Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

Regular readers of this blog have followed our coverage of the National Labor Relations Board's efforts to expand the protections afforded to employee use of social media.  Following the Acting General Counsel's recent issuance of a second report on social media cases, many of our co-contributors to “Think Before You Click: Strategies for Managing Social Media in the Workplace” weighed in, expressing various degrees of concern about the scope of that expansion.  There seems to be consensus, however, that the Board has been more inclined to protect employee social media posts -- even if they disparage or impugn the employer and/or its operations.

Well, perhaps observers hadn't actually seen anything yet...

In a February 1, 2012 decision, a New York state court judge ordered reinstatement of a teacher who had posted Facebook messages wishing that her fifth grade students -- "the devils spawn" -- would drown.  On June 22, 2010, a New York City public school student from a different school fatally drowned during a field trip to the beach.  The next day, from home, the teacher in question posted on her Facebook page: "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!"  After one of her Facebook friends declared: "oh you would let little Kwame float away!" she responded: "Yes, I wld (sic) not throw a life jacket in for a million!!"

Following a complaint about the Facebook postings, a Special Commissioner conducted an investigation -- during which the teacher also was found to orchestrated an alibi, convincing a friend to lie and take responsibility for the postings.  The Department of Education sought her termination, which a hearing officer upheld following twelve days of hearing.  The teacher commenced litigation pursuant to N.Y. C.P.L.R. Article 78, asserting that the agency's determination was "without sound basis in reason and . . . without regard to the facts."  While the Court found the determination was not "arbitrary and capricious" under the applicable standards, it nevertheless held that petitioner's termination was "so disproportionate to her offense as to shock one's sense of fairness." 

While public sector employers may have long ago accepted the substantially higher standards to which they will be held by tribunals, some of the judge's reasoning could well find its way into broader application as the National Labor Relations Board and reviewing courts address these issues further. Even private employers and practitioners ought to consider how to address the issues questioned in this decision. One particular passage of note reads:

Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child's death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.

The City recently vowed to appeal the decision, and keep the teacher out of the classroom pending further proceedings.

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Last week, National Labor Relations Board Acting General Counsel Lafe Solomon issued a second report summarizing cases involving social media issues reviewed by his office. The report is a sequel to a similar report issued by the AGC in August 2011 – around the time we contributed a chapter on the subject to Jon Hyman’s excellent compilation “Think Before You Click: Strategies for Managing Social Media in the Workplace”. General Counsel Memorandum OM 12-31 (January 24, 2012) addresses fourteen (14) recent cases. 

The press release announcing the report reiterates two points made in the earlier survey:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The Memorandum reports on these cases without any identifying information – party names, case numbers, locations, etc. – which somewhat limits its utility. This is especially so as the AGC concedes “that these cases are extremely fact-specific.”

 

The aforementioned Jon Hyman sees the report overall as “a mess.” He notes particular overreach in the Board’s treatment of an employer trying to assure employees, beyond any reasonable doubt, that its policy would not infringe upon rights protected by the NLRA:

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

Of Jon’s other conclusions, I agree most with #2 and #4. I think that what we are seeing is not so much a conscious decision by the Board to over-regulate employer response to social media communication, but rather the natural extension of the current Board’s efforts to broaden the scope of employee and union rights under the Act. The Board majority’s expansions of “concerted” activity (Parexel International LLC, 356 NLRB No. 82 (Jan. 28, 2011), “reasonable construction” in the context of the Lutheran Heritage Village-Livonia test, and the range of inflammatory conduct which will retain its protection, are woven both expressly and implicitly throughout the reasoning explained in this report. These developments will continue to have impact on all types of employer work rules and policies – not only social media policies.

 

But social media remains the “hot topic,” as the report puts it.  Three social media cases are currently pending before the Board:  

• Hispanics United of Buffalo, Case No. 3-CA-27872 (ALJ, September 2, 2011): The ALJ  ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance. The ALJ held that “[e]xplicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.” Moreover, the ALJ agreed with the General Counsel that the various Facebook postings at issue did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.
• Karl Knauz BMW, Case No. 13-CA-46452 (ALJ, September 28, 2011): The Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act.  The ALJ also held, however, that the employee's termination was lawful because the social media postings for which he was fired did not constitute protected activity
• Triple Play Sports Bar, Case No. 34-CA- 12915 (ALJ, January 3, 2012): The Judge found that the employer unlawfully terminated two employees for participation in a Facebook conversation regarding their employer’s wittholding of taxes. The ALJ held that one employee’s endorsement of a wall post via the “Like” annotation and another employee’s singular use of a profane epithet toward the employer occurred amid a discussion of their tax treatment, and were thus protected.

Check back for additional information about these cases as they proceed.

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2011 was the most dynamic year in labor law in quite some time.  Fueling many of the changes last year were the impending departures of National Labor Relations Board Chairman Wilma Liebman and Member Craig Becker. With no certainty as to when Liebman or Becker might be properly replaced, the Board acted aggressively while it still held a pro-labor majority and a quorum. In addition to the Board’s activity, the Acting General Counsel pursued an expansive agenda. In response to these efforts, Republican opposition in Congress attempted to rein the Board in via additional oversight and legislative efforts that failed to gain much traction.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way.  Today we are publishing "Labor Law in 2011: A Very Active Year in Review."  This brief summary highlights some of the most noteworthy developments in 2011.  We hope you find it a helpful resource as we head into what is already shaping up to be another "very active year." 

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Last week, another National Labor Relations Board ALJ ruled in part for, and in part against, a Chicago area car dealership on a Board Complaint arising out of the employer's response to an employee's Facebook posts.  In Knauz BMW, the Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act.  The ALJ also held, however, that the employee's termination was lawful because the conduct for which he was fired did not constitute protected activity.

The employer's handbook policies included rules (a) prohibiting "Bad Attitude," (b) mandating "Courtesy," (c) prohibiting "Unauthorized Interviews", and (d) prohibiting employees from answering any "Outside Inquiries Concerning Employees."  The ALJ described them thus:

The allegedly unlawful provision of paragraphs (a) and (b) state: “A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers” and “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Paragraphs (c) and (d) prohibit employees from participating in interviews with, or answering inquiries concerning employees from practically anybody. 

The ALJ applied the standards set forth in Lafayette Park Hotel, 326 NLRB 824, 825 (1998) and Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004). questioning primarily whether "employees would reasonably construe the language to prohibit Section 7 activity."  He concluded that (b), (c) and (d) all violated the Act as they "clearly would be understood to restrict and limit employees in the
exercise of their Section 7 rights."

The Charging Party in the case had posted a number of photos and comments on his Facebook account involving the BMW dealership and a sister Land Rover dealership.  He had posted a series of sarcastic and critical posts about the perceived inferior food served at a sales event at his dealership.  Around the same time, he posted photos he had taken of a vehicle accident arising out of a test drive at the sister dealership with similarly snide commentary.  At least fifteen or sixteen of his co-workers were Facebook friends with access to these posts and many responded to them.

The ALJ held that the commentary -- rife with mockery -- about the food at the sales event was protected, as the success or failure of such an event might have a direct impact on employees' sales commissions.  He also concluded, however, that the Charging Party was not terminated because of these posts, but rather because of the posts regarding the Land Rover accident.  That behavior, he decided, was not protected: 

It was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

Concluding that he was terminated solely for that incident, the ALJ held that the terminated did not violate the Act.

This is the second ALJ decision on a Complaint arising out of employer response to employee social media use.  Earlier this month, in Hispanics United of Buffalo, a judge ruled that a non-profit violated the Act by terminating employees for their Facebook posts regarding a co-worker's complaints.

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The first Administrative Law Judge ruling has come down in a social media case before the National Labor Relations Board.  In a September 2, 2011 decision in Hispanics United of Buffalo, 3-CA-27872, an ALJ has ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance.

One of the employer's domestic violence advocates frequently complained about her co-workers not doing enough to help the organization's clients.  One Saturday, off-clock, at home, a co-worker posted a message on her own Facebook page identifying the employee's criticism and seeking her co-workers' opinions about it.  At least five co-workers responded, posting defenses and and commentary on staffing levels and other working conditions.  The postings, replete with profanity, culminated with one employee making reference to a group meeting with the employer's Business Manager -- ostensibly to discuss these issues. 

Days later, following a complaint by the employee who was the subject of the postings, the five employee posters were fired. 

The ALJ's analysis of the case makes express reference to the Board's Parexel International LLC decision, 356 NLRB No. 82 (Jan. 28, 2011), which broadly expanded the scope of protected "concerted activity" earlier this year.  He concluded that the five co-workers were engaged in protected activity, and thus their termination expressly for that activity -- as conceded by the employer -- violated Section 8(a)(1) of the Act:

... I conclude that the Facebook postings satisfy the requirements of that decision. The discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging the discriminatees on October 12, Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted. Whittaker Corp., supra

In sum, I conclude that the above cases control the disposition of the instant case. Just as the protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing, it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions.

Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true in this case, where at least some of the discriminatees had an expectation that Lydia Cruz-Moore might take her criticisms to management. By terminating the five discriminatees for discussing Ms. Cruz-Moore's criticisms of HUB employees' work, Respondent violated Section 8(a)(1).

Finally, the ALJ agreed with the General Counsel that the various Facebook postings did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.

It is a brief decision, without many relevant facts in dispute, but which cites numerous earlier Board cases for similar propositions to those upon which this holding rests.  It is another more concrete step in the evolution of Board law on social media issues, however, as practitioners now have an adjudicated decision on these issues -- where previously we were left to speculate as to how they would be treated, based on a variety of complaints, advice memoranda and analogous rulings in other areas.

More resources and commentary:

• Our chapter in “Think Before You Click: Strategies for Managing Social Media in the Workplace,” Thompson Books
• Our May 18, 2011blog post on the issuance of Complaint in Hispanics United
• U.S. Chamber of Commerce Report: “A Survey of Social Media Issues Before the NLRB”
• General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a "Report of the Acting General Counsel Concerning Social Media Cases." -- Hispanics United is the first case discussed.

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Now that we've published a chapter on the topic in Jon Hyman's excellent collaboration “Think Before You Click: Strategies for Managing Social Media in the Workplace,” it seems everyone wants to issue reports on social media and the National Labor Relations Board.  Earlier this month, the U.S. Chamber of Commerce released its report, “A Survey of Social Media Issues Before the NLRB.”  Today, the Board itself got into the act, as Acting General Counsel Lafe Solomon has issued General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a "Report of the Acting General Counsel Concerning Social Media Cases."

In his introduction to the report, AGC Solomon states:

This report presents recent case developments arising in the context of today’s social media. Social media include various online technology tools that enable people to communicate easily via the internet to share information and resources. These tools can encompass text, audio, video, images, podcasts, and other multimedia communications. Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media. All of these cases were decided upon a request for advice from a Regional Director.

I hope that this report will be of assistance to practitioners and human resource professionals.

We agree that there is enough information on these issues now out there that employers can assess and address potential exposure.  This report also does provide an interesting insight into the way Board personnel analyzed each of fourteen highlighted cases. 

It might be a little more help to practitioners and HR professionals to match up the unnamed case studies here with the Board cases at issue.  At a quick first glance, the first case outlined appears to be Hispanics United of Buffalo, Case No. 3-CA-27872; the second, the infamous American Medical Response of Connecticut, Inc., 34-CA-12576; the third, Karl Knauz Motors, Inc., Case No. 13-CA-46452; the fifth, Lee Enterprises, Inc., Case No.28-CA-23267; the sixth, JT's Porch Saloon, Case No. 13-CA-46689; the eighth,  Martin House, Case No. 34-CA-12950; and, the ninth,  Wal-Mart, Case No. 17-CA-25030.

Both this report and the U.S. Chamber's report are useful additional resources in this quickly developing area.  If you are interested in more information, please also check out "Think Before You Click" or register for the West LegalEd webinar on this topic next Wednesday, August 24.

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Regular readers of this blog are well-acquainted with the zeal with which the National Labor Relations Board has been addressing labor law issues arising out of employee use of social media.  You may have read our many posts on this topic, listened to this podcast, or even read our contribution to the book “Think Before You Click: Strategies for Managing Social Media in the Workplace.”

The U.S Chamber of Commerce has also recently issued a valuable resource – “A Survey of Social Media Issues Before the NLRB.”  The author of this report reviewed more than 129 NLRB cases which have involved social media in some way.   Indeed, many of these cases involve social media tangentially, most are at the very earliest stage of investigation, and others may lack merit entirely. But we agree with the Chamber that enough cases have advanced sufficiently to allow employers the opportunity to review their policies and practices for compliance. 

Among the astute observations in the Chamber’s study:

• The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
• The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.
• Additional issues revealed in our survey concern whether the employer bargained with an existing union over a social media policy and union communication using social media. It is, however, important to emphasize that a significant percentage of cases in our survey involved non-union employers with no union activity.

Employers would be wise to review their social media policies in light of the Board's evolving approach and these principles.  Read the study in its entirety, and consider checking out our book.  I will also be participating in a webinar through West LegalEd Center on August 24, 2011, at 11:30 a.m. EST, along with Margaret DiBianca, Esq.  You can register for "Social Media and the National Labor Relations Act in the Unionized and Non-Unionized Workplace" here.

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The second episode of a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast airs this morning.  Following up on last Friday's episode, I join Jon Hyman (Ohio Employer's Law Blog; @jonhyman), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), to discuss a variety of issues covered in our new book -- now entitled, Think Before You Click: Strategies for Managing Social Media in the Workplace.

Both installments of the podcast are also available for on-demand listening at The Proactive Employer and via iTunes.

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This month, the National Labor Relations Board Division of Advice has issued three Advice Memoranda recommending dismissal of unfair labor practice charges arising out of employee use of Facebook.  In all three cases, the Division explained that the misconduct for which the employees were terminated did not constitute protected concerted activity, but were rather more appropriately considered personal gripes outside the protection of the Act. 

In JT's Porch Saloon, Case No. 13-CA-46689 (July 7, 2011), a bartender was fired after posting comments in a Facebook conversation with his sister expressing his hope that his employer's "redneck" customers would "choke on glass as they drove home drunk."  None of his co-workers participated in the Facebook conversation, but days later, his employer terminated him (ironically, perhaps, via Facebook message).

In Wal-Mart, Case No. 17-CA-25030 (July 19, 2011), an employee was terminated after he took to his Facebook page to express frustration and insult his Assistant Manager.  Among other things, he called the Assistant Manager a "puta" and declared that her criticisms of his work were "retarded."  He concluded his manifesto with the exclamation that Walmart could "kiss [his] royal white ass."  Although co-workers responded to his posts, they were expressions of individual support -- not group action.  For example, one wrote: "hang in there."

Finally, in Martin House, Case No. 34-CA-12950 (July 19, 2011), a Recovery Specialist at a non-profit residential facility for the homeless was terminated for posting inappropriate comments about residents.  One night, while on the clock, the employee posted a series of comments about how "spooky" the institution was, the "voices" her clients hear, and how they would "just pop meds."  Interestingly, none of the participants in the Facebook conversation were co-workers -- and indeed, none of her co-workers were even Facebook friends of the employee.    

In analyzing all these cases, the Division of Advice reiterated the appropriate Board standards for finding conduct to be protected concerted activity.  Stated most thoroughly in the Wal-Mart memo:

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.”  Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’”  On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted

None of the conduct described in the three cases above met that standard.  The employee in Wal-Mart was clearly complaining about his own relationship with the Assistant Manager, which seemed to be reinforced by the comments of his co-workers.  The employee in JT's Porch was simply venting his personal frustration at work by making derogatory remarks about his customers. Similarly, the employee in Martin House was making insensitive -- if less offensive -- comments about the employer's clientele.  Accordingly, the Division found this conduct was not protected, and therefore that the employees' terminations did not violate the Act.

In an earlier post on the Board's developing line of cases on Social Media, I noted that a trend was clearly emerging on this issue:

The Board will consider "protected" any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action.  This is a broad, and currently expanding, standard.

For more on how the Board has been approaching these cases, you can also check out the chapter I contributed to the Thomson publication "Think Before You Click: Strategies for Managing Social Media in the Workplace" which just hit electronic bookshelves last week.

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Regular readers of the blog are familiar with the intensity with which the National Labor Relations Board has recently pursued complaints against employers arising out of employee use of social media.  I recently had the opportunity to contribute a chapter on this topic to an upcoming Thompson publication, HR and Social Media: Practical and Legal Guidance, which should be on bookshelves within days. 

In advance of the publication, you should tune in for a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast, during which I join the book's editor, Jon Hyman (Ohio Employer's Law Blog; @jonhyman), as well as Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), to discuss a variety of related issues.

Part 1 airs on BlogTalkRadio at 8:30 AM on Friday, July 22; part 2 at 8:30 AM on Friday, July 29. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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Two days after issuance of the complaint in Hispanics United of Buffalo, Case No. 3-CA-27872, the National Labor Relations Board issued another complaint against a company for a termination arising out of employee use of social media.  In Karl Knauz Motors, Inc., Case No. 13-CA-46452, the Board alleges that a car dealer unlawfully fired a salesperson for Facebook comments critical of the employer.

Paragraph IV of the complaint reads simply:

(a) On or about June 14, 2010, Charging Party Becker posted on his Facebook page employees' concerted protest and concerns about Respondent's handling of a sales event which could impact their earnings.

(b) On or about June 22, 2010, Respondent discharged Charging Party Becker.

(c) Respondent engaged in the conduct described above in paragraph IV(b) because Charging Party Becker engaged in the conduct described above in paragraph IV(a) and to discourage employees from engaging in these or other concerted activities.

This is just the latest in a recent string of cases handled by the Board arising out of employer efforts to control employee social media use which might impact its interests.  Recognizable patterns are starting to emerge in the Board's treatment of these cases:

• The Board will take an aggressive approach toward workrules and policies -- including social media policies -- which are arguably "overly broad," or might be interpreted to restrict employees' in the exercise of protected, concerted activity.
• The Board will consider "protected" any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action.  This is a broad, and currently expanding, standard.
• Simple personal attacks posted off-the-clock, outside the workplace -- even offensive or profane insults -- may retain the protection of the Act if they even arguably arise out of concerted activity, terms or conditions of employment, or other alleged ULP's. 

Employers would be wise to review their social media policies in light of the Board's evolving approach and these principles.

 

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The National Labor Relations Board has issued another complaint arising out of employee discipline for use of social media. The Board published a press release this evening announcing that a complaint was issued May 9, 2011 by the Regional Director in Buffalo, New York against Hispanics United of Buffalo, a nonprofit organization.  The complaint alleges that the employer unlawfully discharged five employees after they criticized working conditions on Facebook. 

While the complaint is not yet posted on the NLRB website as of this date, the Board's press release indicates that five employees responded to a co-worker's Facebook post with comments defending their job performance and criticizing working conditions, including work load and staffing issues. These employees were subsequently terminated by the employer who claimed their comments constituted harassment of a co-worker involved.  The press release states:

The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. 

A hearing is set before an administrative law judge on June 22, 2011, in the Buffalo Regional Office.

This is just the second complaint issued by the Board arising out of social media issues, although a number of similar charges have recently settled prior to issuance of a complaint.  In April, various media outlets reported that the New York Regional Office had notified Thomson Reuters that it was preparing to issue a complaint including an allegation that the publisher improperly warned a union officer about a Twitter post.  The employee's union, the New York Newspaper Guild, recently announced a comprehensive contract settlement which included resolution of the charge.  On April 27, 2011, the San Francisco Regional Office also announced settlement of a charge against an online construction retailer who terminated an employee who had posted comments on Facebook about alleged labor code violations.  Finally, late that month, the Division of Advice also issued an Advice Memorandum recommending dismissal of a Twitter-based charge, perhaps providing further guidance regarding the Board's approach to these cases.

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On April 21, 2011,the Division of Advice issued an Advice Memorandum recommending dismissal of a charge alleging that a newspaper reporter was unlawfully terminated for Twitter posts – some of which involved his employer. In Lee Enterprises, Inc., Case No.28-CA-23267, the employer, the Arizona Daily Star newspaper, had no written social media policy. During 2010, the charging party, a public safety reporter, posted Twitter messages mocking the employer’s sports editors, joking about homicides in Tucson, Arizona, and insulting other local media outlets.

After forbidding the employee to Tweet about “anything work-related” pending the outcome of an investigation, the employer ultimately suspended and then fired him.  His termination notice read, in part:

Despite the multiple warnings, suspension and final verbal notice issued as recently as February 2010, when you were told to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company, you have again disregarded that guidance.

The Division of Advice concluded that the reporter’s termination did not violate Section 8(a)(1) of the Act because his inappropriate Twitter posts “did not involve protected concerted activity.”  More specifically, the Division noted that his posts did not relate to the terms and conditions of his employment, nor did he seek by these posts to involve other employees in issues related to employment.

The Division expressed some concern that the employer made overly broad statements to the employee that could be interpreted to prohibit Section 7 activities. Among these were a warning “to stop airing his grievances or commenting about the Employer in any public forum,” the instruction not to tweet about “anything work-related,” and the termination notice’s reference to “derogatory comments in any social media forums.”  On balance, however, the Division declined to consider these comments to constitute a verbal “rule” or policy. Rather, they were made solely to the charging party in the context of otherwise lawful discipline, and were not communicated to a broader audience of employees.

Perhaps the most interesting element of the Advice Memorandum, however, is a discussion which would appear to be dicta. Although the General Counsel’s office clearly indicated it did not find an unlawful overly broad social media policy at issue in the case, it suggested strongly that it still would have considered the charging party’s termination lawful under such a policy. After acknowledging that the Board has consistently held that “an employer’s imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act,” the Memorandum clarifies that discipline pursuant to an overbroad rule has been held to be unlawful “only where the underlying conduct involved Section 7 activity.” 

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Our take on the American Medical Response, Inc. settlement, which continues to attract attention, should be no surprise to regular readers of this blog.  I spoke a bit last week to Business Insurance (subscription required) about some "take-aways":

"Though there was no decision in this case, I think employers need to recognize that the NLRB-issued complaint shows a change,” said Seth Borden, New York-based partner in McKenna Long & Aldridge L.L.P.'s labor practice. “Three or four years ago, it was very likely the board would not have filed this complaint, and it shows a marked change in direction in how it views social media,” he said.

Fellow labor attorneys Sara Begley and Eric B. Meyer provided helpful insights as well.

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Further proof that all things "Facebook" capture the public's attention nowadays, the Regional Director for Region 34 of the National Labor Relations Board appeared on a rock radio station's morning program today to discuss the Board's settlement of the American Medical Response case.  Monday night, Regional Director Jonathan Kreisberg approved the case settlement which included a traditional required Notice posting, commitments from the employer to revise its "Blogging and Internet Posting Policy," and an non-admission of liability clause. 

Appearing on Springfield, Mass. station WAQV Rock 102's "Bax and O'Brien" show earlier, the Regional Director discussed the case and provided this takeaway for employers:

It doesn't really set a precedent because it's not a final decision, it's not an order.  But the policy and practices under the Act are that if a case comes to us with a rule such as this, that under the existing law it would likely be found to be overly-broad and bad.  We can't go out and police -- we don't police companies.  That's not our job, it's not our authority.  We can only react when someone comes to us and files a charge, and then we investigate and make a decision. 

As we indicated Monday night, we expect additional cases in Region 34 and elsewhere to further define the parameters of what the Board considers and overly-broad Social Media policy.  Chairman Liebman has long indicated that she believes the Board must take a more prohibitive view of employer policies that might potentially be construed to impact protected activity.  Employers would be well advised to review their policies now for compliance with the law.  With all the publicity that this case garnered in the mainstream media, employers can count on the fact that somewhere, someone else is already doing so.

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On the eve of trial, the National Labor Relations Board tonight announced a settlement in American Medical Response of Connecticut, Inc., 34-CA-12576 -- a/k/a/ the "Facebook firing" case.  The hearing in the case was postponed once before and scheduled to begin tomorrow, but per the Board's press release, the parties have resolved the matter:

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The termination of the employee for undeniably vulgar commentary about her supervisor, on the one hand, and the alleged Weingarten violation in the denial of union representation, on the other,  were the "grey" facts that muddied the analysis of this case.  It would seem for now that we have been denied a concrete sense of the Board's developing approach to social media cases.

But we might not have to wait for long.  On February 4, the CSEA/SEIU filed an unfair labor practice charge against a Connecticut bus company at the Regional Office for Region 34.  Unlike the AMR case and other charges filed by CSEA/SEIU earlier, the charge in Case No. 34-CA-12906 contains no specific allegations that the company improperly disciplined any particular employee.  Rather, this charge alleges that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" policies in its employee handbook, including a policy against:

The use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.

Region 34 and the General Counsel's treatment of what appear to be simpler facts in this case should provide a good deal more guidance about how the NLRB will evaluate social media policies in the future.

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We've received a lot of requests to discuss the NLRB's issuance of a Complaint in the American Medical Response case.   Gathered here are a number of the media reports in which we've been quoted following the October 27, 2010 issuance of Complaint.

In "Chilling Worker Speech on Facebook," in Human Resource Executive magazine, writer Tom Starner gave LaborRelationsToday some great recognition, and spoke to yours truly along with consultant Nate White and fellow attorney Michael McAuliffe Miller:

Both Miller and Borden recommend employers review their Internet and social-media policies to determine whether they are susceptible to an allegation that such policies could reasonably tend to chill employees in the exercise of their rights to discuss work-related issues such as unionization, wages and work conditions.

Labor lawyers Eric Meyer, Irving Geselwitz, Philip Gordon and I were quoted in a Crain's Detroit Business piece, "Facebook Suit Highlights Policies on Social Media." 

And finally, Inc. magazine asks "Is Your Social Networking Policy Illegal?"  My thoughts expressed there will be no surprise to regular LRT readers:

"There was a case based on a similar policy that came up about two years ago and the NLRB general counsel declined to issue a complaint," says Seth Borden, a partner in the Labor and Employment group at McKenna Long & Aldridge LLP. Now, he says, the Board has a new general counsel. "The Board has signalled a willingness to take a broader view of employees' rights."

Companies should be concerned about this new direction, he says. "This is the first prominent instance of social media being viewed through the prism of traditional labor law," he says. "It's the tip of the iceberg."

Our previous LRT posts on this case are here and here, and on September 28, 2010, the National Law Journal ran "Labor Disputes Arising out of Social Media," which discussed the Board's agenda on these issues.

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There has been significant reporting of Region 34's issuance of Complaint in the American Medical Response of Connecticut, Inc. case since our post last week.  We thought it might be helpful to compile some of the information and resources here.  I previously posted a copy of the Complaint in this case, and my September article in the National Law Journal, "Labor disputes arising out of social media," in this post.

Astute employment lawyer, social media observer and blogger Daniel Schwartz found and Tweeted this excellent piece on the case from CNET: "Yes, insults on Facebook can still get you fired."

Last night, NLRB Acting General Counsel Lafe Solomon took to the airwaves at NPR, and on Fox-5 News in D.C. to discuss the case:

 

Finally, just moments ago, National Journal ran this article, "Facebook Urges User Responsibility," noting the social media giant's own thoughts on the case, including:

"Just as in your offline life, there are some people who you want to be more open with than others, which is why Facebook gives you complete control over how you share information," Facebook spokesman Andrew Noyes said Tuesday evening. "People who use Facebook should ensure their sharing settings are consistent with the way they conduct themselves in the real world."

An administrative law judge is scheduled to hear the case on January 25, 2010.  Check back for updates, as this is certain to continue to garner widespread attention.

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In a September 28, 2010 article in the National Law Journal entitled “Labor disputes arising out of social media,” I suggested that Chairman Liebman’s NLRB was likely to revisit the standards for determining the proper scope of an employer’s social media policy.  On October 27, 2010, Region 34 issued Complaint in a case which may well provide the Board with that opportunity.

In American Medical Response of Connecticut, Inc., Case No. 34-CA-12576, the Acting General Counsel alleges that the employer has violated the Act by, among other things, maintaining overly broad rules regarding blogging and internet posting and firing an employee for disparaging a supervisor on Facebook.   According to the Complaint, the employer maintains a “Blogging and Internet Posting Policy” which includes the passage:

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers or competitors.

The Complaint alleges that the employer denied an employee requested union representation in connection with an investigation.  Later that day, the employee posted comments on her Facebook page critical of a specific supervisor involved in the investigation. She was subsequently terminated. The Complaint alleges that the maintenance of the work-rule alone violated Section 8(a)(1) of the Act, and the employee’s termination violated Sections 8(a)(1) and (3).

In a December 2009 Advice Memorandum, the Board’s Division of Advice recommended dismissal of a charge against Sears Holding, Inc., alleging that similar policy language violated the Act. Relying on the Board’s holding in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), the Division of Advice reasoned:

While the ban on “[d]isparagement of company’s…executive leadership, employees, [or] strategy….” could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct. The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7.

The composition of the Board has changed considerably since the 2004 Lutheran Heritage Village decision – and indeed since the 2009 Sears Holding Advice Memorandum. Current Chairman Wilma Liebman strongly dissented from the Lutheran Heritage Village decision. Her dissent suggests she likely would have applied a broader standard in the Sears Holdings case had it reached the Board – and likely will if this case does.

One might view the Complaint in this case as a more straight-forward, generic 8(a)(1) charge alleging the maintenance of an allegedly overbroad work-rule. But when viewed in the context of the Board’s recent J.Picini Flooring decision, and Chairman Liebman’s prior pronouncements that “[n]ational labor policy must be responsive to the enormous technological changes that are taking place in our society,” it is perhaps more sensible to view this as another step in an developing trend.

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Today's National Law Journal carries a piece by yours truly regarding the potential labor law implications of the growth of social media use in the workplace.  Many astute observers have written on the intersection of social media with employment and privacy law.  Today's NLJ piece focuses on traditional labor law principles:

As the dramatic growth of social media continues to transform the manner in which we all interact with each other, prudent employers must consider traditional labor law principles when implementing workplace social media policies. The new National Labor Relations Board is paying attention to new media in all its forms, featuring its own Facebook page, YouTube channel, and Twitter feed. It is only a matter of time before this board directly addresses labor disputes arising out of the use of these media in the workplace.

You can read the entire piece here.

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