Category Archives: Social Media

Employers Could be Held Liable for Supervisors’ Comments and Use of Facebook

Contributed by Michael Wong

One of the biggest issues for employers is how much the internet and social media can be used to find information posted by or about employees.  However, how many employers consider their own social media footprint and who is contributing to it?  While an employer may be cognizant of what it posts on the internet, it should also be concerned about what managers and supervisors are posting on the internet and social media (Facebook, LinkedIn, MySpace, Google+, blogs, etc.).

As what has generally come to be recognized as the “Cat’s Paw” theory, the actions of a supervisor, even one who is not a decision maker, could be conveyed upon an employer to support the imposition of liability.  Staub v. Proctor Hospital, 131 S.Ct. at 1193.  As explained in Staub, because a supervisor is an agent of the employer, when he or she causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in the supervisor doing so, it is a motivating factor in the employer’s action. 131 S.Ct. at 1193.

Under the Cat’s Paw theory it is possible that an employer could be subjected to liability based on its owners’, directors’, managers’ and supervisors’ personal use of social media, including Facebook.  This became even more evident when the District Court for the Middle District of Tennessee held that posts on a company blog, posts on a manager’s personal Facebook page (even when removed) and a manager’s verbal comments, were sufficient evidence to create a genuine dispute of facts concerning one employee’s retaliation claim and another employee’s constructive discharge retaliation claim in a FLSA class case. Stewart v. CUS Nashville, LLC, 3:11-CV-0342, 2013 WL 456482 (M.D. Tenn. Feb. 6, 2013). 

In Stewart, the court found that a blog entry on the company’s website by its founder and president that “referenced a lawsuit initiated by someone who had been previously terminated for theft and contained the following statement directed to that individual: ‘Fu** that b*tch’” was sufficient evidence to allow a jury to find retaliation in violation of the FLSA. The court went on to find that the company’s Director of Operation’s post on Facebook, while intoxicated, stating “Dear God, please don’t let me kill the girl that is suing me . . . that is all . . .” and similar verbal comments while the employee was present, were sufficient evidence to allow a jury to find the employee was constructively discharged in retaliation for joining the FLSA lawsuit. While the court did not find the evidence was enough to grant either party summary judgment, the use of social media lead to the employer being faced with the uncertainty of liability and costs of a trial.

Bottom line: Employers must be aware that they could be held liable not only for what they post on the internet, but what their directors, managers and supervisors post on the internet.

The NLRB Strikes Again-COSTCO SOCIAL MEDIA POLICY

Contributed by Julie Proscia

On September 18, 2012 a three-person NLRB panel held that Costco’s policies regarding the Internet and social media were “too broad” and could effectively stifle employees’ right to free speech under the National Labor Relations Act (NLRA). This move was an evolution of previous general counsel’s guidance and the first time that the NLRB officially held that a social media policy violated Section 8(a)(1) of the NLRA.

The “Electronic Communications and Technology Policy” in Costco’s employee handbook advised employees to, “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 Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.” The NLRB found that this policy was too broad and prevented employees from engaging in protected discussions regarding the terms and conditions of their employment.

Not only did the NLRB strike down the social medial policy, but it also criticized and struck down four other provisions in the employee handbook. These included provisions relating to the dissemination of confidential information including prohibitions regarding discussion of seemingly confidential matters like employees contact information, FMLA leaves, ADA accommodations and workers’ compensation injuries. Like the Electronic Communications Policy the NLRB found that the provisions restricted discussions relating to terms and conditions of employment and as such was too broad.

This leaves employers in an even larger quandary trying to protect their confidential information and the reputation of the company while maintaining compliance with an ever evolving and seemingly broader definition of protected and concerted activity. It is even more important for employers to diligently update their policies and procedures to ensure that they are not the next in the social media expansion pack.

Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, Case 34–CA–012421.

Social Media and the National Labor Relations Act: The Silver Lining In the NLRB General Counsel’s Latest Report

Contributed by Beverly Alfon

When the NLRB General Counsel, Lafe Solomon, issued his third report on social media policies on May 30, 2012, I assumed that it would be in line with the gray doom and gloom of the previous two reports which basically left employers with a faint roadmap of “what not to do” with respect to social media policies. For the most part, my assumption was correct. 

Yes, the General Counsel again relied on Board caselaw which holds that company rules and policy statements are unlawful where employees could reasonably interpret them as limiting their rights under the Act.  And yes, similar to the previous 28 cases that he reviewed, he found another six policies to be overbroad and therefore, unlawful. However, this time, he identified one policy to be lawful in its entirety.  BUT there is the silver lining…until now we have not had a solid example of a what the General Counsel would consider to be a “lawful” social media policy. 

The General Counsel’s approval of the policy is so strong that he attached a copy of the two-page policy to the report.  His opinion is not binding law.  However, his report is issued as an operations memorandum to all NLRB regional directors and officers.  It is also the General Counsel’s office that ultimately decides which unfair labor practice charges warrant the issuance of a complaint. 

In Walmart, Case No. 11-CA-67171, an employee alleged that Wal-Mart’s social media policy violated the Act and that he was unlawfully terminated for comments that he posted on Facebook.  However, after the employee filed the charge, Wal-Mart implemented a revised policy.  The NLRB’s Division of Advice found that the new policy was lawful and negated any need to consider the old policy that the charge was based upon.  In his report, the General Counsel identified what he considered to be the most important elements of the Wal-Mart revised policy:

  • The policy applies to all associates of the corporation and its subsidiaries;
  • The policy forbids “inappropriate postings,” including “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct;”
  • The policy warns that violations of the policy may result in discipline or discharge;
  • The policy only tells employees that they “are more likely” to resolve work-related complaints by speaking directly to co-workers/supervisors – rather “than posting complaints to a social media outlet;”
  • The policy prohibits communications “that could reasonably be viewed as malicious, obscene, threatening or intimidating,” that “disparage individuals on the basis of race, sex, disability, religion or any other status protected by law or company policy,” or other communications that “might constitute harassment or bullying;” and,
  • The policy contains “sufficient examples of prohibited disclosures” (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.

In sum, the General Counsel stated that the revised policy was lawful because it contained “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.”

Bottom line:  The Wal-Mart social media policy is worth the read.   Although this example is by no means a “one size fits all” answer or guarantee to saving your company from unfair labor practice charges related to your social media policy – it is a very good place to start.

Just Your Monthly Reminder…Social Media is Where the Action Is

Contributed by Brandon Anderson

As you may have gathered from the nearly monthly blogs on the issue (see blogs such as Friend Me?? and the three NLRB-related postings), labor and employment attorneys are fascinated and maybe slightly obsessed with the potential impact of social media on the employment relationship and labor and employment laws generally.  As these prior posts have indicated, the hot-off-the-press news has focused on our state governments’ view that employers should not request access to job applicants’ social media websites and the federal government’s view, per the National Labor Relations Board (NLRB), that employers cannot have social media policies that restrict employees’ rights to engage in concerted activity.  And due to these positions that our governments are taking, we have been advising employers that they need to have their social media policies reviewed by an attorney (and will continue to do so!).

In this climate where the barometer suggests an employer’s ability to rely on social media to get to know “the real applicant” or to ensure that an employee isn’t dragging an employer’s name through the mud might be limited, I read the following headline on MSNBC: “Bartender Fired Over Racist Facebook Post.”  In a nutshell, the bartender posted blatantly racist and extremely offensive comments about bar patrons.  The bartender was subsequently fired.  The lawyer in me immediately wondered whether the bartender would sue.  I then kicked a couple of theories around in my head.  There is the “go-to” First Amendment right to free speech—sometimes people are surprised to learn that, to some extent, employees sacrifice this right when they enter into an employment relationship.  A more “novel” theory might be whether the bartender’s rant could be considered “concerted activity”—the “I was just complaining about my job with my co-workers and that’s protected concerted activity” defense.  This probably won’t pass the smell test either, especially if the employer maintained a social media policy that prohibited “Disparagement of any race, religion, gender, sexual orientation, disability or national origin.”  As some of our blogs have indicated, the NLRB has indicated that such discriminatory activity can be prohibited and is not considered protected concerted activity. 

In this day and age, it is critical that employers create and enforce a social media policy.  As we blogged in January, February, March, and now in April, it is also critical that employers ensure that their policies are drafted in a way that will be best positioned to withstand the possible legal challenges.  Remember, defending against a weak but “novel” legal theory still costs you time, effort, and money.  As promised: employers really should consult with an attorney and have an attorney review their social media policies.

Friend Me??

Contributed by Julie Proscia

Back in the pre-digital day, employers checked up on potential employees by picking up the telephone (gasp-no not even a cell phone) and speaking with another real live individual. The controversy with this method revolved around what “not eligible for reemployment” really meant (by the way it means do NOT hire the person). Now prospective employers rarely call references but instead run digital background checks, surf the Internet and monitor LinkedIn and Facebook sites to ascertain who their potential new hire really is. There is an ever increasing number of employers that require applicants and employees to “friend” them on Facebook or turn over social media passwords, and this is causing a storm of controversy and sparking legislation in an attempt to safeguard privacy rights.

Illinois is one of a number of states that is struggling to respond to this dichotomy – the right to know versus too much knowledge. Currently pending, and on a Third Reading in the Illinois House, is an amendment to the Right to Privacy in the Workplace Act. The amendment would make it unlawful for any employer to ask any prospective employee to provide any username, password or other related account information in order to gain access to a social networking site where that prospective employee maintains an account or profile. The amendment would not reduce an employer’s right to promulgate and enforce lawful workplace policies regarding electronic communications and social media. If passed it may make the question, “friend me” just as illegal as “what religion are you?”

While the internet is a wonderful tool for knowledge, particularly on such philosophical issues as “is the Mango really the most popular fruit?” it is also a door into the secret life of not only your employees but also your applicants. It gives prospective employers the opportunity to peek behind the curtain and see what or who the individual really is.  While individuals’ resumes may state that they are hardworking and dedicated, their Facebook pages could reveal that last Saturday they had a lampshade on their head and a beer in their hand. The separation between the public and private is a question of boundaries – that is not easy. On one hand there is a legitimate argument that if a person puts information out for the world to see, it is fair game – on the other, there is the equally legitimate idea that whatever happens after 5:00 p.m. is personal time. This is the delicate balance that courts are just beginning to battle and that Illinois is examining.

Whether or not the legislation passes will only be the beginning of this debate. Stay tuned for more details. In the mean time, friend me, I am the attorney with the lamp shade on the left…

Other Sources:

Lawful Social Media Policies vs. Unlawful Social Media Policies – The NLRB Weighs In (And Yes, Even the NLRB Tweets!)

Contributed by Carly Zuba

In today’s technologically savvy age, more and more disgruntled employees are turning to Twitter, Facebook, blogs, and other social media outlets to air their grievances about their employers.  The National Labor Relations Board (NLRB) has taken note and recently issued a report to provide guidance to employers, employees, and unions regarding social media policies.  The Board, which currently boasts an impressive 3,092 followers on Twitter, even tweeted about the report on January 25, 2012.

The report summarizes 14 recent social media cases, with half of the cases touching on questions concerning employer social media policies.  Not surprisingly, most of the social media policies that the NLRB reviewed were found to be overly broad.  Because of this, it is crucial for employers to ensure that their social media policies are not so broad that they chill an employee’s right to engage in protected activity. 

In the eyes of the NLRB, the following are examples of unlawful social media policy:

  • Employees may not post “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.”
  • Employees may not post “disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
  • “Employees should generally avoid identifying themselves as the employer’s employees unless discussing terms and conditions of employment in an appropriate manner.”

Why did the Board decide these policies were unlawful?  Because employees have the right to engage in protected concerted complaints regarding employer policies and the treatment of employees, even if that speech is defamatory, and the Board found the above policies to stifle such protected concerted activity.

So, what type of language does the NLRB consider lawful?  The NLRB upheld the following social media policy:

  • Employees are prohibited from using social media to “post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

The above policy was found to be lawful because the Board felt it would not be reasonably understood to restrict legal concerted activity.

While the NLRB’s report teaches us that employers should not be implementing overly broad social media policies, it is always good practice for employers to have their social media policies reviewed by an experienced labor and employment attorney.

Employers Beware: NLRB Issues Second Report Confirming Employees Have Broad Protection when Complaining on Facebook

Contributed by Jon Hoag

On January 24, 2012, the NLRB’s Acting General Counsel, Lafe Soloman, issued his second report regarding how the Board interprets social media cases.  The previous social media report issued by Mr. Soloman on August 18, 2011 sent shockwaves throughout the employment world – union and non-union employers alike.  The August 18, 2011 report provided examples of the Board granting protection to employees that engaged in outrageous and disparaging conduct because other employees shared in the online complaining and commiserating.  Unfortunately for employers, this second report only confirms that the NLRB intends to maintain broad protection for employees who use Facebook and other social media to complain about their job or employer.

The recent case summaries overwhelmingly show that the NLRB will find that an employee’s online posting is “protected concerted activity” (i.e. covered by the Act’s protections) as long as there is some indication that the employee’s social media posting had to do with terms and conditions of employment and at least one other coworker responded and shared in the concern.  For example, the Board found that one employee’s complaint on Facebook about the employee’s dispatcher not responding and related employment concerns was just a gripe and not protected by the Act because none of his co-workers responded to the post.  In a separate case, however, the Board found that an employee’s Facebook post that said her Employer had messed up (certain expletives were included in the posting) and she was done with being a good employee was protected concerted activity because some of her coworkers (who were also Facebook “friends”) responded by stating, among other things, “I’m right behind you.”  The bottom line seems to be that if an employee’s Facebook gripe generates a lot of responses from coworker “friends”, the NLRB will find the conduct is protected by the Act.

Of equal concern is that the NLRB is steadfast that employers are significantly limited from applying professional conduct work rules and non-disparagement rules to an employee’s use of social media.  The NLRB’s recent guidance shows that in case after case, the NLRB found employer work rules and anti-disparagement policies to be a violation of the employees’ Section 7 rights.  The primary concern expressed by the NLRB is that the policies did not contain any limiting language to expressly state that the policy was not intended to apply to Section 7 rights and/or that the policy does not prevent employees from discussing wages, working conditions, or other terms and conditions of employment.  As such, all employers – union and non-union – are encouraged to review policy manuals and employee handbooks to make the necessary revisions to come into compliance with the NLRB’s wild interpretation and application of law. 

The following is a link to the NLRB’s second report:  http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report.