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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

Cyber Misconduct in the Workplace

Posted on Wed, May 09, 2012 @ 08:23 AM

Jack B. HarrisonJack B. Harrison

New technology has made it increasingly easier for employees to access and take employer data for uses that are often not in the employer’s interest.  This requires increased vigilance on the part of employers to protect their businesses and assets.  Here are a few of those areas that require employers’ attention:

RESTRICTIVE COVENANT AGREEMENTS—

Increasingly, employers are being faced with situations where restrictive covenant agreements they have with employees are being breached through the use of social media by employees.  For example, disgruntled or departing employees with non-compete or non-solicitation agreements may make use of social media to communicate with a prohibited audience in an effort to avoid the specific restrictions contained in their non-compete or non-solicitation agreements. 

In a relatively recent Indiana case, Enhanced Network Solutions Group v. Hypersonic Technologies Corp., the defendant subcontractor, who had a non-solicitation agreement with the plaintiff company, used its LinkedIn account to post a position description.  An employee of the plaintiff saw the position posting and applied for the position and was hired.  Enhanced network Solutions Group sued, alleging that by posting the position to its public LinkedIn profile, Hypersonic Technologies Corp. had violated the non-solicitation agreement.  While the court ultimately found that Hypersonic’s actions were not, in fact, a violation of the non-solicitation agreement, the lawsuit itself evidences the risks that employers may face from the use of social media.

HIJACKING A SOCIAL MEDIA PERSONA—

Because companies increasingly make use of social media to publicize themselves, their products, their events, or their news, an employer’s social media presence is an asset that must be protected. 

In PhoneDog v. Kravitz, a recent California case, Kravitz, who had served as the voice of the company’s Twitter account took the company’s Twitter password with him when he departed.  He subsequently changed the account into his own name and continued to post messages.  The company sued Kravitz, asserting that the Twitter account’s password and its followers were themselves trade secrets which Kravitz had misappropriated.  The company argued that through his actions Kravitz had damaged the company’s economic relationship with Twitter followers and advertisers by taking over the Twitter account, in that it led to a decrease in traffic to the employer’s website and to its advertisers’ content. 

While this case is currently ongoing, it does serve as a reminder to employers of the need to vigilantly protect their own social media assets.

USE OF THE CLOUD—  

The advent of cloud storage has created another avenue for an enterprising employee to abscond with an employer’s proprietary and confidential information in the hopes of making use of the information in work with a future employer.  Cloud storage allows an employee to upload an employer’s proprietary and confidential data to a cloud storage account and then to download it from the cloud to a new employer. 

Earlier this year, in the case of Elliott Greenleaf & Siedzikowski v. Balaban, a law firm sued a former partner for, among other things, misappropriating data.  Elliott Greenleaf & Siedzikowski alleged that Balaban had uploaded multiple files from the firm’s computer system to a free cloud storage space, Dropbox, before departing the firm.  According to the law firm, this action allowed the former partner to continue to have access to and to transfer the firm’s data after he had in fact departed the firm. 

Prior to the advent of free cloud repositories, an employee would have had to directly access an employer’s computer network to transfer data, thus increasing the risk that she would be caught.  Now, because much cloud storage automatically transfers and synchronizes data across multiple devices, the movement of data by an employee preparing for her departure may be less noticeable. 

In developing computer use policies, employers must address cloud-based employee misconduct and must take steps to secure their electronic systems against uninvited cloud access. 

Tags: Non-Compete Agreements, Cyber Misconduct, Social Media Policy in the Workplace, Restrictive Covenant Agreements, Employees' Social Media Use, Non-Solicitation Agreements, LinkedIn, Cloud Storage, Twitter