Monday, November 12, 2012
The National Labor Relations Board Administrative Law Judge upheld a decision of an employer to terminate an employee because of his Facebook postings. First, the BMW salesman made comments on his Facebook page that he didn’t agree with the company’s choice of cuisine to be served at the dealership’s customer event – - hot dogs and chips! He was concerned the menu selection did not match the luxury of the product being sold. Believe it or not, this was a protected activity.
However, his next post was not protected, and got the salesman fired. It seems he was at the dealership when an accident at the Land Rover dealership across the street (also owned by the same dealer) occurred. A 13 year old boy, a customer’s son, was allowed by another salesman to sit behind the wheel after a test drive. Unfortunately, the young man knew how to put the Land Rover in “ Drive.” The boy floored the gas and ended up in a pond after running over Dad’s foot and a wall. The BMW salesman took pictures and posted them on his Facebook page with some ‘not so nice’ comments about what his co-worker had allowed. This was not protected activity. He was terminated by his employer for the second posting. He then filed a claim with the National Labor Relations Board.
When the NLRB was investigating this case, they took a good look at the employer’s policies and took issue with the one on, of all things, Courtesy! According to the NLRB’s decision dated September 28, 2012, the dealership’s policy read as follows:
“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 Board’s decision said, “An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.” And, that the words, ”disrespectful,” and “language which injures the image or reputation of the Dealership,” as being part of the protected concerted activity that allows employees to discuss terms and conditions of their employment in accordance with the National Labor Relations Act. In this case, the NLRB actually ruled that the wording of the employee handbook requiring courtesy was a violation of the employees protected activity.
Several other cases are pending before the NLRB involving employment handbook policy wording that is allegedly in violation of the National Labor Relations Act. It is always wise to seek legal counsel when writing or revising your employee handbook to make sure you have taken every possible implication into consideration. The NLRB certainly will!