Tag Archives: facebook

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.

Facebook Friends Set Groundwork for Defensible Termination of FMLA Abuser

Contributed by Beverly Alfon

Most of us are familiar with the perpetual Facebook question, “What’s on your mind?” and its invitation for you to “Check In” and let the world know where you are.  In a recent case, a registered nurse answered Facebook’s call – and found herself terminated for FMLA abuse and dishonesty. 

Carol Lineberry was a registered nurse who complained about lower back and leg pain to her employer, Detroit Medical Center.  Her doctor issued medical restrictions, including not standing for more than 15 minutes, pushing or pulling more than 20 pounds or lifting more than 5-10 pounds.  She requested and received approval for FMLA leave.  However, that same month, Lineberry went on a planned vacation to Mexico.

Lineberry posted pictures of her vacation to her Facebook page that showed her riding a motorboat, lying on a bed and holding beer bottles, and carrying her more than 15-pound grandchildren in each arm, while standing.  She also posted comments about taking care of her grandchildren.  Lineberry’s co-workers at the Medical Center, who were Facebook “friends” with Lineberry, saw the posts and complained to their supervisor.  The supervisor reported the activity to upper management. 

While Lineberry was still on leave, she emailed her supervisor to express her disappointment that no one sent her a “get well” card.  Lineberry’s supervisor responded by telling Lineberry that they found out about her vacation and accordingly, expected that she would be returning to work.  Lineberry responded by telling her supervisor that she used a wheelchair when traveling and did not walk for long periods. Shortly after that exchange, Lineberry obtained a full release to work from her doctor. 

Upon her return to work, the Medical Center followed its progressive discipline policy and conducted an investigative meeting with Lineberry.  At that meeting, she admitted that she lied to her supervisor about using a wheelchair and not being able to walk for long periods of time while in Mexico.  The company issued a termination letter to Lineberry, citing dishonesty (including FMLA abuse) as the reason for her discharge.

Lineberry filed suit against the Medical Center alleging FMLA interference and retaliation.  The court granted summary judgment to the Medical Center (Lineberry v. Richards, E.D. Michigan, No. 2:11-13752, Feb. 5, 2013).  The court reasoned that based on Lineberry’s “undisputed dishonesty… Defendants had a right to terminate Plaintiff – without regard to her leave status because FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave.”  The court also held that the employer prevailed under the “honest belief” doctrine.  This doctrine allows an employer to form a defense to FMLA claims by establishing that it “honestly believes, based on particularized facts, that an employee lied and misused her FMLA leave and disciplines/terminates such employee based on such belief.” The court specifically referred to Lineberry’s admissions on her Facebook page regarding her Mexico vacation and activities, and her admissions about lying to her supervisor. 

Bottom line:  Monitoring FMLA leave can be a game of cat and mouse.  This recent decision provides further support for employers’ efforts to curb FMLA abuse and is in line with the decision that the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Illinois, Indiana and Wisconsin employers) issued last year, affirming the “honest belief” doctrine as a defense to FMLA claims.  See, Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012).  The employer in Scruggs hired a private investigator to gather its evidence of abuse.  However, this recent decision indicates that even evidence gathered from social media can form the basis for an “honest belief” defense against claims of FMLA interference and retaliation claims.

The National Labor Relations Board Wants You!

Contributed by Caryl Flannery

Ok, maybe not you, but the Board definitely wants your non-union employees and they’re using Section 7 of the NLRA to get them. 

In the past, Section 7 was looked upon primarily as bestowing the right to formally organize in labor unions.  Over the last few years, however, the Board has been focusing on the section of the law which secures the right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  NLRA, Sec. 7.  It turns out the NLRB is of the opinion that those “other concerted activities” come under a pretty big umbrella and has been spreading the good news to non-union employees everywhere.  In 2012, the NLRB ratcheted up their campaign by implementing a new page on their website called “Protected Concerted Activity” where they invite non-union employees to read NLRB Section 7 success stories “of workers across the country.” Areas in which the Board has asserted jurisdiction in the last year include:

  • Social media policies – Last month, the Board ordered a private social services agency to reinstate five employees who were terminated for posting comments about their jobs on Facebook.  Although the postings included profanity and criticism of another employee the Board found that the comments were protected because the original post included an invitation for comment from other employees on a work-related issue.
  • Internal disciplinary investigations – Threatening the integrity of employers’ internal investigations of employee misconduct, the Board has held that employers can instruct employees not to discuss matters under investigation only where they can show a specific need to do so.
  • “At will” statements in employee handbooks – The NLRB held that a statement in a handbook declaring that an employee’s “at will” status could not be modified under any circumstances violated the NRLA because it failed to make clear that union organizing and collective bargaining could alter the “at will” relationship.
  • Class action waivers – Although at odds with several courts, the NLRB continues to maintain that waivers of class or collective action in arbitration agreements violate Section 7.
  • Challenges to termination of employment – Disgruntled discharged employees who can’t make out a colorable EEOC claim are now filing unfair labor practice charges alleging termination in retaliation for engaging in concerted protected activity, such as complaining about safety concerns.  The Board obligingly investigates all charges which, even if ultimately dismissed, can be costly to defend in terms of disruption of business and related costs.

What’s an employer to do?  Carefully draft policies and handbooks and review disciplinary practices for language or procedures that could be viewed as chilling or restricting concerted activity.  Focusing on clearly unprotected activity (such as Facebook posts that could constitute unlawful harassment) will deter unwanted attention from the NLRB.

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.

The Internet Police Have Arrived

Contributed by Terry Fox

While Al Gore may, or may not, have invented the Internet, there has not been any central enforcement body to regulate manners, civility, or professionalism in individual Internet discourse . . . until now. It appears that “regulation” is a misnomer because, in actuality, it is more like de-evolution.  Having read the National Labor Relations Board’s Acting Associate General Counsel’s Report Concerning Social Media Cases released May 30, 2012, I am picturing the NLRB management sitting around wearing red plastic flower pots as hats like the early punk band DEVO as they concoct ways to “whip it into shape” on the world-wide web by gutting employers’ social media policies. These rules and pronouncements govern employee’s postings on social media like Facebook, MySpace, and Twitter.

A rule advising employees not to “release confidential guest, team member or company information” is illegal under Section 7 of the National Labor Relations Act, says the NLRB, because employees would construe this rule to prohibit them from discussing the wages and conditions of employment for themselves and others.  This rule is taken from Target Corporation’s social media policy.  The Acting General Counsel report also took issue with a section of Target’s policy addressing confidential information.  Its rule that employees not discuss confidential information of other employees in break rooms or other open areas, in public or at home was deemed unlawful because it would be [not had been] construed by employees to preclude discussion of terms and conditions of employment.

General Motors’ social media policy fared no better.  GM’s policy section requiring posts to be “completely accurate and not misleading” was found overbroad because only maliciously false information lies outside Section 7 of the NLRA.  The admonition for employees unsure of a post’s propriety to check with the company’s corporate communication or legal departments prior to posting is also illegal in the NLRB’s view. 

Most surprising is the trashing of GM’s rules of civility – “treat everyone with respect” – by the NLRB.  “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.” What’s the problem with that rule?  “[T]his provision proscribes a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees.”

Privacy gets no respect from the NLRB.  In reviewing McKeeson Corporation’s social media policy, the Board took issue with the provision titled “Respect Privacy.”  McKeeson’s business is to support patient billings for the health care industry.  The “offensive” clause stated “[i]f during the course of your work you create, receive or become aware of personal information about [Employer’s] employees, contingent workers, customers, customer’s patients, providers, business partners or third parties, don’t disclose that information in any way via social media or other online activities.”  Unlawful, said the NLRB, because it would preclude employees from discussing wages and working conditions. 

As shocking as it is that the federal government is enticing employees to talk smack about each other online, the safe haven for employers is uncharted.  Most current social media policies contain a so-called “savings clause.”  Those provisions generally state that the policy is not intended or to be applied to preclude lawful activities under the law, or specifically Section 7 of the NLRA.  A “savings” clause is of no value because it will not save an otherwise unlawful policy because employees would not understand from a disclaimer that protected activities are in fact permitted. 

The Acting General Counsel report trashes the social media policies of other for-profit and nonprofit organizations.  The report does give a pass to Walmart’s revised policies (as of 5/4/12), and provides them as an attachment.  Employers are commended to read the report and strongly encouraged to have trained legal counsel review social media policies.  There appears to be a fair degree of nuance to this, as shown by the report when read in its entirety. What the NLRB appears to be striving for are express carve-outs encouraging employees to discuss wage and working condition issues.  If that is required, it is not clear if having a social media policy is beneficial.  Walmart’s policies, however, find a balance without providing overt encouragement through examples. 

This is an area of rapidly changing laws, rules, and expectations.  The May 30th  report is the third report in less than a year.  Expect more mayhem. . .

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…

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