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NLRB Issues First Facebook Decision

October 4, 2012

The National Labor Relations Board (the NLRB) recently issued its first decision involving employee postings on Facebook. In Knauz BMW, the NLRB confirmed that employers may terminate employees for Facebook postings that do not involve protected, concerted activity. A copy of this decision is available by clicking here. The case involved a BMW dealership that discharged one of its salesmen after he made two Facebook postings. In the first posting, the salesman complained about the BMW dealership offering hot dogs at a promotional event instead of more upscale food. In the second posting, he posted photos and comments about a car accident at the neighboring Land Rover dealership, which shared common ownership with the BMW dealership. The NLRB agreed with the administrative law judge that the Land Rover posting was “a lark, without any discussion with any other employee . . . and had no connection to any of the employees’ terms and conditions of employment.” Thus, the posting was not protected, concerted activity under the National Labor Relations Act (the NLRA), and the termination did not violate the NLRA. Because it found the termination was based only on the Land Rover posting, the NLRB did not decide whether the posting about the promotional event at the BMW dealership was protected.

In addition, the NLRB decision found unlawful the dealership’s “courtesy” rule, which prohibited employees from being disrespectful or using profanity or other language that would injure “the image or reputation of the [d]ealership.” Consistent with its recent Costco decision (summarized here), the NLRB held that the rule was illegal because employees would reasonably believe that it prohibited statements of protest or criticism and would have a chilling effect on employees’ right to engage in protected, concerted activity under Section 7 of the NLRA, such as disagreeing with the employer’s terms and conditions of employment.

Like the recent Costco decision, this latest case highlights the NLRB’s continued scrutiny of social media policies and employee rules that it considers to be overly broad. These decisions illustrate the importance of caution before taking action based on any employee’s Facebook posting or other social media activities and the possible need to consult with an attorney before doing so. Employers are again reminded to review their employment agreements, handbook rules, and social media policies to avoid challenges at the NLRB.

If you have any questions regarding these issues, please contact one of Honigman’s Labor and Employment attorneys listed here.