NLRB Says "Yes," You Can Be Fired for Something You Post Online

In its first decision involving an employee's discharge based on Facebook postings, the National Labor Relations Board (NLRB or the Board) ruled that the discharge of an employee for posting pictures and comments that ridiculed and embarrassed the employer was lawful, as the employee was not engaged in protected concerted activity with respect to the posting. The Board upheld the discharge on two grounds. To begin with, the employee acted alone with respect to the posting and not together with (i.e., in concert with) any other employee or employees. Even if the employee was engaged in concerted activity with respect to the posting, moreover, its contents had "no connection to any of the employees' terms and conditions of employment." Knauz BMW, 358 NLRB 164 (2012). This decision comes on the heels of: (i) a January 2012 NLRB General Counsel's report summarizing the Board's treatment of social media policy cases; (ii) the Board's decision just last month striking down Costco's social media policy as overbroad; and (iii) an ALJ Decision ruling unlawful an employer's policy prohibiting "disparaging or defamatory comments" about the employer or fellow employees. Echostar Technologies, L.L.C., 27-CA-066726, JD(SF)-44-12 (Sept. 20, 2012).

The posting that led to the car salesman's discharge in Knauz BMW was limited. It addressed an incident that occurred at a neighboring Land Rover dealership that also was owned by the salesman's employer. A thirteen year old boy had accidentally driven an automobile off the dealership lot and into a pond. The BMW salesman, Robert Becker, observed the accident, took a picture, and posted it online under the caption: "This is your car. This is your car on drugs." His employer, the BMW dealership next door, discharged him because of this posting.  Becker filed a charge with the NLRB, claiming that he was illegally fired for posting comments that were protected under the National Labor Relations Act (Act). Becker further claimed that certain rules outlined in the BMW Employee Handbook also violated his rights under the Act.

Unable to find a connection between the posted picture and any concerted activity at all, let alone protected concerted activity, the ALJ dismissed the allegation that Becker was illegally fired. Specifically, the ALJ concluded that Becker's photograph and commentary were "posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees' terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting." The NLRB adopted this conclusion.

The ALJ went on to find, however, that the "courtesy rule" published in the BMW dealership's Employee Handbook was overbroad such that it violated Section 7. The policy stated as follows: "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."

Upon review, two members of the NLRB's three-member panel agreed that this provision illegally restricted employees' Section 7 rights. The majority reasoned that employees could reasonably construe the prohibition against "disrespectful" conduct to include protests or criticisms about working conditions, which are clearly protected under the NLRA. The dissenting member argued that the clause only established a "common sense behavioral guideline." In response, the majority held that while the first two sentences of the rule could be considered as such, the last sentence, specifically proscribing language that could "injure the reputation" of the employer, went too far in "chilling" an employee's right to protected communications. The ALJ and the panel did uphold, however, the employer's "bad attitude" rule, which stated that "employees should display a positive attitude toward their job."

In the recent Echostar Technologies, L.L.C. decision, an ALJ ruled that language prohibiting "disparaging or defamatory comments" about the employer or fellow employees was overly broad and could be seen as chilling Section 7 activities. Importantly, the ALJ also ruled that the employer's policy could not ban employees from social media activities during "company time," presumably because that term, by definition, includes employees' break and lunch time, and could include time before and after work. To be lawful, such prohibition can apply only to employees' "working time."

In light of these decisions, it is prudent for employers to ensure that the limitations on employee speech or conduct contained in their social media policies are specific and narrowly tailored. Employers should refrain from creating policies that generally proscribe comments that are "disrespectful," "derogatory," or "defamatory," or those that "embarrass" or "criticize" the employer. These words will be seen as restricting comments protected by Section 7. In contrast, policies that restrict the use of social media to display vulgar and/or threatening comments regarding the employer or co-employees, and comments that violate the employer's non-discrimination policy, have been upheld under the NLRA. It is also worthwhile for employers to include language clearly stating that its policy is not meant to restrict communications protected under Section 7, but this language will not automatically "legalize" a social media policy if it is otherwise overbroad.