We have all learned that there truly are 5 stages to the NLRB’s position on social media and employment law.    The first stage involves general “guidance” memoranda issued by the NLRB’s Office of General Counsel.   The second stage involves an actual complaint being filed out of one of the NLRB’s regional offices.   The third is the decision we read from the administrative law judge (“ALJ”) that holds a hearing on a filed complaint.  

The fourth is the decision that is formally issued administratively by the full NLRB on appeal of the ALJ, while the fifth stage involves the courts being asked to affirm or reverse the NLRB.   You can add a sixth stage – the denial stage – if you’re still one of those who believe that this social media stuff is either not important or not continuing to wreak havoc on employers.  We are now squarely in the fourth stage­ – the one where the full NLRB issues an appeal decision – with some cautious optimism that we will soon reach the fifth, and final, stage, and get some definitive word from the courts on whether the NLRB has overstepped its authority on these issues.  

You will remember that less than three weeks ago, the full NLRB issued its first social media decision, essentially finding that virtually all of Costco’s social media policies were unlawful.   Now, the NLRB has issued its second social media decision, which is equally as disconcerting.

In Karl Knauz Motors, Inc., a BMW salesman posted negative comments on Facebook about the choice of food served at a BMW “driving event”, noting that his commissions may suffer because the choice of food was not appropriate for potential luxury car buyers.  When management at the dealership saw his posts, as well as others relating to an auto accident at a neighboring dealership owned by the same employer, the salesman’s employment was terminated.

As almost an aside, the NLRB agreed with the ALJ that the termination was not in violation of federal law because the credible evidence ultimately demonstrated that the salesman was fired due to his (unprotected) comments regarding the auto accident, rather than about the effect of the event food on his commissions.  Nothing real novel there:   If you can’t prove that the adverse decision was based on protected comments, you can’t hold the employer liable for unlawful conduct.  

But it was the NLRB’s decision on the dealership’s social media policy that is most troubling here, as the 2-1 majority of the Board found the following policy to be unlawful:

“Courtesy:  Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.   No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

The majority found that the “courtesy” policy violated federal law because it tended to chill employees in the exercise of their right to engage in concerted protected activity.   Specifically, the majority ruled that there was nothing in the policy or anywhere else in the handbook to suggest that communications of the type protected by federal law were excluded from the policy.   Interestingly, the lone dissenting member of the NLRB took issue with the majority’s strained interpretation of the dealership’s rule.

Employer Take Away:   What should you as an employer take away from this development?   

The BMW dealership must have been thrilled to learn that its decision to fire a salesman for not acting particularly courteous to the dealership was upheld, yet it was now subject to all sorts of remedies and penalties for maintaining a workplace policy that requires employees to be courteous.    Consistent?

The NLRB apparently has lots of problems with employer policies when it comes to keeping investigations confidential, with reminding employees of their at-will employment status, and with prohibiting employees from defaming the company.   Now, the NLRB’s majority has a problem with the company’s insistence that its employees be nice.

On the surface, it is clear that employers need to review all of their policies to ensure compliance with the NLRB’s latest stricture, even those like a “be nice” policy that is seemingly innocuous on its face.  But there are ways your company can still avoid the NLRB’s ire by how you word your policies to avoid the fundamental concerns underlying these administrative decisions.   In the end, we will all hopefully avoid entering an unhealthy anger stage, and quickly get a voice of reason from the courts on these NLRB positions.

Last week, a federal judge in Illinois showed us why employers may be wise to (lawfully) search for and use electronic communications involving an employee.

In Jacober v. U.S. Dep’t of Agriculture (Southern District of Illinois), the plaintiff worked as a loan specialist in the Department of Agriculture’s service center.   The case is chock full of facts regarding conversations, performance discussions, and some internal complaints, and you are free to go through the entire court’s decision here if you’re interested.  

But the bottom line is that the plaintiff sued her employer alleging, among other things, that she was sexually harassed in the workplace.  The primary evidence that she relied upon:  she found out about, and later personally viewed, some photographs of her direct supervisor that were inserted into a PowerPoint presentation, and which show the supervisor wearing “overalls with no shirt underneath, a hard hat, tool belt, and shoes, with his arms crossed.”  Many of you know that one of the elements a plaintiff is required to prove for a sexual harassment claim is that the plaintiff was “subjected to unwelcome sexual conduct, advances, or requests[.] [emphasis added.]”    To determine whether conduct is “unwelcome”, a court will generally look at the entire context and circumstances, and whether the conduct is both subjectively and objectively offensive.

Plaintiff in Jacober claimed that she found the photographs to be offensive because it was her supervisor in the photographs, he was with a college student (the one who assisted with the PowerPoint slides), he was shirtless during the work day, and the images “were put on a government computer”.    But, what is perhaps the best way to counter an “unwelcome” argument?   Provide evidence that the plaintiff happened to previously welcome similar (or worse) images on her computer, and in the conversations she voluntarily had with other people.

And that’s precisely what her employer did.  In dismissing Plaintiff’s sexual harassment claim, the court referred specifically to the employer’s evidence that plaintiff responded to arguably more graphic images sent to her work e-mail address by responding “that’s too funny”, and that she affirmatively sent pictures that were clearly more graphic to others outside of her work from her computer.    The court ruled:

“While plaintiff may not have liked the pictures of [her supervisor] in overalls, or personally found it to be unprofessional, she cannot make a claim that these photographs were subjectively sexually offensive, in that her own work email account contained pictures of males wearing far less clothing, one of which contained a photograph showing the full buttocks of a male, which she found humorous and even forwarded to her own daughter.  Plaintiff’s own actions therefore, make it unbelievable to this Court that she could find the photographs to be unwelcome sexual conduct that made her work environment intolerable.  She tolerated, and, in fact, generated further distribution of images that were more revealing, and therefore could be considered much more sexual in nature than the one of [her supervisor].”

Employer Take Away:   What should you as an employer take away from this development?   

Repeat after me:   There are good reasons for employers to use social media and electronic communications of employees.  One of those uses is to defend your company in a lawsuit, when a current or former employee suddenly alleges that she or he was subjected to a harassing or discriminatory work environment.    Understanding the elements that must be proved for such a claim, and being able to effectively obtain and use the type of evidence that “is never truly deleted when deleted” to disprove those required legal elements against the individual suing you, will go a long way to minimizing potential risks and “exposure” to claims in the future.

It also is worth noting, however, that, despite what may not have been any malicious intent on the part of any of plaintiff’s supervisors in Jacober, it may also be wise to review your internal anti-harassment and anti-discrimination policies, and properly train your management personnel to understand that certain conduct may not be appropriate for your particular work environment, even if it does not rise to the level of unlawful conduct.    What if this employer did not have evidence of the plaintiff’s own use of revealing pictures?

On the issue of enforceable social media policies maintained by employers, we have discussed, dissected, and digested plenty of opinions from the Office of the General Counsel of the National Labor Relations Board (“NLRB”).   We have even read the opinions of the few administrative law judges that have weighed in on this issue.   But now, for the first time, the NLRB itself has issued a lengthy decision in which it found that many provisions in Costco’s workplace policies violated its employees’ right to engage in protected concerted activity under the National Labor Relations Act (“Act”).

You will remember that the General Counsel’s office had issued three guidance memoranda, most recently on May 30, 2012 when it provided its greatest insight into why certain social media policies would be deemed unlawful.   With this latest Costco decision by the full Board, the NLRB has apparently accepted the advice of its counsel.

The Costco case began with charges being filed by a union in conjunction with some union organizing activity that was taking place in one of the company’s Connecticut locations.  The charges prompted the NLRB’s Regional Director to issue a complaint against Costco, and a hearing was held before an Administrative Law Judge.   In its September 7^th decision, the NLRB addressed specific Costco policies.

The NLRB found the following policies to be unlawful under the Act because they are overbroad: 

• Generally prohibiting employees from “electronically posting statements that damage the Company . . . or damage any person’s reputation.”
• Generally prohibiting the “unauthorized posting, distribution, removal or alteration of any material on Company property”.
• Prohibiting employees from “discussing private matters of members and other employees . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”
• Prohibiting employees from sharing “payroll” information, and from sharing “confidential information such as employees’ names, addresses, telephone numbers, and email addresses.”

However, the NLRB did hold that the following provisions were lawful: 

• Requiring employees to “use appropriate business decorum in communicating with others.”
• Prohibiting employees from “[l]eaving Company premises during working shift without permission of management”, so long as the rule does not state or imply that employees cannot engage in a protected “strike” or “walk out”.
• Provisions that address “conduct that are reasonably associated with actions that fall outside the Act’s protection, such as conduct that is malicious, abusive, or unlawful.”

As a result of these findings, Costco was ordered to comply with certain remedial directives.   Thus, Costco had to cease and desist from making unlawful rules and policies, take affirmative actions to rescind or modify the unlawful rules, advise its employees that the unlawful provisions have been rescinded, and post notices to all employees of their rights under federal law and what the Company was required to do by the NLRB in this decision.    Beyond those directives, we will all wait to see if Costco decides to avail itself of the opportunity to obtain the first appellate court decision on these important issues.

Employer Take Away:   What should you as an employer take away from this development?   

The enforceability of workplace social media policies continues to be a very fluid issue, and we are just starting to see these issues getting resolved in higher forums.   I am still not convinced that the NLRB’s positions on many of the policies addressed in its Costco decision (and its General Counsel’s memoranda) will ultimately withstand judicial scrutiny.  

Part of the problem here is that the difference between a lawful workplace rule and an unlawful workplace rule lies, as the NLRB has ruled, in “whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights.”  Yet, the Costco decision does not refer to anything in the record where employees actually testified one way or the other on whether they felt a chilling effect, or whether they construed the rule to prohibit protected activity.  Thus, rulings on liability are made based on how the Board interprets the language, based on whatever context the Board deems relevant or not.

In any case, we will continue to update all developments as they relate to the appropriate boundaries of social media policies.   But it would be wise to re-review your current policies in light of these latest developments to make sure they are clear in what can be appropriately regulated.   For as the NLRB stated, any ambiguity in your rules “must be resolved against the promulgator of the rule rather than the employees, who are required to obey it.”

Twenty-six years ago, Ferris Bueller looked straight into the camera and said:  “If you had access to a car like this, would you take it back right away?   Neither would I.”   Once the car is out of the garage, it is out.   And so it goes with social media (yes folks, the pop culture stretch du jour).   Now that everyone has a plethora of social media platforms on which to communicate anything in real time, everyone seems to be taking advantage of it.   Until the car crashes.

An interesting decision was just issued by the California Court of Appeal (Third Appellate District) in Juror Number One v. The Superior Court of Sacramento County, which shows that even trial jurors may not be immune to a judge’s ire over social media postings.   There, the plaintiff juror had allegedly violated the court’s earlier admonition by posting trial-related information on his Facebook account (including certain evidence presented at trial) while the trial was in progress.  The court conducted a hearing and ordered the juror to consent to having Facebook release all of the juror’s Facebook posts from the trial.   Of note, the posts at issue were not those made available to the public at large, but to a “select group of Facebook friends.”

The juror took another day off, this time to visit the courthouse as a plaintiff, when he sued to bar the enforcement of the court’s order.  The juror argued that the order violated the federal Stored Communications Act (“SCA”), the United States Constitution (4^th and 5^th Amendments), and state and federal rights to privacy.   The Court of Appeal, however, denied the juror’s claims.   Rejecting the juror’s SCA argument out of hand, the court noted: 

“But even assuming Juror Number One’s Facebook postings are protected by the SCA, that protection applies only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information.  Here, the compulsion is on Juror Number One, not Facebook. . . .  If the court can compel Juror Number One to produce the information, it can likewise compel Juror Number One to consent to the disclosure by Facebook.  The SCA has no bearing on this issue.”

Next, the court rejected the juror’s 4^th and 5^th Amendment claims, holding that the claims were speculative and “without argument or legal support.”   And, finally, with regard to the juror’s privacy claims, the court found that the need to remedy potential juror misconduct outweighed any privacy rights that might even exist:

“At any rate, protection against disclosure of personal identifying information that might be used by a convicted defendant to contact or harass a juror is not the same thing as protection of a juror’s communications, which themselves are misconduct.  But even if Juror Number One has a privacy interest in his Facebook posts, that interest is not absolute.  It must be balanced against the rights of real parties in interest to a fair trial, which rights may be implicated by juror misconduct. . . . The present matter no longer involves a claim of potential misconduct.  Misconduct has been established without question.  The only remaining issue is whether the misconduct was prejudicial.  This cannot be determined without looking at the Facebook posts.”

Employer Take Away:   What should you as an employer take away from this development?   

Social media may be ubiquitous, but there are limits to when and how it can be used.   New rules continue to be developed in this area almost daily, whether it involves the use of social media by jurors, lawyers, or employers and employees.  How courts (and legislatures) will continue to address monitoring of and access to electronic and social media communications bears watching.  

In other words, your company needs to stay abreast of what information it can affirmatively/strategically obtain and use in litigation against a former employee, and the extent to which the company can attempt to gain access to that information while the employee is still employed.   There are strict rules of the road involving when you can take your social media hot wheels for a spin.  So keep your eyes open.  As Ferris aptly concluded:  “Life moves pretty fast.  If you don’t stop and look around once in a while, you could miss it.”

Just because it’s that I-Can’t-Believe-There’s-One-Week-Left-In-August time of year, doesn’t mean there isn’t some fun and exciting law coming down the pike.  An important decision was issued this month by the Second Circuit for employment law generally, but also for social media pundits. 

In Donnelly v. Greenburgh Central School District, the Second Circuit reversed the lower court’s decision to grant summary judgment to the defendant employer and dismiss plaintiff’s complaint.  Plaintiff alleged that he was denied tenure in retaliation for taking FMLA leave.  One of the primary issues on appeal involved the defendant’s argument that plaintiff was not entitled to FMLA leave in the first place because he worked only 1,247 hours in the preceding year (the FMLA has a threshold 1,250-hour requirement to be entitled to FMLA leave).  Defendant had calculated the hours by relying on a provision in the collective bargaining agreement (“CBA”), which provided for a 7.25-hour workday for teachers.   Thus, adding up the hours for the days that plaintiff worked, the defendant argued that he was three hours short of the FMLA eligibility requirement.

What seemed like should be a simple issue to decide based on pure math, was not.  On appeal, the Second Circuit said that summary judgment was inappropriate because it was for a jury to decide the fact issue of how many hours the plaintiff had truly worked, taking into account any after-hours work that he performed (e.g., grading papers, lesson planning) beyond the 7.25 hours identified in the CBA.   As the court held:

“In cases where a plaintiff avers that a relevant compensation agreement – including [] a collective bargaining agreement – do[es] not accurately reflect all of the hours an employee has worked for or being in service to the employer, . . . the employer has the burden of showing that the employee has not worked the requisite hours. . . . 

“A jury reviewing the evidence in this record might well conclude that the evidence that [plaintiff] presents is insufficient to persuade it to find that he spent three or more hours beyond the CBA-maximum time engaged in activities integral to his employment.  That factual inquiry is not ours to answer.  The [defendant] has raised questions about the credibility and probative force of [plaintiff’s] evidence that he worked enough additional compensable hours to qualify for FMLA leave.  But these questions are, on this record, to be answered by the jury[.]”

Employer Take Away:   What should you as an employer take away from this development?   

Two important takeaways here:

     1.         It does not only matter what working hours are identified in a contract, policy, or other written document for a particular position.  What matters is the number of hours your employee is actually working on a day-to-day basis.  The Second Circuit’s decision continues to put common notions of “the burden being on the one suing” on its head, by making an employer have to prove that the employee didn’t work if the employer is placing eligibility under the law at issue.

     2.         There are social media implications here, for, as we have blogged about before, it is often difficult to keep up with the activities of your employees outside the typical 9-5 office hours, and outside the four walls of your traditional office.   Whether responding to e-mails while at a move theater, blogging on a company-owned site, accessing your company’s server remotely from home, or simply speaking on the smart phone from the kitchen, an employee must be paid for all hours “worked”.  And all hours “worked” will be calculated for purposes of eligibility under various employment laws.   

It is vitally important for your company to develop a system of keeping track of, recording, and acknowledging when your employees are and are not working.  It is not just an issue of determining whether someone is properly classified as “exempt” for overtime purposes, but, as this case suggests, a broader employment law issue.  Noteworthy in the Second Circuit’s Donnelly decision:  “[T]here is no indication in the record that the [employer] maintained records of the working hours of the teachers[.]”

A court decision this month from down in Fort Worth, Texas provides a great reminder for those keeping score of all of the NLRB’s Facebook firing cases.

In Sumien v. CareFlite, a few ambulance technicians and other employees of a Texas-based company posted comments on each other’s Facebook wall that responded to one’s expressed desire to slap a patient that had been transported by ambulance.   Plaintiff participated in the discussion, posting: “Yeah, like a boot to the head . . . Seriously yeah restraints or actual HELP from PD instead of the norm.”  The company’s compliance officer saw (and was offended by) the comments, and reported them to management.  

Plaintiff and another posting employee were terminated, and Plaintiff brought a lawsuit alleging three common law state claims, including a claim for “unwarranted intrusion upon seclusion”.   Interestingly, all of the claims were based on Texas common law, as opposed to statute-based claims under federal or state law.   The initial court dismissed the intrusion upon seclusion claim, and Plaintiff appealed.

The appellate court agreed with the dismissal, and ruled that Plaintiff did not state a viable claim for intrusion upon seclusion, which required a showing of: “(1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns that (2) would be highly offensive to a reasonable person.”   The appellate court rejected all of Plaintiff’s arguments, noting particularly that no one at the company engaged in any act that invaded Plaintiff’s “private affairs or concerns.”  The appellate court also quickly rejected Plaintiff’s argument that he did not realize how many “friends” of his co-worker would be able to view his wall post:

“While [Plaintiff] presented evidence showing that he misunderstood [the co-worker’s] Facebook settings, did not know who had access to [the co-worker’s] ‘wall’, and did not know how CareFlite was able to view his comment, he did not present any evidence to show that his misunderstanding meant that CareFlite intentionally intruded upon his seclusion.”

In other words, nice try.

Employer Take Away:   What should you as an employer take away from this development?   

Most commentaries on the “Facebook firing” issue have focused on the avalanche of opinions, guidance and decisions rolling out of the NLRB’s office as part of its application of the federal right to engage in “protected concerted activity”.   However, as the CareFlite case shows, employees may also raise state-law claims (even non-statutory, as in that case) to address adverse action taken because of social media activity.  

The decision in CareFlite was not favorable for that employee, but the particular facts and elements of the state claim in your jurisdiction may be.   So, while considering the NLRB implications we have previously discussed before making the employment-based decision, it would be wise for your company to also consider potential exposure from other non-NLRB sources.