Are you scratching your head over all the new Facebook litigation? Who knows which employee comments are considered “protected concerted activity” or when you can legally fire workers who socially slam your company. Well, here’s a new Facebook case that involves hot dogs. The courts are on a roll, so relish these new lessons …
Case in Point: Robert Becker worked as a BMW car salesman in a Chicago suburb. The dealership decided to host a promotional party to introduce a new vehicle. However, Becker and other co-workers expressed concerns thatplanned to provide lame food at the party, including hot dogs and chips. Privately, the BMW salesmen complained the cheap spread would hurt their ability to earn commissions. Management ignored the objections and served up the dogs.
At the party, Becker took pictures of the hot dog stand. He posted the photos on his Facebook page with comments ridiculing the event.
In a separate event a few days later, Becker posted pictures of a car accident that took place during a test drive at a nearby Land Rover dealership (owned by the same employer). Becker added inflammatory statements, such as, ”This is your car, this is your car on drugs.”
A week later, Becker was fired for the postings. The National Labor Relations Board (NLRB) sued the dealership, saying Becker’s online comments counted as “concerted protected activity” because they related to his terms of employment and they involved other co-workers. The dealership argued that Becker was terminated for his “bad attitude” in violation of an employee conduct policy.
What happened next and what lessons can be learned?
An administrative law judge (ALJ) ruled that one posting was protected but the other was not.
Specifically, it said Becker was engaged in protected concerted activity when he posted the hot dog photos and comments because the company’s marketing strategy was related, in part, to his compensation. Thus, the posting was related to the “terms and conditions” of his employment.
But the judge reversed the NLRB and ruled that posting pictures of the test-drive accident was not engaging in protected concerted activity. Reason: Becker posted the photo and comments, “apparently as a lark without any discussion with any other employee … and had no connection to any of the employees' terms and conditions of employment.” (Karl Knauz Motors Inc., NLRB ALJ, 9/28/11)
3 Lessons Learned … Without Going to Court
1. Fire cautiously. In this case, the judge determined the company’s main reason for firing Becker was based on his postings of the car accident, not the hot dog posts.
2. Analyze closely. Don’t fire an employee for engaging in activities related to compensation, which may include voicing opinions about company marketing strategies.
3. Monitor carefully. The court said the company handbook’s conduct policy was reason enough to terminate an employee as long as the identified conduct isn’t protected by the NLRA. Also, remember to enforce all policies fairly and consistently to avoid discrimination claims, too.
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