Monday, October 3, 2011

Hot dog! Another social media decision from the NLRB (and employers should pay attention)

A few weeks ago, an NLRB Administrative Law Judge issued the agency’s first-ever decision debating the legalities of terminating employees for social media activities under federal labor laws. Karl Knauz Motors, Inc. (9/28/11) [pdf] is the second. Following Knauz Motors, we are starting to receive some clarity as to what is (and, perhaps more importantly, what is not) protected online speech under the National Labor Relations Act, and how far employers’ policies can go in trying to restrict this speech. 

This case concerns two series of Facebook posts by Robert Becker, a salesperson at Knauz Motors’s BMW dealership, of two separate incidents.

In the first, Becker criticized a dealership promotional event at which hot dogs were passed out. Becker posted photos on his personal Facebook wall of the hot dog cart, along with sales people holding hot dogs, bags of Doritos, and bottles of water. He also posted the following a comment on the dealership’s event page criticizing the catering as beneath BMW’s standards. In the second, Becker posted a photograph on his Facebook wall of a car driven into a pond by the 13-year-old son of a customer of the adjacent Knauz-owned Land Rover dealership.

The ALJ concluded that the posts related to the BMW promotional event were protected, concerted activities for which Becker could not be disciplined or terminated—Becker, a commissioned salesperson, believed that the budget-conscious food choices could negatively impact sales and, therefore, his earnings. He had posted to enlist the support of his fellow employees as an outgrowth of a prior in-person conversation about the same issue. Conversely, the post related to the Land Rover incident was not protected—Becker posted it without discussion with other employees and without connection to any terms and conditions of employment.

Ultimately, the ALJ concluded that Knauz lawfully terminated Becker because of the Land Rover post, and not because of the hot dog posts.

Perhaps of greater interest is the portion of the opinion concerning the dealership’s employee handbook. The ALJ concluded that the following conduct policies in the handbook were overly broad:

  • 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.
  • Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.”
  • Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

According to the ALJ:

If employees complied with the dictates of these restrictions, they would not be able to discuss their working conditions with union representatives, lawyers, or Board agents.

While none of the at-issue policies was a “social media” policy, employers need to understand that the NLRB could take issue with any policy that might infringe on employees’ rights to engage in protected, concerted activities. This means that businesses must walk a fine legal line in drafting social media and other communication policies, which must be narrowly drafted to ensure that employees cannot reasonably perceive that they are limited in how they can discuss their terms and conditions of employment. In simpler terms, employers need to think twice before painting employee communication restrictions with a broad brush.

(If you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

[Hat tip: LaborRelated and Lawffice Space]