NLRB Finds Discussions With Employees of Another Employer Can Constitute Protected Activity

As we discussed with participants in our recent Labor and Employment Law Seminar, despite recent setbacks, the National Labor Relations Board continues to issue decisions that are concerning for employers. These decisions, which impact union and non-union employers alike, often take an expansive view of the protections afforded employees by the National Labor Relations Act. In a recent case involving a complaint filed by an (alleged) independent contractor working for a non-union employer, the Board found that the contractor's electronic communications, directed at employees of a different employer, were protected by the Act because the communications constituted union organizing activity.

In New York Party Shuttle (pdf), the Board first considered whether the complaining party, a tour guide, was an employee or an independent contractor. The Tour Guide was regularly hired by Party Shuttle to provide guided tours of New York City. He also maintained his own tour company, and booked and provided tours through his own company. The Board held that Party Shuttle failed to establish that that the Tour Guide was an independent contractor. In making its decision, the Board applied a common law test that considers a multitude of factors and places the burden on the employer to establish independent contractor status. In this case, the Board found that Party Shuttle failed to establish that the tour guide as an independent contractor.

After determining that the Tour Guide was an employee, the Board turned to the next issue, the Tour Guide's termination.

The Tour Guide was hired in October 2011, and quickly became displeased with the working conditions at Party Shuttle. After one month on the job (that was fast) the Tour Guide began suggesting to other employees that they form a union. Some of these employees complained to the Party Shuttle that the Tour Guide was harassing them regarding the union issue and that he was overly aggressive and unprofessional with both coworkers and customers. After the holidays, Party Shuttle had few tours available and did not schedule the Tour Guide. In early February of 2012, the Tour Guide sent an email to his FORMER coworkers, at a completely separate tour company, complaining about the working conditions at Party Shuttle. The email contained a number of inaccurate statements about Party Shuttle. The Tour Guide later posted similar comments to Facebook. The Tour guide was given no further assignments by Party Shuttle and he then amended an earlier complaint against Party Shuttle that he had filed with the Board alleging that he was unlawfully terminated.

The Board concluded that Party Shuttle's failure to provide the Tour Guide with assignments was based on his discussions with other employees regarding union organizing. The Board was not concerned about the timing of the original complaint or Party Shuttle's argument that the Tour Guide acted inappropriately during interactions with coworkers and customers. In addition, Party Shuttle argued that the Tour Guide's statements to third parties about Party Shuttle were inaccurate and abusive. Nonetheless, the Board concluded that the Tour Guide's comments were protected by the Act, even if those comments were directed at employees of another company!

It seems that, regardless of how an employee discusses an issue or with whom, if the employee is discussing union organizing or terms and conditions of employment, those discussions will be protected. It does not seem to matter how other employees feel about the discussion, whether the discussion takes place with non-employees, or whether those discussions violate employer policies. As a result, employers must proceed with caution when attempting to address an employee discussions of the terms and conditions of employment.

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.

Current Trends in State Labor and Employment Law

This post was contributed by Tony D. Dick Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

Political and economic tensions continue to influence employment-related legislation at the state level. As we approach the halfway point in the year, there are several noteworthy trends in state employment law that you should be aware of in order to proactively address potential high risk areas for your operation and stay compliant with the law. Below is a summary of some of the hot-button issues affecting employers at the state level.

The “Ban the Box” Movement

Some 65 million adults in the United States have a criminal record. According to a recent survey, more than half of all employers utilize criminal background checks to screen out prospective employees with criminal convictions. Recognizing the high recidivism rates for convicted criminals who cannot find work, more than 3 dozen states, counties, and local municipalities have implemented “ban the box” legislation in the last couple years.

Under these laws, employers are restricted from asking about a job seeker’s criminal history on an initial application. Depending on the specific law, an employer can inquire about a prospective employee’s criminal history either during the interview phase or after a conditional offer of employment. Proponents of “ban the box” laws argue that by preventing employers from inquiring about an applicant’s criminal history on the initial application, the applicant with a criminal conviction on his record will have a higher likelihood of receiving a job interview where he can attempt to impress the employer with his qualifications and job skills. Among the states that have adopted such laws are Connecticut, Hawaii, Massachusetts, Minnesota and New Mexico. Municipalities with “ban the box” ordinances include Philadelphia, Baltimore, Boston, Chicago, Cincinnati, Cleveland, Seattle and Washington D.C.

Considering Credit History in Hiring

More than a half dozen states limit the use of an applicant’s credit history in the hiring process. Another 20 states have bills pending that would regulate employment credit checks. The majority of these proposed laws would prohibit employers from using consumer credit information in the hiring process, unless the sought-after job involves financial decision-making or the handling of sensitive information. In contrast, New Jersey’s pending bill would ban the use of credit information in any employment situation by adding financial status as a protected category under the state’s anti-discrimination law.

Social Media and Privacy

As Congress and other states debate the issue, Maryland became the first state to make it illegal for employers to ask job applicants and employees for their social media passwords, or to retaliate for an employee’s refusal to do so.
 

The issue was brought to light when a number of job applicants were not hired by the Maryland Department of Public Safety and Correctional Services after providing their Facebook login credentials to the department. The department contended it was searching for gang affiliations, but finding none, it still found cause on the applicants’ Facebook pages not to hire them. The department eventually voluntarily dropped the practice.

Other states with similar pending legislation include California, Illinois, Michigan, Minnesota, Missouri, New York, New Jersey, South Carolina and Washington.

Sexual Orientation Discrimination

As it stands, Title VII does not prohibit discrimination on the basis of sexual orientation. However, an increasing number of states and local municipalities are amending their anti-discrimination laws and ordinances to protect homosexuals from workplace discrimination and harassment. Currently, 21 states prohibit sexual orientation discrimination under state anti-discrimination statutes, while 16 also protect gender identity.

E-Verify and Immigration Status

E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, to determine the eligibility of that employee to work in the United States. The program is free and, for most employers, it is completely voluntary. However, 17 states specifically require employers to use E-Verify in at least some circumstances. For example, in Arizona, all employers are required to use E-Verify to determine the eligibility of their employees. In Florida, only state contractors and subcontractors must use the system. A whole host of states have varying E-Verify proposals pending.

Mandatory Paid Sick Leave

In 2011, Connecticut became the first state to pass legislation mandating paid sick leave. Under the law, most service industry employers with more than 50 employees are required to provide paid sick leave to each of their service workers who have worked a minimum of 680 total hours and averaged at least 10 hours of work per week in the previous quarter. Qualifying employees get one hour of paid sick leave for every 40 hours worked, up to 40 hours of paid sick leave per year. San Francisco, Milwaukee, Seattle and the District of Columbia have also passed mandatory paid sick leave bills in recent years. Philadelphia passed a bill that takes effect on July 1 which amends the city’s minimum wage and employee benefits ordinance to require employers who contract with or receive financial assistance from the city to provide full-time employees who work on those contracts or projects with paid sick days. A much broader paid sick leave bill was vetoed by Philadelphia’s mayor last year. Arizona, Massachusetts, Hawaii, Pennsylvania, Wisconsin and Washington are among the states currently considering their own paid sick leave legislation.

Workplace Bullying

Although there are currently no state laws that prohibit general workplace bullying, 13 states, including New York, Massachusetts, Illinois, Wisconsin, and Washington, are considering such legislation. In contrast to Title VII, which requires workplace harassment to be based on some particular protected trait to be actionable (e.g. race, sex, national origin), each of the proposed bills would prohibit abusive conduct, regardless of the worker’s protected status, so long the conduct was sufficiently deliberate and offensive. Employers and their allies have been able to turn back previous attempts to pass similar legislation arguing that it would encourage frivolous lawsuits and force employers to act as a sort of civility police. It remains to be seen whether any of the pending legislation gains any traction.

Conclusion

Employers must stay current on these ever-changing employment law trends, and we will continue to keep you up-to-date on these issues.  In addition, we will be hosting our Annual Labor and Employment Law Seminar on June 1, 2012, which will cover labor and employment law developments and trends.  You can obtain more information about our seminar and register by  clicking here (pdf)

Is there a way to safely use social media in the interview process?

Thanks to recent headlines about the increase in employers demanding social media passwords of employees and job applicants, employers have gotten a quick lesson on the increased the risks of this practice, especially if the employer neglects to have the proper policies and procedures in place.

For organizations who still insist on reviewing social media data to determine whether an applicant would be a good fit in their organization, they can start by appointing a social media screener not involved in the decision-making process. Also, the employer should implement a policy and procedure to identify who will be involved in the decision, what data will be collected, when it will be collected and from what sites, and how the data will be communicated to the hiring manager.

This video is also posted on www.JDSupra.com.

How to screen job applicants without asking for the Facebook password

There has been a lot of backlash against the practice of employers asking potential employees for their Facebook password. So much so that U.S. senators are calling on the EEOC and the U.S. Department of Justice to launch an investigation to determine whether this practice is lawful. Facebook is also weighing in and threatening legal action against employers who engage in this practice.

Employers can avoid the current controversy by using other less risky approaches to screen applicants. One such practice is to conduct a thorough background check that complies with the Fair Credit Reporting Act. Be sure to disclose the background check to the applicant, receive authorization in writing, and use the information the applicant directly provides to you to minimize legal liabilities and inaccurate results.

 

 

You can also view this video at www.jdsupra.com

Go ahead and ask for the Facebook password, IF...

Bottom line: There is nothing unlawful about an employer requesting that an applicant voluntarily provide a Facebook password. (Check out the site's policies though - that practice may violate Facebook's terms and conditions of use.)

However, such practice may open a Pandora's box of potential liability for employers who proceed without appropriate policies, procedures and safeguards in place. Among a host of other legal concerns, an applicant may claim that he or she was coerced into providing the log-in information in violation of the federal Stored Communications Act or a state law equivalent.

Best practice? Ensuring that policies and procedures are in place, and flexible enough to protect your organization from the pitfalls of social media in the workplace will be critical to defending claims that may arise following the adoption of these types of practices.

You can also view this video at www.jdsupra.com

 

First NLRB Administrative Law Judge Opinion On Employee Discipline For Social Media Use

On September 6, 2011, the National Labor Relations Board (Board) announced that a Board Administrative Law Judge (ALJ) had issued the first decision involving employee social media use. We previously reported that the Board has been very active in this area, issuing complaints and guidance, but this is the first actual decision from a Board ALJ. In the decision, Hispanics United of Buffalo (PDF), the ALJ ruled that the non-profit employer unlawfully discharged five employees after the employees posted comments on Facebook.

The ALJ first found that the small non-profit organization (which after the terminations at issue had only 25 employees) was covered by the National Labor Relations Act (NLRA), even though the organization operated only in the Buffalo, New York area. The ALJ went on to hold that the employees' Facebook comments amounted to concerted protected activity under the NLRA, and as such, their comments were shielded from discipline.  The ALJ concluded that the terminations were therefore unlawful, and ordered the employees reinstated with back pay.  

The facts are as follows:

An employee of Hispanics United of Buffalo, Inc. (HUB), who we will call the “Targeted Employee,” was repeatedly critical of her coworkers, because she believed that the coworkers did not provide adequate services to HUB’s clients. In October 2010, one of the criticized employees complained about the Targeted Employee on Facebook, and several of her coworkers commented on the post, which used the Targeted Employee’s name. Different people will likely have different views of the Facebook posts, but there is no dispute that the comments included vulgar language, sarcasm, and in my opinion, inappropriate comments that were critical of HUB’s clients.

The Targeted Employee sent a text message to HUB’s Executive Director complaining about the Facebook posts, which she believed constituted “cyber-bullying.” A few days later, the Executive Director terminated the five employees that were involved in the Facebook discussion. The Executive Director determined that the comments violated the HUB’s harassment policy.

After a hearing, the ALJ concluded that the Facebook discussion was concerted protected activity under the NLRA. The ALJ found that the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels (even though there was no mention of inadequate staffing and none of the employees claimed that they actually performed their jobs satisfactorily).

The ALJ also found that the vulgar language and sarcastic remarks were not sufficiently inappropriate to lose the protection of the NLRA. The ALJ held that the some of the employees did not use the Targeted Employee’s name, that the posts were not made from HUB computers, and that the comments were not really in violation of the HUB harassment policy.

The ALJ commented that “regardless of whether the comments and actions of the five terminated employees took place on Facebook, or ‘around the water cooler’ the result would be the same.”  But interestingly, the ALJ held that because the comments were not made in the workplace, even though they were viewed by several coworkers and a member of HUB’s board of directors, they were less egregious. Some might argue that posts on the Internet can be far more detrimental to an organization than passing comments “around the water cooler,” since the posts may be viewed by anyone, such as clients, customers, and board members, and the posts may remain available for viewing for a long period of time.

Nonetheless, the ALJ concluded that the employees were unlawfully terminated for engaging in concerted protected activity, and therefore, he ordered all five employees reinstated with back pay and interest.

This first ALJ decision is important because it serves as a reminder that the Board has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.  All employers, whether unionized or not, must be sure to conduct a thorough investigation before issuing disciplinary action, particularly if that disciplinary action will be based on an employee’s social media use. The investigation should document exactly what was said, who said it, when it was said, who may have viewed the posts, and whether or not the comments involved "terms and conditions of employment." As this case illustrates, that phrase may be interpreted broadly.

NLRB Settles Facebook Complaint

On November 11, 2010, we reported that the Hartford, CT Regional Office of the National Labor Relations Board (NLRB) issued a Complaint alleging that an employer illegally terminated an employee who mocked her supervisor on her personal Facebook page. Our post can be viewed by clicking here.

On February 7, 2011, the NLRB announced that it had settled the Complaint with the employer. Importantly, under the settlement, the employer agreed to revise its Internet posting policy, which the NLRB had alleged was overly broad and improperly restricted employees from discussing their wages, hours and working conditions with co-workers and others while not at work.

While this settlement was reached at the "Complaint" stage and did not established NLRB precedent, the Complaint itself is clearly an indication of how the NLRB views employees' use of social media. Therefore, all employers, both unionized and non-union, should review and consider revising their electronic resources and Internet postings policies to ensure that those policies would not be viewed as overly broad or overly restrictive if challenged. 

Employers should Protect Registered Trademarks and Company Names from Appropriation on Facebook

On June 9, Facebook, the social networking website, publicly announced that beginning Saturday, June 13 at 12:01 a.m. U.S. EDT, it will allow users to adopt personalized username URLs (e.g., facebook.com/yourname). Trademark owners who want to prevent their trademarks from being registered as a Facebook username URL by another Facebook user should take action as soon as possible and preferably before Saturday.

According to a release by our Intellectual Property Group, it is suggested that once a URL is assigned to a user it cannot be transferred, and under the new Facebook policy it can never be used again, even by the rightful owner of the trademark. Trademark owners who might someday consider marketing through Facebook are encouraged to reserve their trademarks before Saturday, June 13 when the general registration opens.

Trademark owners can reserve their trademark on the Facebook platform by submitting relevant information to Facebook through its trademark protection contact form, available at Preventing the Registration of a Username | Facebook. It appears that a separate form is required for each trademark and registration number. Facebook promises to then advise the trademark owner when the username URL is available for the owner to adopt.