Board Continues Aggressive Policing of Employee Social Media Use

This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Stop me if you heard this one: the National Labor Relations Board recently reinstated employees who were discharged for comments made on their Facebook pages and found that the employer's social media policy was unlawful.

We have covered this topic in detail before (herehere and here for example), and you can check out these posts and others in our Archive for some background information on the Board's aggressive approach to social media issues. In Triple Play Sports Bar and Grille, the Board made clear its position that under the National Labor Relations Act, employees have the right to act together to improve the terms and conditions of their employment and to "improve their lot." The Board went on to state that this includes the right to use social media to communicate with each other and with the public for this purpose.

On the other hand, the Board also noted that online communications can implicate legitimate employer interests, including the right to maintain employee discipline. The Board noted that the competing interests of the employees and the employer must be weighed carefully (yes, you know where this is headed). In this case, not surprisingly, the Board found that the employees' interests outweighed the employer's interests and that the employees' conduct did not lose the protections of the Act despite the use of some pretty offensive language.

Let's take a look at the facts.

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Facebook Discussion About "Street People" Protected

In a recent decision involving employee social media activity, the National Labor Relations Board held that a high-end clothing boutique in San Francisco violated the National Labor Relations Act when it terminated employees who complained on Facebook about working late at night in an unsafe neighborhood. The Board also found that a policy in the employer's handbook prohibiting disclosure of wage and compensation information was unlawful.

The employees at issue in Bettie Page Clothing (pdf) raised concerns to the store manager and others about the store's hours, which required that the employees close the store after dark. The employees were concerned about being harassed by "street people" after closing up. When the employees' internal complaints were not successful in having the store hours changed, the employees criticized the store manager during multiple discussions on Facebook. Shortly after the posts, the employees were terminated.

The employees filed a complaint with the Board challenging their terminations. The Board affirmed the decision of an Administrative Law Judge (ALJ), holding that the employees' complaints and sarcastic remarks about the store manager on Facebook were a discussion about the terms and conditions of employment. The Board stated that the discussions about the manager's refusal to address their concerns over store hours were "classic" concerted protected activities, and therefore, the employees' terminations based on those discussions were unlawful. The Board ordered the employees reinstated.

In addition, the Board affirmed the decision of the ALJ finding that the policy in the employer's handbook that prohibited the disclosure of wage and compensation information violated Section 7 of the Act. The Board ordered the employer to rescind the policy.

As we have discussed in the past, the Board continues to take a hard line when it comes to employee discipline for social media activity. The Board has made clear its position that discussions on Facebook are the equivalent to discussions around the water cooler, but I am not sure I agree. For example, discussions around the water cooler typically do not create electronic records and have a worldwide audience. Only time will tell whether the Board's decisions in this area will be affirmed by the courts.

Please also keep in mind that it appears that the Board has been reviewing employer policies with increased scrutiny. If you haven't done so already, it is a good time to proactively review your policies to ensure compliance with the Act.
 

Board Affirms Decision Ordering Reinstatement of Employees Terminated for Facebook Comments

On September 20, 2011, we reported on Hispanics United of Buffalo, Inc., the first National Labor Relations Board Administrative Law Judge decision examining an employee's discharge for social media activity. Recently, the Board made Hispanics United its second decision examining protected, concerted activity involving Facebook, and held that the employer violated the National Labor Relations Act when it discharged five employees for criticizing another employee on Facebook. Although examining a new media, the Board stated that it was relying on established precedent to find that the activity in question was for “mutual aid or protection” within the meaning of Section 7 of the Act. Accordingly, the Board affirmed the ALJ's decision ordering reinstatement of the discharged employees.

The employees who were discharged were discussing another employee who had often criticized the job performance of her coworkers. One of those employees initiated a discussion of the criticism online, and several other employees vented in a thread on Facebook. The discharged employees essentially stated that the criticism was unfair because of staffing and other concerns. The employee who was the target of the Facebook thread complained to Hispanics United's executive director, and after an investigation, the employees who engaged in the discussion were terminated for violated Hispanics United's harassment policy.

The Board stated that in determining whether rights under the Act are implicated, one must consider all of the facts and circumstances. Unfortunately, this directive does not offer much guidance for employers. Needless to say, employers must continue to be careful and must evaluate all available information before discharging an employee based on his or her social media activity.
 

Discharge Over Facebook Posting Lawful

On November 8, 2011, we reported that a National Labor Relations Board Administrative Law Judge issued an interesting decision involving an employee who was discharged for posts he made on his Facebook page. The ALJ found that the employee was not discharged in violation of the National Labor Relations Act, because even though some of the employee's Facebook posts were protected, the employee's termination was based on only non-protected posts. Recently, the Board upheld the ALJ's decision, providing helpful guidance to employers on the limits of the NLRA's protections.

On September 28, 2012, the Board affirmed the ALJ's decision in Knauz Motors, Inc. (pdf) The key question was whether the employee was fired for engaging in "concerted protected activity" under the NLRA. At issue were two Facebook posts made by the employee. The first included "mocking and sarcastic" pictures and comments about a sales event. Apparently, the employee was dissatisfied with the food selection for the event, which included hot dogs and water. The ALJ found, and the Board agreed, that since the food choices could impact the employee's commissions, which were a term and condition of his employment, the pictures and mocking comments were "concerted protected activity."
 

The ALJ and the Board took a different view of the second set of Facebook posts, which contained pictures and comments making fun of an accident at a related dealership. The accident involved a 13-year-old boy who was behind the wheel of a vehicle that crashed into a retaining pond. The employee posted pictures of the accident and made some inappropriate comments. The Board affirmed the ALJ's conclusion that these posts did not constitute concerted protected activity because there no was connection to the employee's terms and conditions of employment. Ultimately, the ALJ and the Board held that the employee's discharge was not a violation of the NLRA because he was terminated for the non-protected posts, and not the posts regarding the sales event.

The Board also agreed with the ALJ that some of the employer's policies were overly broad in violation of the NLRA, including the employer's Courtesy Policy. The Courtesy Policy provided: 

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image of the Dealership.

The Board held that the prohibition on "disrespectful" conduct and "language which injures the image or reputation of the Dealership" could be construed to prohibit protected activity, and therefore, was unlawful.

While there is some good news in the Knauz Motors decision, specifically that there are limits to the protection afforded to employees who take to Facebook to mock their employers, there continues to be frustration regarding the broad reading of the NLRA. As a result of the Knauz Motors decision, some employers may need to update their policies, again.

Employer Takeover of Employee's LinkedIn Account Does Not Violate Federal Computer Hacking Law, Question of Ownership Remains

Given the popularity of Facebook, Twitter, and LinkedIn, more and more organizations are resorting to social media sites to promote their brands and manage their public profiles. Employers are also encouraging employees to open social media accounts to carry out marketing and networking objectives. As corporate and professional social media use increases, so is the frequency of lawsuits challenging just who owns such social-networking accounts and content—the company or the employee who maintains them. A federal judge is being asked to address this very issue in a case involving a Pennsylvania woman’s claim that her former employer violated the Computer Fraud and Abuse Act (CFAA) when it took control of her LinkedIn account after she was fired (pdf).

Linda Eagle was co-founder and president of Edcomm, a bank consulting and training company. In 2008, Eagle created a LinkedIn profile; she used the profile to promote Edcomm’s services, foster her reputation, reconnect with friends and colleagues, and build her personal and professional network. Eagle shared the account password with another employee, who assisted Eagle in maintaining the LinkedIn profile. In 2011, following a change in ownership, Eagle was fired. After her termination from Edcomm, Eagle attempted to access her LinkedIn account, but was unsuccessful. Edcomm, using Eagle’s password, had accessed her account and changed her password so as to restrict Eagle’s access. In addition, Edcomm removed Eagle’s name and picture and posted information on the new executive who was hired in her place. Three weeks later, Eagle was able to regain access to her LinkedIn account.

Eagle then sued, claiming that the unauthorized takeover of her LinkedIn account violated the CFAA, caused her to lose potential business contacts and future revenue, and damaged her reputation. In response, Edcomm filed a counterclaim alleging that it had maintained and monitored the LinkedIn profile for the company’s benefit, that it was the rightful owner of the account, and that Eagle misappropriated the account for personal use.

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