NLRB Administrative Law Judge Issues Another Social Media Decision

Posted on November 8, 2011 by Adam Santucci

On September 28, 2011, a National Labor Relations Board (Board) Administrative Law Judge (ALJ) found that an employee who was discharged for posts he made on his Facebook page was not discharged in violation of the National Labor Relations Act (NLRA). In Knauz Motors, Inc., Case No. 13-CA-46452 (pdf), the ALJ found that the employee's Facebook posts contained both protected and non-protected activity, but that the employee was terminated for only the non-protected activity. As a result, the ALJ refused to find that the employee's discharge was unlawful.

The decision involved two different threads on the employee's Facebook page. The first included "mocking and sarcastic" pictures and comments about a sales event at the car dealership where the employee worked. The employee was dissatisfied with the food selection for the event, which included hotdogs among other things. The employee expressed his displeasure about the food selection at a meeting prior to the event, and another employee voiced a similar complaint. The ALJ found that since more than one employee complained about the food, the complaints constituted "concerted" activity.

The employee later testified that he believed that the food selection would impact his compensation, a term and condition of employment, because the dealership was a luxury car dealership and serving hotdogs might offend customers. However, the employee never mentioned any connection to compensation in his complaint during the meeting or on Facebook. Nonetheless, the ALJ found that the food selection at the event, even though "not likely," could have had an effect on compensation. As such, the ALJ concluded that the employee's complaints and the Facebook pictures and comments about the sales event constituted protected activity under the NLRA.

However, the second Facebook thread, which contained pictures and comments regarding an accident at a related dealership, was not protected activity.

The accident occurred when a salesperson at the related dealership let a 13-year-old boy sit in the driver seat of a new vehicle, and the vehicle eventually began moving and crashed into a pond. The employee took pictures of the accident and posted the pictures on Facebook with commentary. The ALJ found that these posts did not constitute concerted protected activity because there was no discussion with other employees about the accident and no connection to the employee's terms and conditions of employment.

Even though the employee argued that he was terminated due to his protected activity with regard to the sales event, the ALJ concluded that the employee's termination was lawful because he was terminated for the posts regarding the accident, and not the posts regarding the sales event.

Interestingly, when the terminated employee was confronted by management with the Facebook posts, the employee reacted as many employees may react. He stated that his Facebook page was "none of [their] business." However, while the Board may go to great lengths to protect employee social media activity, as with the posts regarding the sales event, not all employee social media activity is protected by the NLRA. Some posts may, in fact, be an employer's business.

The ALJ also evaluated four of the employer's policies, which the Board's General Counsel argued were overly broad in violation of the NLRA. The ALJ found that two of the policies, Unauthorized Interviews and Outside Inquiries Concerning Employees, restricted NLRA protected activity on their face and therefore, were unlawful. The ALJ found that a third policy, titled Courtesy, which stated that "[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership," could reasonably be construed by employees as restricting their rights under the NLRA. The ALJ found that the fourth policy, titled Bad Attitude, could not reasonably be construed to prohibit NLRA protected activity and therefore, was lawful. This part of the ALJ's analysis is a reminder that employers must be careful that their policies, and not just their social media policies, do not restrict protected activity.
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First NLRB Administrative Law Judge Opinion On Employee Discipline For Social Media Use

Posted on September 20, 2011 by Adam Santucci

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.
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National Labor Relations Board Issues Social Media Report

Posted on September 9, 2011 by Adam Santucci

Recently, the Acting General Counsel of the National Labor Relations Board (Board) released a report, basically a score card, detailing the Board’s actions on 14 cases involving social media. Employee social media use has been a hot topic for the Board, for both union and non-union employers, and for us.

The Acting General Counsel’s report (PDF) is insightful and it covers a wide range of issues, including when employee social media use is protected by the National Labor Relations Act (NLRA), the permissible scope of employer social media policies, and how unions can get in trouble when using social media.

The report’s discussion of cases involving employee discipline confirms things we have previously discussed: the NLRA protects employees who engage in concerted activity from discipline, but there are limits to that protection and certain activity will lose the protection. Based on a review of the report, it seems that the Board is willing to stretch the definition of protected activity to shield employee social media activity. For example, the report indicates that the Board has found protected activity where an employee called a supervisor an “a—hole” and were an employee referred to a supervisor as a “scumbag.” It seems that the home team is getting the calls.

The report also details when employer social media policies end up out of bounds, which apparently, is quite frequently. The Board did not approve of any of the employer social policies reviewed, and found only one provision of one policy acceptable. The Board found that all of the policies were overly broad and not narrowly drawn; and therefore, in violation of the NLRA.

The report provides valuable insight into the Board’s view of social media in the workplace, and the odds that will face employers, both unionized and non-union employers alike, if employees file charges related to social media use.
 

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Another Update on Social Media and Employee Discipline

Posted on August 11, 2011 by Adam Santucci

We previously reported, the National Labor Relations Board (Board) has been very active in the area of employee social media use.  Recently, the Board's Office of General Counsel issued three (3) Advice Memorandums directing the dismissal of charges, which challenged discipline issued to employees based on the employees’ social media activity. This latest action, or inaction, by the Board offers us an opportunity to provide another update on social media and employee discipline. 

The National Labor Relations Act (NLRA) protects employees who engage in concerted activity from discipline. Board precedent defines concerted activity as (1) group action or action on behalf of other employees; (2) activity seeking to initiate or prepare for group activity, or (3) bringing a group complaint to the attention of management.  The recent announcements by the Board's Office of General Counsel shed light on the limits of the protections afforded to employees by the NLRA.

For example, in a July 7, 2011 Advice Memorandum, the Associate General Counsel (AGC) directed dismissal of a charge involving a bartender discharged via Facebook message! That’s right, the bar owner actually discharged the employee via Facebook message. The bartender had complained to his step-sister on Facebook about the fact that he had not received a pay raise and about the bar’s tipping policy. The bartender also made derogatory comments about the bar’s customers. The AGC found that the bartender had not engaged in concerted activity because while the post did address the terms and conditions of his employment, the bartender was not discussing these issues with his coworkers and there was no attempt to initiate group action.

In another case, the AGC directed dismissal of a case involving the discipline of a Wal-Mart employee who posted negative comments about his supervisor because the supervisor had criticized his work performance. Even though the employee’s post was commented on by his coworkers, the AGC found that the employee was merely griping, which is not concerted activity.

In a July 19, 2011 Advice Memorandum, the AGC directed dismissal of a charge challenging the discharge of an employee who made comments on Facebook, while at work, that mocked the mentally ill patients to whom the employee was supposed to be providing care. The AGC found no concerted activity because the employee was not communicating with coworkers, she was not discussing the terms and conditions of employment, and because she was merely having a personal conversation with a friend.

These decisions reflect that the NLRA does have limits and it will not shield all employee social media activity from discipline. Furthermore, it is important to note that in some cases, employee activity may be so inappropriate that it loses the protection of the NLRA, even if it was protected concerted activity. The Advice Memorandums summarized above did not have to address this issue because the social media activity was not protected.

While these decisions do provide some clarification for employers, they also highlight the fact-intensive nature of the analysis used to determine whether an employee has engaged in protected activity under the NLRA. Therefore, employers are still advised to seek counsel when considering possible disciplinary action for an employee based on the employee’s social media activity.
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The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree

Posted on July 18, 2011 by Adam Santucci

This post was contributed by Christopher Gibson, a Summer Associate with McNees Wallace and Nurick LLC.  Mr. Gibson will begin his third year of law school at Wake Forest in the fall, and he expects to earn his J.D. in May 2012. 

With unemployment in the United States hovering around 9.2%, human resources offices across the country are being bombarded with job applications like never before. The overworked employees of these often understaffed offices are charged with wading through a figurative sea of applications, all while dealing with the increasingly zany behavior of some applicants. According to CBS News, "[o]ne man sent a shoe to his prospective employer with a note that read, 'I want to get my foot in the door.' " Another "handed out personalized coffee cups, so no one would forget his name." In this high stress environment, some human resources professionals might see using social media as a quick and easy way of separating the wheat from the chaff – narrowing the field of possible applicants significantly in a short amount of time. But before signing into Facebook or pulling up your favorite search engine, keep in mind the immortal words of Clint Eastwood in Dirty Harry: "You feelin' lucky?"

Every human resources staff member knows that, especially when interviewing a potential new employee, some topics are strictly off limits. Asking one of these "off limits" questions can put your company at serious risk of being sued for discrimination. The trouble is, by resorting to the use of social media, this kind of "off limits" information can be collected from a potential employee even before his or her interview.

Imagine for a moment that you are the director of human resources for a mid-sized paper supply company. You receive around fifty resumes in response to a job posting to fill the position of "Assistant to the Regional Manager." One applicant – Alex Jackson – catches your eye as one of the top applicants for the job. According to Alex's resume, Alex has been working in the paper industry for around six years and has a bachelor's degree in management from a New York Ivy League school. Alex has been published in several trade magazines, is active in the community and has excellent references.

You decide to pull Alex's Facebook profile just to get a better feel for the applicant; what's the worst that could happen, right?

As you expected, what you find is fairly innocuous – Alex is a 42 year old Caucasian female who is very active in the Catholic church. She has recently married and has a one year old son. Two of her recent wall posts read, "Going out to happy hour for the fourth night in a row! Can't stop, won't stop!" and "Please pray for my mother as she recovers from her most recent bout with cancer." Eventually, your organization decides to go in another direction and Alex is not interviewed or hired for the job.

So again, what's the worst that could happen?

By reviewing the social media site, while getting almost no information relevant to the applicant, you have unwittingly exposed your organization to many different discrimination claims. Had you never pulled up Alex's Facebook profile, you would have never discovered information about her that would clearly be "off limits" in an interview.

Now, however, Alex will have a much higher likelihood of success if she decides to sue your company for discrimination. She could sue your company under Title VII of the Civil Rights Act of 1964 (based on race, religion, and gender), the Americans with Disabilities Act (based on her possible alcoholism), the Age Discrimination in Employment Act (based on her age), and the Genetic Information Non-Discrimination Act of 2008 (based on her family medical history). Again, had you abstained from using social media in your hiring process, you would have never known any "off limits" information about Alex and, consequently, she would have no case!

It is true that social media can be a great way to determine if an applicant is a good "fit" for your organization. However, like the potentially deadly fugu fish that is eaten as a delicacy in Japan, the use of social media in hiring should only be enjoyed when prepared properly. If your firm currently uses social media in its hiring process or plans to do so in the future, McNees Wallace & Nurick's Labor and Employment Group can provide guidance on developing appropriate policies and procedures to help your organization use social media in a manner that will help overcome claims of discrimination.
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An Update on Social Media and Employee Discipline

Posted on June 19, 2011 by Adam Santucci

A few months back, we reported that the National Labor Relations Board (Board) had issued a complaint against a company for disciplining an employee because she posted insulting remarks about her supervisor on her Facebook page. We subsequently reported that the complaint was settled. Since that time, the Board has remained very active in the the social media area, and has demonstrated an apparent desire to actively police that space.  The Board has issued several complaints, which send a strong message that the Board is interested in protecting the social media space for employees.

Before we move forward to discuss the Board's activity, lets first take a step back and remember that the rules of the game have not changed too much. The only difference is, the game is being played in a new arena. Since the enactment of the National Labor Relations Act (Act), employees have had the right to engage in concerted activity and to discuss the terms and conditions of employment without retribution from their employers. The right to discuss the terms and conditions of employment, includes the right to discuss wages, benefits, working hours and working conditions, and under the Board's precedent, also includes the right to complain about supervisors and managers in some cases. The Act prohibits covered employers from disciplining employees who exercise these rights.

While these employee rights have not changed, they are now being exercised in a new forum. Employees, and unions, have flocked to social media. Unions are using social media to help organizing campaigns, and employees are using social media for just about everything. As a result, conversations that used to occur in the break room and bar room now take place on Facebook or via Twitter. In the past, employers were probably not even aware that employees were discussing the terms and conditions of employment, but now these conversations on posted on the Internet, and in some cases, have a very wide audience.

When these discussions are offensive or disparaging, employers often want to take action. Understandably, employers may wish to discipline employees whose comments demonstrate a lack of professionalism or violate employer policies. However, the Board has been quick to step in and issue a complaint if, in the opinion of the Board, the employer's action has violated the Act.

The Board has issued complaints involving Facebook and Twitter, complaints involving negative comments about individual supervisors and the employer as a whole, and complaints against both union and non-union employers. As the Board's first widely publicized social media complaint demonstrates, it does not matter what the forum is, employers cannot discipline an employee for discussing the terms and conditions of employment, and social media policies cannot prohibit employees from exercising their rights under the Act. The Board seems intent on protecting employee use of social media. Importantly, however, the Board's authority ends at the outer limits of the Act. Recently, the Board dismissed a complaint involving an employee termination because the employee's inappropriate tweets did not involve the terms and conditions of employment and therefore, were not "protected activity" under the Act.

The Board's activity highlights some key points. 

First, the Board is not afraid to step into the social media fray, even though many employers themselves have not yet entered that space. Also, employers need to remember that if they are covered by the Act, whether or not they are a union or non-union workplace, they must comply with the Act's requirements. In addition, employers should have social media policies in place, but those policies cannot prohibit employees from engaging in protected activity. Finally, only certain activity is protected by the Act, not all employee social media activity is protected.

Generally speaking, these rules are not new. What is new is that employers must develop and implement a social media policy if they have not done so already. All employers need to have social media policies in place to ensure that they are not caught flat footed when the first social media issue pops up. And, if that has not happened already, it soon will. A good social media policy is written using plain language, reflects the employer's risk tolerance and culture, and provides employees guidance on appropriately using social media.

Finally, employers covered by the Act must be sure to take appropriate precautions before disciplining an employee based on content posted on a social media site. As we have seen, the Board will not hesitate to step in and issue a complaint.

 
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NLRB Issues Complaint Over Facebook Posts Mocking Supervisor

Posted on November 11, 2010 by Adam Santucci

In what the National Labor Relations Board's (the "NLRB") Acting General Counsel called a "straightforward case" under the National Labor Relations Act ("NLRA"), the Hartford Regional Office of the NLRB issued a Complaint (pdf) alleging that an employer illegally terminated an employee who posted disparaging remarks about her supervisor on her personal Facebook page. While the October 27, 2010 Complaint is only an accusation, and not a formal ruling from the NLRB, the repercussions of this action are critically important for both unionized and non-union employers.

Employees of the employer, American Medical Response of Connecticut, Inc., are represented by Teamsters Local 443. One of those employees posted negative, critical comments mocking her supervisor on her personal Facebook page. Other employees commented on the posts, which prompted the employee to make further negative statements. The employee was subsequently terminated by the employer for posting the disparaging comments on the Internet, because the posts violated the employer's social media policy. The NLRB conducted an initial investigation, and determined that there was enough evidence to warrant a hearing to determine whether the employer violated the NLRA.

The Complaint alleges that the termination violated the NLRA's prohibition against punishing employees for engaging in concerted protected activity. The NLRB Regional Director has taken the position that the employee's disparaging comments about her supervisor were protected activity under the NLRA because the employee was discussing her working conditions. Under the NLRA, employers are prohibited from punishing employees for concertedly discussing wages, benefits and other working conditions. In the NLRB's view, the fact that other employees commented on the employee's post meant that there was concerted activity by the employees.

Importantly for both unionized and non-union employers, the Complaint also alleges that the employer's policies were overly broad and restricted employees from discussing working conditions. In the view of the NLRB Regional Director, the policies alone violate the NLRA.

While this matter is only at the Complaint stage, the Complaint itself is an eye-opener for many employers and may be another sign of things to come from the NLRB. On September 9, 2010, we added a post about President Obama's appointments to the NLRB, and the likelihood that the NLRB would continue to pursue a decidedly pro-union agenda.

Unionized and non-union employers alike must be sure to review all of their policies, including their social media and internet posting policies, to ensure that the policies do not restrict employees' abilities to discuss wages, hours and other working conditions. Also, we will continue to provide updates as this case unfolds, so employers should also be sure to check back for further posts.
 

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Time to Revise Your Internet Postings and Electronic Resources Policies (Again!)

Posted on March 19, 2010 by Adam Santucci

This post was contributed by Jennifer E. Will, Esq., a Partner in McNees Wallace & Nurick LLC's Labor and Employment Practice Group. 

As social media continues to affect your business, there are a few more steps that you should be taking to protect your assets. The Federal Trade Commission has revised and posted its "Guides Concerning the Use of Endorsements and Testimonials in Advertising (.pdf)."

What does this mean for employers? You could be held liable for false or unsubstantiated statements about your Company's services or products that are made by your employees on blogs or social networking sites.

Duty to Disclose? Employees who endorse their employer's products have a duty to disclose the employment relationship at the time of the endorsement or testimonial . . . even when it is posted on a site that is NOT maintained by the employer.

Time for a Check-Up? Your current Internet Postings and/or Electronic Resources Policy should be reviewed to ensure that it puts employees on notice of their duty to disclose the employment relationship. Also, your policies should already contain guidance to employees regarding privacy rights, monitoring and the improper use/disclosure of proprietary and confidential information. 

Employers should take time now to review and update their policies.
 

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