Recent National Labor Relations Board decision reminds employers that employee speech related to terms of employment is protected.

Dan Liutikas, Contributor

November 30, 2012

4 Min Read

A recent decision by the National Labor Relations Board, the first social media case the NLRB has decided, provides employers with some guidance on which types of social media policies may not be appropriate.

In Karl Knauz Motors Inc., the key issues were whether the employer (a) lawfully terminated an employee for comments he made on Facebook about an automobile accident involving a customer at his employer's dealership and (b) violated the National Labor Relations Act (NLRA) by inserting a rule in its employee handbook requiring employees to treat others with courtesy and to refrain from using language that could harm the employer's image.

Karl Knauz Motors, the employer in this case, issued an employee handbook with a rule that reminded employees of their duty to be courteous to others. The rule stated: "Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership."

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One employee, a salesman at a Knauz BMW dealership, had attended a promotional sales event and posted photos of it on his Facebook page. The photos included dealership personnel eating food at the event, and underneath the photos the salesman posted comments that mocked the inexpensive fare. Shortly thereafter, at a Land Rover dealership Knauz owned, a customer accidentally drove a display vehicle into a nearby pond. The employee then posted photos of that episode on Facebook, along with a sarcastic description of it. Eventually, other Knauz employees posted sarcastic comments underneath the employee's descriptions of both events.

When Knauz executives became aware of the social media postings, they discussed the matter with the employee, telling him that the postings were disparaging to the company and damaging to its reputation. Knauz then proceeded to terminate the employee for the Land Rover posting.

The employee filed an unfair labor practice charge with the NLRB, alleging that he was terminated for engaging in concerted activities protected by the NLRA. An NLRB administrative law judge held that the employee's social media posting about the BMW event was protected concerted activity under the NLRA because his criticisms of the food were shared by co-workers, and there was a possibility that their criticisms were connected to the dealership's reputation, which could affect sales. Since lower sales could hurt their commissions, the employee's posting was connected to the terms and conditions of employment.

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However, the judge held that the employee's Land Rover posting was not protected concerted activity, because it was posted solely by the employee, without discussion with any other employee, and it had no connection to the terms and conditions of employment at Knauz. Most important, the judge found that the employee was terminated for his Land Rover posting, not his BMW event posting.

This case and ruling confirms that employers must avoid ambiguous rules that could be construed against them, including rules requiring certain standards in employees' speech. If an employer issues a rule regulating employee speech, including social media posts, the rule must exempt speech regarding the terms and conditions of employment.

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About the Author(s)

Dan Liutikas


Dan Liutikas is the chief legal officer of CompTIA, a non-profit IT industry trade association, where he oversees legal and regulatory affairs.

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