Wednesday, October 3, 2012

NLRB Upholds Employer’s Firing Based on Employee’s Facebook Post

Finally, the NLRB has sided with an employer in a Facebook firing case. On October 1st, the NLRB issued its decision in the Karl Knauz Motors, Inc. case, upholding a car dealership’s decision to fire a sales employee based on his Facebook postings.

As mentioned in a previous post the NLRB filed a complaint against the Knauz BMW dealership in May 2011 after the dealership fired a sales employee who had posted critical comments on Facebook about the dealership serving low-end food and drinks at an event promoting a luxury car. Other dealership employees had access to the Facebook page.

In its October 1st decision, the NLRB found that the car dealership did not violate federal labor law, because the sales employee was not fired for his negative postings about the dealership’s sales event. Instead, the employee was fired for posting pictures and a sarcastic comment on Facebook regarding a motor vehicle accident involving a customer.

Under federal labor law, non-management employees in both unionized and non-unionized work settings have the right to engage in “concerted” activity for their mutual aid and protection, including group discussions about improvements in the terms and conditions of employment. The Facebook postings regarding the motor vehicle accident were found not to constitute protected concerted activity, because, the NLRB said, the posting was “a lark, without any discussion with any other employee” and there was “no connection to any of the employees’ terms and conditions of employment.” Because the employee’s other posts about the dealership’s sales event did not cause the employee’s termination, the NLRB did not have to decide whether those posts were legally protected by federal labor law.

While the NLRB upheld the car dealership’s firing decision, it also reaffirmed its position that overbroad technology policies violate federal labor law. In the Knauz case, the NLRB found that the dealership’s “courtesy” rule in its employee handbook was unlawful. The NLRB reasoned that the rule, which asked employees not to be disrespectful or use language that injured the employer’s image or reputation, would cause a reasonable employee to believe that legally protected statements of protest or criticism were prohibited. The NLRB ordered the dealership to remove the courtesy rule from its handbook. This aspect of the NLRB’s ruling in Knauz serves as an important reminder that employers’ technology policies must balance the employer’s rights and business needs with employees’ right to engage in legally protected online activity.

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