NLRB Rules Termination Over Facebook Posting Justified

Author: Beth P. Zoller, XpertHR Legal Editor

Employers should be aware that the NLRB has released another decision addressing workplace rules and social media use which may directly affect workplace policies.

In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case 13-CA-046452 (September 28, 2012), the NLRB upheld the decision of an Administrative Law Judge (ALJ) that an employer was justified in terminating a car salesman based on photos and comments posted on his Facebook page and this was not a violation of the NLRA because the activity was not concerted or protected.

Specifically, the NLRB found that the postings containing mocking comments and photos with co-workers about serving hot dogs at a luxury car event as well as photos of an embarrassing and potentially dangerous accident at an adjacent dealership did not constitute protected concerted activity under Section 7.

In reaching this conclusion, the NLRB accepted the ALJ's finding that the posting was made solely by the employee without any discussion with his co-workers and that the posting did not refer to the employee's terms and conditions of employment.

However, in continuing the recent trend of striking down neutral workplace policies because such policies may possibly prevent employees from engaging in protected concerted activity, the NLRB held that the employer's handbook provision addressing "Courtesy "in the workplace was invalid.

Specifically, the "Courtesy" provision stated:

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 to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The NLRB determined that this could be reasonably construed to restrict employees from discussing workplace conditions and seeking to improve them.

This case reinforces the notion that unlike social media postings which call for collective action and contain group discussion about improving the terms and conditions of employment, individual gripes are not protected and employees may be disciplined for complaining about their own workplace issues.

However, an employer should carefully consider whether any questionable posting does in fact concern an employee's efforts to engage in protected concerted activity with co-workers before disciplining the employee.

Further, the NLRB's invalidation of the courtesy rule reminds employers that the NLRB is willing to extend Section 7 rights of the NLRA to both union and non-union workplaces.