SOCIAL MEDIA IN THE WORKPLACE: - PowerPoint Presentation

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 SOCIAL MEDIA IN THE WORKPLACE: The New Water Cooler for Discrimination & Employee Privacy Issues   Cory A. Kuhlenschmidt, Esq.PartnerBamberger, Foreman, Oswald & Hahn, LLP20 NW Fourth StreetP.O. Box 657Evansville, IN  47704ckuhlenschmidt@bamberger.com Slide2

It’s an Employee-Social Media WorldSocial media such as Facebook, Twitter and Linked In are part of an employee’s everyday life. A “legal perspective”: given the dynamics of social media, many legal headaches await employers regardless of whether or not their employees are using social media at home or at work. A “practical perspective”: social media has inundated the workplace, and thanks to the smart-phone, the ubiquity of social media means employees are using these internet applications at work, everyday, and they will continue to do so for the foreseeable future. Slide3

It’s an Employee-Social Media WorldAccording to a recent internet survey: 35% of those responding admitted to spending up to 30 minutes per week using social media during work time 32% of the respondents said they do not spend anytime during work hours using social media 68% acknowledged that they use anywhere from 30 minutes to more than 10 hours per week using social media.13 13http://manpowerblogs.com/both/2012/02/02/quaterly-socail-media-index/Slide4

Employers Strike Back (sort of)Unofficial Facebook “Background Checks” - Many employers are using the practice of viewing social networking sites and blogs and using internet search engines to obtain information about job applicants and to monitor current employees. A 2009 Careerbuilder.com survey revealed that 45% of employers reported that they use social networking sites for such purposes.14 Another survey conducted by Microsoft revealed that 79% of U.S. human resource professional respondents used online information to evaluate candidates as part of their formal hiring process; and 84% of those surveyed believed it is appropriate to consider an applicant’s online reputation when evaluating the person for the job.1514Forty-Five Percent of Employers Use Social Networking Sites to Research Job Candidates, Career Builder Survey Finds (Aug. 18, 2009), available at www.careerbuilder.com/Share/AboutUs/PressReleases.aspx?archiveyear=200915Data Privacy Day: Perceptions Study (Jan. 2010), available at www.microsoft.com/privacy/dpd/research.aspxSlide5

Didn’t We Almost Have It All?State Laws Prohibiting Employers from Asking for Facebook PasswordsIllinois’ Right to Privacy in the Workplace Act (820 ILCS 55/10)Other states: California, Delaware, Maryland, Michigan and New Jersey Federal Privacy LawsThe Federal Wiretap Act and the Electronic Communications Privacy Act (ECPA) of 1986 (amending the Federal Wiretap Act of 1968) imposes criminal and civil penalties against any person who intentionally intercepts an electronic communication with specific exceptions, including the “ordinary course of business” exception. 18 U.S.C. § 2511(2)(a)(1) (2006)Slide6

Didn’t We Almost Have it All?Federal Privacy Laws – continuedAs part of the ECPA, the Stored Communications Act (SCA) addressed stored electronic communications. Under the SCA, a federal court judge in New Jersey denied an employer’s attempt to throw out a jury verdict against managers of the employer who intentionally accessed a private, invitation-only chat group on My Space without authorization. Brian Pietrylo, et al. v. Hillstone Restaurant Group d/b/a Houston’s, No. 06-5754 (FSH) (D. N.J. Sept. 25, 2009)Slide7

Why Employer Computer Use & Social Media Policies MatterA New Jersey Court Decision: Stengart v. Loving Care Agency, Inc.On March 30, 2010, the New Jersey Supreme Court ruled in favor of a former employee of Loving Care Agency, Inc on the employee’s claim the state’s common privacy law protected specific emails of the employee from review by her employer. Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010)Slide8

Why Employer Computer Use & Social Media Policies MatterFacts of the CaseThe New Jersey Supreme Court considered whether the former employee, Ms. Stengart, had a reasonable expectation of privacy with regard to specific emails she sent and received with her attorney. Although the exchange of emails occurred using Stengart’s personal, web-base email account, Stengart used the company’s computer for these communications. As part of a litigation dispute against Stengart in a separate legal proceeding concerning Stengart’s claim of gender discrimination, Loving Care retrieved Stengart’s emails with her attorney from the company computer system to use the emails in the litigation. Stengart argued that the employer could not review the emails and could not use them in the litigation because of reasonable expectation of privacy in the communications. Ultimately, the New Jersey court agreed.Slide9

Why Employer Computer Use & Social Media Policies MatterFacts continued and Court’s rulingThe court ruled that the employer’s electronic communication was ambiguous and, and such, interpreted the policy against the company. The policy provided that the company could review any matters on the company’s media systems at any time, and that all emails and communications were not to be considered personal or private to employees. The court also found the policy’s disclosure of employee monitoring was inadequate as it did not put employees on notice that the company stored and could retrieve copies of employee’s private web-based emails. The policy failed to expressly state that company would monitor the content of emails made from an employee’s personal email account when they are viewed on company-issued computers. As such, the court held that Stengart had a subjective expectation of privacy to these emails, and the company’s policy did not remove a reasonable expectation on the part of Stengart to privacy in the emails.Slide10

Why Employer Computer Systems & Social Media Policies MatterThe “Take Away”:Although this case concerns an employee’s use of web-based email, it is instructive as it demonstrations that courts may draw a line between work place related communications and personal communications over the internet. A narrow reading of the case supports the argument that this case is not a complete “win” for plaintiff employees as the e-mails at issue were attorney-client communications and courts are very protective of the confidentiality of such communication­­If an employer does not have a electronic communications/social media policy that is specific enough to address employee’s personal use of company computer systems, employers may very well violate an employee’s right to privacy in reviewing emails, Facebook pages, and other web based information without authorization. Slide11

Employer Discrimination IssuesAlthough it is obvious to employers today that legitimate, unbiased decisions should support any hiring decision or adverse employment action, the world of social media is exposing employers to more personal information about individuals than 5-6 years ago. Such information may relate to the individual’s race, color, gender, disability, age, national origin, religion or other protected categories. An employer may be well intended when learning personal information via social media about candidates or its employees, but social media has exposed employers to a broad scope of personal information which can lay the foundation for an unlawful discrimination claim against the company.Slide12

Discrimination & Social MediaConsider this: An employer may have an extremely capable and talented female employee who applies for a promotion within the company. This promotion requires greater supervisory responsibility and travel to numerous satellite locations for the company across the country. The decision maker in management is a “friend” with the female employee on Facebook.The manager learns that the female employee is pregnant from one of her Facebook posts. Slide13

Discrimination & Social MediaThe knowledge foundation:If the employer decides not to promote the female candidate and instead promotes a male candidate for the position, the employer must be prepared to establish a legitimate, nondiscriminatory reason for this decision. Further, because of the Facebook friendship, the female employee can lay a foundation that the decision maker in management knew she was pregnant and that information was part of the decision maker’s process which resulted in denying her the promotion.Slide14

Discrimination & Social MediaThe growth of social media has expanded the opportunity for employees to share information with their coworkers and has added another world in which the lines of professional, working relationships can be blurred through electronic posts on Facebook, Twitter or other mediums. As such, companies should give serious consideration as to what rule, if any they would like to enforce with regard to management interaction with employees in the social media world.Slide15

Hostile Work Environments & Social MediaHaving a comprehensive social media and electronic computer system usage policy is a preventative step for employers to stay ahead of the expanding world of virtual workplace harassment in the context of employees interacting with one another via social media. For example, it is common for coworkers to establish some level of friendship and eventually coworkers will become Facebook “friend” As can often happen between coworkers, either inside the office walls or outside the office setting, one employee, typically a male, will make inappropriate comments, gestures or engage in some inappropriate conduct that makes the female coworker uncomfortable. As a practical matter, this occurs outside of the office because the formalities of the office setting have been removed. Slide16

Hostile Work Environments& Social MediaIn the world of social media, the formal boundaries of the office walls and the ability to “speak your mind” are all the more tempting.Is this a hostile work environment? Emily is an Office Manager and Gary is a truck driver who work out of the same company office. Although Gary and Emily do not hang out together outside of work, they spend a few minutes throughout the week talking about their weekends or activities.Because they have worked together for several months, Gary “friends” Emily on Facebook and Emily accepts the request. Although too embarrassed to express his feelings in person, Gary posts personal compliments about Emily’s appearance and her outfits that she wears to work several times a weekEmily complains to Human Resources about the wall posts stating that Gary’s posts make her feel uncomfortable at workSlide17

Hostile Work Environments& Social MediaDo the following facts change your mind? Gary’s posts become more personal and flirtatious, and Gary sends Emily personal pictures of himself in his swimsuit from his most recent beach vacation in Florida. Gary posts his desires about drinking pina colodas and getting caught in the rain with his co-worker Emily. When Human Resources asks Emily about the details of her complaint, she explains that the harassment is strictly occurring on-line in the “virtual world.”In addition to Emily, Gary has fifteen other Facebook friends who are co-workers at the company.Slide18

Hostile Work Environments & Social MediaWhat is an employer do?Employers should develop a comprehensive social media and computer system usage policy to address these varies situations. Employers need to make it clear to employees that their comments or conduct via social media should be respectful to one another, and to the company’s customers. Any employee who raises a complaint of harassment occurring via social media should be treated seriously, and the company should act immediately to investigate the employee’s complaint under the company’s established harassment procedures. Further, the employer should give serious consideration to adopting a work rule that either prohibits supervisors from being friends with co-workers and subordinates on Facebook, or, at the very least, addresses the serious consequences that social media” friendships” can cause within the workplace.Slide19

Employee Off-Duty Social Media Use: Employers Breathe a Sigh of Relief???An employer may not have a duty to monitor an employee’s off-duty social media use - Maypark v. Securitas Sec. Servs. USA, Inc. (Wisc. App. 2009) A security guard worked for the employer took photo badges of female employees from a work site, pleasured himself on the badges, and posted the photos of his activity on an adult website from his home. The employer terminated the security guard. The female employees sued the company for negligently training and supervising the security guard; however, the appeals court found in favor of the company stating that “employers have no duty to supervise employees’ private conduct or to persistently scan the world wide web to ferret out potential employee misconduct.”Slide20

Oh, NO…What Is “Off-Duty” Conduct???Blakely v. Continental Airlines, Inc. (NJ 2000) A female pilot brought claims of harassment/discrimination and retaliation against the airline. During the case, airline employees used an on-line computer bulletin board to post negative comments about the plaintiff. The plaintiff argued the posts were false and defaming and insisted the employer should be held responsible for the posts because it was aware of the posts. The lower court was instructed to determine whether the relationship between the electronic bulletin board and the airline established a connection to the workplace to impose liability on the airline.Slide21

The National Labor Relations Board Employees under the National Labor Relations Act have the right to engage in concerted activities for the purpose of their mutual aid and protection. This protection of concerted activity applies to both union and nonunion employees. Concerted activities: Includes discussing wages, hours and other terms and conditions of their employment with their co-workers. Because “terms and conditions of employment” is interpreted broadly, it also includes issues such as safety, unfair or biased supervisors, as well as other issues pertaining to employee working conditions.Slide22

The National Labor Relations BoardConcerted Activities:the NLRB has also defined “concerted” to include employee activity that is “engaged with or on the behalf of other employees”; a single employee bringing a workplace issue on behalf of a group of employees; and a single employee taking action that attempts to initiate group action or further group goals.Employers are prohibited from taking an adverse employment action against an employee who engages concerted and protected activity. If an employer takes adverse employment action against an employee who has engaged in concerted and protected activity, such employer action could constitute an “unfair labor practice.” The NLRB adjudicates unfair labor practice complaints against both union and non-union employers. Remedies include reinstatement with back pay for discharged workers, invalidation of policies, and orders to post notices.Slide23

Hold On to Your Hats:The NLRB & Social MediaOver the several years, the NLRB has emphasized that Section 7 protections will extend to an employee who uses social media to raise workplace issues which concern more than just the individual employee. The world of social media is the newest version of the workplace water cooler or employee break room. Below are numerous unfair labor practice charges that were either tried before an Administrative Law Judge or cases which in which the General Counsel did not purse the charge, all of which address Section 7 rights of employees in the context of social media.Slide24

Hispanics United of Buffalo, Inc.Case OverviewAn NLRB administrative law judge ruled that the employer, Hispanics United of Buffalo, unlawfully terminated five employees for complaining about working conditions on their Facebook pages. The employees’ comments/complaints were in response to another employee who posted a co-worker’s allegation that employees do not do enough to help their clients. The post resulted in employees responding on Facebook by defending their work performance and criticizing their working conditions.Slide25

Hispanics United of Buffalo, Inc.Facts of the Case - the first employee posted the following comment about the co-workers:On Saturday, October 9, 2010 at 10:14 a.m., Mariana Cole-Rivera posted the following message on her Facebook page from her home: 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?The following employees responded by posting comments on Cole-Rivera's Facebook page:At 10:19, Damicela Rodriguez posted the following response: What the f. .. Try doing my job I have 5 programsAt 10:26, Ludimar Rodriguez posted: What the Hell, we don't have a life as is, What else can we do???At 11: 11, Yaritza Campos posted: Tell her to come do mt [my] fucking job n c if I don't do enough, this is just dumSlide26

Hispanics United of Buffalo, Inc.Facts ContinuedAt 11:41, Carlos Ortiz de Jesus posted: I think we should give our paychecks to our clients so they can "pay" the rent, also we can take them to their Dr's appts, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries ... (insert sarcasm here now)Mariana Cole-Rivera posted again at 11:45: Lol. I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don't provide, like washer, dryers stove and refrigerators, I'm proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human :) love ya guys Nannette Dorrios, a member of the Board of Directors at HUB posted at 12:10: Who is Lydia Cruz?Slide27

Hispanics United of Buffalo, Inc.Facts ContinuedYaritza Campos posted a second time at 12:11: Luv ya too booMariana Cole-Rivera at 12:12 responded to Dorrios by the following post: She's from the dv program works at the FJC [Family Justice Center] at hub once a week.Jessica Rivera, the Secretary to HUD Director Iglesias, posted at 1: 10 p.m.: Is it not overwhelming enough over there?At 2:27 Lydia Cruz-Moore posted: Marianna stop with ur lies about me. I'll b at HUB Tuesday.Cole-Rivera responded at 2:56: Lies? Ok. In any case Lydia, Magalie [Lomax, HUB'S Business Manager] is inviting us over to her house today after 6:00 pm and wanted to invite you but does not have your number i'll inbox you her phone number if you wish.

Carlos Ortiz posted at 10:30 p.m.: Bueno el martes

llevo

el pop corn [Good, Tuesday, I'll bring the popcorn].Saturday, October 9, was not a work day for any of HUB's employees. None of the 20

discriminatees

used HUB’s computers in making these Facebook posts

.Slide28

Hispanics United of Buffalo, Inc.The ALJ’s analysis: The ALJ noted that the activities of a single employee in enlisting the support of fellow employees in mutual aid and protection is as much concerted activity as is ordinary group activity. Individual action is concerted so long as it is engaged in with the object of initiating or inducing group action, Whittaker Corp., 289 NLRB 933 (1988); Mushroom Transportation Co., 330 F.2d 683,685 (3d Cir. 1964). The object of inducing group action need not be express. Additionally, the ALJ noted that in order to present a prima facie case that an employer has discharged an employee in violation of Section 8(a)(1), the General Counsel must establish that the employer knew of the concerted nature of the activity.Slide29

Hispanics United of Buffalo, Inc.The ALJ’s analysis:The ALJ concluded that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, was 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 the employees. A leading case in this regard is Aroostook County Regional Ophthalmology Center, 317 NLRB 218, 220 (1995) enf. denied on other grounds 81 F. 3d 209 (D.C. Cir. 1996), in which the Board held that employee complaints to each other concerning schedule changes constituted protected activity. By analogy, the ALJ found that the discriminatees’ discussions about criticisms of their job performance were also protected.Slide30

Hispanics United of Buffalo, Inc.ALJ’s analysis:Likewise in Parexel International, LLC, 356 NLRB No. 82 (January 28, 2011) at slip opinion page 3 and n. 3, the Board found protected, employees’ discussions of possible discrimination in setting the terms or conditions of employment. Moreover, concerted activity for employees’ mutual aid and protection that is motivated by a desire to maintain the status quo may be protected by Section 7 to the same extent as such activity seeking changes in wages, hours or working conditions, Five Star Transportation, Inc., 349 NLRB 42, 47 (2007). Other cases similar to the instant matter are Jhirmack Enterprises, 283 NLRB 609, 615 (1987) and Akal Security, Inc., 355 NLRB No. 106 (2010). Slide31

Hispanics United of Buffalo, Inc.ALJ’s conclusion:Ultimately, the ALJ concluded that the discriminatees 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 discriminates, the employer prevented them from taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that the employer lumped the discriminatees together in terminating them, established that the employer viewed the five as a group and that their activity was concerted, Whittaker Corp., supra.Slide32

Hispanics United of Buffalo, Inc.ALJ’s conclusion continued:The protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing, it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions. Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true in this case, where at least some of the discriminatees had an expectation that Lydia Cruz-Moore might take her criticisms to management. By terminating the five discriminatees for discussing Ms. Cruz-Moore's criticisms of HUB employees' work, Respondent violated Section 8(a)(1).Slide33

 Hispanics United of Buffalo, Inc.ALJ’s conclusion continued:It should also be noted that the five discriminatees did not engage in conduct which forfeited the protection of the Act.The Board looks to the factors set forth in Atlantic Steel Co., 245 NLRB 814 (1979), to aid in determining whether the employee's conduct became so opprobrious as to lose protection under the Act. The Atlantic Steel factors are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice. Applying these factors, there was no basis for denying any of the five discriminatees the protection of the Act.Slide34

Hispanics United of Buffalo, Inc.ALJ’s conclusion continued:As to factor 1, the "discussion," the Facebook posts were not made at work and not made during working hours. As to factor 2, the subject matter, the Facebook posts were related to a coworker’s criticisms of employee job performance, a matter the discriminatees had a protected right to discuss. As to factor 3, there were no "outbursts." Indeed, several of the discriminates did not even mention Cruz-Moore; none criticized HUB. Regarding Atlantic Steel factor 4, while the Facebook comments were not provoked by the employer, this factor is irrelevant to the instant case.Slide35

Karl Knauz Motors, Inc., d/b/a Knauz BMW Case OverviewIn another ALJ decision, the judge ruled that a Chicago area car dealership did not violate Section 7 by terminating a car salesman because he posted information on Facebook that his employer deemed harmful to its reputation. On June 14, 2010, the salesman posted comments and pictures to his Facebook account about two separate incidents that occurred at the dealership on June 9 and June 14.Slide36

Karl Knauz Motors, Inc., d/b/a Knauz BMWFacts continuedOn June 14, he posted comments and pictures of the Ultimate Driving Event of June 9, as well as a Land Rover accident of June 14 on his Facebook page. The Event pages are entitled: “BMW 2011 5 Series Soiree.” On the first page, Becker wrote: “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years…the new 5 series. A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. 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 wiener and a stale bunn…”Slide37

Karl Knauz Motors, Inc., d/b/a Knauz BMWFacts continuedUnderneath were comments by relatives and friends of Becker, followed by Becker’s responses. On the following page there is a picture of Holland with his arm around the woman serving the hot dogs, and the following page has a picture of Holland with a hot dog. Page four shows the snack table with cookies and fruit and page 5 shows Charnidski holding bottles of water, with a comment posted by Becker: “No, that’s not champagne or wine, it’s 8 oz. water. Pop or soda would be out of the question. In this photo, Fadwa is seen coveting the rare vintages of water that were available for our guests.”Page 6 shows the sign depicting the new BWW 5 Series car with Becker’s comment below

: “This is not a food event. What ever made you realize that?”

The

final two pages again show the food table and Holland holding a hot dog.Slide38

Karl Knauz Motors, Inc., d/b/a Knauz BMWFacts continued:On June 14, Becker also posted the pictures of the Land Rover accident, as well as comments, on his Facebook page. The caption is “This is your car: This is your car on drugs.” The first picture shows the car, the front part of which was in the pond, with the salesperson with a blanket around her sitting next to a woman, and a young boy holding his head. Becker wrote: “This is what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!”Slide39

Karl Knauz Motors, Inc., d/b/a Knauz BMWFacts continued:There are a number of comments on the first page, one of which was from an employee of the Respondent in the warranty department, stating: “How did I miss all the fun stuff?” On the second page, under the photo of the car in the pond, Becker wrote: “I love this one…The kid’s pulling his hair out…Du, what did I do? Oh no, is Mom gonna give me a time out?” Below, there were comments from two of Respondent’s employees. Counsel for the General Counsel also introduced in evidence a Facebook page of Casey Felling, a service advisor employed by the Respondent, containing Becker’s picture of the car in the pond with Felling’s comment: “Finally, some action at our Land Rover store.”Slide40

ALJ’s analysis:In analyzing the facts if the case and rendering a decision, the ALJ noted that concerted activities does not require that two or more individuals act in unison to protest, or protect, their working conditions. In Meyers II, 281 NLRB 882, 887 (1986), the Board stated that concerted activities included individual activity where, “individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” In Owens-Corning Fiberglass Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969), the Court stated that the “activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.” Karl Knauz Motors, Inc., d/b/a Knauz BMWSlide41

ALJ’s analysis continued:In NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995), the Court stated: “The fact that there was no express discussion of a group protest or ‘common cause’ is not dispositive…their individual actions were concerted to the extent they involved a ‘logical outgrowth’ of prior concerted activity. The lone act of a single employee is concerted if it ‘stems from’ or ‘logically grew’ out of prior concerted activity.” Becker, and another employee spoke up at the meeting commenting on what they considered to be the inadequacies of the food being offered at the event, and the subject was further discussed by the salespersons after the meeting. Even though only Becker complained further about it on his Facebook pages without any further input from any other salesperson, the ALJ found that it was concerted activities, and found that it was protected concerted activities as it could have had an effect upon Becker’s compensation.

Karl Knauz Motors, Inc., d/b/a Knauz BMWSlide42

ALJ’s analysis continued:The ALJ noted that, while it is not as obvious a situation as if he had objected to the employees reducing their wages or other benefits, there may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it, or gave the salesperson a lowering rating in the Customer Satisfaction Rating because of it.The employer argued that it was not protected concerted activities because neither Becker nor any other employee made the employer aware that their complaints about the food being served was really about their commissions. However, the ALJ noted that this is not a requirement of protected concerted activities.The final issue was whether the tone of the Facebook account of the Event rose “to the level of disparagement necessary to deprive otherwise protected activities of the protection of the Act.” Allied Aviation Service Company of New Jersey, Inc., 248 NLRB 229, 231 (1980). Karl Knauz Motors, Inc., d/b/a

Knauz BMWSlide43

ALJ’s analysis continued:The ALJ found that it did not. Although Becker’s Facebook account of the Event clearly had a mocking and sarcastic tone that, in itself, does not deprive the activity of the protection of the Act.In Timekeeping Systems, Inc., 323 NLRB 244, 249 (1997), the administrative law judge stated: “Unpleasantries uttered in the course of otherwise protected concerted activity does not strip away the Act’s protection.” Further, referring to supervisors as “a-holes” in U.S. Postal Service, 241 NLRB 389 (1979) and calling the company’s chief executive officer a “cheap son of a bitch” in Groves Truck & Trailer, 281 NLRB 1194, 1195 (1986) did not lose the Act’s protection, and neither did Becker in his Facebook comments on the Event.

Karl Knauz Motors, Inc., d/b/a

Knauz BMWSlide44

ALJ’s conclusion:However Becker’s posting of the Land Rover accident on his Facebook account was neither protected nor concerted activities. It was posted solely by Becker, without any discussion with any other employee of the employer, and had no connection to any of the employees’ terms and conditions of employment.As such the ALJ found it so obviously unprotected that it was unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.Ultimately, the ALJ found that Becker was fired because of his Facebook posting of the Land Rover accident, and as a result, his termination did not violate his Section 7 rights.Karl Knauz

Motors, Inc., d/b/a Knauz BMWSlide45

American Medical Response, Inc.Case overview:In this case, the company fired an employee for posting critical comments about her supervisor and she continued her negative comments about the supervisor in response to message posts from her coworkers. The employee also referred to her supervisor using a crude term in one of her posts.The NLRB maintained that the employee’s posts constituted protected concerted activity and that American Medical Response violated Section 7 by terminating the employee. Although the matter was settled prior to the hearing, the NLRB’s Acting General Counsel provided the basis as to why the NLRB considered the employer’s internet and blogging standards were unlawful under the act.Slide46

General Counsel’s analysis:The General Counsel considered the lawfulness of the Employer’s blogging and internet posting policy. The first challenged portion of the policy prohibited employees from posting pictures of themselves in any media, including the internet, which depict the company in any way, including a company uniform, corporate logo, or an ambulance. The General Counsel concluded that this language violated Section 8(a)(1) because it would prohibit an employee from engaging in protected activity; for example, an employee could not post a picture of employees carrying a picket sign depicting the company’s name, or wear a t-shirt portraying the company’s logo in connection with a protest involving terms and conditions of employment. The General Counsel also concluded that the portion of the policy prohibiting employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors was unlawful. American Medical Response, Inc.Slide47

In University Medical Center, 335 NLRB 1318, 1320-1322 (2001), enf. denied in pertinent part 335 F.3d 1079 (D.C. Cir. 2003), the Board found that a similar rule prohibiting “disrespectful conduct” towards others violated Section 8(a)(1).Like the rule in University Medical Center, the rule here contained no limiting language to inform employees that it did not apply to Section 7 activity. Also under challenge was the Employer’s standards-of conduct policy. This policy prohibited the use of language or action that was inappropriate or of a general offensive nature, and rude or discourteous behavior to a client or coworker. The General Counsel concluded that the prohibition here of “offensive conduct” and “rude or discourteous behavior” proscribed a broad spectrum of conduct and contained no limiting language to remove the rule’s ambiguity in prohibiting Section 7 activity.American Medical Response, Inc.Slide48

Lee Enterprises, Inc. d/b/a Arizona Daily StarFacts of the case:In the spring of 2009, the Daily Star began encouraging its reporters to open Twitter accounts and to attend a “webinar” about how Twitter and other social network tools could be used to disseminate information to the public. The Daily Star wanted reporters to use social media to get news stories out to people who might not read the newspaper and to drive readers to the Daily Star’s website. The Charging Party attended the webinar, and subsequently opened a Twitter account. The Charging Party then started seeking out coworkers and others who had Twitter accounts, started following them on Twitter, and accumulated a group of his own followers, including coworkers and some of his supervisors. Slide49

Although the Employer encouraged reporters to use social media, the Charging Party opened the account, decided his own screen name and password, and controlled the content of his tweets. In the biography section of his Twitter account, the Charging Party stated that he was a reporter for the Daily Star and included a link to the Daily Star’s website. In his tweets, he at times referred followers to the Daily Star’s website for stories. The Charging Party tweeted using his work computer, his company provided cell-phone, and his home computer. At various times the Charging Party’s Twitter account was open to everyone, and at other times he restricted access to his followers.The Charging Party had linked his Twitter account to his Facebook and MySpace pages. Therefore, whenever he tweeted something, the same message would be posted on Facebook and MySpace. Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide50

The Charging Party’s Twitter account was not linked to the Daily Star’s Twitter feed; none of his tweets were posted automatically to the Daily Star’s feed. Sometime in late January or early February of 2010, the Charging Party posted a tweet saying “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.” The tweet was in response to a series of sports headlines, using play on words, such as “Shuck and Awe,” describing the University of Arizona’s loss to the University of Nebraska. Before the tweet, the Charging Party had raised his concerns about the sport department’s headlines with the Executive Editor. However, there is no evidence that the Charging Party had discussed his concerns about the sports department headlines with any of his coworkers.Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide51

About a week after that tweet, the Charging Party was called into a meeting with the Human Resources Director, who asked the Charging Party why he tweeted about the sports department, why he felt the need to post his concerns on Twitter instead of simply speaking to people within the organization, and whether he thought it was appropriate to be posting these types of tweets. The Charging Party asked if the Daily Star had a social media policy. The Human Resources Director replied that the policy was being worked on.About a week after the meeting with the Human Resources Director, the Charging Party was called into a meeting with the Managing Editor, the Executive Editor, and the City Editor, concerning his tweet. During the meeting the Managing Editor told the Charging Party that he was prohibited from airing his grievances or commenting about the Daily Star in any public forum. Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide52

The Charging Party replied that he understood the directive and left the meeting. The Charging Party continued tweeting, but refrained from making public comments about the Daily Star. He tweeted, and used other social media, to post about various matters he found interesting, including matters occurring in Tucson relating to his beat as a public safety reporter. Some tweets were simply factual, and others included commentary. Between August 27 and September 19, the Charging Party’s tweets included the following:August 27 - “You stay homicidal, Tucson. See Star Net for the bloody deets.”August 30 - “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide53

September 10 - “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor’.”September 10 - “I’d root for daily death if it always happened in close proximity to Gus Balon’s.”September 10 - “Hope everyone’s having a good HomicideFriday, as one Tucson police officer called it.”September 19 - “My discovery of the Red Zone channel is like an adolescent boy’s discovery of his ...let’s just hope I don’t end up going blind.”On September 21, Tucson area television news station KOLD posted the following tweet on its Twitter feed: “Drug smuggler tries to peddle his way into the U.S.” The Charging Party saw the tweet, reposted it on his Twitter site, and tweeted the following: “Um, I believe that’s PEDAL. Stupid TV people.”Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide54

General Counsel’s analysis:The General Counsel concluded that the Charging Party’s discharge did not violate Section 8(a)(1) because he was terminated for writing inappropriate and offensive Twitter postings that did not involve protected concerted activity. The Charging Party’s conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment. The Employer warned the Charging Party that his comments were inappropriate, but he ignored the warning and continued to post additional inappropriate tweets while covering his beat as a public safety reporter. Those tweets included: “What?!?!?! No overnight homicide? WTF? You’re slacking Tucson” and others comments that were redacted from the memorandum.The Charging Party’s discharge did not violate the Act because he was discharged for this misconduct, which did not involve protected activity. Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide55

The Charging Party alleged that he was disciplined pursuant to an unlawful rule that prohibited certain Section 7 activities. The Board has consistently held that “an employer’s imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act.” However, the General Counsel concluded that the Employer did not implement an unlawful rule.In this regard, the General Counsel acknowledge that, in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by Section 7. For example, after the Human Resources Director had met with the Charging Party and warned him to stop making inappropriate comments, and the Charging Party persisted, the Managing Editor called him in and warned him to stop airing his grievances or commenting about the Employer in any public forum. And after the Charging Party persisted in writing his offensive messages, the Managing Editor told him that he was not allowed to tweet about anything work related. Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide56

Finally, the Charging Party’s termination letter refers to the fact that he was told “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.” However, those statements did not constitute orally-promulgated, overbroad “rules.” Thus, the statements were made solely to the Charging Party in the context of discipline, and in response to specific inappropriate conduct, and were not communicated to any other employees or proclaimed as new “rules.” In fact, the Employer indicated that it was in the process of developing a written social media rule, but that it did not yet have one.Finally, although the statements arguably constituted unlawful restrictions on the Charging Party’s own Section 7 activities, it would not effectuate the purposes and policies of the Act to issue a complaint where the statements were directed to a single employee who was lawfully discharged. Accordingly, the General Counsel concluded that the charge should be dismissed absent withdrawal.Lee Enterprises, Inc. d/b/a Arizona Daily StarSlide57

JT’s Porch Saloon & Eatery, Ltd.General Counsel’s decision regarding “Concerted Activity”:The Office of the General Counsel in this case concluded that the employee’s Facebook posting did not involve concerted activity.Facts of the case:The Charging Party was employed as a bartender at JT’s Porch Saloon & Eatery, Ltd (the Employer), a restaurant and bar in Lombard, Illinois. The Employer maintained an unwritten policy, communicated to bartenders when they are hired, that waitresses do not share their tips with the bartenders even though the bartenders help the waitresses serve food.Sometime in the fall of 2010, the Charging Party had a conversation with a fellow bartender about this tipping policy. He complained about the policy, and she agreed that it “sucked.”However, neither of them, or any other bartender, ever raised the issue with management. Slide58

On February 27, 2011,1 the Charging Party had a conversation on Facebook with his step-sister. She sent him a message asking how his night at work went. He responded with complaints that he hadn’t had a raise in five years and that he was doing the waitresses’ work without tips. He also called the Employer’s customers “rednecks” and stated that he hoped they choked on glass as they drove home drunk.The Charging Party did not discuss his Facebook posting with any employees either before or after he wrote it. In addition, none of his fellow employees responded to it.General Counsel’s analysis:The Board will find concert “[w]hen the record evidence demonstrates group activities, whether ‘specifically authorized’ in a formal agency sense, or otherwise[.]” Thus, individual activities that are the “logical outgrowth of concerns expressed by the employees collectively” are considered. JT’s Porch Saloon & Eatery, Ltd.Slide59

Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention. The General Counsel found no evidence of concerted activity. Although the Charging Party’s posting addressed his terms and conditions of employment, he did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded to the posting. There had been no employee meetings or any attempt to initiate group action with regard to the tipping policy or the awarding of raises. There also was no effort to take the bartenders’ complaints about these matters to management. In this instance, the Charging Party was merely responding to a question from his step-sister about how his evening at work went. And this internet “conversation” did not grow out his prior conversation with a fellow bartender months earlier about the tipping policy.JT’s Porch Saloon & Eatery, Ltd.Slide60

Wal-MartGeneral Counsel’s decision regarding “Concerted Activity”:The Office of the General Counsel in this case concluded that the employee’s Facebook posting did not involve concerted activity.Facts of the case:On October 28, after an interaction with the Assistant Manager, the Charging Party posted the following comment into his Facebook page: “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” The Charging Party limited his observations to his Facebook friends, which were largely composed of coworkers rather than third parties. Two coworkers responded to the Facebook post as follows:[Employee 1]: bahaha like! :)[

Employee 2]: What the hell happens after four that gets u so wound up??? LolSlide61

The Charging Party responded to his coworkers’ postings with the following entry: “You have no clue [Employee 1]...[Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price...that’s false advertisement if you don’t sell it for that price...I’m talking to [Store Manager] about this shit cuz if it don’t change walmart can kiss my royal white ass!”The Charging Party asserted that two other coworkers also made supportive comments. One of those coworkers has confirmed that she made a “hang in there” type of remark.The Employer contended that the charge should be dismissed because the Facebook postings were not concerted activity for mutual aid or protection and, even assuming otherwise, the Charging Party’s use of profanity was so opprobrious as to deprive him of the Act’s protection.Wal-MartSlide62

General Counsel’s analysis:The General Counsel noted that an individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee selforganization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted. Comments must look toward group action; “mere griping” is not protected. Wal-MartSlide63

The General Counsel concluded that the Charging Party’s Facebook postings were an expression of an individual gripe. They contained no language suggesting the Charging Party sought to initiate or induce coworkers to engage in group action; rather they expressed only his frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items. Moreover, none of the coworkers’ Facebook responses indicate that they otherwise interpreted the Charging Party’s postings. Employee 1 merely indicated that he found Charging Party’s first Facebook posting humorous, while Employee 2 asked why the Charging Party was so “wound up.” Another coworker’s “hang in there”-type comment suggests that she only viewed his postings to be a plea for emotional support. Nor was there evidence that established that the Charging Party’s postings were the logical outgrowth of prior group activity.Wal-MartSlide64

Social Media Lessons Moving ForwardLessons Learned for EmployersAn employee’s comment in the social media public does not automatically make the employee’s activity “protected”;Nor is such activity per se objectionable or improper;Posts or comments that relate to wages, hours, work assignments, working conditions, safety, supervisor’s bias, and other terms and conditions of employment are most likely protected;Employers can discourage or discipline an employee in response to a post or comment that does not involve work issues beyond that single employee;Slide65

Employees who use social media for personal attacks and boorish obscenities will most likely not enjoy protection under the act;Employers should implement a social media policy to define the company’s expectations of employees who use social media; Do not rely on a social media policy that is overly broad or restrictive;Many times an employer’s discipline or recognition of a comment in social media causes more headache and unwarranted attention to the issue underlying the comment;Social media policies should not be so broad that it could be read as impinging on employees’ rights to communicate about the terms and conditions of their employment; andSuch policies can expose employers to unfair labor practice charges and unwanted publicity.Slide66

Social Media Policy Language/ProvisionsConfidentiality No-no’s: "Don't share confidential information with anyone who doesn't need to know."; "Don't discuss confidential information on line, or in break rooms, at home, or in public areas."; "Don't reveal non-public company information on any public site 'including financial information' and 'personal information about another employee, such as . . . performance, compensation or status in the company.'"; "Don't discuss company legal matters."; "Don't post anything that could be deemed confidential or proprietary. ";Slide67

"Don't talk about the workplace except with your co-workers."; "Don’t make any public comments about the company unless you have prior written authorization of the Communications Department." Use of Employer Property No-no’s: “Don’t post pictures, videos of the company of its logo without express permission from management.” “Never access social media using company resources or during company time.”  Communicating with the Media No-no’s: “All media questions must be directed to the Marketing/Communications Department.”Slide68

Consider the Following Walmart Social Media Policy as a Guideline: At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media. This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]).Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.Slide69

GUIDELINESIn the rapidly expanding world of electronic communication, social media can mean many things. Social media includes 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, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication. The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.Slide70

Know and follow the rulesCarefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.Slide71

Be respectfulAlways be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.Slide72

Be honest and accurateMake sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.Slide73

Post only appropriate and respectful contentMaintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.Slide74

Financial disclosure lawsRespect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy. Do not create a link from your blog, website or other social networking site to a[Employer] website without identifying yourself as a [Employer] associate.Slide75

Only authorized employees are spokespersons for the companyExpress only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”Slide76

Using social media at workRefrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.Retaliation is prohibited[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.Slide77

 Media contactsAssociates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them. For more informationIf you have questions or need further guidance, please contact your HR representative.Slide78

Recent NLRB Board Decision - Costco Wholesale Corp.Board Decision – Employer’s “Electronic Communications and Technology Policy”On September 7, 2012, the Board issued rulings in Costco Wholesale Corp., 358 NLRB No. 106, that addressed a number of employer policies. Although the opinion did not analyze the employer’s “social media” policy, the decision does reflect the Board’s outlook on such policies.One of the policies at issue was entitled “Electronic Communications and Technology Policy,” and it provided that “any communication transmitted, stored or displayed electronically must comply with the policies outlined in the [Company] Employee Agreement. 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 [Company] Employee Agreement, may be subject to discipline, up to and including termination of employment.”Slide79

The Board found this language to include a broad prohibition that did not include any language to put employees on notice that Section 7 activity was excluded from the policy’s prohibitions. The Board also suggested approved language regarding prohibited employee speech such as prohibitions on speech that is: (1) malicious, abusive or unlawful; (2) profane language and harassment; (3) injurious, offensive, threatening, intimidating, coercing, or interfering with other employees; and (4) slanderous or detrimental to the company.The Board also affirmed the administrative law judge’s ruling that the policy’s prohibition on employees discussing private matters, including health issues, violated the NLRA because all of the “private matters” listed in the company’s policy related to terms and conditions of employment. The Board suggested adding clarifying language to the policy such as: “This policy does not prohibit you from discussing personal, confidential information with others, so long as you did not come into possession of such information through access which you have as part of your formal company duties.”Slide80

The NLRB’s Attack on Other Employer Policies NLRB v. American Red Cross – At-will Employment PolicyThe NLRB challenged the employer’s handbook acknowledgement which contained language stating the at-will relationship could not be “amended, modified or altered in any way” arguing that it would chill employee attempts to engage in collective action to modify the employment relationship. The administrative law judge concluded the employer had engaged in an unfair labor practice; however, the case settled before the NLRB had an opportunity to review the decision.Slide81

NLRB v. Hyatt Hotel Corp. – At-will Employment PolicyThe NLRB filed an unfair labor practice against Hyatt alleging that the company’s at-will disclaimer violated the NLRA because the acknowledgement stated employees could not alter their at-will status unless in writing by an executive. The NLRB’s position was the language interfered with the employee’s Section 7 rights, should they desire to change their employment status. The case settled before the matter went to hearing and Hyatt modified its language.Flex Frac Logistics, LLC – At-will Employment PolicyThe Board ruled that part of the employer’s at-will employment agreement was invalid because it prohibited employees from disclosing “confidential information” and “personal information” to individuals outside the company. The Board ruled that such a prohibition prevented employees from discussing terms and conditions of employment with union representatives.Slide82

Banner Health System d/b/a Banner Estrella Medical Center – Confidentiality Requirements in Investigations The NLRB’s General Counsel challenged the employer’s instructions to an employee making a complaint that he or she not discuss the matter with co-workers during the investigation. The NLRB rejected the argument that confidentiality was necessary to protect the integrity of the investigation, ruling that such a general concern is outweighed by the employees’ Section 7 rights to engage in concerted activities.The NLRB ruled that employers must identify specific needs for confidentiality requirements. Slide83

Knauz BMW – Employee Courtesy RulesThe Board ruled the employer’s employee courtesy rule violated Section 8(a)(1) of the NLRA. The rule stated: “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” According the Board, the rule could give employees the impression that its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” encompasses Section 7 activity. The Board also cited Costco to point out that the policy did not have any disclaimer language stating that it was not intended to include employee communications protected by Section 7 of the NLRA.Slide84

Status of the National Labor Relations BoardOn January 4, 2012 President Obama unilaterally filled three vacancies on the National Labor Relations Board. Two of the Obama appointees are openly pro-union Democrats with significant ties to organized labor. The other was a Republican, who resigned on May 26, 2012 in the midst of an ethics investigation.Opposition to these “recess appointments” argued that the President could not make such appointments because the Constitution requires U.S. Senate approval. The Administration countered that it was able to bypass the approval process because the Senate was not really in session at the time the President made the appointments. Slide85

Recently, a three-member panel of the Federal Appeals Court in Washington ruled that the President did not have the authority to make the appointments because the Senate was actually “in session” both when the three vacancies occurred and when President Obama filled them.It is expected that the NLRB will ask the full court to rehear the matter. Failing that, the Administration will likely appeal the ruling to the U.S. Supreme Court. There is a lot on the line for unionized and non-union employers. If the recess appointees were not properly appointed, then all of their decisions may become invalid because the law requires that the NLRB issue its decisions with a legally constituted quorum, a least three lawfully appointed Members. Without the recess appointments, the NLRB only had two confirmed Members.Slide86

Other Bamberger Employment and Labor Law SeminarsHiring & Firing: Best Practices to Avoid the EEOC’s ScrutinyEmployee Handbooks 101: Essential Policies and Common MistakesConducting a Proper Sexual Harassment InvestigationInterplay of the ADA, FMLA and Workers CompensationWage and Hour Issues and ComplianceUnion Avoidance and Reducing Your Salts