The NLRB agreed that the employer violated the NLRA’s prohibition of unfair labor practices by discharging employees who engaged in protected concerted activity related to a Facebook posting. Most interestingly, in generally reviewing the retailer’s employee handbook, the NLRB found a violation that was not part of the employees’ complaint. A handbook rule prohibited the disclosure of wages or compensation to third parties, including other employees. The panel found that this rule violated the NLRA and had to be rewritten. (See Design Technology Group, LLC d/b/a Bettie Page Clothing and DTG California Management, LLC d/b/a Bettie Page Clothing, a single employer, 359 NLRB No. 96 (San Francisco, Calif., April 19, 2013).)

The NLRA gives employees the right to act together (concerted activity) to improve their working conditions. Concerted activity is activity “engaged in, with or on the authority of other employees, and not solely by and of the employee himself.” When several Bettie Page employees issued complaints to upper management that went ignored, the employees took to Facebook and complained about their working conditions. One employee even posted that she would be bringing a California Worker’s Rights book to work with her, telling her co-workers, “BOY will you be surprised by all the crap that’s going on that’s in violation.”

Shortly after, the employees who participated in the Facebook postings and other complaints were fired by their manager, who said that “things were not working out.” When the NLRB General Counsel got involved, however, it was Bettie Page’s employment practices and policies that weren’t working out. Click here for more details.

Background

The NLRB enforces the National Labor Relations Act, which is designed to “protect employees’ rights to engage in collective action — to organize themselves and to engage in “collective bargaining … for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” Section 7 of the NLRA protects the right of employees to discuss wages, hours, terms and conditions of employment with each other, or non-employee union representatives, on their own time and using their own resources. This right extends to making critical statements about working conditions, including about supervisors.

Furthermore, it is a violation of NLRA Section 8(a)(1) to maintain work rules or policies that too broadly restrict these protected discussions.

Facts of the Case

The NLRB complaint against Costco resulted when several employees at Costco’s Milford, Conn. location allegedly were interrogated by management about attempts to form a union. The NLRB then began an investigation that focused on several Costco employee handbook policies, including Section 11.9, the “Electronic Communications and Technology Policy,” which in pertinent part said:

 Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

In an August 2010 ruling, an administrative law judge ruled against Costco for one NLRA claim and dismissed two claims, including one involving Section 11.9. In dismissing those claims, the judge found that the employees would not reasonably construe the rule as regulating and inhibiting Section 7 conduct. Instead, the judge concluded employees would reasonably infer that Costco’s purpose in promulgating the rule was to ensure a “civil and decent workplace.”

However, the full board reversed the judge’s decision on Section 11.9, noting that appropriate inquiry was whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Here, the board determined that:

The broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” clearly encompasses concerted communications protesting the Respondent’s treatment of its employees. Indeed, there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule. In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of the Respondent or its agents.

Accordingly, the NRLB issued an order under which Costco is to cease and desist using the unlawful policy language, and take corrective measures, such as posting notices about the violation and providing revised language.

For more details on the changing legal landscape involving social media and human resources, see our Social Media and HR Focus and  Think Before You Click: Strategies for Managing Social Media in the Workplace, both in hrcomplianceexpert.com.

HR expert Allison West will discuss how to manage legal risks in drafting social media policies — and will take questions — during a ThompsonInteractive Nov. 8 webinar.

DOL’s recently created smartphone app, “Eat Shop Sleep,” allows users to search for places to eat, shop and sleep and to read Yelp customer reviews. However, the app also provides users with health, safety and labor highlights. It narrows results by industry, health/labor violations and company name, and also has a “Take Action” button that permits users to report violations to DOL.

A red icon next to the company’s name indicates FLSA violations; a green icon indicates that the company has no violations on its record. When a user chooses a company, the violation is displayed by showing:

• the time period in which      the violation(s) was found;
• whether the violation was      a child labor violation or an FLSA wage/hour violation;
• whether the company is a      repeat offender;
• the number of employees      owed backwages from the company;
• the dollar amount owed to      employees; and
• any fines or penalties      imposed by DOL.

The “Take Action” button also provides DOL contact information (phone number, office locations and a link to an online complaint form), outlines workers’ rights (such as the right to review work records) and provides links to the website of the Occupational Safety and Health Administration.

Information on establishments investigated will be included in the division’s enforcement database, which can be viewed online at http://ogesdw.dol.gov, and the smartphone app, which can be found on the DOL’s app Web page, http://www.dol.gov/dol/apps/winners.htm.

The app is just one of many ways social media is able to influence business behavior and shows how the government is trying to use the power of social media. As a DOL press release explains, “[b]usinesses will have a greater incentive to comply with the law now that their compliance track records are publicly available.”

On Jan. 24, NLRB Acting General Counsel Lafe Solomon released his second report describing social media cases reviewed by his office. His Operations Management Memo covers 14 cases that involved whether an employee’s use of social media was a protected activity under federal labor law.  Of those cases, half involved employer social media policies — five were found to be unlawfully broad, one was lawful and one was found lawful after being revised. Employee terminations based upon Facebook postings made up the balance of the cases. Here, several terminations were found to be illegal because they were based on unlawful policies. But in one case, an NLRB press release noted, the termination was upheld despite an unlawful policy because the employee’s posting was not work-related.

According to the press release, the report reinforces two key issues in Solomon’s earlier report :

• 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.

Solomon’s new report noted that social media issues and their treatment by the NLRB continue to be “a ‘hot topic’ among practitioners, human resource professionals, the media, and the public.” Accordingly, he has requested NLRB regional offices to send him “meritorious” cases “in the interest of tracking them and devising a consistent approach.” Currently, his office has about 75 cases.

Here’s a snapshot of two cases discussed in the report.

1. Unlawful Discharge for Facebook Comments. An employee complained on Facebook about her job transfer to a less lucrative position. Some former employees posted in response. For example, one person said “commenting that only bad behavior gets rewarded, and that honesty, integrity, and commitment are a foreign language to them.” The next day, the employee was terminated after the employer showed her a copy of her Facebook wall. The employer’s policy prohibited, “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” The NLRB concluded that the employer’s actions were unlawful because, among other things: (a) its policy could be construed to restrict protected activity, such as statements that the employer is, for example, not treating employees fairly or paying them sufficiently; (b) the employee’s initial Facebook statement, and the discussion it generated, “clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees”; and (c) the employer fired the employee specifically as a result of the protected nature of her posts, which were fostering additional discussion among employees about workplace problems.
2. Employee’s “Venting” on Facebook Not Protected. An employee who felt ill and did not get a desired response from his supervisor posted comments on Facebook “using expletives” and indicating it was” too bad when your boss doesn’t care about your health.” No coworkers responded to his post, but in response to an inquiry from a non-coworker, he replied, in part, that he thought his employer was trying to give him a reason to be fired because he was about “a hair away from setting it off.” Ultimately, he was fired for violating company policy. The termination letter stated that his Facebook comments were inappropriate, threatening and violent — the HR manager interpreted “setting it off” as bringing a gun to the warehouse and shooting everyone in it, according to NLRB, rather than “just venting” as the employee contended. The NLRB concluded that employee did not engage in protected activity, because: (a) although his postings addressed his terms and conditions of employment, he did not seek to initiate or induce coworkers to engage in group action; (b) none of his coworkers responded to the postings with similar concerns; and (c) his postings were not an outgrowth of earlier employee meetings or attempts to initiate group action regarding the employer’s sick leave or absenteeism policy.

For more information on social media and HR, see Thompson Publishing Group’s Think Before You Click: Strategies for Managing Social Media in the Workplace.

“Social media monitoring that runs afoul of the employee’s privacy interests will subject the employer to liability,” according to Margaret M. DiBianca, attorney with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Del., in the book  Think Before You Click: Strategies for Managing Social Media in the Workplace.

“The right to privacy is derived from several sources in the law, including the U.S. and state constitutions, federal and state statutes, and state common law,” wrote DiBianca, a contributing author of the book. “Each source, though, applies only to certain individuals and extends only certain protections. Thus, employers can avoid violating the privacy rights of their employees only by understanding when the various laws apply and what conduct they protect.”

DiBianca goes into detail about how these laws specifically affect an employer’s ability to monitor employees’ social media use. Here are a few excerpts.

Federal and State Constitutions

The right to privacy is not expressly provided by the U.S. Constitution, but the U.S. Supreme Court has inferred a constitutional right to privacy from the First, Fourth, Fifth and Fourteenth Amendments. Of these, the Fourth Amendment’s prohibition on unreasonable searches and seizures has been utilized most often as the basis for employees’ privacy rights. Only public employees (and those employees whose employer is acting as an agent of the government) may claim the protections of a federal constitutional privacy right. …

Like other claims for invasion of privacy, a claim brought under the Fourth Amendment turns largely on whether the employee had a reasonable expectation of privacy. The more intrusive the search, the more likely an invasion will be found. The best proactive measure that an employer can take is to have a clearly established search policy. Employees who receive advance notice of such a search policy have a lessened expectation of privacy, making a claim more difficult to assert.

Federal Statutes

a) The Wiretap Act

The federal Electronic Communications Privacy Act of 1986 (ECPA) controls the access, use, disclosure, interception and protections related to written and oral electronic communications. Title I of the ECPA, known as the Wiretap Act, protects information in transit. The Wiretap Act provides for three broad exceptions that enable employers to monitor employees’ electronic communications with immunity. The provider exception permits an employer to monitor electronic communications transmitted on its own proprietary email system.

The second exception is known as the “business-use” exception. … Decisions interpreting this exception look to the type of equipment used to perform the monitoring, whether the monitoring occurs during working time, and whether the employees were first notified that they were being monitored. The third exception, known as the prior-consent exception, provides that employers will not be subject to liability for electronic monitoring where they first obtain the employee’s consent.

b) The Stored Communications Act

[Title II of the ECPA, known as the Stored Communications Act (SCA), protects information once it has been received and placed in storage.] The SCA provides a private right of action for any person aggrieved by a violation of the statute. The SCA is one of the few laws that have been successfully invoked to protect employees’ social media use. …[Specifically, the  Pietrylo v. Hillstone Restaurant Group and  Konop v. Hawaiian Airlines, Inc. decisions “make clear that an employer who is not invited to view an employee’s social networking site or other online content by the employee himself may be subject to liability under the SCA.”

State Common-Law Claims

State law provides the basis for claims most commonly associated with a right to privacy. … In the employment context, there are four types of privacy intrusions that can trigger liability:

• an unreasonable intrusion upon the employee’s seclusion;
• unreasonable publicity given to the employee’s private life;
• an appropriation of the employee’s name or likeness; or
• publicity that unreasonably places the employee in a false light in the public eye.

Claims for intrusion upon seclusion [involving an intrusion by the employer into an employee’s private place, conversation or other affairs] and for the publication of private facts [when the employer makes a public disclosure of embarrassing private facts about the employee] have been the most successful.

DiBianca’s complete explanation, as well as social media tips from other legal experts — including how to draft a successful social media policy — can be found in Think Before You Click.

This survey is part three in a series focusing on the use of social media in the workplace, especially by human resources (HR). Here are some of the highlights:

• Sixty-eight percent of respondents reported their organization currently uses social media activities to reach external audiences. Of those organizations, 19 percent began using social media within the last year.
• The most frequently used social media and multimedia platforms include: (1) Facebook (45 percent); (2) LinkedIn (34 percent); (3) Twitter (28 percent); and (4) YouTube (18 percent). Company blogs (17 percent) and webinars/webcasts (16 percent) are also popular platforms.
• Marketing (67 percent), HR (44 percent) and public relations (38 percent) were the groups most likely to use social media on behalf of their organizations to reach external audiences.
• Overall, 31 percent of companies track employee use of social media, and 43 percent block access on organization-owned computers or handheld devices. The most frequently blocked social media sites are: (1) Facebook (39 percent); (2) Myspace (38 percent); (3) Twitter (33 percent); (4) YouTube (32 percent); and (5) iTunes (26 percent).
• A slightly smaller percentage of organizations, 39 percent, block access to multimedia platforms (for example, photo-sharing applications, YouTube and other video-sharing sites) on company-owned computers or handheld devices.

The survey sample consisted of 532 randomly selected HR professionals with a recruiting/staffing function. The survey, which was fielded Dec. 17, 2010, through Feb. 1, 2011, had a 19-percent response rate. For a copy of the findings, go here.

To learn more about the growing use of social media in the workplace, see Think Before You Click: Strategies for Managing Social Media in the Workplace, published by Thompson Publishing Group.

The salesman lost his unfair labor practices case that contended a dealership improperly fired him for his Facebook posts. An administrative law judge (ALJ) at the National Labor Relations Board www.nlrb.gov on Sept. 28 ruled against BMW salesman Robert Becker, according to an NLRB press release.

First, the salesman used Facebook to mock his employer, Karl Knauz Motors, over the quality of food and beverages at a dealership event promoting a new BMW model.

That same day, he posted pictures of an accident at a neighboring Land Rover dealership, owned by Knauz Motors. A salesperson had allowed a 13-year-old boy to get behind the wheel of a vehicle there, and the youth drove it into a pond. Becker’s comment was: “This is your car: This is your car on drugs.”

Management of the BMW dealership didn’t like the negative and sarcastic tone of Becker’s comments and asked him to delete the posts, which he did, but he later was fired after a managers meeting. See the Chicago Tribune article on this.

Becker had contended he was engaging in protected speech about the terms and conditions of employment when he made the online sarcastic comments about his employer.

The ALJ ruled that the postings and back and forth with other employees about the food at the sales event was protected activity, but the
postings involving the accident were not. Since Becker was fired for the accident postings, he was not protected, the ALJ concluded.

The ALJ ruling came in spite of his opinion that the car dealership had an overly broad employee policy, which tended to chill employee
rights to discuss certain matters.

Here’s the background. Lydia Cruz-Moore was employed by Hispanics United of Buffalo, Inc. (HUB), and to varying degrees complained in conversation or text messages to several employees about other employees’ job performance. Cruz-Moore told fellow employee Mariana Cole-Rivera that she was going to raise these concerns with HUB’s Executive Director Lourdes Iglesias.

On Oct. 9, 2010 — while at home and on a non-work day — Cole-Rivera posted this message on her Facebook page: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?”

This resulted in a round of angry, sarcastic and curious responses from several employees, ranging from “What the f. .. Try doing my job I have 5 programs,” to “Is it not overwhelming enough over there?” Even Cruz-Moore posted, saying “Marianna stop with ur lies about me.”

Cruz-Moore also complained to Iglesias about the Facebook posts, in an apparent effort to get the employees terminated or at least disciplined.

On Oct. 12, Iglesias met individually in a “very short” meeting with five of the employees who had made the Facebook posts and fired them, contending that the posts constituted bullying and harassment, and thus violated HUB’s policy on harassment, and led Cruz-Moore to have a heart attack.

This ultimately led to NLRB complaint against HUB, which argued that the five were terminated because they engaged in concerted activity protected under NLRA Section 8(a)(1), which provides that it is an unfair labor practice to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7. In turn, Section 7 states that, “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection … (Emphasis added)”

Here, the judge cited several NLRB opinions to conclude that the employees’:

Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which [HUB] employees performed their jobs, are protected. It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to [HUB].

* * * *

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, [HUB] prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that [HUB] lumped the discriminatees together in terminating them, establishes that [HUB] viewed the five as a group and that their activity was concerted…

Furthermore, the judge noted that the Facebook posts were not made at work or during working hours, and HUB did not establish that the employees violated any of its policies or rules. The only harassment policy at issue focused on certain forms of harassment that create an intimidating, hostile or offensive work environment, unreasonably interfere with an individual’s work performance or otherwise adversely affect an individual’s employment opportunity — none of which could be proven here. Furthermore, no evidence existed connecting Cruz-Moore’s alleged heart attack with the Facebook posts.

The judge then held that HUB must reinstate the employees, expunge their records regarding the unlawful discharges and make them whole for any loss of earnings and other benefits. Furthermore, HUB must post a notice “in conspicuous places” for 60 days regarding the disposition of this case.

Here’s a copy of the opinion below.

And if you want to learn more about the evolution of employment law related to social media — and the growing need for social media policies in the workplace, see Think Before You Click: Strategies for Managing Social Media in the Workplace, published by Thompson Publishing Group.

The article in the Aug. 5 Las Vegas Sun discussed a supervisor working in Nevada state government who allegedly complained on Facebook — not on company time or using office equipment — about an employee’s use of leave under the Family and Medical Leave Act (FMLA), which he renamed in an interesting way. Here’s an excerpt:

But what if it’s the boss who decides to use Facebook to complain about an employee?

That scenario is playing out within the state’s unemployment benefits anti-fraud unit after the agency’s manager used his personal Facebook page to complain about an unidentified employee he thinks uses too much sick time.

“Why is it that for some people FMLA stands for Family Medical Leave Act and for others, it should stand for Fire My Lazy Ass?” unit manager Steven Zuelke wrote on his Facebook page last month, hours after one of his employees left work early because she said she was sick.

Apparently, Zuelke went on and on, mocking the employee and ranting “about how difficult it is for the state bureaucracy to deal with problem workers.”

He never used the employee’s name, but considering only two employees were on FMLA leave at the time, of course one of them assumed she was the target:

“I had to read it a few times because I was shocked and confused,” said Sherry Truell, a claims examiner who works in Zuelke’s unit and has used FMLA time extensively this year. “I was being referred to as lazy, an anchor, that other people have to do my work, stuff that related to my personal business.

“I was extremely embarrassed. My co-workers can see this information.”

Truell said she used FMLA heavily last month because of what she described as a stress-related medical condition and because her son needed surgery. She added she usually takes two or three days off a month.

And here’s a key point from the article:

Describing the Facebook rant as bullying behavior, Truell has sought the help of her union representative to address the issue and is considering filing a grievance.

You may say that’s only a union or internal workplace issue, but you would be wrong. In Think Before You Click: Strategies for Managing Social Media in the Workplace, published by Thompson Publishing Group, we discuss how a supervisor’s inappropriate social networking comments can lead to lawsuits for unlawful retaliation, harassment and discrimination.

We don’t know what Zuelke’s actions will ultimately lead to. Hopefully for Nevada, it may at least result in a social media policy — the state doesn’t have a specific written policy on Facebook use, according to the article.

This data wasn’t just handed to the Chamber. Rather, the group submitted a Freedom of Information Act request to the NLRB “seeking copies of all charges, complaints, and completed settlements related to social media” after an NLRB official both testified before Congress that the agency was investigating several social media charges against employers and issued a memorandum to its regional offices seeking any cases where employers had rules prohibiting or disciplining employees for using social media.

The Chamber “received a significant amount of information, including 117 charges, 7 complaints, and 5 settlement agreements.” A summary of this data is what makes up the Chamber study — which only focuses on issues raised through use of Facebook, Twitter and “similar channels”; not for example, cases involving employees posting information onto “more traditional” web pages.

The Chamber’s goal: For this information to help employers and legal counsel identify issues they should be aware of in struggling to apply labor law to employee use of social media.

Here’s a snapshot of some trends the Chamber found involving the two general categories under which most cases fall: (1) employer policies restricting employee use of social media that are alleged to be overbroad; and (2) employer discharge or discipline based on an employee’s comments posted through social media channels (generally, the issue here is whether the employees’ comments are protected activity in the NLRB’s view).

Allegedly Overbroad Employer Policies

• The employer maintained overbroad rules prohibiting employees from engaging in concerted activities, including: not allowing employees to air grievances over social media, not allowing employees to post derogatory comments that would damage the company via social media, and requiring employees to observe rules regarding professional courtesy.
• The employer maintained and enforced an overly broad policy prohibiting employees from making disparaging remarks about the company.
• The employer orally promulgated an overbroad non-solicitation rule by telling employees they violated a code of ethics by using a company computer to post to a website.
• The employer sent an e-mail expressing disappointment that employees took things to a newspaper rather than handling internally.

Termination Based on Alleged Protected Activity

• Discharge for discussing terms and conditions of employment on Facebook.
• Discharge for being on Facebook while at work.
• Discharge of an employee based on “private Facebook e-mails” exchanged with friends and co-workers in which they complained about their working conditions and discussed a potential walkout in protest.
• Discharge of an employee for posting information about a medical insurance issue on the personal Facebook page of a coworker.

Some cases explain how an employer learned of the conduct, said the Chamber, to include:

• The employer engaged in unlawful surveillance by monitoring employee Facebook pages.
• An employer learned of employees discussing not receiving paychecks on time when a local newspaper printed excerpts from a Facebook conversation.
• A co-worker shared with management a Facebook conversation leading to the discharge of two employees.
• An employer discharged an employee after comments he wrote on his Facebook page were printed out by a co-worker and given to a supervisor.

For our past coverage on social media, go here and here. For info on how to develop social media policies, see Thompson Publishing Group’s Think Before You Click: Strategies for Managing Social Media in the Workplace.