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McDermott Predictions for 2015 on Employee Social Media Accounts

by McDermott Will & Emery | Feb 19, 2015 | Employment, Privacy and Data Security

In 2015, I predict an increased focus on employees’ rights regarding their personal social media accounts. Since 2012, individual states have enacted laws prohibiting employers from requesting access to their employees’ (or job applicants’) personal social media accounts. In 2014 alone, six states enacted such laws, bringing the total number of states with this type of legislation to 18. (Click here for additional analysis of the impact of these laws on employers.)

In addition to individual states’ laws, I expect clarification on a national level regarding employer policies and actions related to employees’ personal social media accounts. In the past year, the National Labor Relations Board (NLRB) has started to focus on whether employer policies regarding employee social media accounts are consistent with the National Labor Relations Act (“Act”). The Act prohibits employers from interfering with employees who come together to discuss their employment for the purpose of collective bargaining or other mutual aid or protection. According to the NLRB, employees’ comments on their personal social media accounts can constitute protected activity under the Act. One recent NLRB case involved two employees who posted on their Facebook accounts about the employers’ alleged failure to correctly withhold taxes from their paychecks. The employer terminated the employees because of their comments on their personal social media accounts. The NLRB found that the employee’s comments were protected under the Act, ordered the employer to reinstate the employees, and ordered the employer to clarify its social media policy. The employer is now appealing the NLRB’s determination in court.

I predict not only that more states will enact employee social media account legislation, but also that the NLRB and the courts will provide more guidance on employer restrictions or sanctions related to employee social media use.

Acting General Counsel of the NLRB Issues Second Report on Social Media

by Jackie Sinn | Jan 27, 2012 | Employment, Labor, Privacy and Data Security

by Heather Egan Sussman, Linda Doyle and Sabrina Dunlap

On Wednesday, January 25, 2012, National Labor Relations Board (NLRB) acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office. The report (Operations Management Memo) addresses 14 cases related to social media and employer social media policies.

Many of the cases reviewed involved employees who had been discharged after they posted comments on Facebook. The general counsel found that a number of the terminations were improper because employees had engaged in protected activity and their terminations arose from unlawful employer policies. However, the general counsel upheld several terminations – despite overly broad employer policies – where the employees involved were not engaged in protected activity and had merely posted general complaints or individual gripes unrelated to working conditions or wages.

The report emphasizes two key points made in an earlier report in August 2011: 1) Employer policies should not be so broad that they prohibit activity protected by federal labor law, such as the discussion of wages or working conditions; and 2) an employee’s comments on social media sites will generally not be protected if they are simply complaints unrelated to working conditions or wages that impact a group of employees.

There are three cases involving social media questions currently pending before the NLRB and those decisions will likely give further guidance on acceptable employer social media policies.

In addition, McDermott partner Heather Egan Sussman will be speaking with Lafe Solomon, and Edward Loughlin (EEOC) on this topic at the International Association of Privacy Professionals (IAPP) Global Privacy Summit, Wednesday, March 7, 2012.

ALJ Finds Employee’s Facebook Comments Unrelated to Working Conditions are not Protected Under the NLRA

by McDermott Will & Emery | Oct 17, 2011 | Employment, Labor

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap

Two weeks ago, we wrote about a decision from an Administrative Law Judge (ALJ) (available here) finding that the National Labor Relations Act (NLRA) protected an employee’s Facebook comments made about his employer. Last week, an ALJ issued another decision involving social media and the NLRA, finding that an employee had engaged in some protected activity, but that he was ultimately fired for other, unprotected activity. In Karl Knauz Motors, a former salesperson claimed that he was fired after he posted pictures and comments on Facebook criticizing his employer’s choice of serving hot dogs at a sales event introducing the new BMW 5-series. The National Labor Relations Board (NLRB) recently issued a report related to social media (found here), in which it noted the employee’s posts in the BMW case were protected activity because they related to the terms and conditions of employment.

While the ALJ agreed that the employee had engaged in protected activity in discussing the sales event, the Judge held that the employer actually terminated the employee for his other Facebook posts, which mocked a co-worker for allowing a teenager to test drive a Land Rover, who ultimately drove the car into a nearby pond. The Judge found that the NLRA did not protect such a posting because it had no connection to the terms and conditions of employment, and was posted solely by the employee, not as part of a discussion with other employees. Therefore the employer did not violate the NLRA when it fired the employee.

In addition to the Facebook postings, the Judge also considered whether four provisions of the employer’s handbook violated Section 7 of the NLRA. The Judge dismissed the complaint regarding a provision that encouraged employees to have a good attitude at work, because it could be read to protect the relationship between the dealer and its customers, rather than to restrict employees’ Section 7 rights. However, the Judge held that the three remaining provisions, which each limited employees’ right to speak about employment, violated the NLRA because they all could be read as curtailing employees’ Section 7 rights, and if employees complied with these restrictions, they would not be able to discuss working conditions with union representatives or lawyers.

Based on this ALJ decision, employers should continue to exercise caution when making employment decisions based on social media comments. There continues to be a fine line between protected activity and unprotected activity when it comes to employees’ social media comments about their employers. In addition, employers should review and possibly revise their handbooks to ensure they cannot be read as restricting employees’ Section 7 rights.

Administrative Law Judge Finds Employer Unlawfully Discharged Employees Based on Facebook Posts

by McDermott Will & Emery | Sep 22, 2011 | Employment, Labor

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap

In a first of its kind ruling, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) found that an employer unlawfully terminated five employees because they posted comments on Facebook related to working conditions. This is a landmark decision because, up to this point, employers have only been able to rely on the prosecution trends of the General Counsel’s office, including a recently issued report on the topic, and not actual decisions by the adjudicative body of the NLRB.

This landmark case involved an employee of Hispanics United of Buffalo (HUB) (a nonunionized organization), who posted a message on Facebook sharing critical comments made by a coworker concerning employees’ poor job performance and asking for the employees’ reactions. Five employees commented on the post, defending their job performance and criticizing the critical employee and their working conditions, including work load and staffing problems. HUB later discharged the Facebook poster and the employees who responded to the post, stating that their comments constituted harassment of the critical coworker.

Based on an unfair labor practice charge filed by one of the employees, the NLRB’s Buffalo Regional Director issued a complaint in May 2011. The ALJ heard the case in July and, on September 2, issued a written decision finding that the employees’ Facebook posts were protected concerted activity under Section 7 of the National Labor Relations Act (NLRA) because they concerned a conversation among coworkers about the terms and conditions of employment and the employees’ conduct was not sufficiently inappropriate as to lose the protection of the NLRA. The ALJ awarded the employees back pay and ordered HUB to reinstate the five employees. The ALJ also ordered HUB to post a notice at its Buffalo facility explaining to employees their rights under the NLRA and committing not to violate those rights in the future.

While NLRB complaints related to social media have been on the rise, this is the first ALJ decision specifically addressing employees’ use of Facebook. As a result, employers are wise to consider the ALJ’s decision when disciplining employees based on social media activity.

NLRB Releases Report on Social Media Decisions

by McDermott Will & Emery | Sep 20, 2011 | Employment, Labor

by Sabrina E. Dunlap, Stephen D. Erf and Heather Egan Sussman

In April 2011, we issued a blog post outlining some of the National Labor Relations Board’s (NLRB) decisions regarding employee use of social media (the post can be accessed here). In an effort to provide guidance on the issue, the Acting General Counsel of the NLRB (General Counsel) recently issued a report (found here) addressing cases from the past year arising in the context of social media use. The report uses 14 cases to illustrate how the General Counsel’s office determines that use of social media qualifies as protected concerted activity, and when the mere contents of an employer’s social media policy can give rise to liability under the National Labor Relations Act (NLRA), even when an employer’s employees are not represented by a union.

While the distinction between protected and unprotected activity on social media sites is not always obvious, several trends emerge from the illustrative cases, providing guidance on when the General Counsel’s office (the prosecution arm of the NLRB) will conclude that activity is protected. For example, in cases where the employee discussed his or her social media posts with other employees, or had discussions with coworkers and subsequently drafted a post based on such discussions, the General Counsel’s office tended to deem this “protected concerted activity” such that an employee could not be disciplined for the conduct. By contrast, when employees did not discuss posts with coworkers, or where an employee’s posts were merely “individual gripes” containing no language suggesting an attempt to engage other employees into group action, the General Counsel’s office generally concluded there was not protected activity, and the resulting disciplinary action did not violate the law. One case involving inappropriate and offensive “tweets” by an employee about his employer did not involve protected concerted activity because the tweets did not relate to the terms and conditions of employment, and again, did not seek to involve other coworkers in issues related to employment.

As for the content of workplace social media policies, the key takeaway from the report is that employers should avoid using overbroad terms that could be construed to prohibit protected concerted activity. For example, the General Counsel’s office has taken issue with policies barring comments compromising the “privacy or confidentiality” of a coworker or that could “damage the reputation” of the employer, or that could “put your job in jeopardy,” because the terms were not defined in the policies. As a result, the General Counsel’s office concluded that the undefined terms could “reasonably be interpreted as prohibiting protected employee discussion” of the terms and conditions of employment, which would be unlawful.

However, the General Counsel’s office declined to prosecute an employer based on its policy that prohibited employees from “pressuring” coworkers to connect or communicate via social media, finding that this restriction could not be reasonably read to restrict protected activity. Similarly, the General Counsel’s office concluded that policies limiting employee contact with the media in an effort to ensure a [...]

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NLRB Releases Poster For Posting By November 14, 2011

by McDermott Will & Emery | Sep 15, 2011 | Employment, Labor

by Heather Egan Sussman, Sabrina E. Dunlap and Stephen D. Erf

As an update to our previous blog entry, the National Labor Relations Board (NLRB) has released the private employer notice of rights under the National Labor Relations Act (NLRA). As of November 14, 2011, covered employers must post the 11-by-17-inch notice in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. The NLRB states that employers also should publish the notice on an internal or external website if other personnel policies or workplace notices are posted there.

The NLRB has also posted Frequently Asked Questions on the posting requirement, which covers topics such as when employers are covered by the NLRA, and what to do if a substantial share of the workplace speaks a language other than English.

NLRB Issues Final Rule on Notification of Employee Rights

by McDermott Will & Emery | Aug 30, 2011 | Employment, Labor

by Stephen Erf and Heather Egan Sussman

The National Labor Relations Board (NLRB) issued a final rule requiring private sector employers to notify employees of their rights under the National Labor Relations Act. The Rule requires private sector employers who fall under the National Labor Relations Act to post the employee rights notice in conspicuous places at where other workplace rights notices are usually posted. The new notice states that employees have the right to act together to improve working conditions and wages, to form, join and assist unions, to collective bargaining, or to refrain from any of these activities. The notice also provides examples of illegal conduct and tells employees how to contact the NLRB with questions or complaints.

NLRB regional offices will provide the notice of rights at no charge, or the notice can be downloaded from the Board website and printed in color or black and white. Translated versions, which will also be available, must be posted at workplaces where at least 20 percent of employees are not proficient in English. Employers must also post the notice on intranet or an internet sites if other rules and policies are typically posted there.

Failure to post the notice will be treated as an unfair labor practice and, if an unfair labor practice charge is filed by a person or union, will trigger an investigation and adjudication by the National Labor Relations Board that could lead to the investigation of other issues, as well. Additionally, the failure to post the notice may have the effect of extending the time for the filing of an unfair labor practice charge on unrelated issues (i.e. permit the prosecution of an otherwise time-barred unfair labor practice charge) and permit the NLRB to infer that a knowing and willful refusal to post the notice is evidence of an unlawful motive in cases in which motive is an issue.

The Rule is scheduled to be posted in the Federal Register by August 30, 2011, and will take effect 75 days after that, on November 14, 2011.

Recent NLRB Activity Zeroes In On Social Media Policies

by McDermott Will & Emery | Apr 20, 2011 | Employment, Labor, Privacy and Data Security

by Stephen D. Erf, Heather Egan Sussman, Christopher Scheithauer and Sabrina E. Dunlap

The law is not new – it’s just being applied to our newest forms of communication: Twitter, Facebook and others. Even the legal framework is relatively straightforward: Section 7 of the National Labor Relations Act (NLRA) protects “concerted activities,” which include circumstances where employees seek to “initiate or induce” group action for “mutual aid or protection.” In today’s workplace, activities such as blogging, or posting messages on social networking websites, can be considered concerted activity, and unless the activity falls within one of the exceptions to the NLRA’s protections (e.g., confidentiality breaches, extreme disloyalty, etc.), the law limits an employer’s control over what employees may write and post.

In one recent case, the National Labor Relations Board (Board) accused American Medical Response of Connecticut Inc. (AMR) of violating Section 7 when it terminated an employee for allegedly criticizing her boss on Facebook. In its complaint against AMR, the union argued that the company had been interfering with, restraining and coercing employees in exercising their protected rights under Section 7 of the NLRA. The parties reached a settlement on the eve of trial, which required AMR to clarify and narrow its policy.

Even more recently, the Board’s Manhattan office has announced plans to file a complaint against Thompson Reuters over its Twitter policy. In 2010, an employee reportedly tweeted in response to a management inquiry, “One way to make this the best place to work is to deal honestly with [union] members.” The Board claims the company then improperly disciplined her pursuant to the Twitter policy by chastising her for making the statement.

While we will have to wait for the complaint to see exactly what the Board takes issue with (and the company denies the allegations), this case involves a union, so it is easier for an employer to see the potential for NLRA landmines in that workplace. But what many employers do not realize is that Section 7 applies equally to nonunionized workforces.

In the wake of these NLRB complaints, what does this mean for all U.S. employers? If you have not already done so, you should be reviewing your social media policy:

You CAN prohibit employee’s use of social media during work time.
You CANNOT include a blanket prohibition on critical comments.
You CAN prohibit disparaging comments about company products or services.
You CANNOT ominously threaten sanctions or termination for activities that could arguably be protected.
You CAN take a tone that focuses more on using good judgment and common sense.

In addition, an overly broad or vague policy alone may violate the NLRA, so you should consider taking steps now to narrow and clarify your policy to avoid becoming the next Board target.

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