While the law concerning acceptable employee use of social media remains uncertain, the National Labor Relations Board (NLRB) is starting to shed more light on what conduct is acceptable under the National Labor Relations Act (NLRA).
The NLRB has issued a decision in Karl Knauz Motors Inc.(NLRB ALJ, No. 13-CA-46452), holding that Knauz did not violate the NLRA when it terminated an employee.
Online gripes about hot dogs …
In May 2011, the NLRB filed a complaint against Knauz BMW, a car dealership in suburban Chicago, alleging that it unlawfully fired a salesman for criticizing the dealership on Facebook.
Robert Becker posted on Facebook about two separate incidents. The first concerned a sales promotion to roll out a new luxury BMW model.
Before the event, salespeople learned the dealership was planning to serve free hot dogs and bottled water. The salespeople grumbled that such low-brow food wouldn’t drive many sales of a high-end car.
During the event, Becker took pictures of the food and posted them on his Facebook page, along with critical comments.
… and a truck in a pond
The second incident concerned an accident that occurred a few days later at a nearby Land Rover dealership also owned by Knauz. A salesperson let a customer’s young son sit in the driver’s seat. When the boy stepped on the gas pedal, the vehicle rolled down a small embankment and into a pond.
Becker photographed the car in the pond, and then posted the pictures on his Facebook page along with several unflattering comments.
Fired for Facebooking
Knauz terminated Becker after learning about his Facebook postings. Knauz claimed that Becker’s termination was solely based on the posts he had made concerning the Land Rover accident.
The issues before the NLRB were:
- Whether Becker was terminated because of his Facebook postings regarding the BMW sales event, the Land Rover accident or both incidents
- Whether the Facebook postings constituted protected concerted activities.
Concerted activities
The NLRA prohibits employers from taking adverse action against employees who engage in protected concerted activities—that is, when employees act for their mutual aid or protection regarding the terms and conditions of employment.
Those activities can include employees addressing their employer about compensation or discussing work-related issues with a co-worker.
The judge held that Becker’s Facebook postings concerning the BMW sales event constituted protected concerted activity because they related to Becker’s compensation. It was possible that customers may have been turned off by the food selection at the event, and therefore did not purchase a car. Dissatisfaction with the food might have caused salespeople to receive lower customer-satisfaction ratings, a factor affecting their pay.
The judge also clarified that concerted activities do not require two or more individuals to act in unison to protest their working conditions. A single employee’s act is concerted if it grew out of prior concerted activity.
In this case, Becker and other employees had discussed the food selection at the pre-sales event meeting and after the meeting as well. Therefore, Becker’s Facebook postings were concerted activity, even though no other employees added any further input.
The judge held that the mocking and sarcastic tone of Becker’s Facebook postings did not rise to the level of disparagement that would deprive otherwise protected activities of the NLRA’s protection.
Sunken Rover sinks Becker
The judge, however, concluded that Becker’s Facebook postings concerning the Land Rover accident did not constitute protected concerted activity.
There was no discussion among the employees about the accident, either before or after the postings. The postings had no connection to the employees’ terms and conditions of employment.
The judge also found that, despite conflicting testimony, Becker was terminated solely because of the Land Rover posting. Accordingly, Knauz did not violate the NLRA because Becker was terminated for the Land Rover posting, which was not protected concerted activity.
What employers should do
The law concerning social media is constantly changing, and an employer’s liability is highly fact-specific. This case is only one of several the NLRB has recently considered involving social-media activities by employees.
The NLRB’s decisions are less than clear, and should be considered together in an effort to understand its rationale. Employers should review the recently issued Memorandum from the NLRB General Counsel, which reports the social media cases within the past year. You can find it online at www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases.
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{ 2 comments… read them below or add one }
Very good analysis. It is sometimes difficult to parse the NLRB’s reasoning. The key for employers is that there was a reasonable basis for the termination that did not implicate the employee’s protected activities. The take away for employees: make sure you gripe to at least one other employee before you lampoon your employer. @adlerlaw