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Facebook — A Virtual Water Cooler

The National Labor Relations Board (NLRB), which oversees the protections of the National Labor Relations Act (NLRA), has begun to release decisions in a number of cases brought involving employees’ use of Facebook and other social media sites for airing their workplace grievance.

Beginning many months ago, the NLRA, which applies to both union and non-union employment settings, was used as the basis for objecting to terminations of a variety of employees for their use of Facebook. Numerous employees had contested the legality of their terminations, arguing that they had been illegally terminated for their “concerted” efforts at addressing complaints about the terms and conditions of their employment through Facebook. As a result, those employees contended that their terminations violated “Section 7” of the NLRA.  (Refer to earlier article)

The NLRB has begun releasing its decisions in those many Section 7/Facebook cases.  Those cases were, admittedly, greatly varying in their facts, including whether the complaints were individualized or group issues, the context in which the issues were being raised, the content of the issues being complained about, and other unique factors, e.g., the informality of the Facebook posts, which largely involved the use of swearing, sarcasm or name-calling in the Facebook posts. 

The first of the cases, Karl Knauz Motors, Inc. & Robert Becker, Case 13-CA-046452, decided at the end of September, involved a luxury car salesman for BMW who had made Facebook posts about both a lackluster (in his opinion) promotional event at the dealership and an accident at a nearby Land Rover dealership.  The employing dealership had a “courtesy” policy that required its employees to be “courteous, polite and friendly,” and which prohibited employees from being “disrespectful or us[ing] profanity or any other language which injures the image or reputation of the Dealership.”  Although the NLRB found the policy to be illegal under the NLRA, because of its tendency to chill employees’ exercise of their rights under the NLRA, the plaintiff-employee’s termination was affirmed on the basis that his Facebook posts about the Land Rover dealership had nothing to do with the terms and conditions of his employment at the BMW dealership.  The Karl Knauz Motors decision will prove to be little help for employers trying to decipher the protection due to their employees for employment-related Facebook posts, however, because the NLRB declined to issue any decision or opinion regarding the plaintiff-employee’s critical Facebook posts about his own employer. 

More recently, in Hispanics United of Buffalo, Case 3-CA-27872, the NLRB concluded that an employer’s termination of employees for participation in a Facebook conversation violated the NLRA.  In that case, an employee had posted on Facebook that a colleague was complaining that their fellow coworkers were not doing enough and soliciting opinions from their coworkers.  Four coworkers posted comments to the post, disputing their work ethics and job performance.  Of note, however, is that those four commenting coworkers used profanity and sarcasm in their defensive posts. All five employees who had posted to Facebook were terminated, allegedly pursuant to the employer’s anti-harassment policy. 

The NLRB’s decision of Hispanics United of Buffalo indicated that it would treat Facebook no differently than it had analyzed similar issues in the past.  It indicated that Facebook was perhaps a new form of communication, but was merely a “virtual water cooler.”  It affirmed that the NLRA’s protections extend to employees’ conduct on off-duty hours and are not trumped by an employer’s broad policies.  The NLRB held that the five employees’ posts constituted “protected concerted activity,” and were “step[s] toward taking group action to defend themselves against the [coworker’s] accusation” about their job performance.  The NLRB also refused to allow the employer’s “zero tolerance” anti-harassment policy to control, noting that the comments could not reasonably construed to be bullying but that even if they could, the policy could not lawfully be applied. 

The NLRB has yet to release its decisions in a number of other Facebook-related cases.  For the time being, employers should take heed to the decision of Hispanics United of Buffalo – although coworker conversation may appear casual and more like colleague camaraderie than “concerted activity,” it may nevertheless be protected.

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