Robert Becker took issue with the hot dogs served by his employer, a BMW dealership in Lake Bluff, Illinois, at a promotional event. Becker thought something fancier was in order, given the nature of the dealership, and posted photos and critical comments about it on his Facebook page. He also posted pictures of an accident which had occurred during a test drive on the dealership’s premises. Management pointed out that Becker’s postings violated the company’s social media policy, which required employees not to say bad things about their employer in a public forum, to be courteous in all their dealings and to avoid bad language. Becker removed the postings but was later terminated. The National Labor Relations Board (NLRB) challenged the Facebook firing, arguing that the dealership’s employee manual unduly restricted employees’ rights to discuss the terms and conditions of their employment.
An administrative law judge ruled that Becker had not been fired for his mockery of the hot dogs but instead for the accident photos. While the comments about the hot dogs were, in the judge’s view, protected speech that the employer could not restrict, the dealership was within its rights to terminate Becker for injuring its image or reputation through the posting of the accident photos. The NLRB and the dealership appealed. A full panel of the NLRB heard the appeal, affirming the judge’s ruling – at least as far as it related to lawful termination for posting the accident pictures: Karl Knauz Motors Inc dba Knauz BMW v Becker, 358 NLRB No 164 (28 September 2012). The panel declined to say whether the hot dog comments were protected speech, but the majority did think that the employee handbook went too far in restricting the rights of employees to comment on their employment. An employer can expect workers to be courteous in their dealings with third parties, but can’t restrict the content of their speech if that would deter them from making legitimate comment about the terms and conditions of their jobs. The dissenting panel member didn’t think the employee manual was problematic; its courtesy rule was ‘nothing more than a common-sense behavioral guideline for employees’.