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Union Administration and Procedure Archives

October 7, 2011

NLRB BEGINS TO DEFINE THE CONTOURS OF ITS SOCIAL MEDIA LAW IN ALJ DECISIONS CONCERNING NON-UNION EMPLOYERS

Social media is a developing, and in many ways still a murky area of the law, particularly in the employment context. Use of Facebook, Twitter, Google+ and the myriad other social media by employees both at and away from the workplace is rapidly increasing and also beginning to blur the line between personal and professional activities. Faced with potential liability under anti-harassment and discrimination laws as well as FTC guidelines on employee endorsements and testimonials, employers cannot completely ignore employee social media activity. Nonetheless, the line between private and professional social media activity is not always clearly defined in the law, forcing employers to make difficult disciplinary decisions concerning employee social media activity.

The National Labor Relations Board (the "Board") has recently begun to define the contours of permissible employer disciplinary action under the National Labor Relations Act (the "NLRA") for employee social media activity. The Board's Office of the General Counsel published a report on social media cases within the last year that provides insight on the Board's view on social media and the contexts in which issues can arise. Although none of the cases discussed in the report reached the Board level, two recent Administrative Law Judge rulings - Hispanics United of Buffalo, Inc. v. Carlos Ortiz, 3-CA-27872 and Karl Knauz Motors, Inc. v. Robert Becker, 13-CA-46452 - provide contrast between protected and unprotected employee speech via social media under the National Labor Relations Act ("NLRA"). An important fact in both decisions is that they concerned non-unionized workplaces, highlighting that the NLRA applies in both the union and non-union context.

Non-Union Employees' Criticisms of a Co-Worker Protected Concerted Activity Under the NLRA

In the first ruling of its kind, Administrative Law Judge ("ALJ") Arthur Amchan concluded in Hispanics United of Buffalo, Inc. ("HUB"), that HUB - a non-union employer - committed an unfair labor practice when it terminated five employees over postings they made on Facebook that were critical of a co-worker. The facts, as determined by ALJ Amchan, are as follows: The posts at issue began on Saturday, October 9 - not a workday for the employees - by Mariana Cole-Rivera on her Facebook account stating "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?" This post generated a fair amount of responding posts from HUB employees, which were read by Lydia Cruz-Moore (the subject of the posts). Cruz-Moore contacted HUB Executive Director, Lourdes Iglesias, and suggested that Iglesias should terminate, or at least discipline, the five employees. On Tuesday, October 12, 2010, Iglesias met with the five employees individually about the Facebook posts and fired each of them. Iglesias explained that the Facebook posts constituted bullying and harassment in violation of HUB's policy on harassment. Iglesias also stated that Cruz-Moore suffered a heart attack as a result of the postings and HUB would have to pay her compensation (though the ALJ noted there was no evidence in the record establishing a causal connection between Cruz-Moore's health and the posts). 
 
Carlos Ortiz, one of the five terminated employees, filed an unfair labor practice charge with the Board, alleging that HUB violated Section 8(a)(1) of the NLRA, which makes it an unfair labor practice for an employer to interfere with employees' rights under Section 7 of the NLRA. Section 7 provides that "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 
 
HUB conceded that the five discriminatees were discharged solely because of the October 9th Facebook postings. Therefore, the ALJ's analysis focused on two main issues: First, whether the terminated employees' Facebook posts were protected concerted activities, and second, whether the posts constituted misconduct so egregious as to lose protection under the NLRA. 
 
ALJ Amchan held that the Facebook communications amongst the five employees were protected concerted activities. The ALJ first found that because the Facebook posts, initiated by Cole-Rivera, sought to enlist the support of fellow employees they were indeed concerted activities. Further, the ALJ noted that HUB "lumped the discriminatees together in terminating them, establish[ing] that [it] viewed the five as a group and that their activity was concerted." ALJ Amchan then went on to conclude that the concerted activities were indeed protected, even though they were not trying to change their working conditions, because the employees "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." The ALJ went on to explain that "[e]xplicit or implicit criticism by a co-worker of the manner in which [employees] are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true . . . where at least some of the [employees] had an expectation that Lydia Cruz-Moore might take her criticisms to management." 
 
Because HUB alleged that the employees' Facebook postings violated HUB's employee policy on harassment, the ALJ next considered whether the employees' actions became so opprobrious as to lose protection under the NLRA, based on the factors the Board set out in Atlantic Steel Co., 245 NLRB 814 (1979). ALJ Amchan explained that because (i) the Facebook posts were not made at work or during working hours, (ii) the subject matter concerned a protected communication, i.e., a co-worker's criticism of job performance, and (iii) the discriminatees did not engage in any type of outburst, the employees did not lose protection under the NLRA. Further, ALJ Amchan determined that nothing in the record suggested that the employees violated any company policy or procedure. 
 
Judge Amchan ordered HUB to offer the five discriminatees reinstatement to their former jobs, or a substantially equivalent position, and back pay with interest. Further, any reference to the unlawful discharges must be removed from the five employees' personnel files and the discharges may not be used against them in any way.

Non-Union Employee Lawfully Terminated For Facebook Post Unrelated to Terms and Conditions of Employment

In Knauz BMW, ALJ Joel P. Biblowitz concluded that non-union employer Knauz Motors, Inc. ("Knauz") lawfully terminated employee Robert Becker for a Facebook post about an accident that occurred at a company-owned dealership. At issue in this decision were two series of posts by Becker on his personal Facebook page. According to the decision, in the first series of postings, Becker posted pictures from a sales event hosted by the employer's BMW dealership at which Becker worked, which included comments by Becker that were critical of the food selection at a luxury car sales event. The second set of posts included pictures and commentary regarding an accident at a Land Rover dealership owned by the employer in which a customer's 13-year-old son was allowed to sit behind the wheel of a truck, while the customer was standing beside the truck and the salesperson was in the passenger seat with the door open. Ultimately, the son ran over the customer's foot, drove the truck into a pond, and the salesperson was thrown in the water. The pictures were captioned: "This is your car: This is your car on drugs." Becker then commented, "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?" Becker was terminated shortly after the postings. Becker's managers stated the termination was solely based upon the Land Rover postings and that the luxury car sales event "really had no bearing whatever...."  
 
Becker filed an unfair labor practice charge, alleging that his termination violated Section 8(a)(1) of the NLRA because it interfered with his rights under Section 7. ALJ Biblowitz assessed both sets of Facebook postings and concluded that the first set, related to the luxury sales event, was protected concerted activity for several reasons. First, Becker and a fellow employee had vocalized their concerns about the food selection at a meeting with superiors prior to the postings, and the subject was further discussed by salespersons after the meeting. Additionally, because the food "inadequacies" could have potentially had an effect upon Becker's compensation should customers have been turned off by the food selection, the postings fell within the realm of protected concerted communications.
 
With little discussion, the ALJ found that Becker was terminated solely for the second set of postings related to the accident, which the ALJ concluded were far from protected concerted activity. According to ALJ Biblowitz, the pictures and comments about the accident were posted "...as a lark, without any discussion with any other employee of the Respondent [Knauz Motors, Inc.], and had no connection to any of the employees' terms and conditions of employment." Therefore, the ALJ concluded that Knauz did not wrongfully terminate Becker. 
 
The two decisions highlight that employers in both the union and non-union context need to consider protections afforded under the NLRA before taking action against employees for social media activity. Further, New York employers should also consider employee protections under Article 7, Section 201(D) of the New York Labor Laws, often referred to as the "Legal Activities" law, which prohibits employers from discriminating against employees or potential employees based upon protected activities that occur away from the employer's place of business and outside of work hours. These protected activities include: political activities, legal recreational activities, legal use of consumable products, and membership or participation in a union. It could be argued that employee social media activity would fall within the sphere of these protections. 
 
This post was authored by Matt Lampe, Joseph Bernasky, and Michele Bradley of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

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March 26, 2012

THE NLRB'S EVOLVING GUIDELINES ON SOCIAL MEDIA ISSUES


As employers continue to grapple with use of social media by employees for business, for pleasure, and in and outside the workplace, the National Labor Relations Board (the "Board") has issued another report on social media cases (Memorandum OM 12-31), updating a prior report (Memorandum OM 11-74), which we discussed in an earlier post.  In its news release on the updated report, the Board offers two key take-aways: 

1.            "Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees."

 

2.            "An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."

 

The updated report covers 14 cases in total, which involve disciplinary action, including discharges, for employee social media activity.  The conclusions in the report demonstrate the fact-specific nature of an inquiry into whether an employer is enforcing its social media policy in a discriminatory manner, which essentially turns on whether the social media activity that is regulated through the policy is group activity protected by Section 7 of the National Labor Relations Act ("NLRA"), as opposed to individual activity (or "gripes" as they are sometimes referred to in the report).  Of the 14 cases discussed in the report, seven address whether the employer's social media policy was lawful on its face, and five of the policies addressed were found to be unlawfully broad for one reason or another.  Although the Board's news release offers the two main take-aways noted above, there are several other issues and pitfalls addressed in the report that employers need to be aware of when drafting a social media policy:

 

·        Non-Union Employees.  Both union and non-union employees' social media activities are protected by the NLRA.  The report makes no distinction between union and non-union employees in analyzing whether a social media policy is lawful on its face or in its application. 

 

·        Disparaging Comments.  The report considers several examples of policies prohibiting disparaging comments in one way or another, such as general prohibitions on "defamatory" language, "inappropriate conversations," or using "unprofessional communications," or requiring social media communications to be "professional."  The report emphasizes that these types of blanket prohibitions can chill employees in the exercise of their rights under Section 7 of the NLRA to "engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection," and were therefore found to be unlawful.  For example, the Board held that a rule prohibiting "[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media" would reasonably chill Section 7 rights because it could reasonably be construed to prohibit an employee from criticizing the employer's pay practices, and did not include any limiting language or examples of prohibited commentary.  Of course, a social media policy still needs to be consistent the employer's policies against harassment and discrimination, which is where limiting language, an issued discussed below, comes into play.   

 

·        Confidential Information.  The report's conclusions on prohibitions on discussing "confidential information" illustrate the careful balance that must be struck between an employer's duty or desire to protect certain information, such as trade secrets, non-public financial information, protected personal information, and the like, on the one hand, and an employee's right to discuss terms and conditions of employment, such as wages, on the other hand.  One policy addressed by the report prohibited employees from disclosing or communicating information of a confidential, sensitive nature, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.  The policy was found unlawful because it did not define confidential, sensitive, or non-public information and could therefore reasonably be construed to prohibit employee from discussing matters such as wages and working conditions, which may be non-public but are discussions protected by the NLRA.  Again, limiting language and explanatory definitions can remedy the issue.

 

·        Company Name, Logo, & Marks.  Many organizations seek to limit the use of their company name, logo, and trade or service marks, but the report makes clear that employees have a Section 7 right to use their employer's name or logo in conjunction with protected concerted activity, such as communicating with co-workers or the public in general about a labor dispute.  Accordingly, a policy prohibiting the use of the company name or service mark outside the course of business without approval of the law department was held unlawful. 

 

·        Media Communications.  Restrictions on communications with the media can be another difficult area to navigate.  The report explains that employees have the right to communicate with the public regarding an on-going labor dispute, and that for this reason blanket prohibitions on communicating with the media or requiring prior authorizations will be held to be unlawfully overbroad. 

 

·        Identifying the Employment Relationship.  The report found a policy that required that employees always identify themselves as the employer's employees on social media and state that their views were their own when posting about job-related matters was both (1) unlawfully overbroad, because the Board views personal profile pages as an important function in enabling employees to communicate on social media with co-workers at their own or other locations (although the Board does not explain how the policy impeded this function), and (2) unlawfully burdensome on Section 7 communications because it required employees to repeat that their views are their own in every communication.  In the context of another policy, however, the Board recognized that employers need to carefully navigate between allowing communications protected under the NLRA and the Federal Trade Commission's guidelines on endorsements and testimonials,  pursuant to which individuals who have a relationship to a company, such as employees, must disclosure that relationship when discussing the company's products or services or those of its competitors.  Thus, the Board found lawful a policy that required employees to state that their views were their own and not those of the employer when discussing "promotional content" via social media, and defined "promotional content" as communications designed to endorse, promote, sell, advertise or otherwise support the employer and its products and services, referring to the Federal Trade Commission's regulations. 

 

·        Savings Clauses.  Although the report emphasizes that limiting language can cure overbroad language in a social media policy, a general savings clause may be insufficient to render a social media policy lawful under the NLRA.  For example, one policy discussed in the report stated that "in external social networking situations, employees should generally avoid identifying themselves as the Employer's employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner."  The Board found the policy unlawful because it did not define or explain what was "appropriate," either through specific examples or limiting language, which could chill employees from criticizing the employer's labor policies, treatment of employees, or other terms and conditions of employment.  The policy had a savings clause that provided that the policy would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively though representatives of their choosing, or to engage in other concerted activities, or to refrain from engaging in such activities.  The Board concluded that an employee could not reasonably be expected to know that this language encompassed discussions the employer deemed "inappropriate" and thus the savings clause was insufficient to render lawful the otherwise overbroad policy. 

 

·        Limiting Language and Examples.  Although the report includes several examples of overbroad policies, it also includes examples of lawful policies that restrict social media communications on the above-discussed topics, but included limiting language or examples, which kept the policy within the bounds of the NLRA.  For example, a policy that prohibited social media communications that are vulgar, obscene, threatening, intimidating, harassing, or a violation of company policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status or characteristic, was held lawful because it provided examples of the egregious conduct it prohibited.  Similarly, a policy that prohibited employees from using or disclosing confidential and/or proprietary information was found lawful where it defined confidential and/or proprietary information as including personal health information about customers or patients, and "embargoed information" such as launch release dates and pending reorganizations.  The report explains that the limiting language and examples made clear that the policy was intended to protect the employer's legitimate interest in keeping certain information confidential and the privacy interests of the customers, and the prohibitions would not reasonably be understood to restrict communications protected under Section 7 of the NLRA. 

Appropriate policing of employees' social media activities is necessary given the speed at which online communications are spread, and the potential impact that such communications may have on an employer's operations and reputation.  To be sure, there are a host of legal and business concerns that need to be addressed in a comprehensive social media policy, but the two Board reports are a helpful starting place for employers looking to create or amend social media policies.   

 

This post was authored by Matt Lampe, Joseph Bernasky, and Michele Bradley of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

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