On September 28, 2012, in its first “Facebook firing” decision, the National Labor Relations Board (the Board) concluded that an employer lawfully discharged one of its employees based upon his sarcastic postings on Facebook relating to an automobile accident. But the Board found that the employer’s “Courtesy Policy” was unlawful, and continued the aggressive, pro-employee approach that the Board and its General Counsel have recently taken when analyzing employee handbook and social media policies.

In Karl Knauz Motors, Inc. & Robert Becker, Case 13-CA-046452, the Administrative Law Judge (ALJ) concluded that Becker, a Knauz BMW salesman, was lawfully fired for insensitive Facebook posts about an accident at a nearby Land Rover dealership. Becker had posted pictures and sarcastic comments on Facebook about two subjects: his perception that Knauz BMW’s rollout event for the new 5-series BMW was lackluster, and his observations of the Land Rover accident. The ALJ concluded that Becker’s posts about the Land Rover accident were not protected by the National Labor Relations Act (NLRA) because Becker was not an employee of the Land Rover dealership and because his posts had nothing to do with his terms and conditions of employment at Knauz BMW. Therefore, his firing was lawful.

Although the Board affirmed the ALJ’s decision regarding the firing, it did so with little discussion. The Board suggested that the ALJ’s decision on this issue was controlled by the ALJ’s credibility determinations, which the Board would not overturn. Therefore, the Board refused to discuss whether any of Becker’s Facebook posts, whether they related to the BMW event that was held at Becker’s workplace or the Land Rover accident, were protected by the NLRA.

The NLRA gives employees the right to engage in protected concerted activity. Such activity can include discussing wages or other terms and conditions of employment with coworkers, unions or the government. Disciplining or firing employees for engaging in protected concerted activity is unlawful. Also unlawful is maintaining workplace rules that employees could reasonably read as chilling the exercise of their rights under the NLRA.

The lawfulness of Knauz BMW’s Courtesy Policy took center stage in the Board’s decision even though it was not the subject of the original complaint or apparently cited by Knauz as the basis for termination. That policy stated employees were “expected to be courteous, polite and friendly” to coworkers and third parties, and that employees should not “be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

A majority of the Board concluded that employees would reasonably construe the prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing protected statements by employees in which they objected to their terms and conditions of employment. Therefore, the Courtesy Policy chilled employees’ exercise of their rights under the NLRA and was unlawful.

Board Member Hayes dissented from the majority’s finding that the Courtesy Policy was unlawful. He thought that the Courtesy Policy would not reasonably be read as chilling employees’ labor rights, but rather as encouraging “acceptable norms of behavior” in the workplace and establishing “commonsense behavioral guidelines for employees.”  The majority disagreed, stating that the rule went too far. The majority concluded that under the rule, a reasonable employee would believe that even if they shared the Board’s finding of Knauz’s unlawful conduct in a polite manner with a third party, they would be subject to discipline for injuring Knauz’s image or reputation.

The Board’s decision in Knauz is a frustrating one for employers. The Board’s refusal to meaningfully discuss what employee social media activity can lawfully be disciplined leaves employers with little guidance in this developing area of the law. In addition, the Board’s continued offensive stand against common employee handbook policies leaves employers wondering what policies can be implemented to maintain a productive and civil workplace.

We recommend that employers review their employee handbook provisions relating to employee communications, including social media policies, with counsel. Furthermore, employers should be cautious about disciplining or discharging employees for inappropriate communications about any workplace issue. Before issuing discipline or terminating employees for such communications, employers should consult with counsel to make sure that their employees’ communications are not protected by the NLRA.