The National Labor Relations Board has been cracking down hard on social media policies and on discipline for posts on Facebook and other social media sites on the basis that certain social media activity constitutes concerted activity protected by Section 7 of the National Labor Relations Act. In a recent, decision, however, the NLRB upheld the firing of an employee for posts he made to his Facebook page, because this activity was neither concerted nor protected under the NLRA.
In June 2010, Robert Becker, a salesperson selling high-end BMW cars at Knauz Motors’ BMW dealership, was terminated for certain posts he made to his Facebook page. Becker filed a charge alleging that he had been unlawfully terminated while engaging in concerted and protected activity under the NLRA. Becker had made two sets of posts to his Facebook page concerning his employer. The first post contained pictures of a recent Ultimate Driving Event at which the dealership launched sales for its newest car while serving hot dogs, bags of chips, and discount cookies. Becker posted pictures of fellow employees eating hot dogs and holding mini bottles of water. Underneath he posted comments mocking his employer for its decision to serve hot dogs, bags of chips, and discount cookies at an event to launch the sale of a luxury vehicle.
The second set of posts contained pictures of an accident that occurred at Knauz’s Land Rover dealership adjacent to the BMW dealership. The accident occurred when a salesperson allowed a 13 year-old to sit in the driver’s seat after a test drive. The child accidentally pressed the gas pedal and drove the truck over his father’s foot and into a pond. Becker posted a series of photos from the accident with sarcastic comments, including “OOOPS!” The dealership learned of the Facebook posts through phone calls from other dealerships and terminated Becker on June 22, 2010 because of his posts of the accident.
The Administrative Law Judge (ALJ) found that the photos and comments of the Ultimate Driving Event were protected, because the Ultimate Driving Event could have had an impact on Becker’s compensation since he received commissions. However, the ALJ found that the photos of the accident and the comments related were not protected because they did not relate to any of the terms or conditions of Becker’s employment. Consequently, because Becker’s termination did not relate in any way to the posts he made about the Ultimate Driving Event and was based strictly on his posts of the accident, his termination was upheld.
On appeal, the NLRB agreed that the posts about the accident were not protected under the NLRA and that those posts were the sole reason for Becker’s termination. Therefore, the Board did not find it necessary to determine whether the posts about the Ultimate Driving Event were protected.
In another vein of the decision, which we mentioned previously, the NLRB required Knauz Motors to rescind three provisions of their employee handbook. The Board found that the “Courtesy Rule,” which prohibited the use of disrespectful language or profanity in the handbook, and sections on “Unauthorized Interviews” and “Outside Inquiries Concerning Employees,” both of which prohibited employees from discussing their terms and conditions of employment or information about other employees with third parties, could reasonably be read to restrict employees from engaging in protected activity under the NLRA and was therefore unlawful.
Employers must remember that the NLRA protects all employees engaged in protected activity, not just unionized workers. Thus, this Board decision teaches all employers two important lessons: First, when terminating an employee for any social media post, employers must be specific and clear as to which posts led to the termination decision, and also must be absolutely positive that the posts are not related to any concerted or protected activity. Second, employers must review and revise their handbooks to ensure that none of the language contained therein could reasonably be interpreted as restricting an employee’s right to engage in protected activity under the NLRA.