Second Social Media Report From NLRB Acting General Counsel

Posted on January 25, 2012 by Joseph Lazzarotti

Today, the NLRB's Acting General Counsel posted a second report concerning social media issues and the National Labor Relations Act. The cases discussed in this report should provide further guidance to employers struggling with developing strategies for using social media in their business, developing employee policies regulating activity in social media, and enforcing those policies. Look for follow up analysis from us and our Labor partners.

Check out our prior reporting on related developments.

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NLRB Acting General Counsel Issues Opinion On Social Media and the NLRA

Posted on August 18, 2011 by Joseph Lazzarotti

In a 23-page report, the Acting General Counsel for the National Labor Relations Board summarizes the Board's positions on social media and labor relations. This report is an interesting read and provides insight into one aspect of drafting social media policies - whether the policy will violate an employee's right to take part in protected concerted activity.

The report notes that:

Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media. All of these cases were decided upon a request for advice from a Regional Director.

Social media clearly is an important issue for the Board and this memorandum likely is not its last word on the rules that will shape employer policy concerning the use of this media. The following discussion summarizes the memorandum and its effects on social media policy.

See related articles concerning NLRB activity concerning social media.

What is protected concerted activity?

In general, the Board’s test for concerted activity is whether activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” 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. Thus, in one of the cases discussed in the NLRB memo, an employee's posts about his "individual gripe" concerning a manager, where other employees only expressed "emotional support" for the employee, was not concerted activity.

When is concerted activity protected?

An employee's concerted activity will be protected where, for example, the employee's statements implicate the employee's working conditions, regardless of how those statements are communicated. Another example of protected activity under Section 7 of the NLRA occurs when the employee protests supervisory actions. However, these protections can be lost where the employee's outbursts about a supervisor are too "opprobrious" to maintain protection under Section 7. Uses of curse words or expletives are unlikely to reach this level. The protection also could be lost where the communication is reckless or maliciously untrue.

What social media policy provisions should be avoided?

The contours of what constitutes protected concerted activity require further examination and analysis of the facts at issue, along with prudent advice from expert labor counsel. The NLRB memo, however, provides helpful guidance concerning some popular policy provisions that if not adequately defined or limited could run afoul of Section 7 rights.

Problem Provisions

  • prohibiting employees from posting, without authorization, pictures of themselves in any media which depict the company, including its logos, trademarks, uniforms, and so on, as well as revealing personal information including through photographs of coworkers, clients and others.
  • prohibiting employees from making disparaging remarks when discussing the company, management, co workers, or competitors.
  • prohibiting the use of inappropriate, generally offensive language, as well as rude or discourteous behavior to a client or coworker.
  • communications that reveal confidential or proprietary information or any person or entity or that amount to "inappropriate discussions" about the company or management may result in discipline.
  • prohibiting posts that would embarrass, harass or defame the employer or its employees, or harm their reputation or goodwill.
  • prohibiting posts that would put the employee's job in jeopardy.

The memo discusses the application of Section 7 protections to each of these policies. It recites the basic test to determine whether the policy will violate Section 7, which is two-fold.

First, a rule is unlawful if it explicitly restricts Section 7 activities. [Second, i]f the rule does not explicitly restrict protected activities, it is unlawful only upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

However, based on the discussion in the memo, just about all of the "problem provisions" could remain in some form if the prohibitions were adequately defined and/or the policy made clear that the prohibition did not extend to Section 7 activity. This could be accomplished through careful drafting and the addition of examples.

For example, prohibiting communications that reveal confidential or proprietary information generally could be read to apply to employer wage or compensation schemes which involve working conditions. Likewise, a policy that prohibits employees from posting photographs on Facebook with company logos standing along can be read to prohibit photographs of employees holding picket signs, a protected activity. In each case, the policy should be drafted to address the concern of the employer while carving out from the prohibited activity that which is protected under Section 7.
 
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Florida's New "Sexting" Law Makes it Criminal for Minors to Transmit Sexually Explicit Materials Electronically

Posted on July 12, 2011 by Joseph Lazzarotti

. . . A Potential Headache for Employers of Younger Workers

Written by Lillian Moon

Retail, entertainment, hospitality and other industries that traditionally employ large numbers of younger workers may soon get dragged into criminal proceedings because of “sexting” by their younger workers. Florida has joined 20 other states — Alaska, Arkansas, California, Hawaii, Indiana, Iowa, Kansas, Mississippi, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, and Guam — which have all enacted similar legislation addressing teen sexting. Because employees frequently transmit these materials using their employer’s networks, criminal prosecutions under these laws may require employers to respond to discovery requests and subpoenas, or permit searches pursuant to warrants obtained by law enforcement authorities, which, in turn, may unexpectedly trigger disciplinary proceedings.

On June 21, 2011, Florida Governor Rick Scott signed into law H.B.75/S.B. 888. Under this law, which will take effect beginning October 1, 2011, a minor (anyone under the age of 18) commits the criminal act of “sexting” if he or she knowingly uses a computer, cell phone, or other transmission device (1) to transmit or distribute to another minor a photograph or video of any person which depicts nudity; or (2) possesses such photograph or video which was transmitted or distributed by another minor, unless the photograph was unsolicited, the minor took reasonable steps to report the photograph or video to their legal guardian, school official, or law enforcement, and the minor did not transmit or distribute the video or photograph to a third party. A minor’s first offense is considered noncriminal and is punishable by 8 hours or community service or a $60 fine. The minor’s second offense is a misdemeanor in the first degree, punishable with imprisonment not to exceed one year or a $1,000 fine; and the minor’s third offense is a felony of third degree, punishable with up to five years’ imprisonment or a $5,000 fine.

Of course, sexting is not only an issue for minors. It is fast becoming an easy and well-utilized mechanism for sexual and other workplace harassment. Accordingly, employers should review and update their anti-harassment policies to include a prohibition of harassment via e-mail, text messaging, or use of social networking sites; and they should review their electronic communications policies to include a prohibition against using any employer-provided electronic device to transmit or retain any sexually suggestive or explicit pictures, texts, videos or any other derogatory material regarding race, ethnicity, age, disability, religion, or any other protected category. Employers should also educate and train employees on the revised policies and continue to enforce all policies in a fair and consistent manner. At the same time, employers should remain mindful of any limitations on such policies (as written or as applied) that may be imposed under the National Labor Relations Act.
 

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Pending Social Media-Related Cases at All 52 NLRB Regional Offices

Posted on June 22, 2011 by Joseph Lazzarotti

Written by Ron Sgambati

NLRB Acting General Counsel Lafe E. Solomon offered some insight into the NLRB’s interest in Social Media earlier this month when he spoke at the Annual Conference on Labor at New York University. During his presentation, Solomon revealed that every one of the 52 NLRB regional offices across the country has at least one pending case presenting issues about employee use of Social Media or an employee’s policy concerning the use of Social Media.

Solomon noted that his work had reached a higher profile than his predecessor, and he credited it in large part to the NLRB’s attention to social media. Solomon said that the “good part” about the intense publicity the NLRB has received over the past year has been that he has had the “rare privilege” of using media appearances and interviews to explain the rights of employees under the National Labor Relations Act (“NLRA”), which had been unfamiliar or unknown to many Americans.

Solomon’s comments make it apparent he enjoys having the NLRB in the spotlight. His comments also explain what may be the motivation behind the NLRB focus on Social Media - the topic of Social Media provides the Board with an always-available platform from which to reach a public which may not otherwise be interested in hearing what the Board has to say about the NLRA.

Due to the pervasiveness of Social Media cases at all 52 regional offices, it appears certain that the summer months will heat-up with discussion of Social Media issues at the workplace.

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Addressing Social Media Use--Recent Ruling on Students' Social Networking Reaffirms Need for Policies and Training

Posted on June 16, 2011 by Jason C. Gavejian

Co-Author:  Joseph J. Lazzarotti

The pervasiveness of social media in professional and everyday communication is a hot button issue (discussed at length here), particularly for private and public employers and organizations.  In fact, many organizations have adopted, or are considering adopting, social media policies for employees and providing training for how employees should interact in cyberspace.  But what should those policies say and what should the training focus on?

To answer those questions, organizations should, among other things, develop and shape their policies, training and discipline concerning social media with an eye toward their particular businesses, regulatory environments, and whether they are in the public or private sectors. A number of recent developments show why this is critical:

·         Two recent Third Circuit opinions handed down on June 13, 2011-- J.S. v. Blue Mountain School District and Layshock v. Hermitage School District (discussed below)-- illustrate the importance of educating employees (teachers and administrators) about student’s First Amendment rights concerning social media and when discipline is appropriate,

·         FTC’s guidelines for endorsement of products or services are important for businesses whose employees are likely to be commenting online about the company’s products and services,

·         The NLRB’s recent actions regarding social media use and the National Labor Relations Act are important for all employers, particularly those in traditionally union-dominated industries,

·         The use of social media in the health care setting is presenting a range of challenges under HIPAA and patient privacy generally.

In addressing the extent to which school officials can regulate student speech, the Third Circuit Court of Appeals has held that school officials violated students’ First Amendment free speech rights by disciplining students for creating, outside of school, “fake” social networking profiles ridiculing their school principals. 

In Blue Mountain School District, 8th grader J.S., using her home computer, created a MySpace profile in the name of her principal.  The profile was presented as a self-portrayal of a bisexual Alabama middle-school principal named “M-Hoe,” and contained crude and vulgar content. Upon learning of the content, the School District suspended J.S. for 10 days.  The Court held that because J.S. was suspended for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights.  

In Layshock, Justin Layshock, a high school senior, using his grandmother’s computer, also created a MySpace profile in the name of his principal.  The profile included “degrading” content regarding the principal.  Upon learning of the profile, the School District suspended Justin for 10 days.  In analyzing whether a school district may punish a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment, and was not related to any school-sponsored event, the Court found the School District was prohibited from reaching beyond the school yard.  

These decisions were based on the Supreme Court’s landmark case on the First Amendment’s application to public schools is Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).  In Tinker, a group of high school students decided to wear black armbands to school to protest the war in Vietnam.  When school officials learned of the plan, they preemptively prohibited students from wearing armbands.  Several students who ignored the prohibition and wore armbands to school were suspended.  Eventually, the students brought suit alleging their First Amendment rights had been violated.  The Supreme Court overruled the district and circuit courts, holding that student expression may not be suppressed unless school officials reasonably conclude that such expression will “materially and substantially" disrupt the work and discipline of the school. 

These cases demonstrate the court's struggle in addressing social media content, especially where there are additional constitutional concerns when a party is a public entity.  For many organizations, First Amendment issues will not be at issue, but there likely will be other considerations.  As each and every industry is impacted by social media, attempting to address it in a one-size-fits-all manner without taking appropriate considerations into account is not only impractical, but in some cases unlawful.  As these developments have shown, efforts to address social media must include an effective industry specific social media policy coupled with training programs to educate employees on the use of social media in all facets of employment and conducting the entity's business. 

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NLRB Focus Remains on Social Media

Posted on May 6, 2011 by Joseph Lazzarotti

Written by Ron Sgambati

Seemingly intent on making sure it is perceived as current, if not trendy, today’s National Labor Relations Board (NLRB) has continued to demonstrate an avid interest in social media. Not only is it paying attention to new media in all its forms, but it is also actively participating, with a Facebook page, a YouTube channel and a Twitter feed.

On April 12, 2011, the NLRB General Counsel issued a memorandum (pdf) to NLRB Regional Directors updating the list of matters that must be submitted to the Division on Advice. Included on the list are cases involving:

employer rules prohibiting or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.

This is expected to allow the Board to have an earlier and more uniform oversight of matters involving social media.

The directive comes after the Board’s recent involvement in matters concerning possible protected concerted activity on Facebook and Twitter. In late 2010, the NLRB challenged a company’s Social Media/Facebook policies which the company maintained were lawful. The case settled with the company agreeing to make suggested changes to its policies.

In April, 2011, the NLRB targeted another social medial resource – Twitter. According to the New York Times,  the NLRB had warned a New York news agency that it planned to file a complaint accusing the company of illegally reprimanding a reporter over her criticism of company management in a Twitter posting. The Board asserted the company violated the reporter’s right to discuss working conditions with other employees. The matter was resolved when the union and company - which had been negotiating a new contract - reached a tentative contract on April 28, 2011. According to the New York Times,  the company has agreed to negotiate a new social media policy that would include language that will protect employees’ speech and the right to engage in other concerted activity about working conditions.

The Board again focused on Facebook after issuing its directive. On April 27, 2011, the NLRB reported it had approved a settlement in a case involving a California web-based home improvement retailer. A former employee had claimed she was terminated from her employment in retaliation for having posted comments about the company and possible state labor code violations on Facebook. The case was resolved and as part of the settlement the company agreed to post a notice at the workplace for 60 days stating that employees have the right to post comments about terms and conditions of employment on their social media pages and that they will not be terminated or otherwise punished for such conduct.

It is only a matter of time before there is a litigated case and a court’s ruling addressing these very real and reoccurring issues. Employers should exercise care in how they handle social media issues from a labor relations perspective and treat the recent NLRB scrutiny as an invitation to revisit their own social media policies.

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A New NLRB May Mean New Concerns Regarding Social Media

Posted on December 23, 2010 by Joseph Lazzarotti

Co-authored with Marty Payson

The combination of “social media” and the “workplace” raises many traps for the unwary employer:

Can we use social media when hiring? Can employees be prohibited from using social media at work? Can we monitor employees use of social media? What are the essential elements of a social media policy?

As with many issues involving new technology, however, a good part of the analysis typically reverts back to traditional principles of employment law. The same is likely to be true when the use of social media intersects with certain aspects of Labor Law.

Section 7 of the National Labor Relations Act states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

An employer violates NLRA Section 8(a)(1) by acts and statements reasonably tending to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Thus, employers need to remember to consider existing labor principles issues when adopting and enforcing social media policies, discussing social media usage with employees and monitoring usage, and disciplining employees because of their social media usage.

In a recent case (Salon/Spa at Boro, Inc. 9-CA-45349, 9-CA-454426, 9-CA-45538), employees claimed their manager unlawfully threatened them concerning their social media usage. The manager impressed upon the employees that their postings on social networking sites were perhaps more available for public viewing than they realized, and expressed displeasure that certain current employees were choosing to post comments on social network sites belonging to disgruntled former employees. In addition to agreeing with the employer’s statute of limitations arguments, the Administrative Law Judge found the purpose of the manager’s statements concerning publicity to be didactic, not coercive. In regard to the statements about postings on sites belonging to disgruntled employees, the ALJ found no threats, but rather a lawful expression by an employer of opinion, citing NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).

A nonbinding Advice Memorandum from the National Labor Relations Board in Sears Holdings (Roebucks) Case 18-CA-19081 addressed a social media policy and whether it violated Section 7 of the NLRA. The policy stated:

In order to maintain the Company’s reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:

  • Company confidential or proprietary information

  • Confidential or proprietary information of clients, partners, vendors, and suppliers

  • Embargoed information such as launch dates, release dates, and pending reorganizations

  • Company intellectual property such as drawings, designs, software, ideas and innovation

  • Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects

  • Explicit sexual references

  • Reference to illegal drugs

  • Obscenity or profanity

  • Disparagement of any race, religion, gender, sexual orientation, disability or national origin

The Division of Advice held that while the provision concerning disparagement of the company’s executive leadership, employees, and strategy could “chill” Section 7 activity, the policy should be viewed in context, not by looking at any provision in isolation. The Division of Advice reasoned that the policy does not apply to Section 7 activity because while the statement “could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct.” This is because virtually all of the other items on the list of proscribed activities in the policy are clearly not protected by Section 7.

These two decisions provide some good news for employers. The bad news is that both of these decisions were made before the significant changes in the make-up of the National Labor Relations Board following Barack Obama’s becoming President. Many believe the current composition of the NLRB is likely to substantially change these results, requiring employers to exercise more care in how they handle social media issues from a labor relations perspective. There also are related issues that may be revisited by the NLRB in the near future, such as Board’s decision in Guard Publishing Co., d/b/a The Register-Guard, 351 NLRB 1110 (2007) (pdf), that a policy prohibiting use of the employer's e-mail system for any "non-job-related solicitations" does not violate the §8(a)(1).

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