THE DIGITAL WATER COOLER:
HOW FACEBOOK POSTS ARE PROTECTED UNDER THE NLRA
THE LAW: The National Labor Relations Act was created to protect the rights of employees. One such right was for employees to act together to address conditions at work. The common image is of employees standing around the water cooler, complaining about the work place. In the digital age, though, it is more common to find employees complaining on Facebook and other social media than in the break room.
Recent decisions by the National Labor Relations Board have tried to address employees using Facebook to air grievances. The Act itself protects the employee’s right to “engage in other concerted activities for the purpose of…mutual aid or protection.” What the language means is that an employee is protected from discipline or termination when (1) they are discussing the terms and conditions of their employment and (2) the discussion involves other employees or is a logical outgrowth from an earlier discussion. But with the growth of Facebook, employees have taken their issues outside of the break room and into public. Posts concerning low wages, bad customers, poor working conditions, or incompetent supervisors can be found every day on Facebook. Every month seems to bring a new story about an employee getting fired over a Facebook post or comment. Employers have to be careful on where to draw the line or else they risk expensive litigation. So where is the line drawn online? The NLRB has provided cases to help guide employers. One in particular illustrates the nuances of Facebook and the NLRA.
THE CASE: In 2011, Knauz BMW in Illinois planned an “Ultimate Driving Event” to introduce and promote their new line of 5-series vehicles. During the meeting before the event, staff questioned the refreshments provided, believing them to be insufficient and subpar for the dealership. The management rejected their concerns. An employee took pictures of the refreshments and posted them online soon after. Along with the photos, the employee commented critically of the choice of food and mocked the dealership. No employees commented on the posts. The employee then posted photographs of an unrelated incident where a 13-year-old boy crashed a Land Rover into a pond at the Knauz Land Rover dealership. Along with the photos, the employee again mocked the Knauz dealership and the employee that allowed the child to sit in the driver’s seat. After discovering all of the posts, the dealership terminated the employee, citing the “Courtesy Rule” of their contract.
Administrative Law Judge Joel Biblowitz, based out of Chicago, looked at the facts and came to two conclusions. First, when only one employee discusses their employment conditions on Facebook, the activity may still be protected. However, when that Facebook, or other social media post contains only sarcastic commentary and not a discussion on the “terms and conditions of employment,” it is no longer protected. The ALJ found that the post concerning the refreshments was a logical outgrowth of the earlier discussion between the employees. Even though no employee commented on the post, the ALJ concluded that the post concerned protected activity due to the effect of poor refreshments on the image of the dealership. However, the ALJ came to the conclusion that the post about the Land Rover accident was not protected. While employees commented on the post. the post itself was not protected as it was made solely of sarcastic comments and not a commentary on the work conditions. The ALJ decided that while the first post was protected, the Land Rover post was not and was sufficient to warrant termination.
While each situation should be evaluated on a case by case basis, the case serves as an example. It illustrates that the NLRB’s Chicago office expands concerted effort to the logical outgrowth of previous discussions, but will not protect comments made for the sole purpose of being sarcastic.
WHAT CAN YOU DO? As a footnote to the case, the NLRB convened a three-member panel to examine the employment provisions of Knuaz BMW. Knauz BMW’s “Courtesy Rule” which prohibited the use of profanity or acting disrespectful, causing injury to the image or reputation of the dealership. It found that the rule was too broad. The panel believed that a prohibition on disrespectful conduct and language would chill employees seeking to enforce their NLRA rights. Employers should ensure that their policies, including any “Courtesy Rule” policies are tailored to fit the standards of the NRLA by consulting with an employment attorney. This will help to prevent expensive litigation down the road by ensuring that the rules and policies are not to broad and don’t negatively affect employee’s protected rights.