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Emerging Employment-Related Issue: Protected Concerted Activities

Posted on Fri, May 18, 2012 @ 02:40 PM

Alexis L. McDanielby Alexis L. McDaniel

Imagine you’re the general manager of a luxury car dealership.  One day, after browsing through pictures of your children on Facebook, you notice a posting made by one of your salesman criticizing what he describes as the cheap food of hot dogs and chips you provided at your recent sales event.  Although no other salesman commented on the posting, prior to this incident, the salespeople met with management to discuss their concerns about the event.  Infuriated by the posting, you want to fire your salesman on the spot, but should you? 

No, not according to the decision in Karl Knauz Motors, Inc., Case No. 13-CA-46452 (September 28, 2011).  In this case, an ALJ found that the critical comments made by the salesman were protected concerted activities because “food offerings” could have affected car purchases and thereby wages of salespeople.

Under Section 7 of the National Labor Relations Act (“NLRA”), an employee has the right to engage in protected concerted activity and the National Labor Relations Board (“NLRB”) has provided guidance on what this entails.  Based on these guidelines, the following are examples of protected activities:

  • Two or more employees addressing their employer about improving their working conditions or pay;
  • One employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions; and
  • Two or more employees discussing pay or other work-related issues with each other. 

Prior to the emergence of social media, questions regarding concerted activities were typically confined to the work environment.  For example, a supervisor might overhear Joe and Jane discussing their salary near the water cooler.  Even if the employer considered employee salaries a confidential matter, Joe and Jane’s discussion would be protected under Section 7 of the NLRA.  Now, with websites like Twitter and Facebook, employees have often moved beyond their own work environment and into the world-wide audience these social websites provide.  The end result is a tension between an employer’s concern of negative publicity and loss of business, with the employees’ right to engage in protected concerted activity. 

Although it will take some time before the new social media cases are decided by the NLRB and reviewed by the courts, in two reports, dated August 18, 2011 and January 24, 2012, the Acting General Counsel of the NLRB discusses principles to determine whether an employee’s social media activities are protected.  These emerging principles include the following:

  • By intent or result, employee conduct on social media must involve group activity relating to terms or conditions of employment. 
  • Employee social media posts that directly solicits co-workers or tries to promote group action regarding a term or condition of employment will be protected.
  • Employee social media post that suggests an intent to promote group action or support will likely be protected.
  • Employee social media post that does not expressly solicit co-worker action or support may still be protected if it generates a substantive conversation about terms and conditions of employment. 
  • Post that is not directed to co-workers, or does not address issues of mutual concern to other employees, will likely be viewed as unprotected griping. 
  • Disparaging comments about an employer or supervisors are generally protected unless they:
  • are not related to a dispute over working conditions
  • are maliciously defamatory
  • focus solely on company products or business policies
  • appeal to racial, ethnic, or similar prejudices

It all boils down to this—an employer must be careful when responding to an employee’s social media posting.  There can be severe consequences for an employer that does not take the appropriate steps to evaluate whether a social network posting is protected concerted activity under the NLRA.

Check back often, as there will definitely be new developments to this ongoing issue.

Tags: Social Media, Twitter, NLRA, National Labor Relations Act, Protected Concerted Activity, Facebook

Creating Effective Policies to Regulate Social Media

Posted on Tue, May 01, 2012 @ 09:28 AM

Jack B. Harrisonby Jack B. Harrison

Use of social media increasingly exposes employers to potential liability for what their employees may do or say in various social media forums or for the manner in which an employee uses various emerging technologies.  This development makes it important for employers to develop, implement, and enforce clear social media policies in the workplace in order to avoid potential litigation and liability.

How can an employer face litigation and potential liability based on what an employee may do on a social media website or based on an employee’s use of some emerging technology?   

Here are just a few examples:

  • Federal Equal Employment Law (Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act), as well as similar state laws, protect against unlawful employment practices in the workplace.   For example, where an employer knows its employees are being sexually harassed through social media and takes no action, that employer arguably violates the law.
  • The Fair Credit Reporting Act prohibits an employer from obtaining and using some types of background information without first obtaining authorization from the employee or prospective employee.  Where, for example, a supervisor uses a mobile phone application to check an applicant’s credit record and then refuses to hire her based on what he learns, may subject the company to liability if authorization has not been provided or if the proper notices have not been given.
  • The Health Insurance Portability and Accountability Act protects against the unauthorized disclosure of personal health information. But imagine a situation where hospital employees post details of patient medical care to their Facebook page in describing their day.  Such postings could expose the employer to HIPAA liability.
  • The Uniform Trade Secrets Act, which has been adopted in some form by the vast majority of states, which protects against the disclosure, misappropriation and use of a company’s information, where the economic value derives from the fact that is not generally known to and not readily ascertainable by proper means and the owner takes reasonable steps to protect its secrecy. An employee who discloses his former employer’s trade secrets on his new employer’s website or on its blog could subject the new employer to liability.

These examples are only a few of the various theories under which an employer could be found liable for an employee’s use of social media.

An effective social media policy should:

  • Fit within the strategic vision of how the employer uses electronic media in its business;
  • Be consistent with the employer's policies on: discrimination, harassment, retaliation, ethical practices, intellectual property, trade secrets, information technology, and technology/electronic resources use policies;
  • Be clear about who the policy applies to and specifically identify the media to which it refers, including social networks, blogs, YouTube, Twitter, text messages, bulletin boards and chat rooms;
  • Contain clear statements about limitations on expectations of privacy, including the employer’s ownership of the computer, the employer’s right to monitor and access social media during and after employment, and the existence of an “audit trail” as to activity conducted on a company computer;

Regarding employer-sponsored social media:

    • Require employees to take responsibility for what they post, to create excitement about the employer’s business and to add value; to be respectful and use good judgment; to complain to human resources about any misuse of social media.
    • Prohibit employees from disclosing company confidential and trade secret information; posting personal and privileged information like attorney-client and doctor-patient communications; soliciting for non-company activities; slacking; “friending” subordinates on Facebook or similar sites; posting anonymously or pseudonymously; and violating other company policies through the use of social media.

Regarding non-employer-sponsored social media:

    • Require employees to comply with all company policies; to post a disclaimer for any comments relating to the company; to be truthful and respectful; to resolve human resources complaints internally; to contact HR or a manager for needed clarification.
    • Prohibit employees from disparaging the company, its employees, and the competition; from using the company’s graphics or photos of the company; from posting anonymously or pseudonymously about the company; and from violating company-mandated blackouts.

Finally, the policy must state clear consequences for violations of the policy and be implemented in a manner to insure that managers, information technology staff, and other employees are trained to understand and follow them.  Additionally, an employer will have to monitor, enforce and re-evaluate the policy as necessary.

Tags: Social Media Policy, Social Media, Fair Credit Reporting Act, Health Insurance Portability and Accountability Ac, Uniform Trade Secrets Act, Employer-Sponsored Social Media

Social Media Passwords—Fair Game for Potential Employers?

Posted on Mon, Apr 02, 2012 @ 03:43 PM

Joseph BurnsBy Joseph S. Burns

The Virginia State Police (the “VSP”), according to the Virginia ACLU, could be running foul of federal law and the U.S. Constitution by requiring trooper applicants to provide access to their social media accounts during the hiring process. Indeed, the ACLU of Virginia’s Legal Director asked that state police discontinue the practice, described as "shoulder surfing." "Absent a concrete reason to believe that a potential employee is engaged in wrongdoing of which his Facebook account is likely to contain evidence, these communications are simply none of the VSP's business," the Legal Director Stated. "Looking at this information is akin to opening an applicant's mail or listening in on his telephone calls. Such eavesdropping intrudes on the privacy of not only the job applicant, but his online friends and  correspondents."

A spokesperson for the VSP confirmed that it had been contacted by the Virginia ACLU, noting that “we will continue our existing hiring practices,” and that “… our investigative background process is necessary and appropriate for the job our applicants are expected to do and the authority granted to such individuals upon being hired on to the Virginia State Police."

In addition to possibly violating the Fourth Amendment’s protection from unreasonable searches and seizures, along with the First Amendment’s right to freedom of speech, the ACLU cautioned that the VSP might be violating the Stored Communications Act, a federal statute that prohibits one from intentionally accessing stored electronic communications.  This dispute raises important questions about the breadth of pre-employment background checks, and just how far a local government may go in screening new hires.

There is far more to come on this issue.  Check back soon as we follow and provide further developments and updates.

Tags: ACLU, Fourth Amendment, Stored Communications Act, Social Media, First Amendment

The City of Clevelend, "Flash Mobs," and Social Media

Posted on Tue, Mar 13, 2012 @ 09:15 AM

Joseph S. Burnsby Joseph S. Burns

Cleveland’s City Council recently passed an ordinance that would have banned the use of social media websites to organize what are known as “flash mobs.” When that legislation was vetoed by Mayor Frank Jackson, amid criticisms that it was unconstitutional and difficult to enforce, Cleveland’s City Council went back to work, this time crafting a new ordinance that would ban the use of computers and cell phones, rather than specific social media web-sites, to incite riots.

The new legislation, which carries penalties of up to six months in jail and fines of $1,000, is pending approval by Mayor Jackson, who said he will confer with the city’s law department before deciding whether to sign it into effect.

James Hardiman, the Legal Director for the American Civil Liberties Union of Ohio, believes that the new ordinance is flawed and will be challenged by the ACLU. Specifically, Hardiman said that the law, as proposed, may end up punishing those who arrange innocent gatherings that ultimately turn disorderly, and that it may result in the illegal search and seizure of computers and cell phones. The dispute over the new legislation is yet another example of the various ways in which social media continues to affect local governments.

Tags: Flash Mobs, City of Clevelend, Local Government, ACLU, Social Media

Governmental Social Media Policies and the First Amendment

Posted on Mon, Mar 05, 2012 @ 12:23 PM

Joseph S. Burnsby Joseph S. Burns

The Dover, Delaware City Council recently rejected a proposed policy that would have regulated city employees’ activities on social media networks by prohibiting employees from posting:

      (i)  Negative comments based on a person’s race, gender, or other legally protected
           category, and

      (ii) Disparaging comments about co-workers

Both such prohibitions will apply regardless of whether such comments were posted from work or from one’s own home.

Council members concluded that the policy, drafted by the City Manager to protect the city from liability arising from on-line harassment, would have infringed employees’ rights under the First Amendment, an opinion shared by the ACLU, which had contacted City Council,  cautioning that the proposed policy constituted a “clear violation” of First Amendment rights. While various governments across the country have adopted social media policies, courts have consistently found that overly restrictive policies infringe the First Amendment, protecting the rights of governmental employees.

The key, in short, is for a local government to adopt a policy that strikes an appropriate balance between that local government’s legitimate interests and the rights of its employees under the First Amendment.

Tags: Social Media, First Amendment, Governmental Policy