NLRB and social media

The NLRB has issued a recent decision striking down an employer's overly broad social media policy on the grounds it might intimidate employees in the exercise of Section 7 rights. In Costco Wholesale Corporation, 34-CA-012421. The Board overturned an ALJ's decision upholding a

rule prohibiting employees from electronically posting statements that "damage the Company . . . or damage any person's reputation.

The Board concluded this policy would reasonably tend to chill section & activity. page 2 of the decision does a pretty good job of laying out the potential problems with social media policies. There are three potential problems: chilling effect, a rule promulgated in response to union activity and application of the rule to restrict Section 7 activities. Any one of the three could lead to a violation. The Board hinted that an employer providing examples of proscribed conduct, and a disclaimer of coverage of Section 7 activities might avoid a violation, but the ultimate analysis is going to be the ALJ/Board's view of whether the policy and its context indicates any one of the three problems exist.

Congress may get serious about employee privacy

The Password Protection Act of 2012 was introduced yesterday. If passed the Act would severely restrict an employer's ability to compel or coerce employees into providing access to any information stored anywhere on the internet.

Social media passwords protected in MD

Maryland becomes the first state to ban employers from requesting social media passwords from employees and applicants. As a practice I think asking employees for their Facebook or other social media password is just creepy. Particularly where the practice is not required of every employee or applicant in the same job classification, and there exists a rational basis for employer concern about the employees personal behavior.

Facebook stands up to employers

Facebook has announced it may sue employers who require applicants or employees to provide their Facebook password. Not so sure Facebook would win, but who wants the honor of being the test case?

Who owns the Twitter account?

Who owns that Twitter account? There have been a number of posts, here, here and here concerning "ownership" of a departing employees Twitter account. Litigation was inevitable. For a discussion of the legal theories which survived a motion to dismiss go here.

Social media survey has surprising results

Cisco surveyed college students and recently employed college graduates about the importance of internet access, social media use and access to mobile devices at work. The results should give pause to employers considering drastic policies curtailing use. Bottom line finding is a company's policies may affect job choice even more than salary. The findings are astonishing.

• 68% of employees and 71% of college students believe corporate devices should be used for social media and personal use
• 80% of college students want to choose their device
• More than two of five would accept a lower-paying job that had more flexibility with regard to device choice, social media access, and mobility than a higher-paying job with less flexibility.
• 50% of college students say they would rather lose their wallet or purse than their smart phone or mobile device
• 7 out of 10 students believe being regularly in an office is necessary
• Many respondents cite a mobile device as “the most important technology” in their lives
• Seven of 10 employees have “friended” their managers and coworkers on Facebook
• Two of five students have not bought a physical book (except textbooks) in two years
• two-thirds would choose the internet over a car
• one in three say the internet is as important as food, water and air.

Rather than focusing on an employer's legal right to control employees, some employers may derive substantial benefits if company policies permit employees internet access, social media use and mobile device use at work.

Tweet! You're fired!

I think I'm getting a clearer picture of the NLRB's direction on employee off duty use of social media (blogs, tweets, etc.). There are two areas of concern. The first is overbroad policies which chill employees exercise of section 7 rights. Essentially the Board will assume intimidation occurs if the policy arguably discourages employee discussion of otherwise protected issues. Employers with overbroad social media policies will likely find the NLRB believes such a policy, even if not enforced is a basis for objecting to an employer won representation election. Its pretty clear that this is a major new problem in an organizing drive. The second point is whether the medium actually changes the analysis of what conduct is protected. It really shouldn't. The Board in refusing to issue a complaint is a recent case involving a reporter is illustrative. The reporter's tweets in issue can be found here. The NLRB refused to issue a complaint because the reporter's comments were not protected. Even though the newspaper had no social media policy, the reporter's discharge was lawful because it was based on comments entitled to no protection. The bottom line is there is danger for an employer which has a social media policy, and it will be closely scrutinized by the NLRB for its chilling effect. But, even in the absence of such a policy, an employer would remain able to discipline employees for statements which are unprotected either because they do not relate to an exercise of a section 7 right, or because they were not concerted.

Another NLRB Complaint issued over Facebook firing

The Chicago Regional Office of the NLRB has issued a complaint against a luxury car company for firing an employee who posted a "concerted" protest about a promotional event which could adversely affect compensation for sales employees. Our previous posts on this issue are here. This is one area of law that has evolved rapidly. Employers should seek legal advice before making employment decisions about computer use/social media or blog postings. It isn't as simple as conventional wisdom may suggest.

New Labor Media

Would the Wisconsin demonstrations have happened without social media? Probably, but with it the event is more dynamic and dramatic. New Labor Media gets it correct.

Comments on social media as protected concerted activity

You see occasional news references for applicants and employees getting in trouble with employers for things posted on social media. The NLRB recently issued a complaint against an employer who disciplined an employee for for posting negative comments about a supervisor on her Facebook page. The NLRA protects employees who discuss the terms and conditions of their employment with co-workers and others. The NLRB just announced the case has settled and the employer has agreed to revise their social media and internet policies 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. Employers should review these policies to ensure there is not a problem like this which could result in a legal challenge.

Employees protected by NLRA when commenting about employer in social media

The Hartford, CT, Region of the NLRB has issued a complaint in a case involving the termination of an employee who posted negative comments on Facebook about her supervisor. The Region's investigation determined the employee's remarks posted to her personal Facebook page from home which drew comments from co-workers supporting her assessment of the supervisor was protected concerted activity. The Region also determined the company’s blogging and internet posting policy blanket provisions, (1) prohibiting employees from making disparaging remarks when discussing the company or supervisors and (2) prohibiting employees from depicting the company in any way over the internet without company permission, interfered with employee rights to engage in protected concerted activity. At this stage these claims are just allegations, but employers should take note these allegations are likely to receive sympathetic treatment by the current NLRB. Previously the Office of General Counsel had issued an advice memorandum approving a narrowly crafted internet non-disparagement policy. The acceptible policy prohibited the following: "Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects."

Social media discovered

A New York trial court has ruled that a personal injury plaintiff has no reasonable expectation of privacy on her Myspace and Facebook pages even those protected by privacy settings. Romano v. Steelcase, Inc. throws around legal concepts and seems to take a more difficult path to reach its result than necessary, but it provides a good source of citation to cases from several jurisdictions.

Social Media as litigation tool

The New York State Bar has issued an ethics opinion that accessing the public pages of a social network site to gather information on a litigation opponent is ethical. HAt Tip to the always interesting Adjunct Law Prof Blog.

Social media delay

Social Media is designed for organizing in general and its uses for labor organizing are immense. Just as the internet has changed the way election campaigns are run, social media can change the way communication of the information of organizing and campaigning is distributed and received. Here's a piece on why labor does not get social media. The post is important stuff for the future. But the poster misses the current problem. The putative recipients of social media communications are not positioned to receive the information. They lack access at work, or perhaps have no access at all. That will change as technology gets ever cheaper, and smart phones more easily available. Employers have you thought about cell phone use and social media policies in the workplace?

The social media weapon

Here is a good post on how unions use social media as an economic weapon (with images). Again it relates to the Motts' strike.

LinkedIn solicitation yields suit

It had to happen. A former employee obligated to refrain from soliciting former coworkers has done so using social media, and been sued for violating the non-compete agreement.

Union tweets, blogs and social media

The AFL-CIO blog discusses labor's use of social media and the internet.

Evaluation of employee/applicant by social media

Can you base employment decisions on your employee's use of social media? Must you limit the decision to work related issues? The issue is a bit complicated because there is no national act which addresses the issue yet, and there probably wont be anytime soon. More after the jump.
In the NFL players case there was a Minnesota statute which prohibited an employer from disciplining the Vikings players for off duty conduct that was not illegal. Since the discipline was for using a masking substance, not an illegal drug, the Court allowed the case to go forward. The Saints players suit was dismissed because there is no similar protective statute in Louisiana. Employers are in a similar position with social media. Its use must be evaluated on a state-by-state basis. Privacy rights vary as does the presence or absence of employee protective legislation. There may even be some municipal protective laws.

In many states a private sector employer may use private non-job related information to make decisions because there are no restrictions. It would also be permissible in many states to require as a condition of being considered for employment and continued employment that the applicant/employee consent to providing access to social media information. I'm not saying it is advisable to require access, but it would be lawful. In most at-will jurisdictions off-duty behavior can be a legitimate reason for discharge. I'm not suggesting its good HR management, just that its not unlawful. Even in the public sector not all off-duty behavior is protected by the First Amendment.

As for discrimination, a passive review of social media does not equate to asking the wrong question in a ftf interview. When an inappropriate question is asked, the inference is the information will be used to evaluate. That is a step closer to proof of discrimination than merely the opportunity to see information which, if used for a decision, might prove discrimination.

For those in law school, medical school and others who must be licensed by a state board, should beware. Some have already started reviewing social media sites of applicants.