This just in: the National Labor Relations Board has upheld the firing of an employee who lost his job over Facebook posts.
In late September, the Board ruled that a BMW dealership acted within the law when it fired Robert Becker for inappropriate postings on Facebook. The reason? Becker’s speech was not protected, write Leslie Eaton and Claire Ana-Perot Tracey from law firm Ballard Spahr:
“… the Board found that employee Robert Becker’s Facebook postings about an accident at a neighboring Land Rover dealership also owned by his employer were “obviously” not protected – because he did not mention his employer, and there was no connection to terms and conditions of employment.”
Because Becker was fired for his post regarding the accident, not a separate post made the same day in which he criticized his employer’s decision to offer hot dogs and chips at a key client event, his dismissal was not unlawful.
But the NLRB decision wasn’t a complete victory for the employer. Mark Theodore (law firm Proskauer) explains:
“The Board did not let the employer escape unscathed, however. In a 2-1 decision, it found the [employer’s] handbook rule [on employee courtesy], which played no part in the termination of the employee to be a violation of the [National Labor Relations] Act.”
Takeaways for employers and HR managers:
1. Sometimes it’s OK to fire employees for what they say online:
“This case illustrates that although employers must act cautiously when disciplining employees for comments on social media, they may still discharge employees for inappropriate comments that are not protected under the Act, including postings on social media that are made without any connection or relation to other employees’ terms and conditions of employment.” (Franczek Radelet)
2. Not every work-related post on social media is protected:
“The judge had reasoned that the employee posted the information apparently ‘as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees' terms and conditions of employment.’” (Morgan Lewis)
3. Inappropriate activity trumps protected speech:
“The Board unanimously adopted the [NLRB administrative law] judge's conclusion that Knauz BMW lawfully terminated Becker for his accident-related Facebook postings. The Board passed on whether the food-related posts were protected under the Act because its ruling on the termination made that issue unnecessary to its disposition of the case.” (FordHarrison)
4. This isn’t the final word on the matter:
“Knauz BMW was the Board's first social media decision, but it certainly will not be the last. There is a growing backlog of social media cases pending before the NLRB that will hopefully address many unanswered questions.” (FordHarrison)
5. Everything is fair game once the NLRB becomes involved:
“All of this reminds employers that the Board will continue for the foreseeable future to scan employer policies for theoretical violations of the Act, even when confronted with situations where the rules were not invoked.” (Proskauer)
The moral of the story? Complaining about hot dogs and chips is fine, but a side of gratuitous snark just might get you fired.
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Further reading:
- Employee’s Facebook Posting Not Protected Activity, Says NLRB - Ballard Spahr LLP
- Update: NLRB Upholds Termination For Facebook Posting, But Nails Employer For Unrelated Handbook Policy – Proskauer
- NLRB Finds That Employer Lawfully Fired Employee Over Facebook Posts, But Its Courtesy Policy Violated The NLRA - Franczek Radelet P.C.
- NLRB Strikes Down Employee Handbook Language and Issues First Social Media Decision - Morgan Lewis
- NLRB Upholds Employee's Discharge In First Facebook-Related Decision – FordHarrison
- Car Dealership Must "Cease and Desist" from Requiring Courteous Behavior, NLRB Rules - Constangy, Brooks & Smith, LLP
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Authored by:
Lance Godard
Lance Godard is an editor and social media manager at law news distributor JD Supra. He writes daily on legal issues of the moment, covering numerous industries and fields. Prior to JD Supra, Lance founded and ran 22 Tweets, in which he interviewed lawyers about their professional practice live, on Twitter, via 22 questions. He loves cycling, wearing yellow, and winning, but unlike the other ...
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