As we have noted in past Legal Alerts, the National Labor Relations Board (“NLRB”) has increasingly been addressing the application of employee rights under the National Labor Relations Act (“NLRA”) to employee social media postings. In its first ruling addressing disciplinary action based on employee social media activity, the NLRB recently held in Karl Knauz Motors, Inc. that an employer did not violate the NLRA when it discharged an employee for posting photographs of an accident at one of the employer’s places of business on the employee’s Facebook page, accompanied by the employee’s posted remarks making fun of the accident.

The NLRB’s Decision in Karl Knauz Motors, Inc.

The employer in Karl Knauz Motors, Inc. owned a BMW dealership and an adjoining Land Rover dealership. The employer held a sales event at the BMW dealership, and several commission sales employees, including Robert Becker, criticized the employer’s choice of food for the event, asserting that it did not reflect the luxury status of the cars sold at the dealership and might have a negative impact on potential customers attending the event. Mr. Becker posted photographs of the sales event and sarcastic remarks about the food served at it on his personal Facebook page.

Several days after the sales event at the BMW dealership, an accident occurred at the employer’s adjoining Land Rover dealership. A salesperson at that dealership allegedly allowed the 13-year-old son of a customer to sit behind the wheel of a Land Rover. The boy accelerated the vehicle, causing it to run over the customer’s foot and down an embankment, where it ended up partially submerged in a pond. Mr. Becker took photographs of the partially submerged Land Rover and the salesperson and boy involved in the accident. Mr. Becker posted these pictures along with his comments making fun of the incident on his Facebook page the same day as his posts regarding the sales event.

The employer learned of the postings when several other Land Rover dealers called the employer after seeing the postings. The employer called Mr. Becker into a meeting at which both postings were discussed, and Mr. Becker took the position that he could post anything he liked on his Facebook page. After the meeting, the employer’s managers decided to terminate Mr. Becker for making light of a serious accident at the Land Rover dealership that had resulted in injuries to a customer.

Mr. Becker filed an unfair labor practice charge with the NLRB, alleging that his Facebook postings constituted protected activity under the NLRA and that his discharge therefore violated that law. The NLRA gives employees a general right to engage in concerted activity (that is, to act together with other employees) with respect to wages, hours, and other terms and conditions of employment, and it is unlawful for employers to base adverse employment actions on such protected concerted activities. The theory behind Mr. Becker’s unfair labor practice charge was that he was fired for both Facebook postings—the posting criticizing the food served at the BMW sales event and the posting making fun of the accident at the Land Rover dealership.

The matter was first heard by an Administrative Law Judge (“ALJ”) of the NLRB who found that the Facebook posting about the food at the BMW sales event was protected concerted activity because Mr. Becker and several other sales employees at the BMW dealership had discussed the choice of food among themselves and complained in a meeting prior to the sales event that the food the employer intended to serve did not match the luxury image of BMW and could discourage potential customers from purchasing cars at the dealership, thereby decreasing the sales employees’ commissions. The ALJ found that Mr. Becker’s posting about the food at the sales event was related to these discussions and complaints and was protected by the NLRA because it dealt with the sales employees’ compensation.

The ALJ went on to find, however, that Mr. Becker’s discharge was based, not on the posting about the sales event, but solely on his posting about the accident at the Land Rover dealership. That posting, the ALJ found, was not protected by the NLRA because it was posted without any discussion with other employees and had no connection with the employees’ terms and conditions of employment. Because Mr. Becker’s posting about the Land Rover accident was not protected by the NLRA, the ALJ concluded that the employer’s discharge of Mr. Becker based on that posting was lawful under the NLRA.

Although an ALJ’s decision is not binding authority under the NLRA, the ALJ’s decision in Karl Knauz Motors, Inc. was reviewed by a three-member panel of the NLRB. Without discussion, the NLRB adopted the ALJ’s decision with respect to Mr. Becker’s discharge. Thus, it upheld the lawfulness of Mr. Becker’s discharge, and the NLRB’s decision is binding authority under the NLRA. This marks the first NLRB decision regarding the lawfulness of an adverse employment action based on an employee’s social media activity.

The ruling on the lawfulness of Mr. Becker’s termination was not the only significant aspect of the NLRB’s decision, however. The NLRB also considered whether the employer’s employee handbook rule on courtesy unlawfully restrained employees in the exercise of their NLRA right to engage in protected concerted activities relating to terms and conditions of employment. The courtesy rule stated in general terms that employees were expected to be courteous, polite, and friendly to customers, fellow employees, and others in the workplace, then went on to state, “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Although the courtesy rule played no part in Mr. Becker’s termination, it is well-established that an employer violates the NLRA simply by maintaining a workplace rule that restrains or chills employees in the exercise of their rights under the NLRA. Broadly applying this principle, the NLRB found the courtesy rule unlawful because employees would reasonably construe its prohibitions against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as applying to employees’ statements objecting to working conditions and seeking the support of others in changing them – statements that could be protected under the NLRA. The NLRB noted that the courtesy rule contained no language suggesting that conduct protected by the NLRA was excluded from the reach of the rule, thus suggesting that the inclusion of such limiting language might have preserved the lawfulness of the rule.

Practical Implications

Although the NLRB upheld Mr. Becker’s discharge in Karl Knauz Motors, Inc. the NLRB’s decision in this case offers few clues about how the NLRB will rule in other cases dealing with discipline or discharge based on employee social media activity. The NLRB merely adopted the ALJ’s findings on this issue, and the ALJ had simply observed that Mr. Becker had posted the images and comments about the accident at the Land Rover dealership without prior discussion with other employees and that the posting was unrelated to the terms and conditions of employment at the BMW dealership. Significantly, the NLRB expressly withheld any comment about the validity of the ALJ’s conclusion that Mr. Becker’s Facebook posting about the food served at the BMW sales event constituted protected concerted activity. Had it done so, the NLRB may have provided useful guidance to employers about when a social media posting that, on its face, does not discuss terms and conditions of employment is, in fact, protected by the NLRA.

Employers should not view the Karl Knauz Motors, Inc. decision as authorizing the discipline or discharge of every employee who posts social media messages that are critical of or damaging or embarrassing to the employer. Such messages may be protected by the NLRA, despite their potentially harmful nature, if they relate to employees’ terms and conditions of employment and are either posted after discussion with fellow employees or posted as a call to action for other employees. It remains to be seen how the NLRB will apply these principles to employee social media postings, and employers should exercise caution and seek legal advice before taking adverse employment actions based on such postings.

The portion of the NLRB’s decision finding the employer’s courtesy rule unlawful serves as a reminder that even common-sense rules aimed at maintaining civility in the workplace or protecting the employer’s good name in the community can run afoul of the NLRA if they can reasonably be interpreted by employees as prohibiting concerted activity protected by that law. Several recent decisions by the NLRB, including one addressing an employer’s social media policy, indicate that the agency is taking a very broad approach to the concept of employees’ “reasonable interpretation” of workplace rules. Therefore, employers should carefully review their employee handbooks and personnel policies to consider whether workplace rules are worded in ways that could be interpreted as restricting rights protected by the NLRA.