NLRB decides first Facebook case

The NLRB has concluded that the firing of a car salesman occurred because he posted to Facebook photos about a dangerous accident which occurred at another dealership owned by his employer. The accident involved a Land Rover driven over a wall and into a pond after a test drive. The same day the salesman posted the accident photos he posted sarcastic comments about a "cheap" party given by his employer at a sales event announcing new BMW models. The latter photos were arguably protected concerted activity "because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions."

The NLRB affirmed the ALJ's conclusion that the Land Rover incident was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

While the discharge was upheld, the employer's rule requiring "courtesy" in employee to employee communications was overly broad, leading to a finding of a violation and an order requiring the employer to remove the rule from its handbook.

Employer burden to justify ban on employees discussing ongoing investigation

In Banner Health Systems, 28 CA 023438, 348 NLRB No. 93, [Download here] the NLRB continues its aggressive expansion of protection for employee concerted discussions of workplace issues. In Banner, the employer had a blanket prohibition against discussion of its investigation of workers complaints. The Board rejected this approach as overbroad and required an individualized showing by the employer of its business justification for interfering with Section 7 rights. Money quote:

it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated,or there [was] a need to prevent a cover up.” Id. The Respondent’s blanket approach clearly failed to meet those requirements.

This result is unremarkable given the text of Section 7, yet the practical effect upon, and burden on employers during an ongoing investigation are potentially huge.

Orange? You're fired!

Sometimes employers do really silly things. Take this law firm that fired 17 employees for wearing orange. Now it did happen the Friday before St. Patrick's day, but there does not appear to be a sensitive Irish logic in the mix. It seems the employer thought the orange shirts were a protest. And as we all know at-will employees can be fired for any reason, even a silly one. The article even quotes an employment lawyer who says just that. But, isn't this protected concerted activity under the NLRA? Surely the employer thought it was, but more than that, if employees choose to dress alike, don't they have a protected right to do that? I think they do.

Baseball gets it

There is nothing like an early spring to make you think baseball. And this is an early spring. The azaleas have just finished and the amaryllis and day lilies are a few days from busting out, but I digress. MLB has just issued a social media policy and it seems the most traditional of the professional sports leagues has gone progressive and actually encourages players to use social media to communicate directly with fans. The policy was embraced by the new collective bargaining agreement between MLB and the MLBPA. Bullet points courtesy of Greg Calcaterra at Hardball Talk:

• Players can’t make what can be construed as official club or league statements without permission;
• Players can’t use copyrighted team logos and stuff without permission or tweet confidential or private information about teams or players, their families, etc.;
• Players can’t link to any MLB website or platform from social media without permission; (i don't get this)
• No tweets condoning or appearing to condone the use of substances on the MLB banned drug list 
• No ripping umpires or questioning their integrity;
• No racial, sexist, homophobic, anti-religious, etc. etc. content;
• No harassment or threats of violence;
• Nothing sexually explicit;
• Nothing otherwise illegal.

The list is pretty straight forward except for that weird prohibition on linking to MLB sites. Hey owners, WTF, don't you want that? The list also avoids common issues the NLRB has with overbroad social media policies that would chill employees section 7 rights. In a follow up post Calcaterra discusses the NLRA and protected concerted activity, and I think he gets it right. I have a feeling the NLRB would  not find two players publicly criticizing an umpire protected activity. Think product disparagement.

NLRB GC updates social media report

Acting NLRB General Counsel Lafe Soloman has updated his report on Social Media (January 24, 2012). The report can be accessed here. Our previous post is here.

Work stoppage may be unprotected

The D.C. Circuit in Fortuna Enterprises has refused to enforce a portion of an NLRB order finding the employer's suspension of employees who engaged in concerted activity by refusing to work until management addressed a complaint about discipline of another worker who engaged in organizing activities. The employees were hotel service staff who gathered in a company cafeteria and insisted upon meeting with management about the discipline. After being told to return to work or leave the premises several times during a 90 minute wait, the employees were suspended for insubordination. In finding a violation the Board concluded the employees had no procedure whereby they could present a group grievance, and that their gathering to complain was protected. The D.C. Circuit rejected the Board's finding on the employer's complaint procedure finding the employer's practice was to permit group complaints, and that the policy did not exclude such complaints. For these reasons the Court remanded the case to the NLRB for consideration in light o the ruling on review.

Social media policies and the NLRA

Acting NLRB General Counsel Lafe Solomon has issued a report on social media cases. Anyone who fails to consider the NLRA in general and the concept of protected concerted activity in particular when crafting and enforcing social media policies for employers is missing a major issue. This report (downloadable here) does a good job of defining the area. The U.S. Chamber of Commerce has also released a report on social media and the NLRA.

NLRB social media issues

I think I'm getting a clearer picture of the NLRB's direction on employee off duty use of social media (blogs, tweets, etc.). There are two areas of concern. The first is overbroad policies which chill employees exercise of section 7 rights. Essentially the Board will assume intimidation occurs if the policy arguably discourages employee discussion of otherwise protected issues. Employers with overbroad social media policies will likely find the NLRB believes such a policy, even if not enforced is a basis for objecting to an employer won representation election. Its pretty clear that this is a major new problem in an organizing drive. The second point is whether the medium actually changes the analysis of what conduct is protected. It really shouldn't. The Board in refusing to issue a complaint is a recent case involving a reporter is illustrative. The reporter's tweets in issue can be found here. The NLRB refused to issue a complaint because the reporter's comments were not protected. Even though the newspaper had no social media policy, the reporter's discharge was lawful because it was based on comments entitled to no protection. The bottom line is there is danger for an employer which has a social media policy, and it will be closely scrutinized by the NLRB for its chilling effect. But, even in the absence of such a policy, an employer would remain able to discipline employees for statements which are unprotected either because they do not relate to an exercise of a section 7 right, or because they were not concerted.

Another NLRB Complaint issued over Facebook firing

The Chicago Regional Office of the NLRB has issued a complaint against a luxury car company for firing an employee who posted a "concerted" protest about a promotional event which could adversely affect compensation for sales employees. Our previous posts on this issue are here. This is one area of law that has evolved rapidly. Employers should seek legal advice before making employment decisions about computer use/social media or blog postings. It isn't as simple as conventional wisdom may suggest.

Facebook as protected concerted activity II.

A Facebook post by an employee of a non-profit employer criticized the staff for not doing enough to help the clients served by the organization. The post drew comments from five other employees who defended their job performances and criticized terms and conditions of employment. The employer discharged the five for harassing the original poster. The NLRB issued a complaint alleging the activity discussing workplace terms and conditions was protected concerted activity. A trial is set for June 22. A previous case against a different employer settled.

Facebook as protected concerted activity

You see occasional news references for applicants and employees getting in trouble with employers for things posted on social media. The NLRB recently issued a complaint against an employer who disciplined an employee for for posting negative comments about a supervisor on her Facebook page. The NLRA protects employees who discuss the terms and conditions of their employment with co-workers and others. The NLRB just announced the case has settled and the employer has agreed to revise their social media and internet policies revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers. Employers should review these policies to ensure there is not a problem like this which could result in a legal challenge.

You're a f#@$*^% a$$#@!!

Protected Concerted Activity exhibited in Youtube animation. Hat tip to Workplace Prof Blog.

Employees protected by NLRA when engaging in social media

The Hartford, CT, Region of the NLRB has issued a complaint in a case involving the termination of an employee who posted negative comments on Facebook about her supervisor. The Region's investigation determined the employee's remarks posted to her personal Facebook page from home which drew comments from co-workers supporting her assessment of the supervisor was protected concerted activity. The Region also determined the company’s blogging and internet posting policy blanket provisions, (1) prohibiting employees from making disparaging remarks when discussing the company or supervisors and (2) prohibiting employees from depicting the company in any way over the internet without company permission, interfered with employee rights to engage in protected concerted activity. At this stage these claims are just allegations, but employers should take note these allegations are likely to receive sympathetic treatment by the current NLRB. Previously the Office of General Counsel had issued an advice memorandum approving a narrowly crafted internet non-disparagement policy. The acceptible policy prohibited the following: "Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects."

Protected concerted activity

My labor law class requires preparation, and often early in the morning. So here I am. Tonight we will cover protected concerted activity. Each time I delve into this area I cannot help but think it is an underused legal protection for employees. Essentially it provides employees something akin to free speech rights on a wealth of topics related to the workplace and/or mutual aid and protection. This protection is available even in the absence of a union. While the protection has a "concerted" component, the actions of a single employee can also be protected if it involves assertion of a right under a collective bargaining agreement, or otherwise asserts the rights of more than a single individual. Early in my career I remember an irate partner imposing a rule preventing clericals from discussing their salaries which prompted my discussion about protected concerted activity. The incredulous partner of course dismissively claimed he cared less about the issue than he did about the clericals being in the dark about pay practices. Of course this could have been a result of said partner's appreciation of the limited remedy provisions of the NLRA.  Wonder what effect enhanced remedies would have in this circumstance.