ASKED & ANSWERED: Adam S. Forman on NLRB Facebook ruling

By Steve Thorpe Legal News The National Labor Relations Board has ruled that an Illinois BMW dealership did not violate federal labor law when it fired a salesman after they said he embarrassed the company in Facebook posts. In its first decision involving an employee fired over such posts, the agency concluded Karl Knauz Motors Inc. was within the bounds of the National Labor Relations Act when it fired Robert Becker. He had posted mocking and sarcastic posts about the dealership's events and products. Adam S. Forman's practice at Miller Canfield focuses on defending claims of wrongful discharge, discrimination, harassment, retaliation and wage and hour issues. He also represents management in labor arbitrations, unfair labor practice charges and collective bargaining. Forman frequently writes and lectures on issues related to technology and the workplace and conducts training on how to conduct workplace investigations. Thorpe: Was this ruling a surprise? Forman: I don't think I would call the decision a "surprise." Citing well established NLRB precedent, the Acting General Counsel's office has previously stated that it will not challenge the discharge of an employee for conduct involving social media where the employee involved was not engaged in protected activity, but rather had merely posted general complaints or individual gripes unrelated to working conditions or wages that impact a group of employees. In Knauz, the Board adopted the ALJ's finding that the employer lawfully discharged Mr. Becker solely because of his unprotected Facebook posting about an auto accident at a Land Rover dealership also owned by the employer. Based on that finding, the NLRB found it unnecessary to pass on whether Mr. Becker's posts concerning a marketing event at the employer's BMW dealership were protected. Guidance on whether the Board agreed with the ALJ's finding on the employee's post concerning the marketing event (the ALJ found that post protected) would have been helpful. Thorpe: Some experts are saying that the ruling is too vague and leaves employers unsure of where the agency has drawn the line. Do you agree? Forman: In part. The portion of the decision regarding the post about the auto accident was not vague. Social media posts that are merely general complaints or individual gripes unrelated to working conditions or wages that impact a group of employees are not protected. Left for another day is the extent which social media communications regarding topics such as a marketing event in Knauz will be protected. Thorpe: Judge Joel Biblowitz agreed that Becker's online posts about a sales event were protected by federal law, but that his comments and pictures about an accident involving a product made by the manufacturer were "neither protected nor concerted activities" because they had nothing to do with his conditions of employment. Can you explain the mixed ruling? Forman: Under Section 7 of the NLRA all employees (not just those in a union) have several rights, including the right to "engage in concerted activities" for the purpose of "other mutual aid or protection." Generally speaking, "concerted activities" are those that are collective or group activities and "mutual aid or protection" refers to topics such as wages, benefits and other terms or conditions of employment. Whether speech is protected or not is a fact specific analysis. The ALJ found that Mr. Becker's post about the auto accident was not collective or group activity and it wasn't regarding wages, benefits or other terms and conditions of employment. It was more akin to a general complaint or individual gripe that is not protected by Section 7 of the NLRA. Thorpe: The Board included a finding that the dealership's "Courtesy" rule was illegal because employees might interpret it to prohibit any statements of protest or criticism. Was this unexpected? Forman: I don't think so. The Board has long held that an employer rule is unlawful if it explicitly restricts Section 7 rights or if: (a) employees would reasonably construe it to prohibit Section 7 activity; (b) it was promulgated in response to union activity; or (c) it has been used to restrict the exercise of Section 7 rights. On Sept. 7, the Board issued its decision in Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012). In Costco, the Board found that several employer rules, including rules similar to the "courtesy" rule in Knauz, were unlawful. Knauz followed Costco and previous NLRB decisions. The "courtesy" rule, among other things, prohibited employees from "be[ing] disrespectful or us[ing] profanity of any other language which injures the image or reputation of the Dealership." The Board found that such language encompassed Section 7 activity, such as employees' protected statements -- whether to coworkers, supervisors, managers or third parties who deal with the employer -- that object to their working conditions and seek the support of others in improving them. It should also be noted that over the past couple years, the Acting General Counsel's Office has actively reviewed employer policies for similar overbreadth concerns. Thorpe: How does this ruling relate to the earlier Costco ruling of the NLRB on a similar issue? Forman: It is consistent with Costco (see answer to previous question). Interestingly, however, in both Costco and Knauz, the Board seemed to leave the door open to the possibility that a disclaimer or savings clause would have saved the otherwise unlawfully overbroad employer rules and policies at issue in those cases. In explaining why the "courtesy" rule was unlawfully overboard, the Board in Knauz (quoting its earlier decision in Costco) stated, "there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule's broad reach." Accordingly, the Board may have been signaling a willingness to find an overboard policy not unlawful, where the policy also makes it clear that nothing in the policy is intended to or will be used to prohibit employees from engaging in conduct protected by Section 7 of the NLRB, including discussing wages, hours or working conditions. Employers should note, however, that the Acting General Counsel's Office takes the position that such a disclaimer or savings clause does not save an otherwise unlawfully overbroad rule or policy. Thorpe: How do you see law on social media in the workplace unfolding in the near future? Forman: Whether it is in the context of the NLRA or other federal or state laws, I think that practitioners, agencies and courts will continue to grapple with how to deal with social media in the workplace. Sometimes, they will use well established principals of law, other times, where the round peg doesn't quite fit through the square hole, they will need to get creative. One thing is certain. Social media in the workplace is here to stay. That is, until the next technological innovation. Published: Fri, Oct 19, 2012

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