Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

By Philip Gordon

In its most recent effort to draw lines on the self-described “hot topic” of the “lawfulness of employers’ social media policies and rules,” the National Labor Relations Board’s (NLRB) Office of General Counsel has taken the position that many policy provisions commonly seen in employers’ social media policies violate the National Labor Relations Act (NLRA). This most recent shot across the bow came on January 24, 2012, in the form of a report, issued to senior regional staff, on 14 cases which, according to the General Counsel, “present emerging issues in the context of social media.” This report follows a previous General Counsel report, dated August 18, 2011, which discussed 14 prior NLRB cases involving social media issues.

The cases treated in the report also contain the General Counsel’s opinion on whether the employer in each case violated the NLRA by imposing discipline based on social media conduct. We will cover this aspect of the report in a separate and forthcoming blog post. Here, we will focus on the thicket that the NLRB has created for employers who are trying to gain some reasonable control over what employees publish in social media, often to the world, about co-workers, supervisors, the workplace, and the employer’s products and services.

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By Philip L. Gordon

Selling luxury cars in a down economy can be tough enough without employees mocking a company-sponsored sales event on their Facebook page. An administrative law judge (ALJ) with the National Labor Relations Board (NLRB) issued an opinion last week holding that the National Labor Relations Act (NLRA) protected an employee’s sarcastic post, but nonetheless upheld the dealership’s termination decision because it was based on other, unprotected Facebook content. The decision is an important reminder for employers that when protected and unprotected content appear on the same Facebook wall, the protected content does not shield the employee from discipline based on the unprotected content.

The Knauz BMW dealership in Lake Bluff, Illinois, planned the “Ultimate Driving Event” to introduce the redesigned BMW 5 Series to its customers. At the event, the dealership not only offered BMW representatives, rather than the dealership’s sales staff, to take customers for a test drive, but also served hot dogs from a hot dog car as well as chocolate chip cookies, small bags of Doritos, and water. Upon learning of the dealership’s plans for the event, salesman Bobby Becker, and at least one other salesperson questioned the culinary selection. After the event, Becker tweaked the dealership on his Facebook page: “The small 8 oz. bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch . . . but to top it all off . . . the Hot Dog Cart. Where our clients could attain a over cooked weiner and a stale bunn . . . ”

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By Philip Gordon

In a recent blog post, we addressed three Advice Memos issued by the National Labor Relations Board’s (NLRB or the “Board”) Division of Advice, which provided useful guidance on the types of social media conduct that do not enjoy protection under the National Labor Relations Act (NLRA). On August 18, 2011, not long after the publication of those Advice Memos, the NLRB’s General Counsel issued a lengthy memorandum to all Regional Directors that summarizes the Board’s resolution of more than one dozen “social media cases,” including the three cases discussed in our prior blog post. As a contrast to that post, this post will focus on the cases in the August 18, 2011, Memorandum where the General Counsel found that an employer’s discharge of an employee violated the NLRA. The August 18, 2011, Memorandum also provides useful guidance on social media policies, which are addressed below as well.

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By Philip Gordon

The National Labor Relations Board created a stir in late 2010 by filing an unfair labor practice charge against ambulance company, AMR, for firing an employee who, among other things, called her supervisor a “mental patient” in a Facebook post read by many co-workers. As it turns out, the “Facebook case” was just the beginning of what appears to be a trend by the Board, subsequently joined by unions, to restrict employers’ ability to promulgate and enforce social media policies that, in the Board’s view, impinge on employees’ rights under the National Labor Relations Act. Several recent developments provide a window into the Board’s intentions.

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By Philip L. Gordon

The NLRB’s unfair labor practices charge against ambulance service provider AMR was a shot across the bow for employers. The complaint was the Board’s response to AMR’s discharge of an employee who called her supervisor a mental patient in a “friends-only” Facebook post in violation of AMR’s social media policy. However, the Region that brought the complaint also contended that any social networking policy that prohibited disparagement was per se unlawful unless it carved out rights under the National Labor Relations Act (NLRA). That element of the case raised broad concerns for employers throughout the U.S.

The Board’s General Counsel took the unusual step of announcing the complaint’s filing in a press release, setting off a buzz in employment, labor, and privacy law circles about the permissible scope of social media policies. The issue has become a hot one as employers seek to reduce the risk that employees’ off-duty social media activity will damage their organization’s reputation or expose the organization to liability. At the same time, the Obama Board appears to be seeking to expand employees’ leeway to use social media for protected labor activity and to require that employers not use broad policies to undercut concerted activity (in a union or non-union environment) protected by the NLRA.

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Labor law attorneys at Littler Mendelson have been predicting for months that the National Labor Relations Board, now dominated by Obama appointees, would take aim at employer policies that could be applied to restrict employees’ use of social media for purposes protected by the National Labor Relations Act. In what appears to be the first shot in an approaching battle, the NLRB’s Office of General Counsel issued a press release on November 2, 2010, announcing that the Board’s Hartford Regional Office had filed a complaint alleging that American Medical Response of Connecticut, Inc. (AMR) violated the NLRA by terminating an employee for posting negative comments about her supervisor on her Facebook page. Continue reading on Littler's Labor Relations Counsel blog.

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Many had anticipated a dramatic rejection of Register-Guard, the National Labor Relations Board's landmark December 2007 decision, which held that employees could not use their employer's e-mail system as a matter of right to engage in union-related activities or union solicitation (see our previous blog entry). Instead, on July 7, 2009, the D.C. Circuit let that decision stand, effectively holding that the newspaper in that case did not violate federal law by issuing a policy banning all solicitations, including union solicitations, from its corporate e-mail system.

The court nonetheless concluded that the newspaper had engaged in unfair labor practices in the way it applied the policy. The court found that one of the e-mails that resulted in discipline of the employee—who was also the union president—was union-related, but was not a solicitation. Consequently, the union president did not violate the newspaper’s electronic resources policy by sending it. The other two e-mails upon which the newspaper had relied to discipline the employee were solicitations that violated the company’s policy. However, the newspaper's lax enforcement of the policy vis-à-vis non-union-related messages and its after-the-fact justification for applying the policy to the employee's messages demonstrated unlawful discrimination against union activities. 

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Many employers include in their electronic resources policy a blanket prohibition on “engaging in any political activity.” A recent Guideline Memorandum issued by the NLRB’s General Counsel creates a minefield of potential unfair labor practices for employers who enforce this commonplace ban, especially as the 2008 presidential campaign heads towards its climax.

According to the GC’s Guideline, employees’ political advocacy can, in some circumstances, constitute “concerted activity” protected by the NLRA. The test is two-fold: First, is there “a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.” Put simply, is the political advocacy related to the terms or conditions of employment. Second, has the employee engaged in this protected political advocacy without violating "restrictions imposed by lawful and neutrally applied work rules." In other words, employers can discipline employees who engage in protected political advocacy as long as the rule used to justify the discipline is legal and is applied in a non-discriminatory manner. There’s the rub for employers.

Last December, the NLRB ruled that employers can implement an e-mail policy whose provisions incidentally prohibit union-related activity. An employer can, for example, promulgate a policy that bans all non-business use of its e-mail system or that bans all solicitations for membership organizations. While such policies effectively ban use of the corporate e-mail system for union-related activities, that result is only incidental to the broader ban directed at both non-union and union activities. Thus, an e-mail policy that bans all political activity using the corporate e-mail system is lawful, even though some of the banned activity may now, according to the GC’s Guideline, be protected concerted activity.

The challenge for employers is ensuring that this lawful policy is “neutrally applied.” During the presidential debate season, an employer can expect to see e-mail cheering and lambasting the candidates, encouraging co-workers to register for a particular party, and attacking or advocating planks in party platforms. If such e-mail traffic goes unpunished even though it violates the company’s ban on political activity over the corporate e-mail network, the trap may be laid for a successful unfair labor practice charge when months later employees are punished for exchanging e-mail about joining in a union-organized protest over a new work-related law advocated by the new President — whoever that might be.

For further analysis on the GC's Guidelines, please see Littler ASAP: Can a Bumper Sticker Get You Bumped? NLRB's General Counsel Issues Guidelines on Political Advocacy by Frank W. Buck and Richard L. Sloane.

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Some companies, like on-line retailer Zappos.com, are sponsoring corporate twitter sites. What is “twitter”? According to Twitter.com, “Twitter” is “a service for friends, family, and co–workers to communicate and stay connected through the exchange of quick, frequent answers to one simple question: “What are you doing?” A review of Zappos’ twitter site suggests the answer to that question rarely is “working.” Are Zappos employees unwittingly creating the justification for terminating their employment, or has Zappos—in an effort to foster unrestrained twittering—assured its employees that their “twittering” would not be used against them in a court of law?

We don’t know the answer to those questions, but we do know that any employer seeking to cater to the “Twitterites” in its workforce should first consider some tough legal issues. How will the company react when an employee twitters that she is “organizing a union” or “complaining to her buddies about all that overtime”? Would a Twitterite ever be so frank or uncool? How does a business respond to a Twitter record that, in fact, does show that an employee seems always to be doing something other than work during working hours? Twitter actually is quite good for identifying slackers because each Twitter post includes the date and time of posting. Yet this begs another question: How will the company extend a “litigation hold” to Twitter after receiving a preservation demand from a sophisticated plaintiff’s lawyer who specifically identifies "Twitter" as one category of information that purportedly must be preserved?

The point of this post is not to provide answers, but rather to highlight that each new generation of “cool corporate communications tools” brings some tough legal issues to the forefront. Those issues should be thoroughly discussed before an employer rushes headlong into an embrace of the next new thing.

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In a highly anticipated decision, the National Labor Relations Board has emphatically landed on the side of employers whose policies bar employees from using corporate e-mail resources for union activities.

In The Guard Publishing Co. d/b/a The Register Guard, the Board, in a 3-2 decision, held that “employees have no statutory right to use an employer’s equipment or media for Section 7 communications.”  Section 7 of the National Labor Relations Act  encompasses communications about virtually all union activities by employees, including solicitation, organizing, grievances, picketing, strikes, and discussions about the terms and conditions of employment.  In light of this ruling, an employer may, in the words of the Board, “lawfully bar employees’ nonwork-related use of its e-mail systems,” including use for union activities.

There is a caveat, but as defined by the Board, the caveat is a narrow one:  Employers can not act “in a manner that discriminates against Section 7 activity.” (emphasis supplied).  Significantly, the Guard Publishing decision substantially narrows the prior definition of “discrimination” for purposes of analyzing whether an e-mail policy (or any other policy restricting Section 7 activities) on its face, or as enforced by the employer, interferes with Section 7 rights.

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