October 5, 2012

NLRB Rules in Favor of Employer in its First Facebook Firing Case, Strikes down “Courtesy” Policy

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , , , at 8:58 am by Tom Jacobson

In its first decision in a case involving allegations of a firing over Facebook postings, the National Labor Relations Board (NLRB) has ruled in favor of the employer. In the same decision, the Board struck down the employer’s “Courtesy” policy.

The dispute centered mainly around two Facebook postings by a salesman for Knauz BMW in Lake Bluff, IL. In one, he posted sarcastic comments and photos of a Land Rover after it was driven by a customer’s 13-year old child over a wall and into a pond at an adjacent dealership. In the other post, he criticized Knauz for serving hot dogs and water at a luxury car sales event. He was fired a week later. The primary issue in the case became whether he was fired because of the Land Rover photos or because of his criticism of the dealership.

According to the NLRB, being fired for criticizing the dealership may have violated the National Labor Relations Act (NLRA). The NLRA protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. It also protects individual employees if they are acting on behalf of the group. Here, the NLRB said that because the Facebook criticism “involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions,” being fired for those comments may have violated the NLRA.

However, the NRLB also noted that posting the Land Rover photos was not protected by the NLRA. This is because they were “[P]osted solely by [the employee], apparently as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment.”

The administrative law judge who tried the case, Joel P. Biblowitz, found that the salesman was fired because of the Land Rover photos and not because of the Facebook criticism. The NLRB agreed with Judge Biblowitz and, therefore, affirmed that the dealership did not violate the NLRA when it fired the salesman.

Another issue in the case was the following “Courtesy” policy at Knauz:

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 three-member panel split 2-1 on whether this policy violated the NLRA. The majority ruled that it did. Their reasoning was that employees may have reasonably believed that the policy prohibited any protests or criticisms, even those protected by the NLRA. The dissenting judge interpreted the rule as “nothing more than a common-sense behavioral guideline for employees” and was not “a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

What you need to know: Because the NLRB ruled that the salesman was fired for a non-protected reason (posting the sarcastic Land Rover photos), the Board did not rule on whether the criticism posted on Facebook was actually protected by the NLRA. The NLRB is likely to rule on that issue in future cases. In the meantime, the boundaries of what kinds of social media commentary are protected by the NLRA remain unclear. Therefore, employees should use care when posting work-related commentary on Facebook, and employers should use care when considering whether to take action based on such postings. In addition, employers should re-evaluate any “courtesy” rules to make sure they do not violate their employees’ rights under the NLRA.

For more information about this article or how to address social media issues in the workplace, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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