Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Last week, NLRB Acting General Counsel Lafe Solomon issued a second Operations Management Memo (OMM), covering 14 new employment cases concerning employee use of Facebook. It took me until now to read the 35 page memo, and synthesize the information for a blog. My first impression of the new cases is shock over the general decline in civility of employees, and the lack of boundaries they exhibit when they use Facebook to vent about work, co-workers, and supervisors. The cases read like employees gone wild, with vulgar, obscene rants aimed at their employers.

Seven of the new cases involved questions about the employer’s social media policies being too broad, and therefore unlawful. In 5 of the cases, the employer’s social media policy was determined to be overly broad and restrictive of employee rights.

Seven of the cases concerned employee use of Facebook. Specifically, employees made disparaging posts about work issues including complaining about not being promoted, poor management attitudes, and irritating, lazy co-workers. In 4 of those cases, the NLRB ruled the employee’s disparaging comments were protected concerted activity under Section 7 of the NLRA.

Notes to the Operations Management Memo underscore two main points: 

"Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees." 

I have blogged in the past about other NLRB decisions and the previous OMM issued in August, 2011. Actions Employers should take right now:

1. Conduct an immediate review of workplace social media policies to make sure the policies are not overbroad.
2. Managers should be trained on employee use of social media. Businesses are held responsible for the actions of their managers should they threaten or discipline employees for rants on social media sites.
3. Don’t panic. The social media cases are very fact-specific. Review facts and make intentional decisions in light of the guidance offered in the OMM.
4. Get legal advice early. It could be very cost-effective in the long- run.
    

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Earlier this fall, my law partner, Marylee Abrams, blogged about several decisions issued by the National Labor Relations Board (NLRB) concerning employee’s use of social media. The NLRB decisions thus far have been very fact specific. Many of the cases have determined the employee’s use of social media was “protected concerted activity” under the NLRA, and therefore protected speech.

Now, employers not only have to worry about what employee’s say about them on Facebook and Twitter, but employees are using the internet to start online petitions to try to influence business decisions. Earlier this month, Anthony Hardwick, a part-time cart attendant with Target in Omaha, Nebraska started an online petition requesting Target Corp. push back its midnight opening on Black Friday to 5 a.m. Mr. Hardwick alleges, “A midnight opening robs the hourly and in-store salary workers of time off with their families on Thanksgiving Day. . . A full holiday with family is not just for the elite of this nation -- all Americans should be able to break bread with loved ones and get a good night's rest on Thanksgiving!” As of today, more than 157,000 people have signed this online petition. Target isn’t the only retailer store who is opening at 12 a.m. on Black Friday; Best Buy Co., Kohl’s Corp. and Macy’s are also opening stores at midnight, and other businesses, including Wal-Mart Stores, Inc. and Toys R Us are opening even earlier than midnight.   Petitions similar to the one started by Mr. Hardwick have been started on the Change.org website with the intent to pressure other retailers such as, Best Buy, Old Navy, Macy’s and Wal-Mart to name a few from opening so early.

A Minnesota Target Corp. spokesperson has indicated, Mr. Hardwick is not scheduled to work on Thanksgiving or Black Friday, because he had advised his supervisors earlier this month he was scheduled to work at his full-time job on Black Friday, and needed the day off from Target. Target honored his request.

Target, Best Buy, and the other businesses whose employees have started online petitions against them need to be very careful on how they react to these internet petitions and how they treat the employees who started the petitions. The NLRB could very easily consider these petitions to be “protected concerted activity.”

On the other hand, employees like Mr. Hardwick need to realize they work in retail, and working in retail results in you having to work on holidays. Additionally, there are many other jobs, such as utility workers, hospital personnel, paramedics, fire fighters, law enforcement, jailers, 911 dispatchers, United States military personnel, who are required to work on a holiday, and they don’t get to “break bread with loved ones and get a good night’s rest.” Thankfully, you don’t hear them complaining about it. Thank you to those hard working individuals who are willing to give us their holidays to keep my family and the rest of us cared for and safe!
 

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Just when I thought I had seen everything, and I didn’t think there were any more new surprises with employees and technology, then BAMMMMM!! I am proven wrong. Employees are now scripting and filming themselves quitting jobs they apparently hate. The YouTube video “Joey Quits,” was recently featured on the Today Show. Joey had worked for several years at a hotel and apparently did not like his job very well. He wrote out his resignation and then got a group of friends with band instruments to go to the hotel to confront his boss. The band played a rousing march tune, while Joey literally threw the resignation notice at his boss. The boss stood there with a deer in the headlights look, as the band played, and Joey marched out of the hotel. 

The NBC reporter mentioned Joey already had a new job when he quit at the hotel, but no one mentioned the short-sightedness of his actions in the eyes of future employers. My grandmother warned me against burning your bridges behind you, but apparently Joey didn’t get the same sage advice. Social media should be viewed as carved in stone, and future employers can no doubt search and will find Joey’s little film on the Internet. The video is clear evidence of his lack of maturity, lack of conflict resolution skills, and his complete self-absorption. Unfortunately, Joey is not the only employee to quit a job and then post it on the Internet for the world to see. What’s next with employees and social media? I can’t wait to see.

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I blogged several weeks ago about a spate of NLRB cases concerning employee use of Facebook. The cases were very fact specific and left employers swimming in murky water. We now have a ruling from an Federal Administrative Law Judge finding a Buffalo, New York nonprofit unlawfully discharged five employees after they made Facebook posts, critical of the employer. The waters are beginning to clear.

The case involved Hispanics United of Buffalo, a nonprofit organization providing social services to low-income clients. A co-worker criticized other employees for not doing enough to assist clients, and posted the criticism to her Facebook page. Other employees responded, defending their work performance and criticizing working conditions, work load, and staffing levels. Hispanics United then discharged the five employees who responded to the Facebook criticism, claiming they had harassed the employee who originated the post on Facebook. The NLRB filed a Section 7 charge claiming the Facebook discussion was protected concerted activity.

The Administrative Law Judge agreed with the NLRB, finding the Facebook conversation involved employee conversations about terms and conditions of employment, including work performance and staffing levels. The five employees were reinstated with back-pay, and Hispanics United was ordered to post a notice in the workplace concerning employee rights under the NLRA. Hispanics United has the ability to appeal to the NLRB Board in Washington, D.C.

Facebook has becom the modern day version of the water-cooler. While it may be employee-friendly, employers should proceed with Facebook cases with great caution. The trend developing suggests the NLRB and Administrative Law Judges are leaning in favor of finding employee use of Facebook to be protected concerted activity.
 

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The National Labor Relations Board’s Acting General Counsel released a report yesterday, detailing the outcome of a mixed bag of 14 cases involving the use of social media by employees, their employer’s social media policies, and in one case the improper use of social media by a union. The report is a fascinating read for employers, and shows how the NLRB is really splitting hairs on what to do about employee use/misuse of social media. Each case is extremely fact specific. The waters are beginning to clear, but there is no bright line yet.

Eight of the cases reported, involved employees using Facebook to criticize their employer, supervisor, or fellow employee. In four of the cases, the NLRB ruled the employee’s activity was protected concerted activity. In the other four cases, the conduct was deemed to not be protected by the National Labor Relations Act. The difference lies in a determination of whether or not 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 induce or to prepare for group action” and where individual employees bring “truly group complaints” to the employers attention. Translated, this means whether or not the employee is acting alone, or in concert with others. To the extent the employee acts alone it is not concerted activity; to the extent the employee communicates with fellow employees, the more the activity looks concerted and is more likely to be considered protected activity.

One of the fourteen cases was about an employee tweeting, and four others concerned the question whether or not an employer’s social media policy was overly broad. Three of the social media policies reviewed by the Board were determined to be overly broad, one was not.  The take-away for employers is to understand social media cases will be reviewed by the NLRB on a fact specific basis. When presented with a problem of an employee’s potential misuse of social media, an employer should carefully review the facts.

• Who was involved in the social media communication?
• When?
• What was the subject of the social media communication?
• What was the purpose of the communication?
• Does the social media communication appear to be “concerted activity”?

The second step is to review social media policies to determine if they are overly broad, and have the effect of chilling an employee’s rights under Section 7 of the NLRA. Adding an exclusion which reads, “This social media policy is not designed to hinder, restrict, or compromise an employee’s rights under Section 7 of the NLRA,” is a very good idea.

Another good resource for employers is to review the recent “Survey of Social Media Issues Before the NLRB,” completed by the U.S. Chamber of Commerce. It covers 129 NLRB decisions concerning social media and workplace issues. The Chamber reported, “The vast majority of the cases we reviewed through this survey fall into two general categories: employer policies restricting employee use of social media that are alleged to be overbroad and employer discharge or discipline based on an employee’s comments posted through social media channels.”
 

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Technology and social media use is morphing at light-speed. Figuring out clear lines and appropriate social behaviors remains very murky. The court system has been no help in providing guidance, due to the lengthy delays between the filing of a case and a final court ruling, generally issued years later. Last year, my law partner blogged about a sexting workplace discipline case. There was an eight year delay between the employee's misconduct, and the final decision issued by the United States Supreme Court. By the time the Court ruled, the pager technology used by the employee was already out of date. Judges are historically reserved and reluctant to provide much guidance because they simply can’t predict where social media and technology is headed, and can’t fathom how quickly the social media/technology landscape is changing.

I keep looking for cases to help clarify the boundaries and the new rules, but they are few and far between. What are the appropriate boundaries on social media use, and what are the new rules?
The Minnesota Court of Appeals gave us a glimmer of guidance this week, in a case having to do with a University of Minnesota mortuary science student. We can extrapolate from the tenor of the decision and start to see where social media may be headed, and what seems to matter to the Courts.

In the case, a mortuary science student commented on Facebook about a cadaver she named “Bernie,” she described embalming as cathartic, and stated she wanted to stab someone in the throat with an embalming tool. She also mentioned wanting to take out her aggression on the cadaver and about updating a “Death List.” The Facebook posts went out to fellow mortuary science students, her Facebook friends, and friends of her friends. Her Facebook comments were determined to be threatening and inappropriate, and in violation of University rules. Her sanctions included: receiving a failing grade in the class, attending a clinical ethics class, writing a letter to department faculty addressing the issue of respect in the department and the profession, and completing a psychiatric evaluation.

The student challenged the University’s discipline as arbitrary, and argued that her Constitutional right to free speech had been violated. The Court of Appeals was not convinced and ruled, “A public university’s disciplinary sanctions do not violate a student’s right to free speech where the student’s posts to a social networking website materially and substantially disrupt the work and discipline of the university.”

Important points noted by the Court include the fact the University had held an in-depth orientation for students about the treatment of cadavers, and students were required to sign acknowledgment forms indicating they had read the department policies about the responsibilities of dissecting a human body. Additionally, because the University relied very heavily on a voluntary anatomy-bequest program for donated bodies, and because the program was jeopardized, the Facebook posts were deemed to be disruptive to the work and discipline of the program and the University.

Based on the Court’s rationale, we can extrapolate a few take-aways.  Clearly, the Court took note of the fact there was an adopted social media policy which established notice and expected accountability. Training on the policy, and requiring a signed acknowledgment form indicating receipt of the policy, were also mentioned by the Court as important to their ruling. Finally, if social media use can be proven to disrupt work and discipline, it is less likely to be determined to be protected speech.  Common sense won out in the end.  If it's not a good idea to shout out thoughts and comments standing on a street-corner, it is probably not a great idea to post them on Facebook.

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Many legal bloggers have wondered about the direction of the post-Bush National Labor Relations Board (NLRB). Speculation began about the time the Senate filibustered President Obama’s nominations, when the President slipped in under the radar with recess appointments of Craig Becker and Mark Pearce.

I think the time for speculation is over in light of the recent decision of the NLRB to file a complaint against American Medical Response of Connecticut, for firing an employee who used Facebook to lambast her supervisor. The case stemmed from an employee who was asked to prepare a response to a customer complaint. The employee, a member of Teamsters, asked for assistance from her union representative. When her supervisor denied her request, she lambasted him on Facebook using vulgarities and referring to her supervisor as a “17,” the company’s abbreviation for a psychiatric patient.

The NLRB has claimed the company’s Facebook policy was “overly broad,” and infringed on the employees right to discuss working conditions with fellow employees. The policy had prohibited employees from making comments about the company on Facebook or other social media sites.

The New York Times reported, “…, the Board faulted another company policy, one prohibiting employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.” The charges will be heard by the NLRB at the end of January, 2011.

Common sense and civility appear lost in all of this. Yes, the National Labor Relations Act creates protected speech insuring an employee’s right to discuss wages, working conditions, and unionization. It is not however a bullet-proof blanket protecting anything an employee wants to throw out on social media. The case sounds very fact specific, and may very well result in a mixed decision by the Board finding both protected activity and non-protected misconduct by an employee.  MPR Marketplace reporter Janet Babin reported on the case this week, summarizing a variety of viewpoints including my own.

Speaking vulgarities about your supervisor or questioning his mental capacity through social media is not the same as a private conversation with other employees, and besides the rest of the world doesn’t want to hear it. I have previously blogged about the need for workplace social media policies, and the threat to businesses posed by employee use of social media.

This is definitely a case to watch to see how far the NLRB will try to stretch into micromanaging workplaces. In the mean time, it would be wise to revisit your social media policies to see if the NLRB may come knocking on your door. 
 

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Some would say there is nothing worse than a woman scorned, except maybe an employee scorned by their employer. Before the Internet, scorned or disgruntled employees told all of their family and friends about how bad their job was, how unfair their boss treated them, or how lousy their employer’s products were. Today the Internet can take the comments of a scorned or disgruntled employee and make them viral in a matter of hours through Facebook, Twitter, YouTube, or a blog.

No workplace is exempt from the wrath of a scorned employee, not even a law firm. The ABA recently blogged about a former associate of Levinson Axelrod, a New jersey law firm, and the “cyber-assault” created by the associate’s blog site “Levinson Axelrod Really Sucks.” The parties have reached a settlement and the blog site has since been removed, but not until many blogs were posted and a lawsuit was commenced.

Employees have taken to using the Internet to vent about workplaces, co-workers, and bosses. Several websites encourage employees to talk candidly about their jobs including:

• www.workrant.com, which offers a bulletin board for employees to express their workplace frustrations,
• www.glassdoor.com, which offers company reviews including salaries,
• www.vault.com, which offers help with resumes, career changes, and the chance to $500.00 if you submit a review of your employer, and
• www.jobvent.com which asks employees, “Love your job, hate your job, share your experience, post an anonymous review of your company.”

Workplace rants by employees using social media can be a real headache for any business. Having a plan and a strategy is the first step for any employer. The question is not whether a workplace may be attacked through social media by a scorned employee; the question is when will it happen. I have blogged about the need for any business with employees to have a tailor-made social media policy in place, and to train employees on the policy. Having the name of a good media relations firm on hand is also a good idea, to be able to respond quickly to the viral attack, and to manage the response of your business. 

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I am back from presenting on social media issues and the workplace at the ABA Annual Meeting in San Francisco. I offered my insights on the need for social media policies at workplaces, after a lively presentation by famous mommy blogger Heather Armstrong, who was “dooced” after anonymously blogging about her boss. The third member of the panel was Minnesota IP attorney Ken Kunkle who enlightened the audience on copyright and trademark concerns surrounding social media. It was a fun legal presentation, on a very timely issue facing many employers today.

The three of us met at the W Hotel for breakfast before the presentation.  Heather Armstrong is engaging, very personable, and very tall!  Ken Kunkle is one of the brightest IP attorneys I know, and a really nice guy.

ABA On-Line did a great job of summarizing the points I made during my presentation, to encourage employers to adopt a social media policy to fit their workplace. The ABA linked to a study which reported only about 30% of American workplaces report having a social media policy.  Informing employees about workplace expectations is a basic mantra of our firm, in addition to making employees aware of the consequences for violating workplace policies.

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I am presenting on the social media explosion and its impact on workplaces, in conjunction with popular mommy blogger Heather B. Armstrong, and twin cities IP attorney Kenneth Kunkle. The presentation is next month at the 2010 American Bar Association Annual Meeting in San Francisco.

I would love to share a variety of perspectives on how social media has impacted and is continuing to impact workplaces. I have my own opinions on how social media is affecting the employers we represent. I want to go broader than my own backyard, and would like to hear from other labor and employment attorneys, HR professionals, and social media gurus.  What are your experiences, opinions, and future projections?

Please share your thoughts with me about what you think is most important, cutting edge, or crucial. I will blog about the responses I receive, and I will share my printed materials with those who kindly contribute their thoughts.

So please weigh in, contribute, and lend your voice. I would love to hear from you. If you are in San Francisco attending the ABA Meeting, please stop by. I think the presentation will be a lot of fun.

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Last December, I wrote about the 9th Circuit Court of Appeals case between the City of Ontario, California and its employee, Police Sergeant Jeff Quon which was appealed to the United States Supreme Court. On June 17, the U.S. Supreme Court issued its decision (pdf).

The question before the U.S. Supreme Court was whether or not the City’s review of text messages sent and received on an employer issued pager violated Sergeant Quon’s Fourth Amendment’s protection against unreasonable search and seizure? Sergeant Quon argued, he had a reasonable expectation of privacy in the text messages he sent and received.

The Court acknowledged, we

“…must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . .Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . .At present, it is uncertain how workplace norms and the law’s treatment of them, will evolve.”

The U.S. Supreme Court did not address whether Quon had an expectation of privacy, but instead stated, “[t]he case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy.” The Court in choosing to dispose of this case on narrower grounds, assumed several propositions arguendo: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided by the City; (2) The City’s review of the transcript of the text messages constituted a search within the meaning of the Fourth Amendment; and (3) The principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court held, “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable. . .Petitioners did not violate Quon’s Fourth Amendment rights.”

Because the Court chose to decide this case on very narrow grounds, which are very fact-specific, not much guidance was provided to other employers dealing with technology issues. What employers need to continue to do is:

1. Make sure policies are updated and cover all your current technology.
2. Policies should clearly outline employees’ expectations concerning personal use of technology and equipment.
3. Insure your policies are being followed and not contradicted by management.
4. Train employees on all policies, including new or revised policies.
 

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All workplaces should have a social media policy in place which outlines behavioral expectations for employees. This includes non-profits, governmental agencies, as well as private sector businesses. It is pretty difficult to discipline an employee for spending too much time on Ebay or Facebook, or for sharing corporate news through Twitter, without specific guidelines in place.

I previously blogged about the need for social media polices in your workplace. Employers should consider the scope of their social media policy and make sure the policy fits their business model. Do you want employees to be sharing business information on social media? How does social media use by employees fit into your business public relations plan? Is it necessary to limit an employee’s use of social media? What are potential business advantages and disadvantages as a result of employees using social media? Should you exercise some type of control over social media and funnel it through one source?

If you are still not convinced you need a social media policy, the Federal Trade Commission recently posted its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."   It indicates employers could be liable for false statements about their  buisness/products made by employees through social media, and that employees are required to disclose their employment relationship to your buisness when making any endorsements.

Social media policies should address your unique business needs. Many model policies are available on-line, however one size does not fit all.  You don’t need to recreate the wheel while drafting your own social media policy, you just need to tailor it to fit the needs of your business.

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Daniel Schwartz reported on his recent attendance at the 2010 Legal Tech Conference in New York. Finally, it seems businesses are realizing someone on the web is talking about them, and it may not be the media relations message they had in mind.

Several years ago while Walmart was using its cheerful elderly greeters in an ad campaign for their stores, an internal memo from Walmart top management was busy sending a very different message. The internal memo discussed trying to reduce health benefit costs by getting rid of older and sick employees. The contradiction caught on fire on the web. It was a disaster for Walmart.

Businesses can address social media messages with employees by adopting social media policies. As technology has evolved from pagers and cell phones to e-mail, and now Twitter & Facebook, personnel policies must also evolve.

It is not necessary for your business to redesign the wheel. It is necessary to draft a social media policy which captures the philosophy of your company, and the values of management. Matt Leonard blogged about, “Why employees need Social Media Guidelines,” and offered links to 22 useful social media resources including model policy examples. Start with a model policy and see what will work for your business.

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