Fisher & Phillips LLP

1. PROTECTED CONCERTED ACTIVITY Social Media And Beyond Jeffrey Mandeljmandel@laborlawyers.com (407) 541-0850 Fisher & Phillips LLP Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Antonio San Diego San Francisco Tampa Washington, DC

2. SOCIAL MEDIA

3. FIRED ON FACEBOOK http://www.sbs.com.au/news/article/1070187/Woman-fired-via-Facebook-after-rant

4. FACTUAL SCENARIO • Dawn is an EMT. Her supervisor receives a patient complaint and tries to question Dawn about it. • Dawn asks to have a union representative present at the questioning. Her supervisor refuses the request. • In response, when Dawn gets home that night, she posts on her Facebook page that her supervisor is a “dick” and a “scumbag” for not allowing her to have a union representative at the questioning. • Dawn’s post spurred supportive Facebook comments from her co-workers. • Dawn is fired for violation of the employer’s anti-harassment policy.

5. NATIONAL LABOR RELATIONS ACT • Section 7 of the NLRA • “Employees shall have the right to … engage in … concerted activities for the purpose of … mutual aid or protection ….” • Also known as “protected concerted activity.” • Employers are prohibited from restraining or coercing employees in the exercise of these rights; e.g., firing. • Protects employees in both unionized and non-union workplaces.

6. NLRB’S VIEWS ON SOCIAL MEDIA • Employees use of social media to engage in protected concerted complaints about their employment is protected by Section 7. • Complaint issued in American Medical Response of Connecticut. • Employer policies that are overbroad and prohibit protected activity violate the law. • Violation even if no one is disciplined. • Because they could chill employees in the exercise of their rights.

7. WHAT’S NOT PROTECTED FACEBOOK ACTIVITY • Individual gripes: • No particular audience in mind at time of employee’s Facebook post. • No language suggesting that employee seeks to initiate or induce coworkers to engage in group action. • Facebook post did not grow out of a prior discussion about terms and conditions of employment with coworkers. • Facebook post did not generate discussion of shared complaints about working conditions.

8. FLORIDA PUBLIC EMPLOYEES RELATIONS ACT • Section 447.301(3): • “Public employees shall have the right to engage in concerted activities not prohibited by law, for the purpose of collective bargaining or other mutual aid or protection.” • Nearly identical to Section 7. • Protects employees in both unionized and non-union workplaces. • Protects non-union employees of unionized employers.

9. PROTECTION AFFORDED • Section 447.501(1)(a): • “Public employers or their agents or representatives are prohibited from: (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.” • Pasco County School Board v. PERC, 353 So. 2d 108 (Fla. 1st DCA 1978) • Substantial or motivating factor test

10. SCOPE OF PROTECTED CONCERTED ACTIVITY • Broadly applied where an employee seeks to: • Initiate a complaint or call to action on behalf of more than him or herself regarding wages, hours, or terms and conditions • Well-being of fellow employees • Individual griping

11. CONCERTED v. INDIVIDUAL ACTIVITY • Palm Beach County Fire Fighters v. City of Palm Beach Gardens, 17 FPER P22052 (1991) • Probationary FF has a verbal confrontation with BC. At midnight the same day, BC does station inspection (policy allows them up to 1am) at FF’s station. Later, FF contacts BC and challenges him about conducting station inspections so late. FF is fired for insubordination.

12. PERC’S VIEWS ON SOCIAL MEDIA • Dickey v. Gee, Sheriff Of Hillsborough County, 37 FPER P191 (2009) • PBA President Dickey wrote two articles on his off-duty time which were published on Union website. Articles contained disparaging, belittling, and insubordinate statements about the Chief Deputy. Sheriff suspended Dickey for five days because the articles contained insubordinate statements in violation of Sheriff's Rule against Public Disparagement.

13. WHAT’S NOT PROTECTED • Threatening language • Libelous speech • Language which constitutes extortion or bribery • Language which creates a real threat of immediate disruption in the workplace • Intemperate, abusive, or insulting language if it is likely to cause disruption in the workplace United Faculty of Palm Beach Junior College v. Palm Beach Junior College, 11 FPER P16101 (1985)

14. WHEN DOES PROTECTED ACTIVITYCROSS THE LINE • Depends on several factors: • (1) the place of the discussion; • (2) the subject matter of the discussion; • (3) the nature of the employee’s outburst; and • (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. • Protected “animal exuberance” • Fact-specific determination

15. PERC’S VIEWS ON SOCIAL MEDIA POLICIES • Orange County Professional Firefighters v. Orange County, 37 FPER P138 (2011) • “Employees of the Department shall not post communications on social media websites that tend to interfere with the maintenance of proper discipline and/or damages or impairs the reputation and/or efficiency of the Department or its employees.”

16. PERMISSIBLE SOCIAL MEDIA POLICIES • Employers can establish social media policies that: • Prohibit or limit access to social media during work hours; • Prohibit disclosure of confidential information; • Prohibit illegal harassment through the use of social media; • Prohibit statements likely to cause disruption in the workplace.

17. BEYOND SOCIAL MEDIA

18. INTERNAL INVESTIGATIONS • Banner Health System, 358 NLRB No. 93 (2012) • James is a technician whose duties include sterilizing surgical equipment for a non-union employer. • The machine James normally uses to sterilize the equipment breaks, so his supervisor directs James to use a different process to sterilize the equipment. James fails to do so. • HR is informed of this and initiates an internal investigation. • James is questioned by HR as part of the internal investigation. At the end of the interview, the HR rep asks James not to discuss the investigation with others until the investigation is completed, but makes no mention of discipline for doing so.

19. NLRB’S VIEW • HR’s confidentiality suggestion had a reasonable tendency to coerce the employee in unlawful restraint of his Section 7 rights. • Irrelevant whether the employer actually threatened or took disciplinary action for breaching confidentiality.

20. WHAT SHOULD THE EMPLOYER HAVE DONE? • Employer should have first determined that it had a legitimate business justification that outweighed the employee’s Section 7 rights. • Generalized concern with protecting the integrity of an investigation is insufficient to outweigh Section 7 rights. • Have to specifically show that confidentiality is needed to protect witnesses, evidence or testimony, or prevent a cover-up.

21. COMPLAINT PROCEDURES • Southwest Florida PBA v. City of North Port, 15 FPER P20179 (1989) • A police officer was threatened with discipline for failing to follow the chain of command because he spoke to a city commissioner about unit members’ concerns with a change in the paycheck distribution procedure. • The City argued that the police officer’s discipline was warranted because a breach of the chain of command could have created potential danger for disrupting the police department’s operations.

22. PERC’S VIEW • An employer may not specify the means through which employees engage in protected concerted activities. Employees may use any means they choose to engage in protected concerted activity unless the method chosen is specifically prohibited by law or so opprobrious that the action is indefensible. Whether the employees’ objection could have been presented in a more efficacious or reasonable manner is irrelevant ….” • Communication Workers of America, Local 3172 v. City of Largo, 8 FPER P 13043 (1981)

23. DRESS CODES • Amalgamated Transit Union, Local 1596 v. Orange-Seminole-Osceola Transit Authority, 11 FPER P16241 (1985) • Per Authority Rule, bus drivers were prohibited from wearing any: “Buttons, pins or other decoration carrying a slogan.” • Bus drivers wearing pocket penholders bearing the ATU logo were told they could not wear them and would be disciplined if they did. • Authority argued the need to present a unified image to the public and maintain discipline.

24. PERC’S VIEW • Employees have the right to wear union insignia on duty in their employer’s premises. • It is a form of expression under Section 440.301(3) • Employer has burden of proving “special circumstances” to restrict the wearing of union insignia. • Interacting with the public • Maintaining production or discipline • Consistent enforcement of dress code is key.

25. EMPLOYEE ACCESS • SodexoAmerica, 358 NLRB No. 79 (2012) • Hospital maintained a policy prohibiting off-duty employees from entering the interior of the hospital or any work area outside the hospital except to visit a patient, receive medical care or conduct hospital-related business. The hospital occasionally allowed an off-duty employee to enter the facility to pick up a paycheck. When four off-duty employees entered the facility for non-work related reasons other than visiting patients or receiving medical care, they were disciplined. 

26. ADVICE FOR EMPLOYERS • Train your managers to be aware of complaints and criticisms that could be found to be concerted protected activity. • Take measured steps when considering disciplinary action. • Review and update handbook policies (union-free statement; solicitation, distribution, access & other rules; confidential information, electronic communications & social media policies; etc). • Savings clauses do not cure illegal policies.

27. QUESTIONS AND DISCUSSION

28. PROTECTED CONCERTED ACTIVITY Social Media And Beyond Jeffrey Mandeljmandel@laborlawyers.com (407) 541-0850 Fisher & Phillips LLP Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Antonio San Diego San Francisco Tampa Washington, DC