October 2, 2012
NLRB Upholds Facebook Posting Termination, but Finds Handbook Policy Unlawfully Overbroad
Yesterday, the NLRB issued its decision in the well-publicized Knauz BMW case. In Knauz, a question arose over whether a salesman was lawfully fired for posting photos and making sarcastic comments to coworkers on Facebook about an embarrassing and potentially dangerous accident at his employer’s dealership involving a customer’s 13-year-old son who sat behind the wheel of a car, ran over his parent’s foot and drove into a pond. Upholding the discharge as lawful, the Board agreed that while individual activity undertaken on behalf of a group can constitute concerted, protected activity, because the posting here had no connection to any of the employees’ terms and conditions of employment, it was not protected. The Board did find unlawful Knauz’s employee handbook provision which provided: Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership. An employer violates the NLRA when it maintains a work rule that reasonably tends to “chill” employees in the exercise of their Section 7 rights. If the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, the Act is violated if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. In Knauz, the Board found employees would reasonably construe the employer’s broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements to coworkers, supervisors or third parties objecting to working conditions and seeking to improve them. The decision is instructive in two ways. First, in light of all the recent NLRB attention on employers’ social media rules, Knauz confirms that the Board will not always find employee social media communications are protected under the NLRA. Second, the Board again demonstrated its readiness to apply the NLRA to strike down unlawful, overbroad workplace rules, particularly in the non-union setting. If you have any questions or seek further information about implementing and enforcing a lawful social media policy and/or placing lawful restrictions on employee workplace speech, please contact Douglas E. Solomon, Esq., firstname.lastname@example.org, or Douglas J. Klein, Esq., email@example.com, in the Labor Law Practice Group.