March/April 2023

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You Can’t Say That! Understanding your rights is tricky, but important when monitoring employees’ social media accounts By Betsey Lund Ross


anaging employees has always come with its own unique challenges, but the introduction and widespread growth of social media presents new and unique questions about an employer’s right to regulate or restrict what employees are posting on social media. This is especially true if the employer deems the post to be harmful to the employer, or inconsistent with the employer’s values. The law in this area is ever changing. The National Labor Relations Board (NLRB) was one of the first federal agencies to address this issue. The main source of law the NLRB enforces is the National Labor Relations Act (NLRA). The NLRA was enacted in 1935 to address the growing public concern over workplace safety and conditions. Largely, the NLRA was passed to encourage unionization of


employees and to protect workers’ freedom of association. So, how does promoting the right to unionize, and protecting employee freedom of association, relate to social media? Take the case of Knauz BMW, a Chicago, IL, BWM car dealership and its former salesperson, Robert Becker. In 2010, the dealership hosted a catered event for customers to showcase the launch of its new product line. At the event, the dealership handed out hot dogs and water bottles. Becker, a salesperson for the dealership, was less than impressed with his employer’s decision to serve hot dogs and bottled water to customers. In response, Becker mocked the dealership by posting on his Facebook account, “I was happy to see that Knauz went ‘all out’ for the most important launch of a new BMW

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in years.” Becker was ultimately terminated from the dealership. He challenged his termination as a violation of his right to engage in “concerted activity” under the NLRA. Ultimately, the court found the dealership violated Becker’s rights under the NLRA by terminating him for his Facebook post. The court found Becker’s Facebook post constituted “concerted activity” protected under the NLRA. The court also found the dealership’s “courtesy” policy, requiring employees to be courteous to customers, was overly broad because it could discourage employees from speaking out against workplace conditions, in violation of the NLRA. Employees have the right to discuss, in concert, their workplace conditions and policies. When an employer unlawfully restricts an employee’s right to discuss workplace conditions and policies with co-workers, an employee’s rights under the NLRA are violated. The key issue in the case of Knauz BMW and Becker was whether Becker’s Facebook post constituted “concerted activity.” The NLRB has given employers some guidance, albeit limited, on the definition of “concerted activity.” Concerted activity is employee action that concerns wages or working conditions for workers and that contemplates group activity. Accordingly, when an employer takes adverse employment action

in response to an employee’s social media post, a violation of the NLRA occurs if the employee was discussing wages or working conditions with the goal of encouraging others to participate in the discussions (and possibly take action against such workplace conditions). Mere gripes by an employee, without the intent to encourage others to discuss workplace conditions, is not concerted activity and is not protected under the NLRA. The ongoing challenge for employers is knowing whether an employee’s social media post consists of “concerted activity.” If the employee’s post is an attempt to discuss workplace conditions, wages, or polices, the employer should take caution before terminating the employee or taking other adverse employment action. Additionally, employers should review their policies to ensure the policies are not overly burdensome on an employee’s right to discuss workplace conditions, wages, and policies with other employees. Attempting to restrict an employee’s right to discuss workplace conditions with other employees, whether on social media or in person, is prohibited under the NLRA. Betsey Lund Ross is an attorney and shareholder with Lund Ross, P. A. in St. Cloud, working in the areas of business law, employment law, and estate planning.