NLRB Issues First Decision Addressing Discharge for Social Media Postings
Oct. 10, 2012
By: Justin L. Furrow
Following a series of advisory reports by its Acting General Counsel (AGC), the National Labor Relations Board (NLRB) has issued its first decision involving the termination of an employee based upon postings on his Facebook page. The NLRB concluded that the employee’s firing was not unlawful since it was not based upon protected concerted activity. Unlike the AGC’s earlier guidance, however, this decision is binding on all employers covered by the National Labor Relations Act. Link
A salesman for a BMW dealership posted photos on his Facebook page of a vehicle that an underage driver accidentally drove over a wall and into a pond following a test drive at an adjacent Land Rover dealership. On the same day, the salesman also posted critical comments and photos with fellow salespeople about the quality of food and drinks served at a customer marketing event at the BMW dealership. One week later, BMW terminated the salesman’s employment.
The AGC and ALJ See it Differently
In his first report on social media cases before the NLRB, the AGC concluded that the salesman had been unlawfully discharged. The AGC concluded that the salesman’s Facebook comments about the dealership’s food and beverage choices were protected concerted activity under the National Labor Relations Act (NLRA) because they were communications with other employees about a topic that could impact their commission-based compensation system. The AGC also determined that the dealership discharged the employee solely because of these Facebook comments. The AGC therefore concluded that the dealership violated the NLRA by discharging the salesman for engaging in protected concerted activity via his Facebook comments. Link
But the Administrative Law Judge (ALJ) assigned to the case disagreed. The ALJ found that the salesman was discharged solely because he posted photos on Facebook of the test drive accident. Since the test drive photo did not involve a discussion with other employees about the salesman’s terms and conditions of employment, it was not protected concerted activity. As a result, his conduct was not protected under the NLRA, and the ALJ concluded that he had not been illegally discharged.
The NLRB Upholds the Discharge but Invalidates BMW’s “Courtesy” Rule
The NLRB agreed with the ALJ that the employer based its termination decision solely on the accident photos. Consequently, it was not necessary to determine whether the posting regarding the marketing event amounted to protected concerted activity. However, the NLRB also evaluated the employer’s “Courtesy” rule from its employee handbook, which prohibits disrespectful conduct or use of profanity or “any other language which injures the image or reputation of the Dealership” when interacting with customers, vendors, suppliers and fellow employees. The NLRB concluded that this policy was unlawful since employees would reasonably believe that it prohibits negative or critical comments that are protected by the NLRA.
The NLRB and courts will, in future decisions, continue to clarify what constitutes unlawful conduct in response to protected concerted activity in the context of social media. Because the outcome of many cases hinges on the employer’s motivation for its decision, employers should continue to fully and accurately document the actual bases for any disciplinary decisions, particularly if the result is termination. Doing so will allow the employer to present a compelling defense that activity protected by the NLRA or any other employment law did not motivate its decision.