Two days after issuance of the complaint in Hispanics United of Buffalo, Case No. 3-CA-27872, the National Labor Relations Board issued another complaint against a company for a termination arising out of employee use of social media. In Karl Knauz Motors, Inc., Case No. 13-CA-46452, the Board alleges that a car dealer unlawfully fired a salesperson for Facebook comments critical of the employer.
Paragraph IV of the complaint reads simply:
(a) On or about June 14, 2010, Charging Party Becker posted on his Facebook page employees’ concerted protest and concerns about Respondent’s handling of a sales event which could impact their earnings.
(b) On or about June 22, 2010, Respondent discharged Charging Party Becker.
(c) Respondent engaged in the conduct described above in paragraph IV(b) because Charging Party Becker engaged in the conduct described above in paragraph IV(a) and to discourage employees from engaging in these or other concerted activities.
This is just the latest in a recent string of cases handled by the Board arising out of employer efforts to control employee social media use which might impact its interests. Recognizable patterns are starting to emerge in the Board’s treatment of these cases:
- The Board will take an aggressive approach toward workrules and policies — including social media policies — which are arguably "overly broad," or might be interpreted to restrict employees’ in the exercise of protected, concerted activity.
- The Board will consider "protected" any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action. This is a broad, and currently expanding, standard.
- Simple personal attacks posted off-the-clock, outside the workplace — even offensive or profane insults — may retain the protection of the Act if they even arguably arise out of concerted activity, terms or conditions of employment, or other alleged ULP’s.
Employers would be wise to review their social media policies in light of the Board’s evolving approach and these principles.