We recently discussed here the National Labor Relations Board’s (the Board) first-ever ruling on employees’ social media postings. Now, three weeks after its initial decision, which found that Costco’s policies regarding social media were overbroad and could restrict employee activities protected by the National Labor Relations Act, the Board has issued another decision on social media. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, the NLRB gave employers a modest win.

On the one hand, the Board upheld the discharge of an employee based upon his Facebook posting. On the other hand, the Board found, as it did in its earlier Costco decision, that the employer’s policy requiring courtesy in the workplace could be construed to infringe on employees’ rights to engage in concerted activity for mutual aid and protection. The Board found that the policy was therefore prohibited by the Act.

Knauz BMW operated two adjoining car dealerships—one selling BMWs and the other selling Land Rovers. Becker was a salesperson at the BMW dealership. When a salesperson at the Land Rover dealership allowed a customer’s 13-year-old son to sit in the driver’s seat of a Land Rover, there was an accident that resulted in the car running over the customer’s foot and driving into a pond. When he learned of the accident, Becker took pictures of the car in the pond. He posted these pictures on his Facebook page with the caption, “This is your car: This is your car on drugs.” There were several comments to these pictures, including some from Becker’s fellow employees.

Knauz BMW subsequently fired Becker for the posting because it made light of an extremely serious situation in which someone was injured. Becker filed a complaint, alleging that his discharge was unlawful under the Act because it interfered with his rights to engage in protected concerted activity with his fellow employees for their mutual aid and protection.

The Administrative Law Judge found, and the NLRB agreed, that this posting was neither protected nor concerted activity. It was posted solely by Becker without any discussion with any other employee, and it had no connection to the employees’ terms and conditions of employment. Because the posting was not protected, Becker’s discharge was found to have not violated the Act. In this regard, it certainly was very interesting that the Board failed to address the fact that the same employee also made unrelated Facebook posts implying that the type of food the car dealership decided to serve at a separate marketing event may have negatively impacted his compensation (which was by commission). The ALJ concluded those posts weren’t the basis for the salesperson’s discharge, but some thought the Board might view that issue differently.

But, there was another facet to this case. After Becker filed his complaint alleging unlawful discharge, the NLRB’s General Counsel amended the complaint to add a charge that portions of Knauz BMW’s Employee Handbook unlawfully interfered with employees’ rights to engage in protected concerted activity. Although there were four policies that the General Counsel believed could be interpreted to restrict employees’ protected rights, by the time the case made it to the Board, only one was left at issue.

This policy addressed employee courtesy. It was this sentence of the policy that was mainly in controversy: “No one should be disrespectful or use profanity or other language which injures the image or reputation of the Dealership.” The Board found that this language made the “courtesy” rule unlawful because its broad language encompassed employees’ protected rights to discuss their terms and conditions of employment and to seek the support of others in improving them.

As the Board had pointed out in addressing the employer’s policy in Costco, there was nothing in this policy to suggest that employee communications protected by the Act were exempted from this rule. The Board also noted that an employee would reasonably assume that the employer would consider statements of protest or criticism of working conditions to be “disrespectful” or injurious to the image or reputation of the Dealership. The Board found that this sentence did not limit a manner of speaking, but the content of an employee’s speech.

Employers now have two Board decisions to guide them in designing and enforcing social media policies. With this latest decision, the Board correctly noted the obvious—that not all employee communications about work are protected by the Act. A social media posting can be a valid basis for discharging an employee, so long as it does not involve concerted activity with other employees over the terms and conditions of employment.

The Board also reinforced its previous holding that it will closely scrutinize social media policies to make sure that they do not reasonably restrict employee rights protected by the Act. Although a disclaimer that a policy is not meant to restrict those rights may not necessarily save the policy, the Board again pointed out that it will look for such a disclaimer when considering social media policies. Perhaps the safest bet when employers attempt to navigate what are still the murky waters of social media policies is to consult with your legal counsel for assistance.