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 report is summarized on our blog.
Continue Reading National Labor Relations Board Issues Social Media Report

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. 


Continue Reading An Update on Social Media and Employee Discipline

On March 1, 2011, the United States Supreme Court again increased employers’ exposure to employment discrimination claims. In Staub v. Proctor Hospital, 562 U.S. ___ (2011) (pdf), the unanimous Court concluded that employers may be held liable for unlawful discrimination if a lower level supervisor influences an adverse employment decision, even if the decision is

This post was contributed by Samuel N. Lillard, Of Counsel, and Anthony D. Dick, an Associate, members of McNees Wallace & Nurick LLC’s Labor and Employment Practice Group in Columbus, Ohio.

According to recent estimates, upwards of 90 percent of employers monitor employee workplace activity in some way or another. The appeal is obvious. When done properly, monitoring can help companies increase productivity and efficiency, protect assets and proprietary information, and identify and hopefully prevent harassing conduct, libel, employee theft, vandalism, hacking, and other inappropriate behavior. But when companies overstep permissible boundaries, their monitoring efforts can have severe legal and financial consequences. There are a substantial number of cases, including several recent decisions, where companies have learned the hard way that their right to monitor employees’ work activities has limits.

For example, in Hernandez v. Hillsides, Inc., 47 Cal.4th 272 (2009) (pdf), the employer, in a legitimate effort to determine who may have been viewing pornography on a work computer late at night, placed surveillance cameras in certain employees’ offices without the employees’ knowledge. Instead of catching the offender, the employer captured images of employees changing their clothes for post-work workouts, female employees viewing their pregnancy scars, and other private activities. In ruling against the employer, the California Supreme Court held that although employees’ right to privacy in work offices is not absolute, they have “a reasonable expectation of privacy under widely held social norms that the employer would not install video equipment capable of monitoring and recording their activities – personal and work-related – behind closed doors without their knowledge or consent.”

In a recent New Jersey case, Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009) and Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), two restaurant servers created a password protected MySpace page where they and certain fellow co-workers could go to vent about the trials and tribulations of working in a restaurant. A supervisor learned of the MySpace page and pressured an employee with access to give him the password. Once on the site, the supervisor found messages that included sexual remarks about members of management and customers and references to violence and illegal drugs. The two servers who created the page were terminated and subsequently sued under stored communications laws that limit which individuals may access stored electronic communications. The trial court denied summary judgment to the employer holding that the restaurant’s employee monitoring authority did not include private online communications on a social network outside of work. The two employees subsequently won a small jury verdict.

The U.S. Supreme Court is set to decide a public sector employee monitoring case in its current session. In City of Ontario v. Quon, 529 F.3d 892 (9th Cir. 2008), cert. granted Dec. 14, 2009 (pdf), City of Ontario SWAT officers were given police-department-owned pagers that allowed them to send text messages. They were told in a meeting that the text messages would be treated like e-mails under the City’s employee monitoring policy and that the City would have the right to review such messages at any time to determine whether the pagers were being used for personal purposes. Despite the representations made in the meeting, officers received mixed messages from supervisors and other staff members as to whether the City would actually ever review the messages. Sgt. Jeff Quon, an officer who was issued a pager, used it on numerous occasions to send sexually explicit text messages to his wife and mistress. At some point, the City of Ontario requested Quon’s transcripts from the wireless provider without his permission and read the personal messages. Quon sued claiming the City violated his Fourth Amendment right against unreasonable searches. The lower court ruled in favor of the City. The appellate court reversed. The Supreme Court recently heard oral arguments and a decision is expected in the coming months.

These cases should serve as a warning to employers. While there are no hard and fast rules to ensure that your business does not find itself involved in litigation concerning workplace surveillance and employee privacy issues, adhering to a few basic principals can help minimize the potential liability.
 


Continue Reading Big Brother, Big Implications: Creating an Employee Monitoring Policy Without Creating Additional Legal Liability

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One big frustration for union organizers is access to employees for the purpose of soliciting union authorization cards and peddling the union message. Sophisticated employers have no solicitation policies, which force union organizers out of the workplace and into the parking lots and homes of employees.

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