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NLRB Upholds Facebook Firing

The National Labor Relations Board (NLRB) recently published one of its first decisions in a case involving an employee fired over posts made on the popular social media site Facebook. In the Karl Knauz Motors, Inc. case, which had received attention last year following an initial decision by the Administrative Law Judge (ALJ), Knauz BMW fired one of its car salesmen for posting photographs and comments related to an accident which had occurred at a Land Rover dealership owned by the company. The salesman had also posted photographs and comments critical of the food served at a sales event at Knauz BMW, but the company insisted it had not fired the employee for these posts. In the earlier proceeding, the ALJ found that the salesman's comments related to the Land Rover accident constituted unprotected activity under the National Labor Relations Act (NLRA), but that the photographs and comments related to the workplace function represented protected activity because the sales event could affect the dealership's image and the salesman's ability to earn commissions. The NLRB agreed with the ALJ that the salesman's posts regarding the Land Rover accident did not constitute protected activity, but declined to consider whether the posts critical of the dealership were protected under the NLRA.

In its opinion, the NLRB also struck down a "courtesy" policy maintained by the dealership which required employees to be polite and barred them from being disrespectful or using profanity. The NLRB found this "courtesy" policy to be overly broad in that it could reasonably be construed as prohibiting protected activity. For example, the NLRB noted that the policy could have a "chilling effect" on employee statements to coworkers or third parties related to their working conditions.

Based upon the NLRB's decision in the Karl Knauz case, it is clear that not everything an employee complains about on Facebook will be held to be protected and concerted activity by the NLRB. The NLRB's decision demonstrates that it will not fault an employer for firing employees that post material unrelated to the workplace. Unfortunately, the NLRB's refusal to address the posts made by the salesman which were critical of his employer leaves open the issue of what kind of workplace-related posts the NLRB will consider protected activity under the NLRA. Employers should continue to carefully analyze and assess the content of any social media posts made by an employee prior to taking any adverse action. Moreover, and in light of the NLRB's position with the respect to the "courtesy" policy examined in Karl Knauz, employers should carefully review their social media policy to ensure that it does not have the potential effect of chilling protected activity or speech.

Should you have any questions concerning the contents of this Client Alert, you can contact Marissa Savastana Watts at 870-7613 or any of the other members of the MacDonald Illig Labor and Employment Practice Group.