Pyrrhic Victory: Judge OK's Firing for Facebook Post, But...

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 ALJ 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 of Knauz:

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.

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. 

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 ALJ flatly rejected this argument, finding that employer-knowledge is not a requirement of protected concerted activities. 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 "disrespect" 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 ish just don't fly, yo.

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 article was originally published on  Eric B. Meyer's blog, The Employer Handbook.

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