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Hot Dog! NLRB Issues Employer-Friendly Ruling in First Facebook Firing Decision

As we have previously discussed on this blog, the NLRB?ÇÖs Acting General Counsel has generated substantial publicity by issuing complaints in cases involving social media.?á However, because the cases had not yet worked their way through the NLRB?ÇÖs adjudicatory system, significant uncertainty remained regarding the scope of the Board?ÇÖs approach to social media issues.?á For this reason, the Board?ÇÖs recent decision in Karl Knauz Motors Inc., holding that an employee was lawfully fired for posting Facebook photos of a car accident at work, is especially significant.

This decision, which is the first to address an employee termination due to social media activity, follows last week?ÇÖs Costco decision, where the Board addressed social media policies for the first time since the Acting General Counsel began to target these issues. ?áAs we noted last week, the Board majority in Costco affirmed the Acting General Counsel?ÇÖs aggressive stance towards policy language that can be read to limit employee rights under the National Labor Relations Act, including the right to ?Ç£engage in .?á.?á. concerted activities for the purposes of collective bargaining or other mutual aid and protection.?Ç¥

While Costco demonstrates the need for continued caution when drafting social media policies, employers got some good news this week in the Knauz decision, where the Board found that a BMW dealership did not violate the NLRA when it fired a salesman for his Facebook postings about an accident at an affiliated Land Rover dealership.?á The Board rejected the salesman?ÇÖs claims that he was fired for other Facebook posts complaining about the employer?ÇÖs decision to serve hot dogs and chips at a sales event instead of more upscale food, which the employee claimed qualified as protected concerted activity.

This decision is undoubtedly good news for employers, but the limited scope of the Board?ÇÖs ruling means continued prudence is necessary.?á The Board found that the employee was fired for posting to Facebook pictures of an accident that occurred at an affiliated Land Rover Dealership after a customer?ÇÖs son was allowed to sit in the driver?ÇÖs seat during a test drive and accidentally drove the vehicle into a pond.?á?á In addition to posting pictures of the accident, the employee wrote mocking captions such as ?Ç£This is your car.?á This is your car on drugs.?Ç¥?á The Board affirmed an administrative law judge?ÇÖs decision that this posting was not protected by the NLRA because it was posted ?Ç£apparently as a lark, without any discussion with any other employee of the respondent, and had no connection to any of the employees?ÇÖ terms and conditions of employment.?Ç¥?á For this reason, the Board affirmed the judge?ÇÖs ruling that the postings did not qualify as protected concerted activity and the employee?ÇÖs termination therefore did not violate federal labor law.

Notably, the Board did not address arguments that the employee?ÇÖs other postings criticizing the BMW dealership?ÇÖs sales events constituted protected concerted activity.?á A ruling on this issue would have provided employers useful guidance on the limits of employee rights to criticize their employers online.?á Further, the Board majority affirmed the administrative law judge?ÇÖs ruling that a provision in the employer?ÇÖs handbook requiring ?Ç£courtesy?Ç¥ from employees was unlawfully overbroad because it could be read to chill protected concerted activity.?á Accordingly, while employers may feel like celebrating this ruling?ÇÖs affirmation that not all employee online speech is protected, the celebration doesn?ÇÖt call for Champagne just yet ?Çô perhaps just hot dogs and chips.

The lawyers of our Employee Benefits and Executive Compensation Practice Group are readily able to assist companies on a nationwide basis with implementing sophisticated benefit plans and providing answers to their most challenging compensation issues. Additionally, our lawyers are well aware of the daily employee benefits challenges facing companies of all sizes and are capable of helping in-house lawyers and human resources personnel with the day-to-day advice and guidance necessary to properly administer employee benefits plans.

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