Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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Authorship credit: <a href="http://www.bakerlaw.com/jameswseegers/">Jay Seegers</a>&nbsp;
Like many people, Robert Becker, a salesperson at Karl Knauz Motors&rsquo; BMW dealership in Chicago, had his own Facebook page. When the BMW dealership served hot dogs, chips, and bottled water at an event to introduce a new BMW vehicle, Mr. Becker posted sarcastic comments questioning whether the dealership&rsquo;s choice of cuisine matched the luxury image of the BMW brand. When a Land Rover at another Karl Knauz Motors&rsquo; dealership was driven into a pond by the thirteen-year-old son of a customer, Mr. Becker posted pictures and made comments about the absurdity of the accident. Mr. Becker was not laughing, however, when he was subsequently fired. Neither was the Acting General Counsel of the National Labor Relations Board (the &ldquo;NLRB&rdquo;), who issued an unfair labor practice complaint against Karl Knauz Motors asserting that Mr. Becker&rsquo;s Facebook postings were protected concerted activity under the National Labor Relations Act (the &ldquo;NLRA&rdquo; or &ldquo;Act&rdquo;).
The NLRA prohibits employers from disciplining employees who engage in &ldquo;protected activity&rdquo; as defined by Section 7 of the Act. Protected activity includes situations where employees comment on, or expressing concerns about, their terms and conditions of employment. The Acting General Counsel of the NLRB took the position that Mr. Knauz&rsquo;s Facebook postings were protected expressions of his concerns about workplace compensation and safety issues. At hearing, the Administrative Law Judge agreed that Mr. Knauz&rsquo;s postings regarding hot dogs and chips, which he discussed with other salespeople, concerned terms and conditions of employment because of the impact the event might have on his ability to make sales and earn commissions. The Administrative Law Judge, however, found that Mr. Becker&rsquo;s comments regarding the Land Rover accident were not protected because he had not discussed them with other employees and they were not safety-related. In finding that Karl Knauz Motors did not commit an unfair labor practice, the Administrative Law Judge concluded that Mr. Becker&rsquo;s termination was based solely upon his Facebook comments about the Land Rover accident.
On appeal, the NLRB upheld the Administrative Law Judge&rsquo;s decision finding that Mr. Becker&rsquo;s posting regarding the Land Rover accident was the basis for his termination and was intended merely as a &ldquo;lark&rdquo; which was unrelated to any rights protected by Section 7 of the NLRA. In reaching its decision, the NLRB did not decide whether it agreed with the Administrative Law Judge&rsquo;s finding that Mr. Becker&rsquo;s Facebook postings about the hot dogs and chips were protected activity.
The NLRB&rsquo;s decision in <a href="http://www.crowell.com/files/Knauz-BM-358-NLRB-164.pdf">Karl Knauz Motors, Inc. d/b/a Knauz BMW</a>, 358 NLRB No. 164, demonstrates that employers can still discipline employees for social media postings, including those made on Facebook, as long as the postings do not rise to the level of protected activity as defined by Section 7 of the NLRA. Given the General Counsel&rsquo;s prior guidance on this issue and the decisions of other Administrative law Judges in social media cases, all of which are very expansive of employee rights, it seems likely that the NLRB would find that Mr. Becker&rsquo;s other Facebook postings about his employer serving hot dogs and chips at a client event were protected under the NLRA. Going forward, employers will be well advised to tread carefully when looking whether to discipline employee social media postings as it is clear that the NLRB is actively looking to protect employee rights in this area.

The NLRB Finds No Protected Activity Involved Where Employee is Fired for a Facebook Posting