Yes, you can fire an employee for Facebook posts that mock your company—but the lines are gray, so be careful.
That’s the message the National Labor Relations Board sent in its first published decision on the subject, upholding the firing of an employee whose Facebook posts poked fun at an on-the-job incident.
Here’s what happened:
In June 2010, Rob Becker, a salesman for Knauz BMW, attended a meeting in preparation for the launch of the redesigned BMW 5-series, for which the company planned to host a BMW Ultimate Drive Event. As a treat for customers, the company planned a hot dog cart—something at least two employees (including Becker) publicly derided at the meeting. Becker took photos of the hot dog cart and posted them, commenting: “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years …. The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch … but to top it all off the Hot Dog Cart.”
That same day, he posted about an accident at Knauz Land Rover, which is next door to Knauz BMW and owned by the same company. A Land Rover sales representative had allowed a customer’s 13-year-old son to sit in the driver’s seat, and the kid drove the truck over his father’s foot, down an embankment, and into a pond, destroying the vehicle.
Becker snapped a picture and posted it with the message: “This is your car: This is your car on drugs.”
Knauz BMW managers found out about the posts and asked him to delete them, which he did. But he was later fired. Becker sued, alleging he was fired for engaging in “protected concerted activity” under the National Labor Relations Act. His hot dog posting, the NLRB general counsel argued, was an employee complaint related to compensation (something employees are allowed to complain about on Facebook without fear of firing). Howzat? Well, the argument goes that one component of Becker’s compensation as a salesman is customer satisfaction, which could have dipped in response to the food available. By this reasoning, the company’s firing Becker for the post was retaliation.
In July 2011, an NLRB administrative law judge upheld Becker’s firing because of the accident-related postings—which are not protected—but ruled that the hot dog cart postings constituted protected activity.
The judge concluded that the accident photograph and commentary were “posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, 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."
Becker appealed, and the NLRB board was unanimous in supporting the judge’s decision that Knauz lawfully fired Becker for the accident-related Facebook postings. But the board declined to pass judgment on the food-related posts, providing zero guidance for whether the NLRA protects this sort of posting.
What can you learn from this incident? Tread carefully with any punishment or employment decision involving social media—and consult a lawyer first.
One more thing: Knauz, for the record, did not have a social media policy—and just because you do, it may not save you. What Knauz did have is an employee handbook which included a rule on courtesy: "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."
So far, so fine, right? Well, not according to the NLRB, which found it "overly broad" -- and that it "chilled" employee rights to discuss terms and conditions of employment. So not only does it not protect Knauz—it must be struck.
How does this affect your company social media policy? How would you have handled this incident?