It’s hard to miss the National Labor Relations Board’s recent activity targeting employer decisions based on workers’ use of social media – as it attempts to establish parameters in the work-life balance between social media and rights protected by the National Labor Relations Act. Just when employers understandably may feel compelled to stop basing employment decisions on social media use, a recent Advice Memorandum is giving employers hope.

The Arizona Daily Star had encouraged its reporter to use social media to reach people who might not read the paper and to drive readers to the newspaper’s website. The employee tweeted using his work computer, his company-provided cellphone and his home computer and linked his Twitter account to his Facebook and MySpace pages. Therefore, whenever he tweeted, the same message would be posted on Facebook and MySpace.

In one tweet, the employee criticized the Daily Star’s television staff. The employer warned the employee that his comments were inappropriate, but he continued to post inappropriate tweets, while commenting as a public safety reporter. The tweets included, “What?/?/?/? No overnight homicide? WTF? You’re slacking Tuscon.”

His employer suspended him then terminated his employment. He filed a charge with the NLRB Regional Office claiming he was terminated for engaging in NLRA-protected concerted activity. The Regional Office, as instructed by Office of the General Counsel’s Memorandum dated April 12, 2011, referred the charge to the Division of Advice (“Division”) because the charge involved discipline for engaging in alleged protected concerted activity using social media.
The Division did not find a violation of the NLRA. It instructed the NLRB Regional Office to dismiss the unfair labor practice charge. It determined that after opening a Twitter account and linking it to the Daily Star’s website, the employee engaged in “inappropriate and offensive Twitter postings that did not involve protected concerted activity” and was terminated for engaging in misconduct. This is an important development for employers, perhaps signaling the NLRB’s seemingly aggressive social media stance may not be one-sided.

The victory, however, has been tempered by the NLRB General Counsel’s May 9, 2011, complaint against Hispanics United of Buffalo, a nonprofit organization that provides social services to low-income clients. The complaint alleges the firing of five employees for Facebook postings that criticized working conditions was improper interference with protected concerted activity. It alleged that an employee posted a co-worker’s allegations that employees did not help the company’s clients enough and other employees responded to the post by defending their work and blaming working conditions, including staffing workload issues. The employer fired the five employees after learning of the posts because it found the comments were harassing to the employee who made the original post. A hearing has been scheduled for June 22, 2011.

These latest developments seem to show the NLRB searching for balance between the workplace and social media. The Wall Street Journal reports the Board said it had more than two dozen cases involving worker complaints aired on the social media site Facebook. Stay tuned . . . but in the mean time, employers need to think carefully before acting.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.