The National Labor Relations Board (NLRB) recently ruled for the first time on the legality of terminating an employee for Facebook postings. In the case, Karl Knauz Motors, a car salesman was dismissed for posting photographs publicizing an automobile accident at his employer’s dealership. The NLRB adopted the finding of an administrative law judge (ALJ) that the employee was terminated solely for the posting about the accident – an activity found to be neither concerted nor protected by federal law.
The National Labor Relations Act (NLRA) protects the concerted actions of employees who discuss or try to improve the terms and conditions of their employment. Moreover, even “[t]he lone act of a single employee is concerted if it ‘stems from’ or ‘logically grew’ out of prior concerted activity.”
The ALJ found, and the NLRB agreed, that the postings about the automobile accident were unprotected because they were posted “apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.”
Because of this finding, the NLRB refused to pass judgment on a second set of postings by the employee that criticized the food and drink offerings at a major sales event at the dealership. The food and drink offerings were discussed in the presence of other employees prior to the posting to Facebook. The ALJ therefore determined that the postings about the sales event stemmed from earlier conversations among employees and were therefore protected by federal labor laws.
However, that is not the end of the story. Following a now familiar theme, the NLRB ruled 2-1 against the employer on a totally separate issue unrelated to the termination decision – the legality of the employer’s “courtesy” rule governing employee communications:
(b) 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 majority found the courtesy rule to be unlawful because employees could construe the rule to prohibit NLRB-protected statements of protest or criticism of the employer. The Board ordered the employer to remove the courtesy rule from the employee handbook and provide the employees with new handbooks.
The NLRB is increasing its scrutiny of commonplace personnel policies, such as at-will employment, social media, workplace decorum, etc., even in cases where the policies are unrelated to the employee discipline, personnel policy or other activity that is the focus of the unfair labor practice charge. In short, all personnel policies are “fair game” when an unfair labor practice charge is filed and investigated. As a result, all personnel policies governing employee conduct should be reviewed and narrowly tailored to ensure the policies are not at odds with the NLRA.