NLRB Continues Aggressive Response to Employers' Social Media Policies It Deems Overbroad

The National Labor Relations Board recently issued two more complaints against employers that fired employees in response to the employees’ Facebook posts.

On May 9, the NLRB lodged a complaint against a non-profit organization in New York, saying it improperly fired five employees for Facebook posts that amounted to protected concerted activity. According to the press release, an employee posted on her own Facebook wall an allegation by a coworker that employees weren’t doing enough for clients. A group of employees responded to the Facebook post, defending their job performance and complaining about their working conditions (including work load and staffing issues). The employer fired the five employees who participated in the online discussion, saying the remarks amounted to harassment of the employee mentioned in the original post. The NLRB’s complaint claims the Facebook discussion was protected under the National Labor Relations Act because it involved a conversation among coworkers about the terms and conditions of employment, including their job performance and staffing levels.

The NLRB also issued a complaint last month against a Chicago BMW dealership that terminated the employment of a car salesman who posted pictures and commentary on his Facebook page criticizing a promotional event hosted by the dealership. (It sounds like he thought serving customers hot dogs and bottled water was a little lame and might negatively affect sales commissions.) The employee removed the posts immediately after management asked him to, but shortly thereafter, the car dealership still fired him. The NLRB alleges that this employee’s use of social media was also protected under the National Labor Relations Act. The dealership came forward to say the salesman was fired reasons other than his Facebook posts.

The NLRB has been increasingly involved in these Facebook firing cases. You may recall the NLRB complaint filed late last year charging a Connecticut employer with unfair labor practices when it discharged an employee who complained about her supervisor on Facebook. That case settled earlier this year.

These aren’t the only cases out there, and it seems the NLRB intends to keep a keen eye on social media issues. Employers should be careful when disciplining employees for their social media or online activities -- and should also ensure their social media policies or practices aren’t overbroad.

Hospital Workers Post Pics of Dying Man on Facebook: Highlights Need to Educate Employees on Proper Use of Social Media

So. Not. Cool.

Sixty-year-old William Wells arrived at St. Mary Medical Center's emergency room in Long Beach with more than a dozen stab wounds. According to the Los Angeles Times, his throat had been lacerated so severely, he was almost decapitated.

The first instinct of a handful of hospital workers there that day? Rather than rush to the aid of the dying man, they took pictures of him . . . and then, yes, they posted them on Facebook.

According to the Los Angeles Times news story, the hospital fired four staff members and disciplined three. At least two involved were nurses (but they apparently weren't fired).

This sad story highlights some of the challenges healthcare facilities face in today's social media frenzied culture. Hospitals and clinics struggle to balance their use of social media sites for marketing, recruiting, and advertising purposes against the need to protect patient privacy. But let me suggest that social media isn't really the problem -- the problem arises when employees make poor judgment calls when using these new online tools.  Of course, these employees should have known posting pictures of a dying man on Facebook was a bad idea.  But some privacy breaches and other workplace problems could be prevented if employers took a more concerted effort to identify their business needs and to educate employees about social media expectations.

Healthcare facilities often implement across-the-board bans of Facebook and other social networking sites at the workplace, assuming this kind of broad-brush approach will be the most effective. Managers may be forgetting that blocking workstation access to Facebook wouldn't have changed the St. Mary employees' access to their smartphone cameras and 3G mobile internet. Frankly, I don't think all-out bans of social media sites at the workplace are practical or effective.  Employers should take the time to create, communicate, and maintain a thoughtfully considered social media policy. Although some judgment calls seem intuitive, employers need to communicate their requirements and expectations to employees regarding employee use of social media.

Final GINA Regs Delayed: GINA & Social Media Considerations for Employers

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) makes it illegal to discriminate against employees or applicants because of genetic information. It prohibits using genetic information to make employment decisions, prohibits acquisition of genetic information by employers, and limits disclosure of genetic information by employers. (Harassment and retaliation are also forbidden.)  Title II took effect on November 21, 2009. The proposed regulations were published last year, and the final regulations were initially expected to be published in May of 2010, but publication of the final rule has been delayed.

This leaves employers (and their lawyers) in interpretation-limbo a while longer. With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation.

Some acquisitions of genetic information aren’t illegal; the law provides six exceptions. One of those exceptions is inadvertent acquisition. “Well, I didn’t know I was going to find this information on his profile.” This probably isn’t going to protect employers. If a supervisor or human resources manager intentionally accesses a profile, the information found there isn’t acquired inadvertently. (Depending on the facts, I suppose this could change. If an employee sends a friend request to his supervisor, and weeks later, the employee’s status update appears in the supervisor’s Facebook news feed – there may be a better argument for the inadvertent acquisition defense.)

The better possibility is the exception for “commercially and publicly available information.” The statute identifies newspapers, magazines, periodicals, and books as potential sources of genetic information. The proposed regulation adds to the list information obtained through electronic media (internet, television, and movies). This suggests social media would be exempted – but the EEOC then specifically invited public comment on whether “personal Web sites, or social networking sites” would be a prohibited or exempted source of genetic information. So, it’s still not clear whether social media profiles would fall under the "commercially and publicly available information" exemption. If it doesn’t fall within the scope of this exception, an employer that obtains genetic information by checking an applicant or employee profile would likely be violating GINA.

Of course, even if a social networking profile turns out to be an excepted source of information, employers still must be careful in how they use the information they acquire. As is the case with any other kind of unlawful discrimination, an adverse employment action taken after the employer becomes aware of an employee’s protected status might suggest the employment decision was because of the protected status and not performance.  (Not only true in the context of current employment relationships, but also in the context of hiring.)

Waitress Fired After Complaining on Facebook: "Legally Justified" Does Not Always Equal "Good PR"

The Huffington Post reports that Brixx Pizza fired a North Carolina waitress after she complained on Facebook about a customer's stingy tipping.

According to the Post, a couple sat at their table for three hours, and waitress Ashley Johnson, 22, said the customers kept her at work an hour after she should have been able to clock out. The couple rewarded her with a $5 tip.

A frustrated Johnson criticized them on her Facebook page -- calling the couple cheap and mentioning her employer by name.

Brixx got in touch with Johnson shortly thereafter, informing her that it was terminating her employment because her Facebook post violated company policy against disparaging customers and casting the restaurant in a negative light via social network sites.

Brixx posted the following official statement on its Facebook page discussion board:

Brixx Wood Fired Pizza appreciates your feedback! Please know we value our employees very much, which is why we are one of the few small restaurant companies that offers benefits. Brixx also values our customers and has a policy against making negative remarks about them.

As an employer, it is necessary to enforce policies for the benefit of all our hardworking employees and valued customers. Our policies ensure Brixx is an enjoyable place to both work AND dine. We welcome your comments, but please keep it clean!

As evidenced by the backlash on the company's Facebook page, employers have to consider not only legal implications of a Facebook firing, but also the practical implications -- including a potential backlash from the public that may be triggered by discipline for an employee's online activity. Although the company may be able to justify the termination from a legal perspective, it won't be easy to recover from the PR nightmare that could ensue.   

One user commented, in part, "You've gone & made Ashley Johnson famous. And your company INfamous." One particularly insightful comment aptly summarizes the point of my post:

Thanks to Becca for the tip on this story!

New Article: Workplace Consequences of Electronic Exhibitionism and Voyeurism

William A. Herbert, New York State Public Employment Relations Board Deputy Chair, brought to my attention a recent article he authored, “Workplace Consequences of Electronic Exhibitionism and Voyeurism,” which may be downloaded at the Social Science Research Network. A number of authors and commentators have tackled various legal issues related to social media, privacy, and the workplace, but Herbert’s commentary offers a particularly insightful discussion with its special emphasis on the social psychological aspects of the world of Web 2.0. 

"Despite the general reluctance to bare all through old media, new communicative technologies are leading, if not encouraging, individuals to engage in an unprecedented degree of exhibitionism about their personal lives, thoughts and activities to a virtual worldwide audience. Frequently, such communications relate directly or indirectly to work or co-workers and have the potential for causing negative employment consequences." - William A. Herbert in "Workplace Consequences of Electronic Exhibitionism and Voyeurism"

For other posts related to social media and the workplace, click here.

Use of Social Media Before, During, & After Employment Relationship

Check out "Social Media Permeate the Employment Life Cycle" on The National Law Journal web site, discussing why and how employers should address the use of social media before, during, and after the employment relationship of their employees.

Woman Fired for All-Caps Email Reminds Employers & Employees to Watch "Tone" of Online Communications

EMPLOYERS AND EMPLOYEES SHOULD BEWARE THE "TONE" OF THEIR TYPING.

Ahem . . . sorry, I didn't mean to shout at you.

Vicki Walker, who worked for New Zealand's ProCare Health, learned the hard way that "all caps" emails annoy people.  Walker sent emails to other employees with instructions on how to properly complete forms.  She used various formatting to make her point:  ALL-CAPPED TEXT, bold text, and colored text.  (Gosh, maybe she even used a COMBINATION?!).  Apparently, the instructions came across a little gruff.

ProCare fired Walker for these "confrontational" emails, saying she created "disharmony" in the workplace.

Walker sued for wrongful termination, and recovered $17,000 for the discharge.  (As another blogger points out, is it really possible to be confrontational in an email on how to fill out a form?!)

Employees should keep in mind "netiquette" when communicating by email, via social networking / social media, or with other online platforms.  As I've cautioned before, employers should also bear in mind how responding to employees' online activities might result in liability. And, people:  LET'S BE FRIENDLY WHEN WE TYPE!


*Particularly for those of you visiting my blog for the first time:  All all-caps, bold, and/or red and blue font used above was incorporated for illustrative (and admittedly, sometimes sarcastic) purposes only, and does not accurately reflect the author's true writing style or habits.  She generally doesn't make a habit of addressing her audience in all-caps.  UNLESS SHE'S REALLY EXCITED ABOUT SOMETHING.

Teacher Sues After Forced to Quit for Pics & "B-Word" on Facebook Profile

Beer, wine, and the “B-word.”

One Georgia teacher says that particular trifecta on her Facebook profile led to her forced resignation – and the resulting lawsuit she’s bringing against her former employer.

WSBTV out of Georgia reports that high school English teacher, Ashley Payne, claims the Barrow County (Georgia) school district forced her to resign because her Facebook profile included photos from her European vacation that showed beer mugs and glasses of wine. Shocking or inappropriate that an adult traveler who visited the Guinness Brewery might have a mug of beer? Or a glass of wine in Italy? Payne certainly didn’t think so. The “B-word” also appeared in one of her posts.

Payne said she didn’t look intoxicated, wasn’t doing anything provocative, and wasn’t acting inappropriate in any of the photos. In fact, she said the pictures didn’t even show her actually drinking the drinks (although, the news broadcast accompanying the station’s print story showed a photo of a woman holding a mug to her face). Payne restricts access to her Facebook page, and doesn’t “friend” students or strangers.

Payne claims the school principal called her into his office, and – citing the photos and expletive on her Facebook profile – advised her she should resign immediately to avoid suspension on her record. Payne said the principal claimed he’d already spoken with the superintendant, suggesting the decision was final.

In response, Payne filed suit against the school, saying the school violated state labor law because it failed to make her aware of her right to a hearing. 

Considerations for Employers Before Disciplining or Discharging Employees for Online Social Networking Activity

Today, I spoke at a seminar focused on "Employee Documentation and Discharge in Iowa and Nebraska," along with two shareholders in the Dickinson, Mackaman, Tyler, & Hagen employment law practice group, Ann Holden Kendell and Rebecca Boyd Dublinske. In addition to some general topics, I covered a segment focused on adverse employment action in response to employees’ use of social networking web sites. The attendees seemed interested in the topic, so I’ll post some tidbits from that presentation here.

(Note that in an earlier post, I discussed risks employers might face in accessing online profiles of potential employees during the recruiting process. Some of those risks also arise in the context of addressing the issue of online activity of current employees.)

We all know Web 2.0 has dramatically changed our understanding of communication, interaction, and technology. As social networking sites become more and more popular, employers realize more and more employees use these sites. Many employees comment about their work, their employer, or their co-workers online. Sometimes these comments can have serious repercussions for the employer. What an employee does online may:

• Hurt the employer’s reputation, or disparage the company or its officers;
• Disclose proprietary information (maybe even inadvertently);
• Result in vicarious liability for the employer (for example, supervisor harassment via Facebook); or
• Otherwise violate company policies.

The general rule in most U.S. jurisdictions is at-will employment – which allows private sector employers to discipline or fire at-will employees for any or no reason (such as violation of company policy based on online activity). Some exceptions to the doctrine exist, however, and might limit an employer’s ability to respond to employee activity online. Some things to consider before reacting to employees’ use of social networking websites:

• How employer accesses the information. Depending on the circumstances, how an employer accessed the offending information might result in liability for the employer, or perhaps undermine the investigation that led to adverse action in the first place. For example, I’ve mentioned that accessing an online profile or social networking group when the user has taken advantage of certain privacy settings might result in an invasion of privacy claim under either state or federal law.

• Employment or Union Agreements. In other words, make sure it’s really at-will employment. Employers should be sure discipline or termination wouldn’t be violating the terms of any agreements that are in place.

• Discrimination. Similar to concerns in the context of hiring, a social network profile often reveals an employee’s protected status(es). People document their religious beliefs, age, sexual orientation (protected in some states, including Iowa!), and on and on . . . Employers might access information they wouldn’t otherwise know about. And once they see it, there’s no undoing it. Discipline taken after the employer becomes aware of a protected status might support an employee’s later claim that improper considerations – rather than performance – influenced the decision to discipline. Employers should also consider whether a particular disciplinary action might suggest a selective enforcement issue.

• Retaliation. Could the content of an online profile be considered protected activity such that discipline would be against public policy, and hence, illegal? If an employee seems to be complaining about work or an employer, consider whether those complaints might be protected.

• National Labor Relations Act. The NLRA may protect online commentary if, for example, the content could be considered an effort to organize a union, or somehow related to a labor dispute. Employers should consider whether discipline might be considered an unfair labor practice.

• Off-Duty Conduct Statutes or “Lifestyle Discrimination” Statutes. Some states protect an employee’s lawful, off-duty activities. Employers with workers in those states could be pretty limited in how they may react to employees’ online activity.

• First Amendment. Public employers must consider First Amendment implications of disciplining employees based on online speech.

• Inaccurate Information. Although not really a legal consideration, employers should keep in mind that online profiles often contain inaccurate or misleading information. Sarcastic comments or inside jokes may easily be taken out of context or misunderstood. Employees may also have little control over some content in their profiles (i.e., someone else may post a comment on the employee’s Facebook “wall” or photos of the employee).

• Other Practical Implications. For example, consider the public relations issues arising as a result of a “Facebook firing.” Terminations resulting from online activity remain relatively newsworthy, and may garner attention a company would rather avoid by imposing less severe discipline.

This list isn’t all-inclusive, and new issues come up every day. Still, employers would be wise to check with legal counsel before disciplining or discharging an employee for the employee’s conduct online.