Client Alert - Employment Law Update
Fired for Facebook Posting - That's only Part of the Story
The National Labor Relations Board (NLRB) recently issued its first ruling on the role of Facebook posts in termination decisions. The decision's real significance, however, lies in the NLRB's continued expansion of rules that historically governed union workforces to all workplaces.
Background and Protected Concerted ActivityThe case of Karl Knauz Motors and Robert Becker, 358 NLRB No. 164 (Sept. 28, 2012) arose after a Chicago-area BMW dealership terminated an employee for posts he made on his Facebook account. Following a promotional event for a new vehicle line, Robert Becker complained that a hot dog cart at the event was not appropriate for the upscale dealership's customer base. He took photos, which he posted on his Facebook page with critical comments. A few days later, an accident occured at an adjacent car dealership. Becker took photos, which he again posted with sarcastic comments. He was terminated for, among other things, violating the dealership's "courtesy policy." The policy stated that "everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as their fellow employees." It also prohibited employees from being "disrespectful," or using "profanity or any other language which injures the image or reputation of the Dealership." Although not a union employee, Becker filed a charge with the NLRB, claiming that he was fired for engaging in "protected concerted activity" under the National Labor Relations Act. As explained in an earlier Client Alert, protected concerted activity is a long-standing labor law principle intended to allow workers to discuss wages, hours, and working conditions with unions, co-workers, and the government. Maintaining workplace rules that "chill" the exercise of these rights is unlawful.The NLRB upheld Becker's termination, finding that it was due solely to his accident-related posts. However, it also struck down the courtesy policy because it could be construed to mean that employees were prohibited from making critical statements about their employers that may be protected under the Act.
What to Do
The NLRB has been expanding the scope of its protections to non-union employees, and scrutinizing common policies from the perspective of protected concerted activity. In recent months, it has invalidated handbook provisions relating to confidential investigations, at-will employment, and the arbitration of disputes. Employers should begin by reviewing all policies to ensure compliance with the current standards being applied. In addition, employers should take care when making disciplinary and termination decisions based on communications about workplace issues.
If you would like more information about this decision, or have questions about your employment policies and practices in general, please contact Mr. Gonzalez at 312-558-9779 or at egonzalez@elvisgonzalezltd.com.
|
|