NLRB Upholds Termination of Employee Over Facebook Posts, but Strikes Down Policy that Allowed the Firing

747440_19321112.jpgThe relationship between social media and employees’ rights is still a developing field of law, with few definitive rules in place yet. In a recent case demonstrating that uncertainty, the National Labor Relations Board (NLRB) considered the complaint of a person who lost his job due to comments he allegedly posted to the social media website Facebook. The complainant in Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker alleged that his employer’s social media policies unlawfully prevented him from engaging in concerted activities protected by federal labor laws. While the NLRB ultimately concluded that the firing was justified, it also ruled that the employer’s social media policy was unlawful.

The petitioner, Robert Becker, worked for Karl Knauz Motors, Inc. as a salesperson at its BMW dealership in Lake Bluff, Illinois. Becker’s difficulties with his employer began with an “Ultimate Driving Event” held on June 9, 2010. According to the NLRB’s decision, Becker and other sales representatives met with the general sales manager several days before the event to discuss the sales representatives’ duties. The manager informed them that the company would be providing a hot dog cart, along with cookies and chips, for customers attending the event. Becker and others reportedly expressed concern that this was not appropriate for this type of event, or this type of vehicle. Becker would later testify that the food choice was important because people’s perception of the event would influence sales, which would in turn influence his compensation.

In a separate incident, an accident occurred on June 14, 2010 involving a vehicle at a Land Rover dealership also owned by Knauz. During a test drive, a customer’s son was allowed to sit in the driver’s seat, where he reportedly stepped on a vehicle’s gas pedal by accident. This caused the vehicle to roll over the customer’s foot, then down an embankment and into a pond. Aside from the customer’s foot, no injuries were reported.

Becker reportedly posted a photo of the damaged Land Rover in the pond to his Facebook page, along with negative remarks about the food selection at the BMW event. Knauz considered these postings to be a violation of its policy, contained in its employee handbook, requiring “courtesy” from employees. Management informed Becker on June 16 that they would review the issue, and they informed him of his termination on June 22. Becker then filed a complaint for unlawful termination.

The NLRB held that Becker’s Facebook posting regarding the BMW event was protected concerted activity, as it related directly to conditions of his employment. At the same time, it found that Becker’s post regarding the Land Rover incident was not protected, saying that he posted it “as a lark,” and not as part of any discussion with other employees. The board then turned to the question of whether Knauz fired Becker primarily because of the BMW event post, or the Land Rover post. The NLRB’s reasoning is difficult to parse based solely on its order. It noted testimony that at least some of the management team found Becker’s post about the BMW event “comical,” and that the primary motivation for his firing was the Land Rover post.

Although the NLRB upheld Becker’s termination, it also ordered Knauz to remove the “Courtesy” clause from its employee handbook. It found that the clause, which requires employees “to be courteous, polite, and friendly” had the effect of chilling protected employee speech. Presumably, had Becker’s Facebook post been limited to commentary on the BMW event, his termination would have been unlawful.

If you need to speak to an employment law attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or 646-867-7997.

Additional Resources:

Decision and Order (PDF file), Case No. 13-CA-046452, Karl Knauz Motors, Inc. and Robert Becker, National Labor Relations Board, September 28, 2012
More Blog Entries:

NLRB Finds Costco’s Social Media Policy Violates Rights of Union Workers, The New Jersey Employment Law Firm Blog, November 9, 2012
National Boss Day Gift – A Look at 25 Largest Employment Lawsuit Settlements, The New Jersey Employment Law Firm Blog, October 18, 2012
Are New Jersey Employers Allowed to Ask for Access to a Job Applicant’s Facebook Account? The New Jersey Employment Law Firm Blog, March 14, 2012
Photo credit: ‘Hot dog (frankfurter) 2’ by prima_vera on stock.xchng.

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