LEGAL VIEW: Which one of these Facebook comments got the employee fired?

By Howard Rubin and Don Stait The Daily Record Newswire Can employees be fired for making disparaging remarks about their supervisor or their employer on their Facebook page? Always? Never? Under what circumstances? Here's a test: A car salesman, employed by the owner of two upscale car dealerships, posted the following two entries on his Facebook page: "I was happy to see that Knauz went "all out" for the most important launch of a new BMW in years ... the semi fresh apples and oranges were such a nice touch ... but to top it all off ... the Hot Dog Cart. Where our clients could attain a over cooked weiner and a stale bunn (sic)." "This (photograph shows) what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father's foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!" One of those Facebook posts was protected and the other got the employee fired. So, what is the difference? We should add that the employee discussed the "hot dog event" with a co-worker, and that the two employees expressed fear that their upscale customers would not be happy with the menu, whereas the employee did not discuss the teen driving incident with anyone and it "had no connection to any other employees' terms and conditions of employment." The National Labor Relations Board's position, published in its August 2011 report on its social media decisions, is that concerted activity is always protected. Knauz BMW v. Robert Becker illustrates just how far the NLRB is willing to go to protect concerted activity. An administrative law judge for the NLRB reasoned that Becker's comments were protected because it was possible, albeit not likely, that the food selection could have had an impact on Becker's commission-based compensation. And even though no co-worker either participated in or commented on the Facebook post, the comment was concerted activity because the post was the "logical outgrowth of" the criticisms by Becker and at least one other co-worker. If Becker had stopped at the "hot dog" comments he would still be working for Knauz BMW. The judge rejected Knauz' argument that Becker should be fired because his "hot dog comment" mocked and criticized the dealership, pointing out that the NLRB had previously rejected the same argument in cases where employees' protected speech was mocking, sarcastic, satirical, ironic, demeaning or even degrading. Knauz still got to fire Becker in the end, however, because Becker posted the "teen driver" comments on the same day, and Knauz included those comments in its reason for firing Becker. The "teen driver" comments, unlike the "hot dog cart" comments, involved no other employees, had no connection to other employees' terms and conditions of employment, and did not draw comments from another employee. The lesson here for both employers and employees is this: When protected and unprotected content appear on the same Facebook wall, the protected content does not shield the employee from discipline based on the unprotected content. The employer only needs to be prepared to prove that the unprotected speech was the driving force behind the disciplinary decision. Last month it was reported that employers would be required to post the Notification of Employee Rights under the National Labor Relations Act by Nov. 14. The deadline to comply with the NLRA posting requirement was extended to Jan. 31, 2012, because of employer confusion as to who falls under the NLRB's jurisdiction. The NLRB issued a press release announcing the extension. According to the release, "The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board's jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made." The obligation to post the notice applies to virtually all private employers -- even if they are federal contractors and their workforce is unionized. The easiest way to comply with the requirement is to download and post a copy of the employee rights poster, which is available at www.nlrb.gov/poster. In a largely symbolic gesture, Rep. Trey Gowdy, R-S.C., last month introduced a bill that would eliminate the NLRB. In a press release, Gowdy stated, "The National Labor Relations Board has become a sycophant for labor unions and has lost all pretense of objectivity. The NLRB has outlived its usefulness and needs to be dissolved. The Department of Justice oversees a wide variety of civil, criminal, and administrative issues including anti-trust, voting rights, and major mergers and acquisitions; the DOJ can surely handle disputes between employers and employees and claims of unfair labor practices and do so without the bias and partisanship endemic to the NLRB." While it is unlikely that the bill will be enacted, it is an indication of Congress' growing hostility toward the NLRB's recent regulatory and enforcement activity. The bill was introduced the same week that a bill significantly curbing the NLRB's authority was passed in the U.S. House of Representatives. ---------- Howard Rubin is a shareholder in Littler Mendelson's Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson's Portland office. Contact him at 503-221-0309 or dstait@littler.com. Published: Fri, Nov 11, 2011