In two weeks, the NLRB has issued just as many decisions agreeing with the positions of the NLRB’s Office of General Counsel (OGC) on employee social media use, as stated in the OGC’s well-known guidance memos. On September 18, the NLRB invalidated Costco’s policy prohibiting employees from making statements on social media that could damage the company or other employees’ reputations. Yesterday, the NLRB publicly released a decision weighing in on the BMW dealership case that was discussed in the OGC’s August 18, 2011 memo. (The decision and briefing in the case are available here).
Here’s a quick review of the case for those not familiar with it. A salesperson at a BMW dealership posted photos on Facebook showing a car that a test driver accidentally drove into a pond in front of a Land Rover dealership across the street (who shares a common owner with the BMW dealership). The employee included mocking comments about the incident in the post. That same day, the employee posted photos on Facebook depicting the low-quality food and beverages that the BMW dealership provided at a sales event to promote a new car model. Again, the employee accompanied the photos with sarcastic remarks. The employee was discharged for the Facebook posts regarding the Land Rover incident. The employee claimed that the primary reason for his discharge was the Facebook posts regarding the sales event, which he argued was protected activity.
The NLRB agreed with the findings of the Administrative Law Judge (ALJ) that the discharge was based on the Land Rover posts, which were not concerted or protected activity because they were in no way connected to the terms or conditions of employment. The ALJ’s decision also stated that the sales event posts could constitute concerted or protected activity because they could be construed as legitimate concerns about compensation. Salespeople at the dealership were paid partly by commission, which are tied to sales. Sales could be negatively impacted by damage to the reputation of the dealership due to the low-quality sales event. The NLRB found it unnecessary to pass on the sales event posts, however, because the discharge was based on the Land Rover posts.
The NLRB also struck down a rule in the dealership’s employee handbook stating:
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.
The NLRB found the rule overbroad, as it could have the effect of prohibiting employees from making protected statements to other employees about their working conditions. However, a dissenting member of the NLRB’s three-member panel found that the courtesy rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.
LegalTXTS Lesson: Here are three quick takeaways from the decision.
- Work rules regulating “offensive” social media activity should be vetted for any connection to concerted or protected activity, such as employee discussions about their compensation or the terms and conditions of their employment.
- “Courtesy” work rules similar to the one the NLRB struck down should be revisited to ensure they are specific enough to exclude protected activity.
- The positions taken in the OGC guidance memos are gaining credibility as the NLRB increasingly adopts those positions in published decisions.