In a pair of recent decisions addressing employee social media usage, the National Labor Relations Board (NLRB) has provided useful insight into the types of conduct that can and cannot be prohibited by employers under the National Labor Relations Act (NLRA). With this new guidance in hand, now is a good time to give your social media policy a review or to finally put a policy in place.
On October 1, 2012, the National Labor Relations Board (NLRB) released another instructive opinion, addressing the legality of a termination based on an employee’s Facebook posts. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, 358 NLRB No. 164 (Sept. 28, 2012), the NLRB held that an employee’s online activities were not protected by the NLRA, even though they arguably involved concerns over safety at a luxury car dealership. The employee posted photos to his Facebook page showing refreshments served at a sales event at the dealership, which the employee believed were cheap and poorly selected, as well as photos of a Land Rover in a pond-the car was driven into the pond when a customer’s son was allowed to sit in the driver’s seat of the car while it was running. The employee included sarcastic captions along with the photos; for instance, he captioned the photo of the car in the pond “Oops.” After the photos and captions were posted, the dealership terminated the employee and claimed that the photos and captions related to the car in the pond violated the company’s Courtesy policy.
In reaching its decision, the NLRB determined that the Facebook posts about the food at the sales event were protected because they voiced concerns about employment terms affecting all sales employees and other employees voiced similar concerns during a sales meeting. In contrast, the NLRB found that the posts regarding the car in the pond were not protected. The NLRB focused on the fact that the posts contained sarcastic comments and that the photos and captions were not part of a larger conversation amongst employees about working conditions at the dealership. Because the termination was based on the latter posts, it was not a violation of the NLRA.
While the termination was not a violation of the NLRB’s rules, the company’s underlying “Courtesy” policy addressing employee communication was found to be unlawful. According to two members of the NLRB, the language of the “Courtesy” policy could be read to prohibit protest or criticism of company policies or actions and, as a result, violated the NLRA. The company was ordered to edit its policy and distribute its updated policy to employees.
While the Costco and Knauz BMW decisions do not settle the social media policy issue, they offer a useful starting point for drafting or revising a social media policy. Based on the decisions, the NLRA clearly allows for terminations based on social media posts. But, employers must be sure that any such terminations are not based on comments between employees about the terms and conditions of the employees’ employment. Any policy regarding social media and/or employee communication should leave room for such discussions. In fact, to avoid potential liability under the NLRA, employers must be sure that their policies cannot be reasonably read to restrict communications regarding terms and conditions of employment.
For employers struggling to strike the appropriate balance between prohibiting disrespectful and harmful speech and complying with the NLRA, the acting General Counsel of the NLRB issued a report on May 30, 2012, that included a sample social media policy that was found to comply with the NLRA. Worth noting, the policy included specific types of communications that were prohibited (postings involving “discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct”) and specific types of confidential information that could not be disclosed (“information regarding the development of systems, processes, products, know-how, technology . . .”). Employers hoping to avoid future NLRB complaints should take a similarly specific approach. Additional guidance, as well as the text of the policy, can be found on the NLRB’s website: www.nlrb.gov.