Judge OK’s Employee’s Firing For Facebook Post – But There’s a Catch

From TLNT By Eric B. Meyer

Last week, a National Labor Relations Board Administrative Law Judge
(ALJ) ruled, for the first time, that an employer could legally fire an
employee based on Facebook activity. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker,
the judge okayed a BMW dealership firing an employee who posted
pictures (accompanied by some snarky comments) about a neighboring Land
Rover dealership.

Ameet Sachdev of the Chicago Tribune describes the facts:

The NLRB filed a complaint on behalf of Robert Becker
against Karl Knauz BMW after the dealership fired him June 22, 2010. A
week earlier Becker had posted comments and pictures on Facebook of a
sales event in which the dealership served hot dogs and bottled water to
customers.

Becker mocked the dealership for serving cheap food at a sales event
for a luxury car. “I was happy to see that Knauz went ‘All Out’ for the
most important launch of a new BMW in years,” Becker wrote on Facebook,
according to court papers.

That same day, he posted pictures of an accident at a
neighboring Land Rover dealership, which is also part of the Knauz
group. A sales representative allowed a customer’s 13-year-old son to
sit in the driver’s seat of a vehicle. The teen drove the vehicle down a
small embankment into a pond.

With the accident pictures, Becker wrote, “This is your car: This is your car on drugs.”

Management of the BMW dealership didn’t like the negative and
sarcastic tone of Becker’s comments and asked him to delete the posts,
which he did, but he later was fired after a managers meeting.”

Only a small victory for employers

As noted above, based on these facts, the ALJ ruled that the dealership was within its rights to fire Mr. Becker.

So why is this only a small victory for employers?

We are reminded that employees acting together — and sometimes on
their own — can talk smack on Facebook about stuff that happens in the
workplace.

Let’s pretend that the Land-Rover Facebook posting never happened.
Instead, assume that Knauz had fired Becker solely for mocking the Knauz
BMW sales event.

Kosher? Nope.

It’s all about the protected concerted activity. I have blogged about this many times (here, here, here, here, here, here, here, here, here, and here). Let’s review briefly, because it applies equally in both unionized and non-union workplaces.

Concerted activities are those engaged in with or on the authority of
other employees, and not solely by or on behalf of the employee
himself. Put simply, concerted activity is a call to action with respect
to terms and conditions of employment. Examples include two or more
employees: (a) addressing their employer about improving their working
conditions and pay; or (b) discussing work-related issues with each
other.

Concerted employee activity is protected

Employers cannot discipline employees for engaging in concerted activity. Such activity is protected.

Although concerted activity generally involves two or more employees,
there are instances where a single employee can engage in protected
concerted activity. Concerted activities include individual activity
where individual employees seek to initiate or to induce or to prepare
for group action, as well as individual employees bringing truly group
complaints to the attention of management. The activity of a single
employee in enlisting the support of his fellow employees for their
mutual aid and protection is as much concerted activity as is ordinary
group activity.

In this instance, both Becker and another Knauz employee spoke up at a
sales meeting on what they considered to be the inadequacies of the
food being offered at the event, and the subject was further discussed
by the salespersons after the meeting, even though only Becker
complained further about it on his Facebook pages without any further
input from any other salesperson.

So, although Bekcer acted alone on Facebook, his social-media
activity arose out of group action, which is enough to constitute
protected activity. Therefore, had Knauz fired Becker because of his BMW
postings – as opposed to his Land-Rover postings — it would have
violated the law.

Here’s the real kicker: Counsel for Knauz argued
that there can be no protected concerted activity unless the employer is
aware of it. Makes sense, right? Well, the judge flatly rejected this
argument, finding that employer-knowledge is not a requirement of
protected concerted activities.

Reconsider overly broad work rules

Now, admittedly, this won’t often be an issue on Facebook because
many employee posts are followed by comments from other employees. But
what if, as was the case here, no other employees comment? How the heck
is an employer to distinguish between protected concerted activity and
individual gripes — which are not protected under the National Labor Relations Act? Good question.

You may also want to reconsider broad work rules, such as those barring “direspect” towards the employer.

Knauz did not have a social-media policy. It did; however, have an
employee handbook. And in that handbook was the following work rule:

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 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.”

Well intentioned, I’m sure. You may even have one in your work rules
right now. Just know that according to the National Labor Relations
Board, it doesn’t fly. The ALJ found it overly broad and that it tended
to chill employee rights to discuss terms and conditions of employment.
Therefore, it must be struck.

Although not discussed in the opinion, it’s important to note that
while a blanket rule barring employees from disrespecting the employer
may violate the National Labor Relations Act, an employee does not have carte blanche to disrespect an employer. Seriously, folks. Neither you nor I can go into our boss’s office and curse the boss out for any reason — work-related or otherwise. That just don’t fly.

Fun stuff, huh? And we’re just getting started. This is only the
second ever Facebook-firing opinion from a National Labor Relations
Board Administrative Law Judge.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.