I’ve written about the importance of the National Labor Relations Board’s (“NLRB”) role in social media and employment law several times. Usually, my posts describe how the NLRB and its General Counsel are finding employer practices or policies to be unlawful. In its first decision regarding a “Facebook firing,” the NLRB surprisingly rules for the employer. It was such a momentous occasion that the NLRB issued a press release.
The NLRB’s First, And Certainly Not Last, Decision Regarding A Facebook Firing Case
A Facebook user pursued his wrongful termination claim at the NLRB. After the case made its way past an Administrative Law Judge (“ALJ”), the Board reviewed the case and rendered its first Facebook firing decision. Based on what I’ve written in the past about the NLRB’s stance on social media and employment law, you probably assume that the NLRB found in the employee’s favor. Typically, you’d be correct. This time, however…
The posts about hot dogs and water: The employee is this case is a former BMW salesman. In June 2010, his employer, a dealership, was preparing to host its BMW Ultimate Drive Event. At a pre-event meeting, a manager informed the sales team that the dealership intended to roll out a hotdog cart and provide hotdogs, chips and bottled water to hungry customers. The salesman thought that the dealership should offer better food for the event. At the event, the salesman took pictures of the hotdog cart. A few days later, he posted the pictures on his Facebook page along with some sarcastic comments including “No, that’s not champagne or wine, it’s 8 oz. water.”
The posts about a car accident: On the same day the salesman posted photos and comments about the hotdogs and water, he also posted pictures of a Land Rover that was accidentally driven over a wall and into a pond at an adjacent Land Rover dealership owned by the same employer. In this accident, according to the NLRB, a Land Rover salesperson had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive. The boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The BMW salesperson posted photos of the accident with sarcastic commentary, including: “OOPS.”
Why was the salesperson terminated?: A week after the BMW salesperson posted these separate photos and comments on his Facebook page, the dealership terminated his employment. The key question here was why was the salesman terminated? The Administrative Law Judge determined that the salesman was fired for the photos/comments he posted of the Land Rover incident, and not the photos/comments about the hotdogs. The ALJ further found that the Land Rover posts were “posted solely by [the salesman], 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. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” The Board agreed with the ALJ, and thus, the firing of the salesman did not violate federal law.
Significantly, the ALJ found that the salesman’s posts about the hotdogs might have been protected under the National Labor Relations Act (“NLRA”) because the posts involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales commissions. The NLRB, however, avoided this entire issue by stating that since the marketing event did not cause the discharge, then it was unnecessary to determine if the hotdog posts were protected.
Not All Good News For The Employer: The NLRB also found, however, that the employer’s policy requiring employees to avoid using disrespectful language that injures the company’s image or reputation violated the NLRA. (I’ve previously written about the NLRB’s focus on handbook policies regarding employee use of social media). Two of the Board’s panel members believed that the “courtesy” rule was unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the NLRA. The dissenting panel member found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”. Consequently, the Board ordered the dealership to remove the unlawful rules from the employee handbook and to furnish employees with inserts or new handbooks.
What This Decision Means For Employers and Employees:
- Employees should use better filters when contemplating posting something related to their employment. There are better was to bring complaints about the work environment than by posting on Facebook or other social media. However, when employees do post about the workplace, employers should take care when disciplining an employee for such posts.
- As I’ve stated before, employers should implement and/or update social media, courtesy, communication, and other such policies so that the policies cannot be construed to prohibit employee communications about workplace issues.
- This case may be the first, but will not be the last one analyzed by the NLRB. Because of the NLRB’s increased efforts, it is likely more and more potential litigants will bring claims before the NLRB rather than state or federal court. Going to the NLRB rather than Court, may have helped the litigant in the following case also decided in October 2012.
Courts Are Where Most Employees Bring Their Claims, But That May Change
Until recently, employees in non-unionized workplaces routinely brought their social media and employment related claims to their state court system. For example, on October 4, 2012, the Court of Appeals of Texas issued an opinion upholding an employer’s termination of a paramedic who posted on a co-workers Facebook page that she wanted to slap a patient. The co-worker saw the paramedic’s post and warned her that her (the paramedic) that the general public could see her Facebook post. In response, and without any privacy settings on, the paramedic responded:
Yeah, whatever. YOU weren’t there. Whenever I have to have a firefighter ride in with me because of a patient’s attitude, and I fear for MY safety, I truly believe a patient needs an attitude adjustment. Thank about that next time YOU correct someone!!
The employer fired the paramedic for being unprofessional and insubordinate. The paramedic sued for wrongful termination, invasion of privacy, and a few other claims. The Texas Court dismissed the paramedic’s claims, and she only appealed the invasion of privacy claim. The Texas Court of Appeals rejected her appeal, and found that the employer did not invade the paramedic’s privacy – after all, the posts were public, and the paramedic knew and confirmed they were public. Unfortunately, the paramedic did not appeal her wrongful termination claim. Also, if she would have brought the wrongful termination claim before the NLRB, she may have obtained a more favorable result since the NLRB might have found that her rant about employee safety was a protected concerted activity under the NLRB.
What do you think? Would this litigant have been better served if she had brought her claims to the NLRB rather than Court?
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.
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