Tuesday, October 2, 2012

Pay attention: NLRB issues its second social media decision in a month (Knauz BMW)

Late last week, the NLRB issued its second decision in a case involving employee use of social media. In Karl Knauz BMW, the Board concluded that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. For the background on this case, please go here to read my post from a year ago discussing the Administrative Law Judge’s earlier decision.

The case hinged on whether Knauz BMW terminated a salesperson for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event, or for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership. The NLRB concluded that it was the latter, which did not invoke the Act’s safeguards for protected concerted activity:

It was posted solely by [the employee], 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.

This case, however, is not a total victory for employers. In addition to ruling on the legality of the termination, the NLRB also ruled on the illegality of the employer’s “Courtesy” rule, which 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.

As was the case in the Costco case decided last month, the NLRB took issue with a facially neutral workplace policy that, if taken to its illogical extreme, could potentially chill employees’ conversation about workplace conditions:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements … that object to their working conditions and seek the support of others in improving them…. A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work.

As was the case in Costco, Member Hayes dissented. He criticized the majority for making a stretched and tortured interpretation of the work rule at-issue. He instead called for a reasoned reading of the rule as a whole:

Reasonably construed and read as a whole, the rule is nothing more than a common-sense behavioral guideline for employees…. Nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages); rather the rule concerns the tenor of any conversation. In short, by its “Courtesy” rule the Respondent sought to promote civility and decorum in the workplace and prevent conduct that injures the dealership’s reputation—purposes that would have been patently obvious to Respondent’s employees, who depend on the dealership’s image for their livelihoods.

Unfortunately for employers, Member Hayes was out-voted 2 – 1.

What now for employers, as we are starting to receive some clarity on these issues from actual Board decisions instead of advice memoranda?

  • Unfortunately, the rationale of these decision on the legality of workplace communication policies is as strained as that suggested by the Office of General Counsel earlier this year. For now, the best course of action is to tread cautiously when dealing with these issues (and hope that November’s election brings some relief to the American business community from activist federal agencies).
  • In the meantime, however, employers need to pay careful and diligent attention to this issue. Social media and other employee communication policies remain on the forefront of the NLRB’s hit parade. No matter how this issue ultimately shakes out, and no matter how ludicrous this result seems, this case, Costco, and Fresenius USA Manufacturing (giving employees a right to make vulgar, offensive, or threatening statements, and then lie about them to their employer) deserve the attention of every company doing business in America.

[Hat tip: Workplace Prof Blog]