, do you see any free speech implications in getting fired for voicing your opinion about allowing a 13-year old behind a steering wheel?