Transcript It’s an Employee-Social Media World

SOCIAL MEDIA IN THE WORKPLACE:
The New Water Cooler for Discrimination
& Employee Privacy Issues
Cory A. Kuhlenschmidt, Esq.
Partner
Bamberger, Foreman, Oswald & Hahn, LLP
20 NW Fourth Street
P.O. Box 657
Evansville, IN 47704
[email protected]
It’s an Employee-Social Media World
• Social media such as Facebook, Twitter and
Linked In are part of an employee’s everyday life.
– A “legal perspective”: given the dynamics of social
media, many legal headaches await employers
regardless of whether or not their employees are using
social media at home or at work.
– A “practical perspective”: social media has inundated
the workplace, and thanks to the smart-phone, the
ubiquity of social media means employees are using
these internet applications at work, everyday, and they
will continue to do so for the foreseeable future.
It’s an Employee-Social Media World
• According to a recent internet survey:
– 35% of those responding admitted to spending up
to 30 minutes per week using social media during
work time
– 32% of the respondents said they do not spend
anytime during work hours using social media
– 68% acknowledged that they use anywhere from
30 minutes to more than 10 hours per week using
social media.13
13http://manpowerblogs.com/both/2012/02/02/quaterly-socail-media-index/
Employers Strike Back (sort of)
• Unofficial Facebook “Background Checks” - Many employers are
using the practice of viewing social networking sites and blogs and
using internet search engines to obtain information about job
applicants and to monitor current employees.
– A 2009 Careerbuilder.com survey revealed that 45% of employers
reported that they use social networking sites for such purposes.14
– Another survey conducted by Microsoft revealed that 79% of U.S.
human resource professional respondents used online information to
evaluate candidates as part of their formal hiring process; and 84% of
those surveyed believed it is appropriate to consider an applicant’s
online reputation when evaluating the person for the job.15
14Forty-Five
Percent of Employers Use Social Networking Sites to Research Job Candidates, Career Builder
Survey Finds (Aug. 18, 2009), available at
www.careerbuilder.com/Share/AboutUs/PressReleases.aspx?archiveyear=2009
15Data
Privacy Day: Perceptions Study (Jan. 2010), available at www.microsoft.com/privacy/dpd/research.aspx
Didn’t We Almost Have It All?
• State Laws Prohibiting Employers from Asking for Facebook
Passwords
– Illinois’ Right to Privacy in the Workplace Act (820 ILCS
55/10)
– Other states: California, Delaware, Maryland, Michigan
and New Jersey
• Federal Privacy Laws
– The Federal Wiretap Act and the Electronic
Communications Privacy Act (ECPA) of 1986 (amending
the Federal Wiretap Act of 1968) imposes criminal and
civil penalties against any person who intentionally
intercepts an electronic communication with specific
exceptions, including the “ordinary course of business”
exception. 18 U.S.C. § 2511(2)(a)(1) (2006)
Didn’t We Almost Have it All?
• Federal Privacy Laws – continued
– As part of the ECPA, the Stored Communications Act
(SCA) addressed stored electronic communications.
– Under the SCA, a federal court judge in New Jersey
denied an employer’s attempt to throw out a jury
verdict against managers of the employer who
intentionally accessed a private, invitation-only chat
group on My Space without authorization. Brian
Pietrylo, et al. v. Hillstone Restaurant Group d/b/a
Houston’s, No. 06-5754 (FSH) (D. N.J. Sept. 25, 2009)
Why Employer Computer Use & Social
Media Policies Matter
• A New Jersey Court Decision: Stengart v.
Loving Care Agency, Inc.
– On March 30, 2010, the New Jersey Supreme
Court ruled in favor of a former employee of
Loving Care Agency, Inc on the employee’s claim
the state’s common privacy law protected specific
emails of the employee from review by her
employer. Stengart v. Loving Care Agency, Inc.,
990 A.2d 650 (N.J. 2010)
Why Employer Computer Use & Social
Media Policies Matter
• Facts of the Case
– The New Jersey Supreme Court considered whether the former
employee, Ms. Stengart, had a reasonable expectation of privacy with
regard to specific emails she sent and received with her attorney.
– Although the exchange of emails occurred using Stengart’s personal,
web-base email account, Stengart used the company’s computer for
these communications.
– As part of a litigation dispute against Stengart in a separate legal
proceeding concerning Stengart’s claim of gender discrimination,
Loving Care retrieved Stengart’s emails with her attorney from the
company computer system to use the emails in the litigation.
– Stengart argued that the employer could not review the emails and
could not use them in the litigation because of reasonable expectation
of privacy in the communications. Ultimately, the New Jersey court
agreed.
Why Employer Computer Use & Social
Media Policies Matter
• Facts continued and Court’s ruling
– The court ruled that the employer’s electronic communication was
ambiguous and, and such, interpreted the policy against the company.
– The policy provided that the company could review any matters on the
company’s media systems at any time, and that all emails and
communications were not to be considered personal or private to
employees.
– The court also found the policy’s disclosure of employee monitoring
was inadequate as it did not put employees on notice that the company
stored and could retrieve copies of employee’s private web-based
emails. The policy failed to expressly state that company would
monitor the content of emails made from an employee’s personal email
account when they are viewed on company-issued computers.
– As such, the court held that Stengart had a subjective expectation of
privacy to these emails, and the company’s policy did not remove a
reasonable expectation on the part of Stengart to privacy in the emails.
•
Why Employer Computer Systems &
Social Media Policies Matter
The “Take Away”:
– Although this case concerns an employee’s use of web-based
email, it is instructive as it demonstrations that courts may draw a
line between work place related communications and personal
communications over the internet.
– A narrow reading of the case supports the argument that this
case is not a complete “win” for plaintiff employees as the e-mails
at issue were attorney-client communications and courts are very
protective of the confidentiality of such communication
– If an employer does not have a electronic
communications/social media policy that is specific enough to
address employee’s personal use of company computer systems,
employers may very well violate an employee’s right to privacy in
reviewing emails, Facebook pages, and other web based information
without authorization.
Employer Discrimination Issues
• Although it is obvious to employers today that legitimate,
unbiased decisions should support any hiring decision or
adverse employment action, the world of social media is
exposing employers to more personal information about
individuals than 5-6 years ago. Such information may relate to
the individual’s race, color, gender, disability, age, national
origin, religion or other protected categories.
• An employer may be well intended when learning personal
information via social media about candidates or its
employees, but social media has exposed employers to a broad
scope of personal information which can lay the foundation for
an unlawful discrimination claim against the company.
Discrimination & Social Media
• Consider this:
– An employer may have an extremely capable and talented
female employee who applies for a promotion within the
company.
– This promotion requires greater supervisory responsibility
and travel to numerous satellite locations for the company
across the country.
– The decision maker in management is a “friend” with the
female employee on Facebook.
– The manager learns that the female employee is pregnant
from one of her Facebook posts.
Discrimination & Social Media
• The knowledge foundation:
– If the employer decides not to promote the female
candidate and instead promotes a male candidate for
the position, the employer must be prepared to
establish a legitimate, nondiscriminatory reason for
this decision.
– Further, because of the Facebook friendship, the
female employee can lay a foundation that the decision
maker in management knew she was pregnant and that
information was part of the decision maker’s process
which resulted in denying her the promotion.
Discrimination & Social Media
• The growth of social media has expanded the
opportunity for employees to share information
with their coworkers and has added another world
in which the lines of professional, working
relationships can be blurred through electronic
posts on Facebook, Twitter or other mediums.
• As such, companies should give serious
consideration as to what rule, if any they would
like to enforce with regard to management
interaction with employees in the social media
world.
Hostile Work Environments
& Social Media
• Having a comprehensive social media and electronic computer
system usage policy is a preventative step for employers to stay
ahead of the expanding world of virtual workplace harassment in
the context of employees interacting with one another via social
media.
• For example, it is common for coworkers to establish some level
of friendship and eventually coworkers will become Facebook
“friend” As can often happen between coworkers, either inside
the office walls or outside the office setting, one employee,
typically a male, will make inappropriate comments, gestures or
engage in some inappropriate conduct that makes the female
coworker uncomfortable. As a practical matter, this occurs
outside of the office because the formalities of the office setting
have been removed.
Hostile Work Environments
& Social Media
• In the world of social media, the formal boundaries of the
office walls and the ability to “speak your mind” are all the
more tempting.
• Is this a hostile work environment?
– Emily is an Office Manager and Gary is a truck driver who work
out of the same company office. Although Gary and Emily do
not hang out together outside of work, they spend a few minutes
throughout the week talking about their weekends or activities.
– Because they have worked together for several months, Gary
“friends” Emily on Facebook and Emily accepts the request.
Although too embarrassed to express his feelings in person, Gary
posts personal compliments about Emily’s appearance and her
outfits that she wears to work several times a week
– Emily complains to Human Resources about the wall posts
stating that Gary’s posts make her feel uncomfortable at work
Hostile Work Environments
& Social Media
• Do the following facts change your mind?
– Gary’s posts become more personal and flirtatious, and
Gary sends Emily personal pictures of himself in his
swimsuit from his most recent beach vacation in
Florida.
– Gary posts his desires about drinking pina colodas and
getting caught in the rain with his co-worker Emily.
– When Human Resources asks Emily about the details
of her complaint, she explains that the harassment is
strictly occurring on-line in the “virtual world.”
– In addition to Emily, Gary has fifteen other Facebook
friends who are co-workers at the company.
Hostile Work Environments
& Social Media
• What is an employer do?
– Employers should develop a comprehensive social media and
computer system usage policy to address these varies situations.
Employers need to make it clear to employees that their comments
or conduct via social media should be respectful to one another, and
to the company’s customers.
– Any employee who raises a complaint of harassment occurring via
social media should be treated seriously, and the company should
act immediately to investigate the employee’s complaint under the
company’s established harassment procedures.
– Further, the employer should give serious consideration to adopting
a work rule that either prohibits supervisors from being friends with
co-workers and subordinates on Facebook, or, at the very least,
addresses the serious consequences that social media” friendships”
can cause within the workplace.
Employee Off-Duty Social Media Use:
Employers Breathe a Sigh of Relief???
• An employer may not have a duty to monitor an
employee’s off-duty social media use - Maypark v.
Securitas Sec. Servs. USA, Inc. (Wisc. App. 2009)
– A security guard worked for the employer took photo
badges of female employees from a work site, pleasured
himself on the badges, and posted the photos of his activity
on an adult website from his home.
– The employer terminated the security guard.
– The female employees sued the company for negligently
training and supervising the security guard; however, the
appeals court found in favor of the company stating that
“employers have no duty to supervise employees’ private
conduct or to persistently scan the world wide web to ferret
out potential employee misconduct.”
Oh, NO…What Is “Off-Duty”
Conduct???
• Blakely v. Continental Airlines, Inc. (NJ 2000)
– A female pilot brought claims of harassment/discrimination
and retaliation against the airline.
– During the case, airline employees used an on-line
computer bulletin board to post negative comments about
the plaintiff. The plaintiff argued the posts were false and
defaming and insisted the employer should be held
responsible for the posts because it was aware of the posts.
– The lower court was instructed to determine whether the
relationship between the electronic bulletin board and the
airline established a connection to the workplace to impose
liability on the airline.
The National Labor Relations Board
• Employees under the National Labor Relations Act
have the right to engage in concerted activities for the
purpose of their mutual aid and protection.
• This protection of concerted activity applies to both
union and nonunion employees.
• Concerted activities:
– Includes discussing wages, hours and other terms and
conditions of their employment with their co-workers.
– Because “terms and conditions of employment” is
interpreted broadly, it also includes issues such as safety,
unfair or biased supervisors, as well as other issues
pertaining to employee working conditions.
The National Labor Relations Board
• Concerted Activities:
– the NLRB has also defined “concerted” to include employee
activity that is “engaged with or on the behalf of other
employees”; a single employee bringing a workplace issue on
behalf of a group of employees; and a single employee taking
action that attempts to initiate group action or further group
goals.
• Employers are prohibited from taking an adverse employment action
against an employee who engages concerted and protected activity.
• If an employer takes adverse employment action against an
employee who has engaged in concerted and protected activity, such
employer action could constitute an “unfair labor practice.”
• The NLRB adjudicates unfair labor practice complaints against both
union and non-union employers. Remedies include reinstatement
with back pay for discharged workers, invalidation of policies, and
orders to post notices.
Hold On to Your Hats:
The NLRB & Social Media
Over the several years, the NLRB has emphasized that
Section 7 protections will extend to an employee who
uses social media to raise workplace issues which
concern more than just the individual employee.
The world of social media is the newest version of the
workplace water cooler or employee break room.
Below are numerous unfair labor practice charges that
were either tried before an Administrative Law Judge or
cases which in which the General Counsel did not purse
the charge, all of which address Section 7 rights of
employees in the context of social media.
Hispanics United of Buffalo, Inc.
• Case Overview
– An NLRB administrative law judge ruled that the
employer, Hispanics United of Buffalo, unlawfully
terminated five employees for complaining about
working conditions on their Facebook pages.
– The employees’ comments/complaints were in
response to another employee who posted a coworker’s allegation that employees do not do enough
to help their clients.
– The post resulted in employees responding on
Facebook by defending their work performance and
criticizing their working conditions.
Hispanics United of Buffalo, Inc.
• Facts of the Case - the first employee posted the following comment
about the co-workers:
– On Saturday, October 9, 2010 at 10:14 a.m., Mariana ColeRivera posted the following message on her Facebook page from
her home: Lydia Cruz, a coworker feels that we don’t help our
clients enough at HUB I about had it! My fellow coworkers how
do u feel?
• The following employees responded by posting comments on ColeRivera's Facebook page:
– At 10:19, Damicela Rodriguez posted the following response:
What the f. .. Try doing my job I have 5 programs
– At 10:26, Ludimar Rodriguez posted: What the Hell, we don't
have a life as is, What else can we do???
– At 11: 11, Yaritza Campos posted: Tell her to come do mt [my]
fucking job n c if I don't do enough, this is just dum
Hispanics United of Buffalo, Inc.
• Facts Continued
– At 11:41, Carlos Ortiz de Jesus posted: I think we should give our
paychecks to our clients so they can "pay" the rent, also we can take
them to their Dr's appts, and served as translators (oh! We do that). Also
we can clean their houses, we can go to DSS for them and we can run all
their errands and they can spend their day in their house watching tv, and
also we can go to do their grocery shop and organized the food in their
house pantries ... (insert sarcasm here now)
– Mariana Cole-Rivera posted again at 11:45: Lol. I know! I think it is
difficult for someone that its not at HUB 24-7 to really grasp and
understand what we do ..I will give her that. Clients will complain
especially when they ask for services we don't provide, like washer,
dryers stove and refrigerators, I'm proud to work at HUB and you are all
my family and I see what you do and yes, some things may fall thru the
cracks, but we are all human :) love ya guys
– Nannette Dorrios, a member of the Board of Directors at HUB posted at
12:10: Who is Lydia Cruz?
Hispanics United of Buffalo, Inc.
•
Facts Continued
– Yaritza Campos posted a second time at 12:11: Luv ya too boo
– Mariana Cole-Rivera at 12:12 responded to Dorrios by the following post: She's
from the dv program works at the FJC [Family Justice Center] at hub once a
week.
– Jessica Rivera, the Secretary to HUD Director Iglesias, posted at 1: 10 p.m.: Is it
not overwhelming enough over there?
– At 2:27 Lydia Cruz-Moore posted: Marianna stop with ur lies about me. I'll b at
HUB Tuesday.
– Cole-Rivera responded at 2:56: Lies? Ok. In any case Lydia, Magalie [Lomax,
HUB'S Business Manager] is inviting us over to her house today after 6:00 pm
and wanted to invite you but does not have your number i'll inbox you her phone
number if you wish.
– Carlos Ortiz posted at 10:30 p.m.: Bueno el martes llevo el pop corn [Good,
Tuesday, I'll bring the popcorn].
– Saturday, October 9, was not a work day for any of HUB's employees. None of
the 20 discriminatees used HUB’s computers in making these Facebook posts.
Hispanics United of Buffalo, Inc.
The ALJ’s analysis:
The ALJ noted that the activities of a single employee in enlisting
the support of fellow employees in mutual aid and protection is
as much concerted activity as is ordinary group activity.
Individual action is concerted so long as it is engaged in with the
object of initiating or inducing group action, Whittaker Corp.,
289 NLRB 933 (1988); Mushroom Transportation Co., 330 F.2d
683,685 (3d Cir. 1964).
The object of inducing group action need not be express.
Additionally, the ALJ noted that in order to present a prima facie
case that an employer has discharged an employee in violation of
Section 8(a)(1), the General Counsel must establish that the
employer knew of the concerted nature of the activity.
Hispanics United of Buffalo, Inc.
• The ALJ’s analysis:
– The ALJ concluded that their Facebook communications with
each other, in reaction to a co-worker’s criticisms of the manner
in which HUB employees performed their jobs, was protected.
– It is irrelevant to this case that the discriminatees were not trying
to change their working conditions and that they did not
communicate their concerns to the employees. A leading case in
this regard is Aroostook County Regional Ophthalmology
Center, 317 NLRB 218, 220 (1995) enf. denied on other grounds
81 F. 3d 209 (D.C. Cir. 1996), in which the Board held that
employee complaints to each other concerning schedule changes
constituted protected activity.
– By analogy, the ALJ found that the discriminatees’ discussions
about criticisms of their job performance were also protected.
Hispanics United of Buffalo, Inc.
• ALJ’s analysis:
– Likewise in Parexel International, LLC, 356 NLRB No. 82
(January 28, 2011) at slip opinion page 3 and n. 3, the
Board found protected, employees’ discussions of possible
discrimination in setting the terms or conditions of
employment.
– Moreover, concerted activity for employees’ mutual aid and
protection that is motivated by a desire to maintain the
status quo may be protected by Section 7 to the same extent
as such activity seeking changes in wages, hours or
working conditions, Five Star Transportation, Inc., 349
NLRB 42, 47 (2007). Other cases similar to the instant
matter are Jhirmack Enterprises, 283 NLRB 609, 615
(1987) and Akal Security, Inc., 355 NLRB No. 106 (2010).
Hispanics United of Buffalo, Inc.
ALJ’s conclusion:
Ultimately, the ALJ concluded that the discriminatees were
taking a first step towards taking group action to defend
themselves against the accusations they could reasonably
believe Cruz-Moore was going to make to management. By
discharging the discriminates, the employer prevented them
from taking any further group action vis-à-vis Cruz-Moore’s
criticisms.
Moreover, the fact that the employer lumped the
discriminatees together in terminating them, established that
the employer viewed the five as a group and that their
activity was concerted, Whittaker Corp., supra.
Hispanics United of Buffalo, Inc.
ALJ’s conclusion continued:
The protection of Sections 7 and 8 of the Act does not depend on whether
organizing activity was ongoing, it does not depend on whether the employees
herein had brought their concerns to management before they were fired, or that
there is no express evidence that they intended to take further action, or that they
were not attempting to change any of their working conditions.
Employees have a protected right to discuss matters affecting their employment
amongst themselves. Explicit or implicit criticism by a co-worker of the manner in
which they are performing their jobs is a subject about which employee discussion
is protected by Section 7.
That is particularly true in this case, where at least some of the discriminatees had
an expectation that Lydia Cruz-Moore might take her criticisms to management.
By terminating the five discriminatees for discussing Ms. Cruz-Moore's criticisms
of HUB employees' work, Respondent violated Section 8(a)(1).
Hispanics United of Buffalo, Inc.
• ALJ’s conclusion continued:
– It should also be noted that the five discriminatees did not
engage in conduct which forfeited the protection of the Act.
– The Board looks to the factors set forth in Atlantic Steel
Co., 245 NLRB 814 (1979), to aid in determining whether
the employee's conduct became so opprobrious as to lose
protection under the Act.
– The Atlantic Steel factors are: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the
nature of the employee's outburst; and (4) whether the
outburst was, in any way, provoked by an employer's unfair
labor practice. Applying these factors, there was no basis
for denying any of the five discriminatees the protection of
the Act.
Hispanics United of Buffalo, Inc.
• ALJ’s conclusion continued:
– As to factor 1, the "discussion," the Facebook posts
were not made at work and not made during working hours.
– As to factor 2, the subject matter, the Facebook posts
were related to a coworker’s criticisms of employee job
performance, a matter the discriminatees had a protected
right to discuss.
– As to factor 3, there were no "outbursts." Indeed,
several of the discriminates did not even mention CruzMoore; none criticized HUB.
– Regarding Atlantic Steel factor 4, while the Facebook
comments were not provoked by the employer, this factor
is irrelevant to the instant case.
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• Case Overview
– In another ALJ decision, the judge ruled that a
Chicago area car dealership did not violate Section
7 by terminating a car salesman because he posted
information on Facebook that his employer
deemed harmful to its reputation.
– On June 14, 2010, the salesman posted comments
and pictures to his Facebook account about two
separate incidents that occurred at the dealership
on June 9 and June 14.
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• Facts continued
– On June 14, he posted comments and pictures of the
Ultimate Driving Event of June 9, as well as a Land Rover
accident of June 14 on his Facebook page. The Event
pages are entitled: “BMW 2011 5 Series Soiree.”
– On the first page, Becker wrote: “I was happy to see that
Knauz went “All Out” for the most important launch of a
new BMW in years…the new 5 series. A car that will
generate tens in millions of dollars in revenues for Knauz
over the next few years. The small 8 oz bags of chips, and
the $2.00 cookie plate from Sam’s Club, and 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 wiener and a stale bunn…”
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• Facts continued
– Underneath were comments by relatives and friends of Becker,
followed by Becker’s responses.
– On the following page there is a picture of Holland with his arm
around the woman serving the hot dogs, and the following page has a
picture of Holland with a hot dog. Page four shows the snack table
with cookies and fruit and page 5 shows Charnidski holding bottles
of water, with a comment posted by Becker: “No, that’s not
champagne or wine, it’s 8 oz. water. Pop or soda would be out of the
question. In this photo, Fadwa is seen coveting the rare vintages of
water that were available for our guests.”
– Page 6 shows the sign depicting the new BWW 5 Series car with
Becker’s comment below: “This is not a food event. What ever
made you realize that?”
– The final two pages again show the food table and Holland holding a
hot dog.
Karl Knauz Motors, Inc., d/b/a Knauz BMW
•
Facts continued:
– On June 14, Becker also posted the pictures of the Land
Rover accident, as well as comments, on his Facebook page.
The caption is “This is your car: This is your car on drugs.” The
first picture shows the car, the front part of which was in the
pond, with the salesperson with a blanket around her sitting next
to a woman, and a young boy holding his head.
– Becker wrote: “This is 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!”
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• Facts continued:
– There are a number of comments on the first page, one of
which was from an employee of the Respondent in the
warranty department, stating: “How did I miss all the fun
stuff?”
– On the second page, under the photo of the car in the pond,
Becker wrote: “I love this one…The kid’s pulling his hair
out…Du, what did I do? Oh no, is Mom gonna give me a time
out?”
– Below, there were comments from two of Respondent’s
employees.
– Counsel for the General Counsel also introduced in evidence a
Facebook page of Casey Felling, a service advisor employed
by the Respondent, containing Becker’s picture of the car in
the pond with Felling’s comment: “Finally, some action at our
Land Rover store.”
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• ALJ’s analysis:
– In analyzing the facts if the case and rendering a decision, the
ALJ noted that concerted activities does not require that two or
more individuals act in unison to protest, or protect, their
working conditions. In Meyers II, 281 NLRB 882, 887 (1986),
the Board stated that concerted activities included individual
activity where, “individual employees seek to initiate or to
induce or to prepare for group action, as well as individual
employees bringing truly group complaints to the attention of
management.”
– In Owens-Corning Fiberglass Corp. v. NLRB, 407 F.2d 1357,
1365 (4th Cir. 1969), the Court stated that the “activity of a
single employee in enlisting the support of his fellow
employees for their mutual aid and protection is as much
‘concerted activity’ as is ordinary group activity.”
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• ALJ’s analysis continued:
– In NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir.
1995), the Court stated: “The fact that there was no express discussion
of a group protest or ‘common cause’ is not dispositive…their
individual actions were concerted to the extent they involved a
‘logical outgrowth’ of prior concerted activity. The lone act of a single
employee is concerted if it ‘stems from’ or ‘logically grew’ out of
prior concerted activity.”
– Becker, and another employee spoke up at the meeting commenting
on what they considered to be the inadequacies of the food being
offered at the event, and the subject was further discussed by the
salespersons after the meeting.
– Even though only Becker complained further about it on his Facebook
pages without any further input from any other salesperson, the ALJ
found that it was concerted activities, and found that it was protected
concerted activities as it could have had an effect upon Becker’s
compensation.
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• ALJ’s analysis continued:
– The ALJ noted that, while it is not as obvious a situation as if he had
objected to the employees reducing their wages or other benefits, there
may have been some customers who were turned off by the food
offerings at the event and either did not purchase a car because of it, or
gave the salesperson a lowering rating in the Customer Satisfaction
Rating because of it.
– The employer argued that it was not protected concerted activities
because neither Becker nor any other employee made the employer
aware that their complaints about the food being served was really about
their commissions. However, the ALJ noted that this is not a
requirement of protected concerted activities.
– The final issue was whether the tone of the Facebook account of the
Event rose “to the level of disparagement necessary to deprive otherwise
protected activities of the protection of the Act.” Allied Aviation Service
Company of New Jersey, Inc., 248 NLRB 229, 231 (1980).
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• ALJ’s analysis continued:
– The ALJ found that it did not. Although Becker’s Facebook
account of the Event clearly had a mocking and sarcastic tone
that, in itself, does not deprive the activity of the protection of
the Act.
– In Timekeeping Systems, Inc., 323 NLRB 244, 249 (1997), the
administrative law judge stated: “Unpleasantries uttered in the
course of otherwise protected concerted activity does not strip
away the Act’s protection.”
– Further, referring to supervisors as “a-holes” in U.S. Postal
Service, 241 NLRB 389 (1979) and calling the company’s
chief executive officer a “cheap son of a bitch” in Groves
Truck & Trailer, 281 NLRB 1194, 1195 (1986) did not lose the
Act’s protection, and neither did Becker in his Facebook
comments on the Event.
Karl Knauz Motors, Inc., d/b/a Knauz BMW
• ALJ’s conclusion:
– However Becker’s posting of the Land Rover accident on his
Facebook account was neither protected nor concerted
activities.
– It was posted solely by Becker, without any discussion with
any other employee of the employer, and had no connection to
any of the employees’ terms and conditions of employment.
– As such the ALJ found it so obviously unprotected that it was
unnecessary to discuss whether the mocking tone of the
posting further affects the nature of the posting.
– Ultimately, the ALJ found that Becker was fired because of his
Facebook posting of the Land Rover accident, and as a result,
his termination did not violate his Section 7 rights.
American Medical Response, Inc.
• Case overview:
– In this case, the company fired an employee for posting critical
comments about her supervisor and she continued her negative
comments about the supervisor in response to message posts
from her coworkers. The employee also referred to her
supervisor using a crude term in one of her posts.
– The NLRB maintained that the employee’s posts constituted
protected concerted activity and that American Medical
Response violated Section 7 by terminating the employee.
– Although the matter was settled prior to the hearing, the
NLRB’s Acting General Counsel provided the basis as to why
the NLRB considered the employer’s internet and blogging
standards were unlawful under the act.
American Medical Response, Inc.
• General Counsel’s analysis:
– The General Counsel considered the lawfulness of the Employer’s
blogging and internet posting policy.
– The first challenged portion of the policy prohibited employees from
posting pictures of themselves in any media, including the internet,
which depict the company in any way, including a company uniform,
corporate logo, or an ambulance.
– The General Counsel concluded that this language violated Section
8(a)(1) because it would prohibit an employee from engaging in
protected activity; for example, an employee could not post a picture
of employees carrying a picket sign depicting the company’s name,
or wear a t-shirt portraying the company’s logo in connection with a
protest involving terms and conditions of employment.
– The General Counsel also concluded that the portion of the policy
prohibiting employees from making disparaging comments when
discussing the company or the employee’s superiors, coworkers,
and/or competitors was unlawful.
American Medical Response, Inc.
– In University Medical Center, 335 NLRB 1318, 1320-1322 (2001),
enf. denied in pertinent part 335 F.3d 1079 (D.C. Cir. 2003), the
Board found that a similar rule prohibiting “disrespectful conduct”
towards others violated Section 8(a)(1).
– Like the rule in University Medical Center, the rule here contained
no limiting language to inform employees that it did not apply to
Section 7 activity.
– Also under challenge was the Employer’s standards-of conduct
policy. This policy prohibited the use of language or action that was
inappropriate or of a general offensive nature, and rude or
discourteous behavior to a client or coworker.
– The General Counsel concluded that the prohibition here of
“offensive conduct” and “rude or discourteous behavior” proscribed
a broad spectrum of conduct and contained no limiting language to
remove the rule’s ambiguity in prohibiting Section 7 activity.
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
• Facts of the case:
– In the spring of 2009, the Daily Star began encouraging its
reporters to open Twitter accounts and to attend a “webinar”
about how Twitter and other social network tools could be used
to disseminate information to the public. The Daily Star wanted
reporters to use social media to get news stories out to people
who might not read the newspaper and to drive readers to the
Daily Star’s website.
– The Charging Party attended the webinar, and subsequently
opened a Twitter account. The Charging Party then started
seeking out coworkers and others who had Twitter accounts,
started following them on Twitter, and accumulated a group of
his own followers, including coworkers and some of his
supervisors.
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
– Although the Employer encouraged reporters to use social media,
the Charging Party opened the account, decided his own screen
name and password, and controlled the content of his tweets.
– In the biography section of his Twitter account, the Charging Party
stated that he was a reporter for the Daily Star and included a link
to the Daily Star’s website. In his tweets, he at times referred
followers to the Daily Star’s website for stories.
– The Charging Party tweeted using his work computer, his company
provided cell-phone, and his home computer. At various times the
Charging Party’s Twitter account was open to everyone, and at
other times he restricted access to his followers.
– The Charging Party had linked his Twitter account to his Facebook
and MySpace pages. Therefore, whenever he tweeted something,
the same message would be posted on Facebook and MySpace.
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
– The Charging Party’s Twitter account was not linked to the Daily
Star’s Twitter feed; none of his tweets were posted automatically to
the Daily Star’s feed.
– Sometime in late January or early February of 2010, the Charging
Party posted a tweet saying “The Arizona Daily Star’s copy editors
are the most witty and creative people in the world. Or at least they
think they are.”
– The tweet was in response to a series of sports headlines, using play
on words, such as “Shuck and Awe,” describing the University of
Arizona’s loss to the University of Nebraska.
– Before the tweet, the Charging Party had raised his concerns about
the sport department’s headlines with the Executive Editor. However,
there is no evidence that the Charging Party had discussed his
concerns about the sports department headlines with any of his
coworkers.
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
– About a week after that tweet, the Charging Party was called into a
meeting with the Human Resources Director, who asked the Charging
Party why he tweeted about the sports department, why he felt the need to
post his concerns on Twitter instead of simply speaking to people within
the organization, and whether he thought it was appropriate to be posting
these types of tweets.
– The Charging Party asked if the Daily Star had a social media policy. The
Human Resources Director replied that the policy was being worked on.
– About a week after the meeting with the Human Resources Director, the
Charging Party was called into a meeting with the Managing Editor, the
Executive Editor, and the City Editor, concerning his tweet. During the
meeting the Managing Editor told the Charging Party that he was
prohibited from airing his grievances or commenting about the Daily Star
in any public forum.
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
– The Charging Party replied that he understood the directive and left
the meeting.
– The Charging Party continued tweeting, but refrained from making
public comments about the Daily Star. He tweeted, and used other
social media, to post about various matters he found interesting,
including matters occurring in Tucson relating to his beat as a public
safety reporter. Some tweets were simply factual, and others included
commentary.
– Between August 27 and September 19, the Charging Party’s tweets
included the following:
August 27 - “You stay homicidal, Tucson. See Star Net for the
bloody deets.”
August 30 - “What?!?!? No overnight homicide? WTF? You’re
slacking Tucson.”
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
September 10 - “Suggestion for new Tucson-area theme song: Droening
[sic] pool’s ‘let the bodies hit the floor’.”
September 10 - “I’d root for daily death if it always happened in close
proximity to Gus Balon’s.”
September 10 - “Hope everyone’s having a good Homicide
Friday, as one Tucson police officer called it.”
September 19 - “My discovery of the Red Zone channel is like an adolescent
boy’s discovery of his ...let’s just hope I don’t end up going blind.”
– On September 21, Tucson area television news station KOLD posted the
following tweet on its Twitter feed: “Drug smuggler tries to peddle his way
into the U.S.” The Charging Party saw the tweet, reposted it on his Twitter site,
and tweeted the following: “Um, I believe that’s PEDAL. Stupid TV people.”
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
• General Counsel’s analysis:
– The General Counsel concluded that the Charging Party’s discharge did not
violate Section 8(a)(1) because he was terminated for writing inappropriate
and offensive Twitter postings that did not involve protected concerted
activity.
– The Charging Party’s conduct was not protected and concerted: it did not
relate to the terms and conditions of his employment or seek to involve other
employees in issues related to employment.
– The Employer warned the Charging Party that his comments were
inappropriate, but he ignored the warning and continued to post additional
inappropriate tweets while covering his beat as a public safety reporter.
– Those tweets included: “What?!?!?! No overnight homicide? WTF? You’re
slacking Tucson” and others comments that were redacted from the
memorandum.
– The Charging Party’s discharge did not violate the Act because he was
discharged for this misconduct, which did not involve protected activity.
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
– The Charging Party alleged that he was disciplined pursuant to an unlawful rule
that prohibited certain Section 7 activities. The Board has consistently held that
“an employer’s imposition of discipline pursuant to an unlawfully overbroad
policy or rule constitutes a violation of the Act.” However, the General Counsel
concluded that the Employer did not implement an unlawful rule.
– In this regard, the General Counsel acknowledge that, in warning the Charging
Party to cease his inappropriate tweets, and then discharging him for continuing
to post inappropriate tweets, the Employer made statements that could be
interpreted to prohibit activities protected by Section 7.
– For example, after the Human Resources Director had met with the Charging
Party and warned him to stop making inappropriate comments, and the Charging
Party persisted, the Managing Editor called him in and warned him to stop airing
his grievances or commenting about the Employer in any public forum.
– And after the Charging Party persisted in writing his offensive messages, the
Managing Editor told him that he was not allowed to tweet about anything work
related.
Lee Enterprises, Inc.
d/b/a Arizona Daily Star
– Finally, the Charging Party’s termination letter refers to the fact that he was told “to
refrain from using derogatory comments in any social media forums that may
damage the goodwill of the company.”
– However, those statements did not constitute orally-promulgated, overbroad
“rules.”
– Thus, the statements were made solely to the Charging Party in the context of
discipline, and in response to specific inappropriate conduct, and were not
communicated to any other employees or proclaimed as new “rules.”
– In fact, the Employer indicated that it was in the process of developing a written
social media rule, but that it did not yet have one.
– Finally, although the statements arguably constituted unlawful restrictions on the
Charging Party’s own Section 7 activities, it would not effectuate the purposes and
policies of the Act to issue a complaint where the statements were directed to a
single employee who was lawfully discharged.
– Accordingly, the General Counsel concluded that the charge should be dismissed
absent withdrawal.
JT’s Porch Saloon & Eatery, Ltd.
• General Counsel’s decision regarding “Concerted Activity”:
– The Office of the General Counsel in this case concluded that the
employee’s Facebook posting did not involve concerted activity.
• Facts of the case:
– The Charging Party was employed as a bartender at JT’s Porch Saloon
& Eatery, Ltd (the Employer), a restaurant and bar in Lombard,
Illinois.
– The Employer maintained an unwritten policy, communicated to
bartenders when they are hired, that waitresses do not share their tips
with the bartenders even though the bartenders help the waitresses
serve food.
– Sometime in the fall of 2010, the Charging Party had a conversation
with a fellow bartender about this tipping policy. He complained
about the policy, and she agreed that it “sucked.”
– However, neither of them, or any other bartender, ever raised the issue
with management.
JT’s Porch Saloon & Eatery, Ltd.
– On February 27, 2011,1 the Charging Party had a conversation on
Facebook with his step-sister. She sent him a message asking how
his night at work went. He responded with complaints that he
hadn’t had a raise in five years and that he was doing the
waitresses’ work without tips.
– He also called the Employer’s customers “rednecks” and stated
that he hoped they choked on glass as they drove home drunk.
– The Charging Party did not discuss his Facebook posting with any
employees either before or after he wrote it.
– In addition, none of his fellow employees responded to it.
• General Counsel’s analysis:
– The Board will find concert “[w]hen the record evidence
demonstrates group activities, whether ‘specifically authorized’ in
a formal agency sense, or otherwise[.]”
– Thus, individual activities that are the “logical outgrowth of
concerns expressed by the employees collectively” are considered.
JT’s Porch Saloon & Eatery, Ltd.
– Concerted activity also includes “circumstances where individual
employees seek to initiate or to induce or to prepare for group action”
and where individual employees bring “truly group complaints” to
management’s attention.
– The General Counsel found no evidence of concerted activity.
– Although the Charging Party’s posting addressed his terms and
conditions of employment, he did not discuss his Facebook posting with
any of his fellow employees either before or after he wrote it, and none
of his coworkers responded to the posting.
– There had been no employee meetings or any attempt to initiate group
action with regard to the tipping policy or the awarding of raises.
– There also was no effort to take the bartenders’ complaints about these
matters to management.
– In this instance, the Charging Party was merely responding to a question
from his step-sister about how his evening at work went. And this
internet “conversation” did not grow out his prior conversation with a
fellow bartender months earlier about the tipping policy.
Wal-Mart
• General Counsel’s decision regarding “Concerted Activity”:
– The Office of the General Counsel in this case concluded that the
employee’s Facebook posting did not involve concerted activity.
• Facts of the case:
– On October 28, after an interaction with the Assistant Manager, the
Charging Party posted the following comment into his Facebook page:
“Wuck Falmart! I swear if this tyranny doesn’t end in this store they
are about to get a wakeup call because lots are about to quit!”
– The Charging Party limited his observations to his Facebook friends,
which were largely composed of coworkers rather than third parties.
– Two coworkers responded to the Facebook post as follows:
[Employee 1]: bahaha like! :)
[Employee 2]: What the hell happens after four that gets u so wound up???
Lol
Wal-Mart
– The Charging Party responded to his coworkers’ postings with the
following entry: “You have no clue [Employee 1]...[Assistant
Manager] is being a super mega puta! Its retarded I get chewed out
cuz we got people putting stuff in the wrong spot and then the
customer wanting it for that price...that’s false advertisement if you
don’t sell it for that price...I’m talking to [Store Manager] about this
shit cuz if it don’t change walmart can kiss my royal white ass!”
– The Charging Party asserted that two other coworkers also made
supportive comments.
– One of those coworkers has confirmed that she made a “hang in
there” type of remark.
– The Employer contended that the charge should be dismissed because
the Facebook postings were not concerted activity for mutual aid or
protection and, even assuming otherwise, the Charging Party’s use of
profanity was so opprobrious as to deprive him of the Act’s
protection.
Wal-Mart
• General Counsel’s analysis:
– The General Counsel noted that an individual employee’s
conduct is concerted when he or she acts “with or on the
authority of other employees,” when the individual activity
seeks to initiate, induce, or prepare for group action, or when
the employee brings “truly group complaints to the attention
of management.”
– Such activity is concerted even if it involves only a speaker
and a listener, “‘for such activity is an indispensable
preliminary step to employee selforganization.’”
– On the other hand, comments made “solely by and on behalf
of the employee himself” are not concerted. Comments must
look toward group action; “mere griping” is not protected.
Wal-Mart
– The General Counsel concluded that the Charging Party’s
Facebook postings were an expression of an individual gripe. They
contained no language suggesting the Charging Party sought to
initiate or induce coworkers to engage in group action; rather they
expressed only his frustration regarding his individual dispute with
the Assistant Manager over mispriced or misplaced sale items.
– Moreover, none of the coworkers’ Facebook responses indicate
that they otherwise interpreted the Charging Party’s postings.
Employee 1 merely indicated that he found Charging Party’s first
Facebook posting humorous, while Employee 2 asked why the
Charging Party was so “wound up.”
– Another coworker’s “hang in there”-type comment suggests that
she only viewed his postings to be a plea for emotional support.
– Nor was there evidence that established that the Charging Party’s
postings were the logical outgrowth of prior group activity.
Social Media Lessons Moving Forward
1. Lessons Learned for Employers
a. An employee’s comment in the social media public does not
automatically make the employee’s activity “protected”;
b. Nor is such activity per se objectionable or improper;
c. Posts or comments that relate to wages, hours, work
assignments, working conditions, safety, supervisor’s bias,
and other terms and conditions of employment are most
likely protected;
d. Employers can discourage or discipline an employee in
response to a post or comment that does not involve work
issues beyond that single employee;
e. Employees who use social media for personal attacks and
boorish obscenities will most likely not enjoy protection
under the act;
f. Employers should implement a social media policy to
define the company’s expectations of employees who use
social media;
g. Do not rely on a social media policy that is overly broad or
restrictive;
h. Many times an employer’s discipline or recognition of a
comment in social media causes more headache and
unwarranted attention to the issue underlying the comment;
i. Social media policies should not be so broad that it could
be read as impinging on employees’ rights to communicate
about the terms and conditions of their employment; and
j. Such policies can expose employers to unfair labor practice
charges and unwanted publicity.
2. Social Media Policy Language/Provisions
a. Confidentiality No-no’s: "Don't share confidential
information with anyone who doesn't need to know.";
"Don't discuss confidential information on line, or in
break rooms, at home, or in public areas.";
"Don't reveal non-public company information on any
public site 'including financial information' and
'personal information about another employee, such as .
. . performance, compensation or status in the
company.'";
"Don't discuss company legal matters."; "Don't post
anything that could be deemed confidential or
proprietary. ";
"Don't talk about the workplace except with your coworkers.";
"Don’t make any public comments about the company
unless you have prior written authorization of the
Communications Department."
b. Use of Employer Property No-no’s: “Don’t post pictures,
videos of the company of its logo without express
permission from management.”
“Never access social media using company resources or
during company time.”
c. Communicating with the Media No-no’s: “All media
questions must be directed to the
Marketing/Communications Department.”
3. Consider the Following Walmart Social Media Policy as a
Guideline:
At [Employer], we understand that social media can be a fun and
rewarding way to share your life and opinions with family, friends
and co-workers around the world. However, use of social media
also presents certain risks and carries with it certain
responsibilities. To assist you in making responsible decisions
about your use of social media, we have established these
guidelines for appropriate use of social media. This policy applies
to all associates who work for [Employer], or one of its subsidiary
companies in the United States ([Employer]).Managers and
supervisors should use the supplemental Social Media
Management Guidelines for additional guidance in administering
the policy.
GUIDELINES
In the rapidly expanding world of electronic communication, social media
can mean many things.
Social media includes all means of communicating or posting information
or content of any sort on the Internet, including to your own or someone
else’s web log or blog, journal or diary, personal web site, social
networking or affinity web site, web bulletin board or a chat room, whether
or not associated or affiliated with [Employer], as well as any other form
of electronic communication. The same principles and guidelines found in
[Employer] policies and three basic beliefs apply to your activities online.
Ultimately, you are solely responsible for what you post online. Before
creating online content, consider some of the risks and rewards that are
involved. Keep in mind that any of your conduct that adversely affects
your job performance, the performance of fellow associates or otherwise
adversely affects members, customers, suppliers, people who work on
behalf of [Employer] or [Employer’s] legitimate business interests may
result in disciplinary action up to and including termination.
Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of
Ethics Policy, the [Employer] Information Policy and the
Discrimination & Harassment Prevention Policy, and ensure your
postings are consistent with these policies. Inappropriate postings
that may include discriminatory remarks, harassment, and threats
of violence or similar inappropriate or unlawful conduct will not
be tolerated and may subject you to disciplinary action up to and
including termination.
Be respectful
Always be fair and courteous to fellow associates, customers,
members, suppliers or people who work on behalf of [Employer].
Also, keep in mind that you are more likely to resolved workrelated complaints by speaking directly with your co-workers or by
utilizing our Open Door Policy than by posting complaints to a
social media outlet. Nevertheless, if you decide to post complaints
or criticism, avoid using statements, photographs, video or audio
that reasonably could be viewed as malicious, obscene, threatening
or intimidating, that disparage customers, members, associates or
suppliers, or that might constitute harassment or bullying.
Examples of such conduct might include offensive posts meant to
intentionally harm someone’s reputation or posts that could
contribute to a hostile work environment on the basis of race, sex,
disability, religion or any other status protected by law or company
policy.
Be honest and accurate
Make sure you are always honest and accurate when posting
information or news, and if you make a mistake, correct it quickly.
Be open about any previous posts you have altered. Remember
that the Internet archives almost everything; therefore, even
deleted postings can be searched. Never post any information or
rumors that you know to be false about [Employer], fellow
associates, members, customers, suppliers, people working on
behalf of [Employer] or competitors.
Post only appropriate and respectful content
Maintain the confidentiality of [Employer] trade secrets and
private or confidential information. Trades secrets may include
information regarding the development of systems, processes,
products, know-how and technology. Do not post internal reports,
policies, procedures or other internal business-related confidential
communications.
Financial disclosure laws
Respect financial disclosure laws. It is illegal to communicate or
give a “tip” on inside information to others so that they may buy or
sell stocks or securities. Such online conduct may also violate the
Insider Trading Policy.
Do not create a link from your blog, website or other social
networking site to a[Employer] website without identifying
yourself as a [Employer] associate.
Only authorized employees are spokespersons for the company
Express only your personal opinions. Never represent yourself as a
spokesperson for [Employer]. If [Employer] is a subject of the
content you are creating, be clear and open about the fact that you
are an associate and make it clear that your views do not represent
those of [Employer], fellow associates, members, customers,
suppliers or people working on behalf of [Employer]. If you do
publish a blog or post online related to the work you do or subjects
associated with [Employer], make it clear that you are not
speaking on behalf of [Employer]. It is best to include a disclaimer
such as “The postings on this site are my own and do not
necessarily reflect the views of [Employer].”
Using social media at work
Refrain from using social media while on work time or on
equipment we provide, unless it is work-related as authorized by
your manager or consistent with the Company Equipment Policy.
Do not use [Employer] email addresses to register on social
networks, blogs or other online tools utilized for personal use.
Retaliation is prohibited
[Employer] prohibits taking negative action against any associate
for reporting a possible deviation from this policy or for
cooperating in an investigation. Any associate who retaliates
against another associate for reporting a possible deviation from
this policy or for cooperating in an investigation will be subject to
disciplinary action, up to and including termination.
Media contacts
Associates should not speak to the media on [Employer’s] behalf
without contacting the Corporate Affairs Department. All media
inquiries should be directed to them.
For more information
If you have questions or need further guidance, please contact your
HR representative.
Recent NLRB Board Decision - Costco
Wholesale Corp.
Board Decision – Employer’s “Electronic Communications and Technology
Policy”
• On September 7, 2012, the Board issued rulings in Costco Wholesale Corp., 358
NLRB No. 106, that addressed a number of employer policies.
• Although the opinion did not analyze the employer’s “social media” policy, the
decision does reflect the Board’s outlook on such policies.
• One of the policies at issue was entitled “Electronic Communications and
Technology Policy,” and it provided that “any communication transmitted,
stored or displayed electronically must comply with the policies outlined in the
[Company] Employee Agreement. Employees should be aware that statements
posted electronically (such as [to] online message boards or discussion groups)
that damage the Company, defame any individual or damage any person’s
reputation, or violate the policies outlined in the [Company] Employee
Agreement, may be subject to discipline, up to and including termination of
employment.”
– The Board found this language to include a broad prohibition that did
not include any language to put employees on notice that Section 7
activity was excluded from the policy’s prohibitions.
– The Board also suggested approved language regarding prohibited
employee speech such as prohibitions on speech that is: (1) malicious,
abusive or unlawful; (2) profane language and harassment; (3) injurious,
offensive, threatening, intimidating, coercing, or interfering with other
employees; and (4) slanderous or detrimental to the company.
– The Board also affirmed the administrative law judge’s ruling that the
policy’s prohibition on employees discussing private matters, including
health issues, violated the NLRA because all of the “private matters”
listed in the company’s policy related to terms and conditions of
employment.
– The Board suggested adding clarifying language to the policy such as:
“This policy does not prohibit you from discussing personal,
confidential information with others, so long as you did not come into
possession of such information through access which you have as part of
your formal company duties.”
The NLRB’s Attack on Other
Employer Policies
1. NLRB v. American Red Cross – At-will Employment Policy
The NLRB challenged the employer’s handbook
acknowledgement which contained language stating the at-will
relationship could not be “amended, modified or altered in any
way” arguing that it would chill employee attempts to engage in
collective action to modify the employment relationship. The
administrative law judge concluded the employer had engaged in
an unfair labor practice; however, the case settled before the
NLRB had an opportunity to review the decision.
2. NLRB v. Hyatt Hotel Corp. – At-will Employment Policy
The NLRB filed an unfair labor practice against Hyatt alleging that
the company’s at-will disclaimer violated the NLRA because the
acknowledgement stated employees could not alter their at-will
status unless in writing by an executive. The NLRB’s position was
the language interfered with the employee’s Section 7 rights,
should they desire to change their employment status. The case
settled before the matter went to hearing and Hyatt modified its
language.
3. Flex Frac Logistics, LLC – At-will Employment Policy
The Board ruled that part of the employer’s at-will employment
agreement was invalid because it prohibited employees from
disclosing “confidential information” and “personal information”
to individuals outside the company. The Board ruled that such a
prohibition prevented employees from discussing terms and
conditions of employment with union representatives.
4. Banner Health System d/b/a Banner Estrella Medical
Center – Confidentiality Requirements in Investigations
The NLRB’s General Counsel challenged the employer’s
instructions to an employee making a complaint that he or she not
discuss the matter with co-workers during the investigation. The
NLRB rejected the argument that confidentiality was necessary to
protect the integrity of the investigation, ruling that such a general
concern is outweighed by the employees’ Section 7 rights to
engage in concerted activities.
The NLRB ruled that employers must identify specific needs
for confidentiality requirements.
5. Knauz BMW – Employee Courtesy Rules
The Board ruled the employer’s employee courtesy rule
violated Section 8(a)(1) of the NLRA. The rule stated: “No one
should be disrespectful or use profanity or any other language
which injures the image or reputation of the Dealership.”
According the Board, the rule could give employees the
impression that its broad prohibition against “disrespectful”
conduct and “language which injures the image or reputation of
the Dealership” encompasses Section 7 activity. The Board also
cited Costco to point out that the policy did not have any
disclaimer language stating that it was not intended to include
employee communications protected by Section 7 of the NLRA.
Status of the National Labor
Relations Board
• On January 4, 2012 President Obama unilaterally filled three
vacancies on the National Labor Relations Board. Two of the
Obama appointees are openly pro-union Democrats with
significant ties to organized labor. The other was a Republican,
who resigned on May 26, 2012 in the midst of an ethics
investigation.
• Opposition to these “recess appointments” argued that the
President could not make such appointments because the
Constitution requires U.S. Senate approval.
• The Administration countered that it was able to bypass the
approval process because the Senate was not really in session at
the time the President made the appointments.
• Recently, a three-member panel of the Federal Appeals Court in
Washington ruled that the President did not have the authority to
make the appointments because the Senate was actually “in
session” both when the three vacancies occurred and when
President Obama filled them.
• It is expected that the NLRB will ask the full court to rehear the
matter. Failing that, the Administration will likely appeal the
ruling to the U.S. Supreme Court.
• There is a lot on the line for unionized and non-union employers.
If the recess appointees were not properly appointed, then all of
their decisions may become invalid because the law requires that
the NLRB issue its decisions with a legally constituted quorum,
a least three lawfully appointed Members.
• Without the recess appointments, the NLRB only had two
confirmed Members.
Other Bamberger Employment
and Labor Law Seminars
• Hiring & Firing: Best Practices to Avoid the
EEOC’s Scrutiny
• Employee Handbooks 101: Essential Policies and
Common Mistakes
• Conducting a Proper Sexual Harassment
Investigation
• Interplay of the ADA, FMLA and Workers
Compensation
• Wage and Hour Issues and Compliance
• Union Avoidance and Reducing Your Salts