Much-Watched “Facebook Firing” Upheld by NLRB, But “Courteous” Communications Mandate Found Unlawful

On September 28, 2012, the National Labor Relations Board (NLRB) affirmed an Administrative Law Judge’s (ALJ) ruling that a BMW dealership did not violate the National Labor Relations Act (NLRA) when it terminated an employee who posted embarrassing pictures and comments about the dealership on his personal Facebook account. Robert Becker, a salesperson at the Knauz BMW dealership in Lake Bluff, Illinois, posted photos and comments criticizing the dealership for offering customers hot dogs, chips and water at an important sales event, rather than the high-end refreshments he thought more suitable for an event involving the rollout of a luxury automobile. Becker also posted photos of an accident that occurred on the dealership’s premises during a vehicle test drive. Though Becker removed the photos from his Facebook account at management’s request, according to documents in his personnel file, he was terminated “because he had made negative comments about the company in a public forum.”

The NLRB’s general counsel issued a complaint, claiming that Becker was terminated in violation of the NLRA, which protects employees’ right to engage in concerted activities for their mutual aid and protection. The NLRB also challenged certain provisions of Knauz’s employee handbook, such as a requirement that employees be courteous and avoid language which injures the image or reputation of the dealership. The NLRB alleged that this provision facially violated the NLRA by chilling employees’ discussions of the terms and conditions of their employment.

The ALJ concluded that Becker’s posts about the sales event were protected communications because the lackluster refreshments could have had an effect on sales and, in turn, employees’ commissions. However, the ALJ found that Becker did not engage in protected activity when he posted photos of the accident, because the accident had no connection to any employee’s terms or conditions of employment, but rather were posted “as a lark” to mock Knauz. The ALJ further concluded that Becker was terminated for posting the accident photos – not for posting the pictures criticizing the food choices at the sales event – and therefore his termination was not unlawful. Finally, the ALJ concluded that the provisions of the employee handbook prohibiting employees from using language that might injure the reputation of the dealership, and preventing employees from participating in unauthorized interviews about Knauz, could have a chilling effect on employees’ rights under the NLRA to discuss the terms and conditions of their employment. Both the Board and Knauz appealed the ruling. Employers and others have been watching this case, as it is one of the first of the so-called “Facebook firing” cases to reach the full NLRB for review.

On September 28 a three-member panel of the NLRB affirmed the ALJ’s determination regarding Becker’s termination, and thus held that Knauz lawfully discharged Becker for his unprotected Facebook postings about the auto accident. The panel did not, however, discuss whether it agreed with the ALJ that Becker’s Facebook posts about the sales event were protected activity, unfortunately leaving that issue unresolved. With respect to the employee handbook, a majority of the panel agreed with the ALJ’s conclusion that the prohibition on disrespectful conduct and language which injures the image or reputation of the dealership had a chilling effect on the exercise of employees’ protected rights. Though recognizing that employers can expect employees to be courteous, polite and friendly to customers, the NLRB found that, in this case, the handbook provision went further and sought to curtail the content of employee speech. Because these provisions might lead a reasonable employee to refrain from communicating about the terms and conditions of his or her employment, the majority affirmed the ALJ’s finding that the handbook’s “courteous communication” rule violated the NLRA.

In light of the NLRB’s heightened scrutiny of social media policies, employers are encouraged to review their handbooks and social media use policies with counsel, and to consult counsel before disciplining or terminating employees even in part for engaging in activity using their social media accounts. Indeed, on September 20, 2012 an ALJ found that a company’s policy prohibiting social media use on company time and using company equipment violated the NLRA. As many employers have adopted policies prohibiting the use of social media sites using company equipment, now is the ideal time to revisit those policies in light of recent NLRB guidance.

For more information on social media policies or the NLRB’s decision, please contact your principal Squire Sanders lawyer or one of the lawyers listed in this Alert.