Land Rover photos get salesman fired, but NLRB finds hot dog criticism is protected speech
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When a car shopper's teenage son drove a new Land Rover into a pond, executives at Karl Knauz Land Rover in suburban Chicago were mortified.
But the worst was yet to come. A salesman next door at company-owned Karl Knauz BMW photographed the partially submerged vehicle and posted the pictures on his personal Facebook page with the caption: "This is your car. This is your car on drugs."
The 2010 incident, which resulted in the firing of Facebook poster Robert Becker, has become a closely watched social-media legal precedent.
The issue for dealers: Many marketers view social media as a good way for salespeople to engage customers, establish a following and build sales. But salespeople need to behave within limits to protect dealerships' reputations, which is where Becker comes in. In September, the National Labor Relations Board ruled that the firing was justified after Becker brought the case.
But the ruling had a cautionary component. That same board, by a 2-1 vote, determined that Becker had been within his rights as an employee to criticize in another Facebook posting the BMW store's serving of hot dogs at a 5-series launch event.
Becker, who had alleged that he had been fired for that posting, had mocked management for the lowbrow choice.
"The courts have been all over the board" on what's protected employee activity, said Kathryn Carlson, director of human resources products for dealership consultancy KPA.
Becker did not return phone calls and an e-mail last week.
'Submarine races'
Dealerships and other retail businesses are wrestling with commercial, privacy and workplace issues in social media, Carlson said.
On one hand, dealerships want to engage customers and the community in the branding and good will enhanced by the virtual cocktail party that social media have become.
On the other hand, they must deal with the risks of employees occasionally criticizing stores or straying from the messages that dealerships try to send, said Jim Hendricks, the Chicago attorney with Lewis Brisbois Bisgaard & Smith who represented Karl Knauz BMW in the NLRB case. During the case, Hendricks was with Ford & Harrison, where he defended the dealership with attorney Brian Kurtz.
Karl Knauz BMW is part of the Knauz Autopark that includes several franchises, including Mercedes-Benz, Land Rover, Mini, Smart and Hyundai.
The family-owned business has operated in the Chicago area for 78 years. Bill Knauz, the son of founder Karl Knauz, is chairman.
Hendricks said management at Karl Knauz BMW initially learned of Becker's critical Facebook postings when competitors started calling with comments such as, "Is that how you wash cars now?" and referring to "submarine races" at the store. Management soon discovered the Becker posts.
Courtesy question
The store fired Becker shortly thereafter for violating several provisions of the store's employee handbook, including one that called on employees to treat customers, vendors and fellow employees in a respectful and courteous manner.
"No one should be disrespectful or use profanity or any other language which injures the image or reputation of the dealership," the rule stated.
But the NLRB found the courtesy provision unlawful because it might be construed by employees as prohibiting them from objecting to working conditions and sharing those concerns with co-workers to improve the working environment.
"Board law is settled that ambiguous employer rules -- rules that reasonably could be read to have a coercive meaning -- are construed against the employer," the majority opinion found.
In short, Becker's hot dog criticism was deemed protected workplace speech.
Hendricks said the ruling is one of the strongest to date on the emerging case law related to social media. Hendricks, a frequent speaker nationally at legal forums on the subject, said he preferred the dissenting view in the case.
That view states that employers and employees have a right to expect a civil workplace reflected in the store's "courtesy rule."
Even before the final ruling, Karl Knauz BMW had rescinded its courtesy rule and another handbook provision prohibiting employees from discussing "their terms and conditions of employment or information about other employees with third parties."
Those changes then had to be posted for 60 days in English and Spanish at the store in places where employees gather.
• Make it clear in handbooks and policies that employees must never advertise or offer for sale company products or services in their personal social media forums.
• State clearly that nothing in company policies or handbooks is intended to violate an employee's rights under the National Labor Relations Act.
• Don't monitor employees' personal Facebook pages to avoid being tempted to discipline workers over comments that may be deemed to reflect badly on the employer. That is generally protected speech.
Sources: KPA and attorney Jim Hendricks
You can reach David Barkholz at dbarkholz@crain.com. -- Follow David on 
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