EMPLOYEE FACEBOOK COMPLAINTS AND SOCIAL MEDIA POLICIES—

WHAT DOES LABOR LAW HAVE TO DO WITH IT?

Nov. 8, 2011Sumter Human Resources Management Association

David DubberlyCertified Specialist in Employment and Labor Law

Discipline for Misuse of Social Media Growing

• Survey by Health Care Compliance Association and Society of Corporate Compliance and Ethics released May 2, 2011

• 42% of employers have disciplined employees for activities on Facebook, Twitter, or LinkedIn—up from 24% in 2009

• 31% have adopted policies addressing use of social media sites outside work—up from 10% in 2009

National Labor Relations Act

• Applies to almost all employers—unionized and non-unionized

• Some employers specifically excluded, including employers subject to Railway Labor Act and government employers

• Does not apply to certain employees, including supervisors, agricultural laborers, or domestic service workers

NLRA Sec. 7

• “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ….”

NLRA Sec. 8(a)(1)

• “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Sec. 7].”

Protected Concerted Activities

• “Concerted activities” protected if related to forming, joining, or assisting union or if for “other mutual aid or protection”

• Concerted activities usually involve two or more employees, but per NLRB and courts also include single employee’s activities taken on behalf of co-workers

• “Mutual aid or protection” includes complaining about terms and conditions of employment

• Examples:– Discussing wages, hours, or working conditions– Criticizing supervisors or other members of management

• Extreme concerted activities can lose protection

Surveillance

• Flexsteel Indus., Inc., 311 NLRB 257 (1993): employer violates Sec. 8(a)(1) when it engages in surveillance of protected concerted activity or creates impression of surveillance

• Communication Systems Construction, Inc., 209 NLRB 652 (1974): supervisor asking other employees to listen in on conversations to determine union sentiments equals unlawful surveillance

• Magna Int’l Inc., Case No. 7-CA-43093 (ALJ, Mar. 9, 2001): supervisor visiting union website OK but comment to employee about seeing picture on website conveyed “impression that he was keeping track of her union activities and thus was creating the impression of surveillance”

American Medical Response of Connecticut, Inc.Case No. 34-CA-12576

• NLRB complaint Oct. 27, 2010; settled Feb. 7, 2011• Medical technician, using home computer, posted

on “open” Facebook page: supervisor is “17” (industry code for mental patient), “dick,” and “scumbag”

• Co-workers saw remarks and wrote comments supportive of employee

• Employee followed-up with more negative posts about supervisor

AMR Cont’d

• AMR fired employee• Blogging and Internet Posting policy prohibited:

– “Making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s supervisors, co-workers and/or competitors”

– “Posting pictures of [employees] in any media which depict the Company in any way” without written permission

• Standards of Conduct policy prohibited “rude or discourteous behavior to a client or co-worker”

• Complaint: termination and policies violated NLRA by impeding employees’ right to engage in protected concerted activity

AMR Cont’d

From same article:

AMR Cont’d

• Many differences between talking at water cooler and posting on open Facebook page

• Per NRLB press released, in settlement AMR agreed to revise policies to ensure it doesn’t restrict employees from discussing wages, hours, and working conditions with co-workers and others outside of work

Hispanics United of Buffalo Inc.Case No. 3-CA-27872

• NLRB complaint May 9, 2011; ALJ decision Sept. 6, 2011• Lydia Cruz-Moore critical of co-workers at non-union social

services agency, threatened to complain about them to Executive Director

• Co-worker posted on personal FB page on weekend: “[LCM], a coworker feels that we don’t help our clients enough at HUB. I about had it! My fellow coworkers how do u feel?”

• Second co-worker responded: “What the f … Try doing my job I have 5 programs.”

HUB Cont’d

• Third co-worker responded: “What the Hell, we don’t have a life as is, What else can we do???”

• Two other co-workers added similar comments• LCM responded• Five co-workers who posted comments about

LCM terminated for violating harassment policy• Complaint: terminations violated Sec. 8(a)(1)

HUB Cont’d

• ALJ:– Fired co-workers “were engaged in Sec. 7 activity when they reacted

to [LCM]’s criticism.”– Their responses represented “a first step towards taking group

action to defend themselves against the accusations they could reasonably believe [LCM] was going to make to management.”

– “By terminating the five [co-workers] for discussing [LCM]’s criticisms … [HUB] violated Sec. 8(a)(1).”

– Recommended order: HUB required to offer reinstatement and back pay to fired employees

Karl Knauz Motors Inc. d/b/a/ Knauz BMWCase No. 13-CA-46452

• NLRB complaint May 19, 2011; ALJ decision Sept. 28, 2011• Non-union BMW dealership held customer event to promote

new model• Served hot dogs, chips, and bottled water• Some sales people complained hot dogs not appropriate• Salesperson took pictures of food and beverages at event• Five days later: accident at next door non-union Land Rover

dealership owned by same group and same BMW salesperson took pictures

Knauz Motors Cont’d

• Later same day: salesperson posted pictures of Land Rover accident to his Facebook page with sarcastic comments like:

This is your car: This is your car on drugs.

This is what happened when a salesperson sitting in the front passenger seat (Former Salesperson actually) allows a 13 year

old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives

over his father's foot and into the pond in all about 4 seconds and destroys a $50,000 truck.

Knauz Motors Cont’d

• Later same day same salesperson posted several pictures of BMW event with comments like:

The small 8 oz bag of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch…but to top it all off…the Hot Dog Cart. Where our clients could attain a over

cooked wiener and a stale bunn [sic]…

No, that's not champagne or wine, it's 8 oz. water. Pop or soda would be out of the question. In this photo, [a coworker] is seen coveting the rare

vintages of water that were available for our guests.

Knauz Motors Cont’d

• Next day salesperson sent home and later terminated

• Complaint:– Salesperson terminated for engaging in

protected concerted activity– Employee handbook contains unlawful

policies

Knauz Motors Cont’d

• ALJ:– Posting of BMW event pictures and related comments

protected by Sec. 7 because two or more sales people shared belief food and beverages served were inappropriate and could have negative effect on brand, sales, and commissions

– Posting of Land Rover accident pictures and related comments not protected by Sec. 7 because sales person had not discussed them with co-workers and unrelated to wages, hours, or working conditions

– Salesperson terminated for Land Rover posting, not BMW posting, so no violation of Sec. 8(a)(1) in terminating him

Knauz Motors Cont’d

• ALJ cont’d:– “Bad Attitude” policy (employees must “display a positive

attitude toward their job”) upheld because concerns relationship between dealership and customers

– “Courtesy” policy (prohibiting employees from being “disrespectful”) struck down as could be interpreted toprohibit protected concerted activity

Knauz Motors Cont’d

– “Unauthorized interviews” and “Outside Inquiries Concerning Employees” policies (prohibiting employees from participating in interviews with, or answering inquiries concerning employees from, persons outside the company) struck down as could be interpreted toprohibit protected concerted activity

– Employer must post notice and inform employees electronically that illegal policies rescinded

Part of Trend

• Pro-union posters• Proposed union election rules• Rulings overturning precedent • From The Economist editorial May 19, 2011:

The 1935 National Labour Relations Act has never been construed so broadly.

Under a Democratic president, American businesses expect a more pro-union line, but the agency’s recent militancy is

shocking ....

Social Media Policy Considerations

• Do not prohibit criticism of company or management • Do not prohibit discussion of wages and working conditions• Limit criticism of company’s products or services?• Prohibit getting on social media sites during working time?• Prohibit unlawful harassment and discriminatory statements?• Prohibit defamation and maliciously false statements?• Prohibit threats of physical harm?

Social Media Policy Considerations Cont’d

• Prohibit disclosure of confidential business information and trade secrets?

• Prohibit employees from holding themselves out as company spokespersons and from using company name, trademarks, or logos?

• Discourage supervisors from “friending” subordinates?

• Consider Section 7 disclaimer• Consider legal issues when enforcing

Hypothetical

• Single employee criticizes supervisor on social media post– Post is from mobile phone during working time?– Co-worker who is “friend” “likes” message?– A second co-worker who is “friend” posts supportive

comment?– A third co-worker informs management of posts and

management asks for copy?– Post contains discriminatory statement?

Questions/Comments?

David Dubberly803-253-8281

ddubberly@nexsenpruet.com