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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
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 them 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:
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.
[Hat tip: LaborRelated and Lawffice Space]
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