Remember the holiday blockbuster toward the end of last year that featured the complaint by the National Labor Relations Board (“NLRB”) against a Connecticut ambulance company arising out of its Facebook-related termination and social media policy?   Box office hits went through the roof in the first weeks following that release, as analysts, pundits and the general business community remained on the edge of their seats waiting for some absolute guidance on this new area of the law.   However, as you know from my February 9^th blog post, the drama fizzled when the parties settled that case without any legal findings being established.   The saga effectively went unceremoniously direct to DVD.

Get your popcorn ready, as the NLRB is about to release the long-awaited sequel.   This time, the New York office of the NLRB is claiming that Thomson Reuters Corp. has violated the National Labor Relations Act (“the Act”) with its corporate Twitter policy.    According to news reports, a reporter from the Newspaper Guild (which represents Thomson Reuters) had previously tweeted to Thomson that “one way to make this the best place to work is to deal honestly with Guild members.”   Thomson, in turn, allegedly disciplined the employee for the tweet.   

And, although I have not yet seen any indication that the employee was actually engaging in “concerted” activities or discussing any working conditions with at least one other co-worker (as opposed to merely sending a directed tweet to her employer), the NLRB seems to be taking the position that Thomson Reuter’s policy improperly restricts employee rights to use Twitter for the purpose of discussing working conditions.  Unfortunately, this production is only in private previews at the moment, as the NLRB’s full complaint itself has not yet been made public.  

I will continue to monitor things, and will update you further once we have had a chance to review the allegations in the complaint.

Employer Take Away:   What should you as an employer take away from this development?   The same stanza is worth repeating in this musical score.   While creating or updating your company’s social media policy is a necessary first step, you will only be creating more problems if there are aspects to your policy that ultimately are held to be unlawful. 

Whether your company has a union or non-union facility (remember, the Act covers both), it is clear that the NLRB is taking very seriously the issue of corporate policies and practices that impact the use of social media in the workplace.    By continuing to make sure you carefully scrutinize your policy, balanced against your legitimate interests associated with operating your business, you can minimize the risk that your company will someday play a leading role in what becomes the trilogy.

There have been lots of recent stories lately relating to games of chance and various forms of gambling in the workplace.    Seven state co-workers in Albany, New York just split $319 million in Mega Millions winnings.    And all across America, employees have finished ripping out their hair as an 8 seed and a 3 seed battled for the national college basketball championship.  

The Internet and social media make it much, much easier for employees of your company to engage in gambling-related activities.   Whether employees are engaging in online poker tournaments during working time or creating and circulating various office pools, or whether company management is advocating certain games of chance at corporate parties and outings, there are potential liability issues that should be considered.    Wikipedia defines a “game of chance” as a “game whose outcome is strongly influenced by some randomizing device, and upon which contestants may or may not wager money or anything of monetary value.”

There are three potential pitfalls attendant to these types of activities in the workplace.  First, is the effect that gambling (and, worse, one’s gambling addiction) may have on your company from decreased time and productivity to theft and fraud.    Second, is the effect that these activities can have on the working (and sometimes personal) relationships between co-workers.   One can surely imagine things turning sour in circumstances where one co-worker may feel cheated by another in a game of chance, or may become too indebted to another as a result of frequent betting.   Third, certain games of chance and gambling activities may actually be illegal in your company’s jurisdiction, and pose the risk of civil or criminal exposure to company officials and/or the owners of the premises at which the offending activities are being engaged.

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

The goal here is, again, not to act as the social media and employment law scrooge, but to try to sensitize you to potential workplace issues that may arise.   Particularly when the ever-developing world of social media increases the ease and, perhaps, frequency with which your employees may be able to act in a manner that may not be deemed appropriate.

In this regard, your company might consider including issues like online gambling to any Internet use or social media policies.    In addition, you should continue to remain aware of any signs of a problem affecting your workplace and the relationships between and among your employees that may arise from activities such as gambling, just as you would keep eyes and ears open for discrimination and harassment issues that develop from these relationships.   Lastly, while it is unlikely that local law enforcement or the IRS will take a strong interest in your next Superbowl or NCAA pool, make sure you consult with the law in your jurisdiction in the event you choose to advocate any gambling-related activities with your employees.

I refrained as long as I could.   It has been 24/7 Charlie Sheen, and I refused to join the fray.  But then I thought:  Maybe Charlie’s predicament can be another social media lesson for all of us.

So, what if you have a Charlie in your midst?  Your employee has taken to Twitter, taken to YouTube, even tried to sell out stand up shows at Radio City Music Hall.   Your employee has used every form of social media as his own virtual circus, and appears to be losing it in a way that will undoubtedly affect work performance.   What if Charlie Sheen was one of the Men at Work in your company?

Whether you’re on Wall Street, or any town’s main street, it is best not to send a Platoon of human resource executives after him without some careful consideration.  Maybe he’s been a poor performer who’s easily replaceable, or maybe he shines and does the work of Two and A Half Men.   Either way, it is inevitable that you start to question whether he’s worth this Major League headache.  But what can you do?

In prior posts, we have talked about the care you must take when making employment-related decisions, as they may be impacted by contractual obligations.   We have discussed cautionary tales about discrimination and defamation, and about the NLRB’s position in a Connecticut case on the ability to regulate protected concerted activity.   As an employee may be seen to be spiraling downward, you also cannot overlook the possibility that a potential mental illness will trigger some obligations under the ADA or the FMLA.

But as you’re lying in bed awake as the Red Dawn approaches, there is more good advice to heed when dealing with your Hot Shots and Young Guns.   Consider the legal activities law in he states in which you operate your business.   For example, New York has a statute which regulates what an employer cannot regulate when it comes to off-duty conduct.   Specifically, an employer cannot fire, refuse to hire, or otherwise discriminate against someone because the individual does the following outside of working hours and off premises: (1) engages in political activities; (2) lawfully uses consumable products; (3) engages in legal recreational activities; and (4) participates in union membership.   There are, of course, statutory exceptions that may apply in a particular set of circumstances, and the application of these laws to social media activities is no doubt on the horizon.

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

By now, you should be keeping a running checklist to review when your company intends to make an employment-related decision based on social media statements or conduct.   Is there a discriminatory intent or impact that can be evidenced in your decision?  Have you acted consistently and fairly with similarly situated individuals?   Does your decision violate some privacy right?  Are you restricting one’s ability to engage in protected concerted activity?  And, are you prohibiting an employee from engaging in an otherwise lawful activity beyond what is necessary to control your workplace?

If you continue to strike the proper balance between social media use and the need to exercise control over the workplace, you will no doubt continue to be Winning.

Not all of you.  And certainly not every time you’re engaging in some form of social media communication.   But lest I get into another argument with family and friends, I will focus this edition of the social media soapbox on the impact of rudeness in the workplace.  

A very interesting piece was published this past weekend in the Pittsburgh Tribune Review, in which the author posits that “technology increases rudeness quotient”.   The article offers the results of an etiquette survey where 75% believe that “mobile etiquette is worse than it was a year ago” and 20% say “they know they’re being rude but do it because everyone else does it.”    Because everyone else does it??   If someone told you to jump off the Brooklyn Bridge holding your BlackBerry, would you…

I digress.   The point is that this is more than simply looking the other way at grammatical and punctuation atrocities in a text, or even shaking our collective heads at how “OMG” and “LOL” were officially added last week to our lexicon.   Rather, the findings here offer a glimpse into a potential problem in your workplace, because, as the Tribune article concludes:  “You represent your employer.  If you’re being rude with your tech use while on the job, it can reflect poorly on your employer.”

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

No matter the particular business in which your company engages, the ability to communicate professionally and appropriately with customers, the general public, and even co-workers, will prove critical to your success at the end of the day.   

Your employees are your face and your mouthpiece, and your policies and training need to reflect the importance placed not only on what your employees are saying, but on how it is being said.   Prior blog posts have discussed the need for social media policies that address bright-line rules involving discrimination/harassment, defamation, and testimonials about products and services.   However, while you don’t want to necessarily impinge too drastically on individual styles, and you certainly don’t want to create rules that have an impact on protected classes, you and your HR staff would be wise to train all employees on the art of workplace communication.   In that respect, it is critical for your employees to understand that the informality and ease of social media communication should not enable an acceptance of an increased rudeness quotient.

A new survey just issued by the American Academy of Matrimonial Lawyers revealed that two-thirds of divorce lawyers cite Facebook as the “primary source” of evidence used today in divorce proceedings.  Not just for the expected photographic evidence, but also for statements and posts that are ultimately used to contradict positions taken in custody and other related proceedings.  According to The Guardian, Facebook is cited as a “leading cause of relationship trouble.” 

One could save the chicken-or-the-egg argument for another day, to debate whether Facebook causes the breakdown of relationships or whether it is the people using Facebook who simply have another outlet to say or do the questionable things they might otherwise say or do.  One thing is clear, however, when it comes to these failed relationships:  They have to start somewhere.

Wikipedia defines “fraternization” as “conducting social relations with people who are actually unrelated and/or of a different class[.]”   Employers have wrestled with the notion of attempting to regulate office relationships over the years, as the number of hours spent in the workplace – and the number of women as members of the workforce – have risen steadily.  Add to that the meteoric rise in social media use by employees (both inside and outside of the workplace), and it is not difficult to see the impact that social relationships between co-workers can have on your company and the workplace in general.

Employers have a business interest in wanting to regulate fraternization and office relationships.   For example, such relationships have the potential to decrease morale among other employees who may cite favoritism as a negative byproduct of an office relationship between supervisor and subordinate.   Also, there may be potential liability for your company if a relationship sours and one participant claims that the relationship had always been unwelcomed or coerced.  On the other hand, employees cite a myriad of concerns against anti-relationship policies, such as violations of privacy, disparate enforcement, and, in some locations outside of New York, a violation of a legal activities law.

Employer Take Away:   What should you as an employer take away from this development?    Wherever your company falls in this debate, you should not ignore the ever-changing impact that social media has on the relationships between and among the people who work for you.  If you do intend to institute a form of anti-fraternization policy (or if you already have one), you should consider the following points: 

            (1)        Make sure your policy is clear about what is and is not prohibited.   Are you prohibiting all romantic relationships between co-workers, or just those between employees in the same department or between supervisor and subordinate?

            (2)        Make sure your policy does not violate the law (by intent or impact).   Are you including sweeping bans on fraternization for the purpose of discussing company working conditions (see recent NLRB settlement), or effectively banning marriage outside the workplace?  Does your policy require that women be the ones to have to choose to transfer departments? 

            (3)        Make sure any policy is consistently enforced.   Are you favoring relationships for those who are bigger company “producers”, or those who are related somehow to top company officials, or those not in a traditional protected class?

Much ink has been spilled on recent social media trends arising out of lawsuits filed in court and complaints with various administrative agencies.  Here comes the legislative branch with a very interesting first proposed legislation of its kind.

Late last week, the Maryland State Senate introduced a bill (S.B. 971) that would expressly prohibit employers from requiring current employees and applicants to disclose their “user name or password for any Internet site or web-based account”, unless such disclosure is required for access to the employer’s own internal computer or systems.   In addition, the bill would make it unlawful to discharge, discipline, or otherwise penalize an employee or applicant (or threaten to do so) for refusing to disclose such information to the employer.   While many courts continue to allow broad and wide-reaching discovery of social media user information and content in the course of employment litigation, Maryland appears to stand ready to legislatively curtail employer access to information deemed private in the first instance.

There are some things that the proposed legislation does not appear to do.   First, while the bill prohibits an employer from “requiring” disclosure of user names and passwords, it does not proscribe obtaining such information if voluntarily given or disclosed by an employee or applicant, or if gained by means other than a requirement (provided such means are not fraudulent).  Second, the bill does not appear to prohibit the use of any social media content by employers, provided that the information was not obtained through a requirement that an individual’s user name and password be provided.

Still, the proposed law has its points of concern.    For one, there is no type of business need exception to the bill’s prohibitions, which might be problematic depending on the particular circumstances of a position held or sought.    In addition, a troubling irony exists whereby an employer may be allowed to “require” that a former employee provide user information in the course of a lawsuit with that former employee, yet now be prohibited from doing the same thing in a lawsuit involving a current employee.  

We will continue to watch the progress of this Maryland bill, as well as any similar developments in other jurisdictions.

Employer Take Away:   What should you as an employer take away from this development?    As we keep saying, developments are changing rapidly, and almost daily, at the intersection of social media and employment law.   Many are not on the federal, or national, level, and will instead continue to take place on the state and local levels.   For that reason, you should “know your jurisdiction” and understand (with the help of counsel when necessary) how the rules of social media use may apply to your company in each of the locales in which your company does business.     Moreover, by remaining aware of developments like Maryland’s proposed law in your company’s jurisdiction, you may have an opportunity to comment or object to your local legislators on these issues before they reach the books in final form.