We have all learned that there truly are 5 stages to the NLRB’s position on social media and employment law. The first stage involves general “guidance” memoranda issued by the NLRB’s Office of General Counsel. The second stage involves an actual complaint being filed out of one of the NLRB’s regional offices. The third is the decision we read from the administrative law judge (“ALJ”) that holds a hearing on a filed complaint.
The fourth is the decision that is formally issued administratively by the full NLRB on appeal of the ALJ, while the fifth stage involves the courts being asked to affirm or reverse the NLRB. You can add a sixth stage – the denial stage – if you’re still one of those who believe that this social media stuff is either not important or not continuing to wreak havoc on employers. We are now squarely in the fourth stage – the one where the full NLRB issues an appeal decision – with some cautious optimism that we will soon reach the fifth, and final, stage, and get some definitive word from the courts on whether the NLRB has overstepped its authority on these issues.
You will remember that less than three weeks ago, the full NLRB issued its first social media decision, essentially finding that virtually all of Costco’s social media policies were unlawful. Now, the NLRB has issued its second social media decision, which is equally as disconcerting.
In Karl Knauz Motors, Inc., a BMW salesman posted negative comments on Facebook about the choice of food served at a BMW “driving event”, noting that his commissions may suffer because the choice of food was not appropriate for potential luxury car buyers. When management at the dealership saw his posts, as well as others relating to an auto accident at a neighboring dealership owned by the same employer, the salesman’s employment was terminated.
As almost an aside, the NLRB agreed with the ALJ that the termination was not in violation of federal law because the credible evidence ultimately demonstrated that the salesman was fired due to his (unprotected) comments regarding the auto accident, rather than about the effect of the event food on his commissions. Nothing real novel there: If you can’t prove that the adverse decision was based on protected comments, you can’t hold the employer liable for unlawful conduct.
But it was the NLRB’s decision on the dealership’s social media policy that is most troubling here, as the 2-1 majority of the Board found the following policy to be unlawful:
“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 majority found that the “courtesy” policy violated federal law because it tended to chill employees in the exercise of their right to engage in concerted protected activity. Specifically, the majority ruled that there was nothing in the policy or anywhere else in the handbook to suggest that communications of the type protected by federal law were excluded from the policy. Interestingly, the lone dissenting member of the NLRB took issue with the majority’s strained interpretation of the dealership’s rule.
Employer Take Away: What should you as an employer take away from this development?
The BMW dealership must have been thrilled to learn that its decision to fire a salesman for not acting particularly courteous to the dealership was upheld, yet it was now subject to all sorts of remedies and penalties for maintaining a workplace policy that requires employees to be courteous. Consistent?
The NLRB apparently has lots of problems with employer policies when it comes to keeping investigations confidential, with reminding employees of their at-will employment status, and with prohibiting employees from defaming the company. Now, the NLRB’s majority has a problem with the company’s insistence that its employees be nice.
On the surface, it is clear that employers need to review all of their policies to ensure compliance with the NLRB’s latest stricture, even those like a “be nice” policy that is seemingly innocuous on its face. But there are ways your company can still avoid the NLRB’s ire by how you word your policies to avoid the fundamental concerns underlying these administrative decisions. In the end, we will all hopefully avoid entering an unhealthy anger stage, and quickly get a voice of reason from the courts on these NLRB positions.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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