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Recently, 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. In Knauz Motors, Inc., 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.

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 it may appear that the Board will go to great lengths to protect employee social media activity, not all employee social media activity is protected by the National Labor Relations Act. Some employee posts may, in fact, be an employer’s business.
Continue Reading NLRB Administrative Law Judge Issues Another Social Media Decision

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. In the decision, Hispanics United of Buffalo, Inc., 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.
Continue Reading First NLRB Administrative Law Judge Opinion On Employee Discipline For Social Media Use

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

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.Continue Reading Another Update on Social Media and Employee Discipline

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?Continue Reading The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree

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

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…