The NLRB’s Latest on Facebook Firing Creates More Questions For Employers

By now most of us have learned about the decision issued last Friday, September 28, by the National Labor Relations Board (NLRB or Board) in Karl Knauz Motors, Inc. d/b/a Knauz BMW, the Board’s first true foray into a Facebook-related firing. Although the NLRB agreed with the Administrative Law Judge (ALJ) who ruled that the employer’s discharge of an employee was not illegal on account of that employee’s Facebook post, employers cannot take much comfort in the outcome. Moreover, those who ignore the lessons of the decision act at their peril.

The facts are probably well known by this point—the employee was a salesman at a BMW dealership. He authored two posts on his Facebook page that were the subject of the case. The first post was critical of the way that the dealership had handled a sales event introducing a new line of BMWs. Since the level of sales directly impacted the employee’s sales commissions the ALJ had no trouble concluding that the Facebook post was a protected communication under federal labor law because it related to the terms and conditions of employment of the dealership’s sales force (in this case their pay).

The second Facebook post, however, made fun of the fact that at a related dealership that sold Land Rovers a customer’s 13 year old son had been allowed to get behind the wheel of a car and drove it into a nearby pond. The employee posted pictures of the accident with the caption: “This is your car: This is your car on drugs.” The ALJ concluded that, unlike, the first post, this did not involve protected concerted activity because it had no apparent connection to any of the employees’ terms and conditions of employment.

Much was made at trial about the reason for the employee’s firing. The dealership said it was only for the second (Land Rover) Facebook post. The NLRB’s General Counsel who prosecuted the case said it was for the first post (the sales event). After a full trial where the employee as well as his bosses testified, the ALJ believed the employer’s witnesses who said that the employee was discharged only because of the post about the Land Rover incident. Since that post was not protected, the termination was not unlawful. It was that decision which was affirmed by the NLRB last Friday.

Importantly, since the NLRB agreed with the ALJ’s decision that the firing was based exclusively on the second posting, the NLRB declined to determine whether the first posting about the sales event also was protected, as found by the ALJ. As a result, employers and practitioners are in limbo over whether activity in the form of the first Facebook post may be protected under federal law.

So you can see that while the Board’s decision can be viewed as a victory for employers (certainly so for Karl Knauz Motors) they should hesitate before generalizing the impact of the case. Specifically, the outcome turned on the ALJ’s decision to believe the employee’s supervisors who claimed that the first Facebook post had nothing to do with their decision to fire the employee. Had the ALJ decided that they were not credible, the outcome would have been very different.

Overlooked in much of the discussion about the case has been the fact that, independent of the termination question, various handbook rules also were at issue. This is an area that has attracted greater NLRB oversight in the last few years, particularly as the current Board seeks to explore the boundaries of the National Labor Relations Act beyond traditionally unionized employers.

The ALJ found three rules illegal. Two of the rules dealt with prohibitions on unauthorized interviews of employees and employees answering outside inquiries. The ALJ’s decision on these rules was not appealed. The third rule, which the NLRB took up on appeal, was the dealership’s “courtesy” policy which read as follows:

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.

Focusing on the word “disrespectful” and the phrase “language which injures the image or reputation of the Dealership,” the Board said that employees would reasonably construe the rule’s broad prohibitions as encompassing protected activity. More to the point, the Board believed that an employee reading the rule would reasonably assume that the dealership would regard statements of protest or criticism as “disrespectful” or “injurious to the image or reputation of the dealership.” As a result, the Board ordered that the dealership rescind the rule and remove it from its employee handbook.

This decision prompted a strong dissent from the NLRB’s sole Republican appointee, Brian Hayes. Reading the rule as a whole, and not piecemeal, Hayes said that the policy was nothing more than a common-sense behavioral guideline for employees that was designed to promote civility and decorum in the workplace and which, therefore, did not tread upon employees’ federally protected rights.

There are several more “Facebook firing” cases in the Board’s pipeline, so expect more in this arena soon. But thus far, the Board’s decision in Knauz still leaves open a lot of room for discussion and debate. This much is sure—the decision does not change the fact that employers still have to be cautious when evaluating what to do about employees who post negative comments on social media sites; and to the extent that the Board gets involved in that decision, the employer’s handbook will be fair game for government scrutiny.