Facebook firing causes unfair labor practice double play for NLRB

In Triple Play Sports Bar & Grille [pdf], the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive.

A former Triple Play employee, Jamie LaFrance, posted the following on her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!

Two then-current employees, Spinella and Sanzone, interacted with that post. Spinella clicked the “Like” button under the comment. In response to another’s comment to the same post, Sanzone commented, “I owe too. Such an asshole.”

The Board concluded that Triple Play unlawfully fired Spinella and Sanzone for their Facebook activities:

Spinella’s and Sanzone’s comments were not “so disloyal … as to lose the Act’s protection.” … The comments at issue did not even mention the Respondent’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.

The NLRB then examined the employer’s Internet/Blogging Policy, which stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The Board concluded that a vagueness and lack of specificity doomed the policy:

Here, we believe that employees would reasonably interpret the Respondent’s rule as proscribing any discussions about their terms and conditions of employment deemed “inappropriate” by the Respondent. The rule contains only one other prohibition—against revealing confidential information—and provides no illustrative examples to employees of what the Respondent considers to be inappropriate. Under these circumstances, we find the term “inappropriate” to be “sufficiently imprecise” that employees would reasonably understand it to encompass “discussions and interactions protected by Section 7.” …

The two unlawful discharges served as an indication to employees that the clause did not shield Sanzone’s and Spinella’s protected activity. Faced with these discharges, employees therefore would reasonably construe the Internet/Blogging policy to prohibit Section 7 activity such as the Facebook discussion of tax withholding issues involved in this case.

What can employers learn from this decision:

1. Even the simple act of clicking the “Like” button can be enough to constitute protected concerted activity.

2. The line beyond which an employee must cross to cost themselves the protections of the NLRA is far down the path of online speech.

3. For any social media policy to pass muster under the NLRA, you should provide specific examples of the prohibited speech. Generalizations will likely cause you problems with the NLRB.

4. The surest way to end up the NLRB’s crosshairs for an unlawful social media policy is to fire an employee for a violation of that policy. Absent a termination, it is unlikely the Board will ever find out about your policy.

Should you block social media at work?

One of my summer television addictions is NY Med, which follows surgeons around some of the New York metro area’s busiest hospitals. One this summer’s episodes focused on a man who had been hit by a subway train. An ER nurse Instagrammed a photo of the empty trauma room, along with the caption “#Man vs 6 train”. Later that day, the hospital fired her. According to ABC News, she was fired for being “insensitive,” not for posting any protected patient information or for violating any hospital policy.

I thought of this story as, over the weekend, I read an article on The Next Web entitled, Productivity vs. Distraction: Should you block social media at work? The answer to this question is a resounding “no.” Here’s why, in my opinion.

Like it or not, we live in a social world. People are living their lives on Facebook, Twitter, and Instagram. Take Facebook. It has 1.28 billion users, 59% of whom visit the site every day. 68% of all time spent on Facebook is done via its mobile app. Twitter is even higher, at 86%. These stats show that it you are trying to ban employee social media access at work, you are fighting a battle you cannot win. If an employee wants to check Facebook at work, or post a Tweet, or show off that fancy filtered sunset on Instagram, they will simply take their iPhone out of their pocket and post away.

So what is a company to do? Embrace the fact that employees will access their social media accounts from work. So, how do you balance on-the-job productivity against the social media’s distractions? TNW offers four great tips:

1. Draft a policy. I was troubled when I read that the nurse on NY Med had not violated any policy by posting on Instagram a photo of the inside of a trauma room. Given the vast number of your employees who are on social media, it is irresponsible not to have a social media policy. Just make sure it will pass muster with the draconian agenda being put forth by the NLRB.
2. Invest in the idea that employees represent your company. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal: the inherent intertwining of our personal and professional personas online. You can read more on my thoughts on this important issue here. Suffice it to say, however, that employees need to realize that anything they say online can impact their professional persona, and that it is our job as employers to help educate our employees about living in a “profersonal” world.
3. Training, training, training. Teaching employees about the meaning of “profersonalism” is just one part of the training puzzle. The best way to limit employee social media problems is to invest some time and money into training your employees about these issues. Having a policy is step one in this process, but training your employees on what that policy means is steps two through ten (at least).
4. Allow for brain breaks. We ask an awful lot of our employees. It’s rare to find a nine-to-five job these days. If your employees are working 45, 50, or 50-plus hours per week, what’s the harm if they spend a few minutes during the day checking Facebook. Workplace social media is not a technology problem, it’s a performance problem. Thus, technological solutions will not work. You need to treat social media abuse as a performance problem. If an employee is spending so much time on Facebook that he or she cannot complete the job, then provide counseling or discipline. If an employee posts something that harms the business, counsel, discipline, or fire. Treating the problem by shutting off the technology will not cure the problem; it will just take if off your network. 

Facebook might not be Facebook in five years. But, rest assured, something else will take its place. Social media is not going anywhere. Employers need to embrace this reality, or face a workforce they do not understand and cannot hope to control.

What does the ADA say about employee medical information and social media?

The ADA protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court—in Shoun v. Best Formed Plastics—began sketching an answer. 

George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” 

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.

All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.

Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information—workers’ compensation claims, FMLA claims, reasonable accommodation requests, and other medical information related to the performance of the job—is off-limits for discussion. 

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, training—on this issue could save you from a disability discrimination lawsuit down the road.

Is it ethical to check jurors’ social media accounts?

Every jury trial starts with what is called voir dire—a question-and-answer session between the lawyers and the pool of potential jurors. As lawyers, we are trying to deselect those jurors whom we feel would be unfairly biased against our case or our client. It is much more an art than a science, and the more information we can gather about potential jurors, the more educated of a decision we can make that a juror is not the right fit for our case. 

Recently, the American Bar Association made this information gathering a little bit easier. In an ethics opinion (h/t: ABC News), the ABA gave lawyers the green light to view jurors’ and potential jurors’ publicly available Internet information, which, for example, could include their Facebook or Twitter musing. 

The Internet is a treasure trove of information about jurors. You could learn their political leanings, religious background, and all about their jobs and families. In short, you could learn the entire backstory of a “connected” juror.

But, do you want to? Just because this information gathering is ethical does not mean it’s strategically wise. By using the Internet as a basis for questions about a potential juror, you will clue the entire pool of jurors in on the fact that you’ve been trolling online for information about them. They might view your ethical conduct as a creepy invasion of their privacy. Voir dire is as much about you learning about the jury as it is about the jury learning about you. In other words, you don’t want to piss off the jury during voir dire. If you lose credibility before the trial even starts, what chance do you have to win the case?

So, lawyers, my take is that Facebook-ing potential jurors presents more of a risk to damaging your credibility with the jury than any benefit you will receive from learning information to help with the inexact science of voir dire. And, if you choose to research jurors online, keep that choice private, and don’t let the jury know you’ve been trolling them. It’s not worth the risk of the jury punishing you for it from the privacy of their deliberations.

NLRB judge gives booby prize to Hooters' workplace policies

In Hooters of Ontario Mills [pdf], an NLRB Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal polices in its employee handbook.

Alexis Hanson, a Hooter Girl in an Ontario, California, outpost of the beer-and-wings establishment, complained to management that she believed that bar’s annual bikini contest was rigged. After the contest, she was terminated for “cursing at” the winner and the store’s Marketing Director. When she protested that she hadn’t cursed at anyone, the manager changed her tune and told Hanson, “Okay. Well, then you are being terminated for your negative social media posts.”

The ALJ concluded that Hanson’s discharge was unlawfully motivated by her protected concerted activity (i.e., her complaints to the manager about the bikini contest). The ALJ was persuaded by the fact that the employer had failed to conduct an investigation before firing Hanson, and also by its shifting reasons for her termination. 

The ALJ also concluded that a variety of policies in the restaurant’s employee handbook were overly broad violations of employees’ rights to engage in protected concerted activity:

• NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination.
• Insubordination to a manager or lack of respect and cooperation with fellow employees or guests may result in discipline up to and including termination.
• Disrespect to our guests including discussing tips, profanity or negative comments or actions may result in discipline up to and including termination.
• The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party may result in discipline up to and including termination. This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
• Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by coworkers and clients. Refrain from posting negative comments about Hooters or coworkers. In all cases, NEVER publish any information regarding a coworker or customer.
• Any other action or activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business may result in discipline up to and including termination.

What are the takeaways from this case?

1. These employees were non-union. This case serves as a reminder that the NLRA’s protected-concerted-activity rules apply to union and non-union shops.
2. It’s debatable whether complaints about a workplace bikini contest constitute protected concerted activity. In this case, however, the ALJ appeared to be more persuaded by what the manager did not do in response to the complaints, as opposed to what the employee complained about. The manager did not investigate, and did not maintain a consistent reason for the termination. In other words, the reasons given for the terminated seemed to be a pretext to cover up something else—retaliation for Hanson’s protected concerted activity. The moral of this story? No matter the situation, thorough investigations and maintain a consistent story will save your bacon in many workplace lawsuits.
3. As often happens in theses cases, the termination served as an entre for the NLRB to review (and overturn) workplace policies as overly broad. If you don’t want the NLRB to see your policies, don’t fire employees for protected concerted activity. Most of these cases get to the Board because someone was fired, not because someone just decided, out of the blue, to challenge a handbook.

Should you check your employee's social media accounts?

Monday’s Wall Street Journal had a compelling counterpoint about whether employers should be checking their employees’ social media accounts. Nancy Flynn, the founder and executive director of the ePolicy Institute, presented the pro, while Lewis Maltby, the president of the National Workrights Institute, presented the con.

Ms. Flynn argued that keeping an eye on employees’ online activities helps companies help themselves.

Management has a right and responsibility to monitor how employees are using social media at all times. If companies don’t pay attention, they may end up facing any number of serious problems. It’s all too easy for disgruntled or tone-deaf employees to go onto social media and criticize customers, harass subordinates and otherwise misbehave. Sometimes that can bring workplace tensions and complaints, sometimes it can damage a company’s reputation in the marketplace, and sometimes it can lead all the way to lawsuits or regulatory action.

Mr. Maltby argued that examining employees’ online activities often results in an unreasonable fishing expedition.

Yes, employers have a legal right to monitor employees’ conduct on their work computers. But the only time employers have a legal duty to monitor employee communications is when the employer has reason to believe that the employee is engaged in illegal conduct.… The fact is, the vast majority of what employees do on the Internet has nothing to do with work, takes place during their private lives and is done on their personal computers. Once again, employers should get involved with employees’ private lives only when there is reason to be concerned.

Who’s right? Do employers have a right to monitor employees’ social media accounts, or is this an invasion of their personal lives? Is believe that there is nothing private about social media. Even outside of work, what employees say on their not-so-private social pages can impact their employer? Do they post racist, sexist, or other inappropriate statements? Do they divulge confidential information about their workplace? Are they engaging in conduct that would.make them unfit for employment (like illegal drug use)? 

The reality is that employees who believe that what they say on their personal social media sites, away from the workplace, is off-limits to their employer, operate under a grand misconception. Like it or not, we live in a world where, thanks in large part to social media, the line between the personal sphere and the work sphere no long exists (or if it exists it’s really blurred). Employees that fail to recognize this fact take a huge risk.

The NLRB is looking to overturn email solicitation rules

In Register Guard, the NLRB held that an employer’s solicitation or other communication policy can lawfully bar employees’ non-work related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the NLRA, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era Board. Now, it’s 2014, and the current Obama-era Board is taking a look at Register Guard. 

The Board has posted a notice [pdf] asking advocates to submit position briefs covering each of the following five issues:

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The notice is in response to an ALJ’s decision in Purple Communications, Inc., holding that an employer did not violate the Act by prohibiting use of its electronic equipment and email systems for activity unrelated to its business purposes. 

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard, and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it to restrict employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers and bears monitoring as this important issue weaves its way through the NLRB. 

With workplace social media, don’t be like Nero

Legend tells us that Nero sat and played his fiddle while Rome, the capital of his empire, burned. Sadly, according to a recent survey, Social Media in the Workplace Around the World 3.0 [pdf], many employers are taking the same approach with their employees’ use of social media.

81% of employers surveyed report that they foresee the misuse of social media by employees becoming more of any issue in the future. Yet, only 53% have updated their social media policies in the past year, and only 37.5% provide employees any training on the appropriate use of social media. Meanwhile, 71% report having to take disciplinary action against employees for social-media misuse (more than double the number from 2012).

What do these numbers mean? Employers are not proactively getting out in front of a known problem.

Social media changes with the blink of an eye. Two years ago, many had never even heard of Twitter; now it boasts more than a billion registrants. New social sites debut at a lightning pace. Employers need flexible, changeable policies to adapt to these evolving technologies. Moreover, a policy is not worth the paper on which it’s printed unless you also provide meaningful, common-sense training to your employees.

It’s great news that employers perceive social media as a workplace problem that’s not going away. It’s disheartening, however, that so many are choosing to do nothing about it.

NLRB judge says employee cannot require its employees to disclaim social media posts

The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.

In The Kroger Company of Michigan [pdf], and NLRB administrative law judge concluded that Kroger’s Online Communications Policy—which required that it’s employees post the above-quoted disclaimer along with the publishing of any work-related online content—was illegal.

The ALJ conceded that Kroger’s has a legitimate interest in limiting unauthorized communications. Nevertheless, the perceived over-breadth of the policy trumped the employer’s legitimate interest:

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would never—ever—withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech. 

How does a statement by an employee, on the employee’s personal Facebook page, that the posts are his and not his employer’s, chill an employee from expressing an opinion about work? To the contrary, this disclaimer would seem to have the opposite effect, freeing the employee to talk about work because he or she has already disclaimed that the post is merely the employee’s personal opinion, and not an official statement of the employer.

As Eric Meyer pointed out in discussing this decision last week, Kroger merely serves to add to the confusion that already exists around workplace social media policies. As for me, I see little harm in these types of disclaimers.

EEOC holds public meeting on social media in the workplace #socialEEOC

Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline A. Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

.#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC
— EEOC.gov (@EEOCNews) March 12, 2014

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

• Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
• Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.

The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.

How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws. 

Read this post before you access your employee’s social media accounts

Susan Fredman Design Group employed Jill Maremont as its Director of Marketing, Public Relations, and E-Commerce. In that capacity, she used her own personal Twitter account and Facebook page to promote SFDG’s business. To keep track of the various social media campaigns she was conducting for SFDG, Maremont created an electronic spreadsheet, on SFDG’s computer and saved on SFDG’s server, in which she stored the passwords for her accounts. It appears that Maremont provided access to, or copies of, the spreadsheet to other SFDG employees to assist in her social media posts on behalf of the company.

Maremont suffered injuries in a serious car accident that kept her out of work. During that time, she claimed that SFDG employees, without her permission, accessed her Facebook and Twitter accounts and posted on her behalf.

In the ensuing lawsuit—Maremont v. Susan Fredman Design Group (N.D. Ill. 3/4/14)—Maremont alleged violations of the Lanham Act (that SFDG unlawfully passed itself off as Maremont), and the Stored Communications Act (that SFDG unlawfully accessed her electronic accounts without her permission). The district court dismissed the Lanham Act claim, but permitted the Stored Communications Act claim to proceed to trial.

Legal intricacies aside, the case is both instructive and troubling.

This case is instructive because it shows the danger when a company fails to brings its social media accounts in-house. Maremont used her personal Facebook and Twitter accounts for her employer. When she was out of the office for an extended period of time, instead of letting its social media presence falter, SFDG used Maremont’s account information to continue posting. How could SFDG have avoided these potential legal traps and an expensive lawsuit? Either by requiring that Maremont use its own social media accounts for official company business, or by having a written agreement with her that it had the right to access her mixed-use personal accounts. The former is cleaner and less risky, but the latter would have still likely kept it out of court, even if mixed-use accounts are harder to untangle at the end of employment.

This case is troubling because it sets the precedent that an employer to which an employee provides passwords to the employee’s social media accounts cannot access those accounts for business purposes. By all appearances, Maremont provided her account information and passwords to her coworkers. SFDG could not have foreseen that it would violate federal law by using them to continue Maremont’s work while she was incapacitated. Yet, that is exactly what happened.

What’s the main takeaway here? If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact.

[Hat tip: Internet Cases]

Has social media created too much workplace transparency?

I have two confessions to make: 1) I don’t read much anymore, at least not for pleasure. 2) I can’t do work on airplanes.

“How are these related,” you ask? I used to read a lot. Now, though, I do all my reading at work. After a long day of reading briefs, and motions, and cases, the last thing I want to do at night is read more. The only time I read is when I fly. I don’t enjoy business travel, but I do enjoy the few hours of solitude with a good book (unless the guy sitting next to me knocks back 4 vodka-OJs in the first 10 minutes of the flight and then falls asleep on my shoulder while he continuously passes wind — true story).

On Monday I was in Houston on an injunction hearing attempting to enforce a non-compete, which meant that on Sunday night and Monday evening, I had dedicated airplane-pleasure-reading time. My book of choice was The Circle, by Dave Eggers. It tells the story of a Bay-area company that has cornered the market on social media and e-commerce, through the eyes of one of its new superstar employees, Mae.

Early in Mae’s employment, she gets called into HR because she failed to respond to a co-worker’s online request that she attend his Portugal-themed party. Mae had, years earlier, posted pictures of a trip to Lisbon on her Circle page, which led this co-worker to believe that she liked all things Portuguese, which, in turn, caused his turmoil when she ignored his party invite.

I tell this part of the story in response to an article I came across yesterday on Philly.com, entitled, How social media has changed the way co-workers bond (hat tip Eric Meyer). The article hypothesizes:

Social networking has made it easier to form personal relationships with co-workers. On sites such as Facebook and Instagram, where people share their likes and dislikes, family photos and new hobbies, people gain insight into colleagues that could provide the basis for forging stronger workplace bonds.

Which is true. But, with transparency comes responsibility. What had previously been a trivial interpersonal matter (a declined invite) becomes a potential HR matter. How much you permit your employees to connect on social media sites will, in part, depend in how much of their personal lives you want leaking into your workplace, balanced against the ease of connectivity and relationship formation.

Nevertheless, today’s ignored invitation could be tomorrow’s harassment complaint. There is no right or wrong answer to this question. It is a decision guided by corporate culture and risk tolerance. What is important, however, is to make the decision and communicate it to your employees in your social media policy, so that everyone understands your culture and its impact on your social media expectations and limitations.

Oh, and go read The Circle. It’s fabulous.

Why we put plaintiffs to their proof

Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14), however, is much ado about nothing, but nevertheless reminds us of the importance of the process of litigation to the outcome of litigation.

John Vollene, a press room operator at World Color and member of his union’s bargaining committee, made several posts on his personal Facebook page critical of his employer. Vollene was Facebook friends with several co-workers, including his shift supervisor, Arvil Bingham. Shortly after Vollene’s posts, World Color’s employees voted to decertify the union. Shortly thereafter, the company reassigned Vollene as part of a restructuring of its pressroom operators. When Vollene asked Bingham why he was being reassigned, Bingham implied that management knew about his Facebook posts.

The NLRB concluded that Vollene had not proven that he had not been reassigned in retaliation for his Facebook posts, which could have constituted protected concerted activity:

However, the record here does not include a printout of Vollene’s posts, and it provides scant evidence regarding their nature. It reveals neither that the posts concerned terms and conditions of employment, nor that the posts were intended for, or in response to, Vollene’s coworkers. The testimony indicates only that Vollene posted unspecified criticisms of the Respondent and unspecified comments about the Union over a period of 5 or 6 months, and that he responded to another person’s initial post. The record does not identify that individual either by name or as a coworker. Based on this limited evidence, we will not infer that Vollene’s posts amounted to protected concerted activity. That Bingham’s statement implied that the Respondent had reacted adversely to critical posts is insufficient to bridge the evidentiary gap here.

Do not read too much into this decision. An employee’s Facebook posts critical of his or her employer can constitute concerted activity protected by section 7 of the NLRA. In this case, however, the NLRB concluded that because there was no evidence presented of the specific posts at-issue, or how Vollene’s co-workers responded to them. Thus, Vollene had not proven his case.

I have little doubt that if Vollene had put on evidence of the specific posts, and his co-workers reaction to them, this case could have turned out differently. This case serves as a good reminder of why we, as employers and their lawyers, put plaintiffs to their proof. A lawsuit is merely a collection of unproven facts. No law has been violated until a plaintiff  proves those facts through evidence. If the plaintiff doesn’t have the evidence to support the alleged facts, the plaintiff loses. That’s what happened here, which illustrates the importance of the litigation process to the outcome of cases.

Is there such a thing as online picket lines? Not according to the NLRB

When is a picket line not a picket line? Apparently when the protests take place online, at least according to the NLRB’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14) [pdf].

In the case, certain employees took to their union’s Facebook page to post threatened comments to co-workers who refused to participate in the union’s strike against their employer.

• Prior to the strike starting, one of the posts threatened, “THINKING of crossing the line. THINK AGAIN!” Sixteen people commented on that post, included one that wrote, “If u cross … you will lose your eyesight … from the 2 black eyes.”
• On the second day of the strike, another employee posted on the union’s Facebook page: “We found them!! We found out where they are housing the scabs.  We will be setting up lines at the hotel tomorrow.” Thirteen people comments on that post, including one that asked, “Can we bring the Molotov Cocktails this time?”

The employees argued that the union violated the National Labor Relations Act by not deleting or otherwise disavowing the statements posted on its Facebook page. The NLRB, however disagreed:

Respondent’s Facebook page is in no way “an electronic extension” of its picket line…. A picket line serves a purpose quite distinct from that of the Facebook page. A picket line proclaims to the public, in a highly visible way, that the striking union has a dispute with the employer, and thus seeks to enlist the public in its effort to place economic pressure on the employer….

In contrast, Respondent’s Facebook page does not serve to communicate a message to the public. To the contrary, it is private….

Unlike a website in cyberspace, an actual picket line confronts employees reporting for work with a stark and unavoidable choice: To cross or not to cross. Should someone acting as a union’s agent make a threat while on the picket line, the coercive effect is immediate and unattenuated because it falls on the ears of an employee who, at that very moment, must make a decision concerning the exercise of his Section 7 rights….

This decision displays a fundamental misunderstanding about social media. Nothing about social media is private. Is is public, interactive, and immediate. Even if the page on which the employees were posting was a “private” page or group, nothing stops employees from sharing the content via prints or screen caps. I am concerned that the agency that has taken such an active public stance regulating social media in the workplace appears to have such a fundamental misunderstanding about how this media operates.

I (don’t) “like” this protected concerted activity

Last October, in Bland v. Roberts, the 4th Circuit held that a Facebook “like” qualifies as speech protected by the First Amendment. As we know, however, the First Amendment does not apply to private workplaces, in which employees do not enjoy constitutional free speech rights. Employees do, however, enjoy the right to talk among themselves about wages, hours, and other terms and conditions of employment—concerted activity protected by the National Labor Relations Act.

Soon, the NLRB will decide whether an employee clicking the “like” button on another employee’s Facebook post or comment is sufficient to qualify as protected concerted activity.

In Triple Play Sports Bar [pdf] (h/t: Wall Street Journal Morning Risk Report), an Administrative Law Judge

Spinella’s selecting the “Like” option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity. Spinella’s selecting the “Like” option, so that the words “Vincent VinnyCenz Spinella…like[s] this” appeared on the account, constituted, in the context of Facebook communications, an assent to the comments being made, and a meaningful contribution to the discussion. [T]he Board has never parsed the participation of individual employees in otherwise concerted conversations, or deemed the protections of Section 7 to be contingent upon their level of engagement or enthusiasm. Indeed, so long as the topic is related to the employment relationship and group action, only a “speaker and a listener” is required.

As much as it pains me, the ALJ’s reasoning is sound. Speech is speech, whether it’s engaging in an oral conversation, writing a comment to a Facebook post, or clicking “Like.” Liking something on Facebook is akin to an endorsement of, or agreement with, the comment liked.

To paraphrase what I wrote when commenting on the the Bland v. Roberts decision, protected concerted activity rights likely extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. I would expect the NLRB to agree with the ALJ when it announces its decision later this year. In the meantime, employers need to take heed before taking action based on these online activities.

Is social media a valid vehicle for harassment complaints?

A nuclear-medicine technician posted the following three items on her Facebook wall:

(At 9:00 am) Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn’t even work ... awesome!!

(At 1:37 pm) Sara DeBord is sooo disappointed ... can’t believe what a snake my boss is ... I know, I know everyone warned me:(

(At 2:53 pm) Oh, it’s hard to explain. . . . basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for our areas ... and he tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus he adds money on peoples checks if he likes them (I’ve been one of them) ... and he needs to keep his creapy hands to himself ... just an all around d-bag!!

Many of her coworkers saw the posts, including the “snake” of a boss with the “creepy hands.” Three different times, she denied authoring the posts when asked by HR. The hospital fired her a week later.

In DeBord v. Mercy Health Services of Kansas (10th Cir. 11/26/13), the court affirmed the dismissal of DeBord’s retaliation claim, concluding that thrice lying about posting information on Facebook, in addition to other violations, justified her termination.

In analyzing the retaliation claim, the court noted that the “Facebook post was not in accordance with Mercy’s otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy.” Nevermind that, according to the court, “Mercy's management first received notice of this behavior … through a publicly available message on Facebook.”

An employer has a legal obligation to take reasonable steps to remedy harassment that it knows about, or should know about. This obligation not only exists when an employee makes a formal complaint under an employer’s “reporting system,” but also when an employer otherwise learns that harassment might be occurring. An employer cannot go into ostrich-mode in the face of workplace harassment.

My fear is that the DeBord court’s statement about the Facebook post not being in compliance with the employer’s “reporting system” could lead to employers thinking that it’s okay to ignore harassment complaints made on an employee’s social media page. Ignoring information about harassment is not okay. An employer does not have an obligation to look for problems on every employee’s Facebook, Twitter, etc. However, once an employer becomes aware of harassment or other unlawful conduct, it cannot pretend it doesn’t exist.

Social media background checks as discrimination

I’ve long argued that employers take a risk when they use social media to vet job candidates without putting in place sufficient controls to prevent the disclosure of protected EEO information. Now, we have the empirical evidence to back me up.

Last week, the Wall Street Journal reported on a research study conducted by Carnegie Mellon University:

The study, … involving dummy résumés and social-media profiles, found that between 10% and a third of U.S. firms searched social networks for job applicants' information early in the hiring process. In those cases, candidates whose public profiles indicated they were Muslim were less likely to be called for interviews than Christian applicants. The difference was particularly pronounced in parts of the country where more people identify themselves as conservative. In those places, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims.

Thus, even though employers avoid asking applicants about taboo hiring subject such as religion, social media profiles, which might contain information such as quotes from religious tests or a “like” for one’s place of worship, could lead to the inadvertent discovery of an applicant’s religion, opening the door to unconscious and unintentional biases. 

What is the answer to this problem? According to one lawyer quoted in the WSJ article, “[I]t’s not a good idea to use social media as a screening tool.” 

That view, however, is short-sighted. It ignores all of the valid, legal information one can learn about an applicant from their social media pages—references to illegal drug use, posts of sexual or racist nature, poor communication skills, the disclosure of confidential information, or the trashing of an old boss or employer. The trick is discovering this “good” information while, at the same time, screening out the “bad” protected EEO information. How does a company accomplish this task? My answer to this question hasn’t changed:

Don’t let anyone in the chain of hiring view candidates’ social media profiles. Train an employee who is insulated from the hiring process to do your social media searches, scrub all protected information, and provide a sanitized report to those responsible for making the hiring decision. That way, no one can argue that protected information posted on a social network illegally influenced a hiring decision.

For more information on this timely and important issue, please join me on December 5 at 1:00 pm, when I’ll be the special guest on a webinar hosted by Newton Software, entitled, Avoiding the Biggest Pitfalls of Social Recruiting.

Does social media change the meaning of “solicitation?” (redux)

Earlier this year, I asked the following question: “Does social media change the meaning of solicitation?” I concluded that absent a contract directly defining social media connections as a “solicitation,” “passive” social media activities, such as “continuing an already existing online relationship via social media” will not violate a non-solicitation agreement.

In my earlier post, I was discussing whether maintaining already existing Facebook friends violated a non-solicitation agreement. Yesterday, the National Law Journal brought us the next evolution of this issue: whether a LinkedIn profile update alerting connections about a new job constitutes a “solicitation of business” in violation of a non-compete agreement. According to the order issued by a Massachusetts trial court judge in KNF&T Inc. v. Muller [pdf], the answer is no.  

In that case, Charlotte Muller’s former employer claims that she violated the no-solicitation covenants in her non-competition agreement by posting her new position on her LinkedIn profile, which, in turn, notified her hundreds of contacts of her job change. Her old company claimed, “To the extent this notification has been sent to current KNF&T clients, this notification constitutes a solicitation of business in direct violation of her non-competition agreement.”

The trial judge addressed the LinkedIn issue in a footnote in his order denying the company’s request for a preliminary injunction:

The same reasoning applies to the evidence that Muller currently has a Linkedln profile disclosing her current employer, title, and contact information, and counting among her “Skills & Expertise” such things as “Internet Recruiting,” “Temporary Staffing,” “Staffing Services,” and “Recruiting.” There is no more specific mention of any of KNF&T’s “Fields of Placement” than this. So long as Muller has not and does not, prior to April 12, 2014, solicit or accept business in the Fields of Placement for herself or others (including her new employer), she will not have violated the covenant not to compete.

In other words, the company’s own agreement doomed its argument that the LinkedIn update constituted a breach.

How do you protect your company if you want to include social media announcements of a new job as violations of a non-solicitation agreement? Draft the agreement accordingly:

“Solicitation” includes, but is not limited to, offering to make, accepting an offer to make, or continuing an already existing online relationship via a Social Media Site, or updating an account or profile on a Social Media site to communicate to, publicize to, or otherwise advise online connections or relationships about a new position of employment with an employer other than the Employer to this Agreement. “Social Media Site” means all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, in addition to any other form of electronic communication.

We’ve yet to see a case in which a judge has been asked to uphold such an agreement. It should go without saying, though, that you have a much better chance of enforcement with the language than without. More importantly, however, this case illustrates that social media is not creating new laws, but is merely creating new applications of existing laws to an evolving communication and technology tool.

The legal reason why you shouldn’t force employees to turn over social media passwords

There has been a lot of ink spilled out on the supposed practice of employers requiring employees to provide access to their private social media accounts. I’ve long espoused both that this practice is not occurring with sufficient regularity to justify a legislative fix (despite New Jersey just becoming the 12th state to enact a legislative ban), and that employers should nevertheless avoid this practice because it erodes the trust that is necessary to build a workable employer/employee relationship.

Ehling v. Monmouth-Ocean Hospital Service Corp. (D.N.J. 8/20/13) provides further legal justification for employers to avoid this practice.

Deborah Ehling worked as a registered nurse and paramedic for MONOC beginning in 2004. Beginning in 2008, Ehling maintained a Facebook account with approximately 300 “friends.” She chose restrictive privacy settings on that account so that only her Facebook friend could see her wall posts. While Ehling had no MONOC managers as Facebook friends, she did add many coworkers, including a paramedic named Tim Ronco. Unbeknownst to Ehling, Ronco was taking screenshots of her Facebook wall and printing them or emailing them to MONOC manager Andrew Caruso. Caruso never asked Ronco for information about Ehling, and never requested that Ronco share Ehling’s Facebook activity. Nevertheless, once Caruso received copies of the Facebook posts, he passed them on to MONOC’s Executive Director of Administration.

On June 8, 2009, Ehling posted the following statement to her Facebook wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.

After MONOC management learned of the post, it temporarily suspended Ehling with pay. After MONOC fired Ehling for unrelated attendance issues, she sued, and claimed, among other things, that MONOC’s access of her private Facebook wall violated the Stored Communications Act and her common law right to privacy.

The SCA covers (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. The Court had little issue concluding that the SCA covers non-public Facebook wall posts.

The SCA, however, has an exception for “authorized users.” This exception applies where (1) access to the communication was “authorized,” without coercion or pressure, (2) “by a user of that service,” (3) “with respect to a communication … intended for that user.” Ehling had no evidence to support her claim that MONOC’s access of her Facebook page was unauthorized. To the contrary, the evidence showed that Ronco voluntarily shared the information with Caruso, and, therefore, was “authorized” under the SCA. Thus, no violation of the SCA occurred via MONOC’s possession of wall posts from Ehling’s private Facebook page.

The Court disposed of Ehling’s invasion of privacy claim on similar grounds. In doing so, however, the Court made the following interesting observation:

The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook. Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else … This may have been a violation of trust, but it was not a violation of privacy.

In other words, the Court may have found a privacy invasion if the employer had used surreptitious or coercive means to gain access to its employee’s Facebook page. Thus, whether or not a statute specifically prohibits employers from requiring the disclosure of social media account information, this court makes it clear that an employer’s demand of such information is nevertheless illegal. Or, to put it another way, please don’t ask your employees to turn over their online passwords.

This post originally appeared on The Legal Workplace Blog.

When Coyote Posts Get Ugly (My latest column in Workforce magazine)

Each month I write a featured column in Workforce magazine. This month, my column focuses on the risks businesses take when then take to social media to comment on pending litigation and the employees who’ve filed. The article—”When Coyote Posts Get Ugly”—is available here.