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November 1, 2012

If you took my advice, and I’m sure you have, then there is no reason to read further because you have remained diligent in staying up to date with the National Labor Relations Board’s (hereinafter “NLRB”) rulings regarding social media and the work place. For the few of you that overlooked the significance of my prior article on social media and the law, allow me to regale you with a story coming out of Lake Bluff, Illinois. The story serves as a good example of what is, and is not, considered to be protected activity, particularly within the framework of Facebook posts.

On June 14, 2010, Knauz BMW employee Robert Becker took to his Facebook page to share his thoughts about work, with his “friends”, family, and the world. The first story Becker shared was about the meager refreshments being offered to customers for Knauz’s big “Ultimate Driving Event’, where customers would have an opportunity to test drive the new BMW Series 5 automobile. Becker felt the hotdogs and potato chips being offered were not on par with the BMW luxury brand. Becker expressed his frustration by posting pictures on Facebook of the refreshments that were offered at the Ultimate Drive Event, supported by a few sarcastic comments. For example Becker noted, “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years…”

Becker’s second work story posted on Facebook was about an accident that occurred at the Knauz’s Land Rover dealership, across the street from the BMW dealership. On June 14, 2010, a customer allowed his 13-year-old son to sit in the driver’s seat of a car while the salesperson was in the passenger’s seat. According to the court record, the customer’s son inadvertently stepped on the gas pedal, causing the car to roll down a small embankment, over the foot of the customer and into an adjacent pond, where the salesperson was thrown into the water (although unharmed otherwise). Becker took photos of the incident, posted them on his Facebook account with the caption, “This is your car: this is your car on drugs.” In addition to the caption, Becker posted a brief synopsis of the event, where he divulged the salesperson had been fired and indicated the event was an “OOOPS!”

The next day Becker’s supervisor was made aware of the June 14, 2010, posts and requested that Becker meet with him to discuss the posts. Becker’s position was that the posts were his own and none of his employer’s business. Becker’s employer disagreed. Seven days later, after a management meeting, it was decided that Becker would be terminated.

Becker brought a claim against Knauz for the firing, arguing that he had engaged in protected, concerted activities, thus making the firing a violation of Section 8(a)(1) of the National Labor Relations Act. Becker also brought a claim against Knauz challenging certain provisions of its handbook. The Administrative Law Judge (“ALJ”) found the firing lawful, a finding that was upheld by a three-member panel of the NLRB on September 28, 2012.

The ALJ’s findings relevant to the Facebook post were two-fold. First, the ALJ found that the Facebook posts about the Ultimate Driving Event were protected, concerted activity. The ALJ admitted that the activity of Becker was not ostensibly protected. However, the ALJ noted that comments regarding food for customers could relate to customer satisfaction and as a result, commissions.

The ALJ’s second finding was that Becker’s Facebook post regarding the Land Rover accident was neither protected nor a concerted activity. In making this finding the ALJ stated, “it was 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.”

There are lessons from the case of Karl Knauz Motors, Inc. d/b/a BMW and Robert Becker, case number 13-CA-046452, for both employers and employees alike. First, be careful what you post on Facebook. I know you have heard this before, but as Robert Becker learned the hard way, Facebook is not just personal, it is also professional. Second, and this is for Employers, know your rights. Although a recent NLRB decision found that Employers cannot prohibit the use of social media at work, it does not mean you have to allow your employees to disparage you on public forums. You can take action when an employee acts in a way that is inconsistent with the qualities of your business. However, please consult with an attorney before you consider taking any action against an employee.

To conclude we will go back to the beginning: be diligent, be aware, and understand that social media matters.