As we have previously discussed on this blog, the NLRB’s Acting General Counsel has generated substantial publicity by issuing complaints in cases involving social media. However, because the cases had not yet worked their way through the NLRB’s adjudicatory system, significant uncertainty remained regarding the scope of the Board’s approach to social media issues. For this reason, the Board’s recent decision in Karl Knauz Motors Inc., holding that an employee was lawfully fired for posting Facebook photos of a car accident at work, is especially significant.
This decision, which is the first to address an employee termination due to social media activity, follows last week’s Costco decision, where the Board addressed social media policies for the first time since the Acting General Counsel began to target these issues. As we noted last week, the Board majority in Costco affirmed the Acting General Counsel’s aggressive stance towards policy language that can be read to limit employee rights under the National Labor Relations Act, including the right to “engage in . . . concerted activities for the purposes of collective bargaining or other mutual aid and protection.”
While Costco demonstrates the need for continued caution when drafting social media policies, employers got some good news this week in the Knauz decision, where the Board found that a BMW dealership did not violate the NLRA when it fired a salesman for his Facebook postings about an accident at an affiliated Land Rover dealership. The Board rejected the salesman’s claims that he was fired for other Facebook posts complaining about the employer’s decision to serve hot dogs and chips at a sales event instead of more upscale food, which the employee claimed qualified as protected concerted activity.
This decision is undoubtedly good news for employers, but the limited scope of the Board’s ruling means continued prudence is necessary. The Board found that the employee was fired for posting to Facebook pictures of an accident that occurred at an affiliated Land Rover Dealership after a customer’s son was allowed to sit in the driver’s seat during a test drive and accidentally drove the vehicle into a pond. In addition to posting pictures of the accident, the employee wrote mocking captions such as “This is your car. This is your car on drugs.” The Board affirmed an administrative law judge’s decision that this posting was not protected by the NLRA because it was 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.” For this reason, the Board affirmed the judge’s ruling that the postings did not qualify as protected concerted activity and the employee’s termination therefore did not violate federal labor law.
Notably, the Board did not address arguments that the employee’s other postings criticizing the BMW dealership’s sales events constituted protected concerted activity. A ruling on this issue would have provided employers useful guidance on the limits of employee rights to criticize their employers online. Further, the Board majority affirmed the administrative law judge’s ruling that a provision in the employer’s handbook requiring “courtesy” from employees was unlawfully overbroad because it could be read to chill protected concerted activity. Accordingly, while employers may feel like celebrating this ruling’s affirmation that not all employee online speech is protected, the celebration doesn’t call for Champagne just yet – perhaps just hot dogs and chips.