NLRB Adopts ALJ Decision Finding Employer “Courtesy” Policy to Be Unlawful
Last Fall, an Administrative Law Judge for the NLRB issued one of the first opinions addressing social media in the workplace. The ALJ’s decision addressed two separate social media issues in what you may recall as the “hot dog cart” case or the “Land Rover in the pond” case. We reported that holding in our November 1, 2011 Employment Law Briefing. (See our article below).
Termination Was Lawful, but …
Now it’s official. The NLRB upheld the ALJ and issued its opinion that had some bad news for employers and a little bit of good. First the good. The NLRB was seemingly employer-friendly in ruling that an employer’s decision to fire an employee for his postings on Facebook did not violate the NLRA. The employee, a BMW salesperson, posted comments to his Facebook page mocking his employer for serving cheap hot dogs at a high-end BMW 5-series sales event. The employee was concerned that the cheap hot dogs at a high end sales event would hurt his chances for sales commissions because potential customers would be offended. The same employee also posted comments criticizing another employee for allowing a teenager to test drive a Land Rover, which ended up in a pond.
Requiring Employees to Be Courteous Interferes with Their Rights
The ALJ concluded, and the NLRB agreed, that the employee engaged in protected activity with respect to his comments regarding the sales event, but that the employee’s comments criticizing the other employee had no connection to the terms and conditions of his employment. The employer was able to demonstrate that the employee was actually fired for Facebook postings about the Land Rover in the pond and not because of the hot dog postings. So, the discharge of the employee was lawful.
But, as good as that outcome was, there was some bad news. In addition to the NLRB’s decision regarding the legality of the termination, the NLRB concluded that the employer’s courtesy policy was unlawful. The policy language at issue stated:
Courtesy: Courtesy is the responsibility of every employee. Every employee 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.
The NLRB concluded that the requirement that employees not be “disrespectful” and refrain from damaging the employer’s image or reputation violated the NLRA because the policy “proscribes not a manner of speaking, but the content of employee speech – content that would damage the employer’s reputation.” Because employees could reasonably construe the policy to prohibit protected activity, the NLRB found it to be unlawful.
Although the NLRB’s decision illustrates that employers may discipline employees for social media posts in some circumstances, employers should be cautious and consult with counsel first to determine whether the posts contain comments that are protected under the NLRA. In addition, this decision makes it clear that the NLRB continues to scrutinize employment policies closely to ensure compliance with the NLRA.
Reference: Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker. (NLRB, September 28, 2012)
Please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render Attorney if you have any questions. And, thanks to Carrie Turner for her help on this blog entry.
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Here is the article that we published on November 1, 2011 discussing the ALJ’s decision:
Common Employer Handbook Policies Are Challenged by the NLRB
One of the most interesting recent developments is the NLRB’s focus on private employer polices that restrict employees on what they can say about their company and the people who work for it. Last month an Administrative Law Judge for the NLRB ruled that an employer’s policies on “Courtesy”, “Unauthorized Interviews” and “Outside Inquiries Concerning Employees” were unlawfully broad because those policies would tend to interfere with employee rights under the NLRA.
- An “Ultimate Driving Event” Becomes a Facebook Event and Ends in Discharge
Here is what the case was about. An auto dealership selling BMWs and Land Rovers had an idea to attract customers to its “Ultimate Driving Event” in the hopes of selling more cars. The dealership employed commission salespersons whose income was dependant on sales and customer satisfaction. At a company meeting prior to the Event management announced that it would be serving hot dogs, chips and cookies to the customers attending the Event.
- Cheap Hot Dogs and a Land Rover in a Retention Pond – Follow Me on Facebook
Several of the salespeople rolled their eyes and said that they couldn’t believe that the dealership was going to be so “cheap.” They openly complained that they were concerned because it would make the dealership look bad and would “affect their commissions.” Despite the salespersons’ concerns, the Ultimate Driving Event went on as planned – cheap hot dogs and all. But if the “cheap” food served to customers wasn’t bad enough, another incident sealed the deal. During the Event, a new Land Rover ended up in the dealer’s nearby retention pond when one of the salespeople allowed a customer’s 13 year-old son to sit behind the wheel. Not only did the Land Rover end up in the pond, but the boy ran over his dad’s foot before splashing into the dealer’s pond. Everyone was okay, but needless to say there was a lot of chatter and sarcastic commentary about the Event and the Land Rover’s drenching. Much of the chatter ended up on a salesperson’s public Facebook pages – pictures and all. Besides commenting on the cheap hot dogs by saying that customers “could attain an overcooked wiener and a stale bun…” he also made fun of the Land Rover incident saying “the kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!” For that comment the salesperson was fired. The salesperson filed a charge with the NLRB. No union was involved. The NLRB took the case to a hearing that resulted in some interesting – and troubling – findings by the ALJ.
- Some Policies Are Okay but Others Are Unlawful
The ALJ considered the Facebook postings and the dealership’s handbook policies and concluded that the salesperson was not engaging in protected activity when he made fun of the serious Land Rover incident. Because the Land Rover comments were the stated reason for his termination (not the comments about the hot dogs) the ALJ ruled that that discharge would stand. That makes sense because the Land Rover comments had nothing to do with wages, hours or working conditions. BUT the ALJ also found that several of the dealership’s handbook policies were unlawfully broad and interfered with employee rights under the NLRA. Those rules were ordered to be rescinded and employees to be notified that they would no longer be enforced.
- The Policies That Were Found to Be Unlawful
These policies, according to the ALJ, were unlawful because they could be interpreted by employees to prevent them from talking to each other or to outside union organizers about their wages, hours and working conditions at the dealership.
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.
Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.” If you are asked questions about the Dealership or its current or former employees, you are to refer that individual(s) to your supervisor. A decision will then be made as to whether that individual may conduct any interview and they will be introduced to you by your supervisor with a reason for the questioning. Similarly, if you are aware that an unauthorized interview is occurring at the Dealership, immediately notify the General Manager or the President.
Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.
- The Policy That Was Okay
This policy (that doesn’t seem too much different from the others) was found not to be so broad so as to interfere with employee rights. This policy was lawful, according to the ALJ.
Bad Attitude: Employees should display a positive attitude toward their job. A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.
- The Lesson for Private Employers
Although this is not yet a final decision of the NLRB, it does demonstrate that it is nearly impossible for employers to determine when their policies will be seen either as okay or unlawfully overbroad. It is a good idea for private employers to review policies like these and to consider adding “disclaimer” language that may allow an otherwise overbroad policy to stand. Even so, a termination or other adverse action taken because an employee complained publically on Facebook or elsewhere about wages, hours or working conditions will still be a very big problem and needs to be carefully considered before the action is taken.
Knauz BMW, Case No. 13-CA-46452 (ALJ Decision, September 28, 2011)
