By: TIM K. GARRETT, Esq . BASS, BERRY & SIMS PLC 150 Third Avenue South, Suite 2800

1. SOCIAL NETWORKING – WORKPLACE CHALLENGESEMPLOYMENT LAW UPDATEfor the TENNESSEE HUMAN RIGHTS COMMISSION & TN DEPARTMENT OF HUMAN RESOURCES By: TIM K. GARRETT, Esq. BASS, BERRY & SIMS PLC 150 Third Avenue South, Suite 2800 Nashville, Tennessee 37201 (615) 742-6270

2. Questions? Don’t hesitate to ask

3. Social Media Challenges • Labor/NLRB Context • Discrimination/EEOC Context

4. Labor/NLRB Context • “Protected Concerted Activity” • NLRB – recently issued third guidance memoranda • Protected nature of employees’ social media postings – “protected concerted activity” • Evaluation of Employer policies

5. Labor Context (cont’d) • Implementation – be cautious in discipline • Who? Individual or group / even if individual, is it a “group” complaint? • What? Type of complaint / has it lost “protected status” for some reason? • When? On-duty vs. off-duty

6. Concerted Activity Activity is concerted when an employee acts “with or on the authority of other employees and not solely by or on behalf of the employee himself.” The definition “encompasses those circumstances where the individual employees seek to initiate or to induce or to prepare for group action.”

7. Unlawful Work Rules Violation of Section 8(a)(1) – work rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Ex: rule prohibiting discussion of wages If not explicit, still unlawful if: (1) “employees would reasonably construe the language to prohibit Section 7 activities” (2) Rule promulgated in response to union activity, or (3) Application of rule restricts Section 7 rights

8. Examples of Unlawful Work Rules Rule prohibiting the making of disparaging remarks about the company through any media, including online blogs, other electronic media or through the media Held: Unlawful Could reasonably be construed to restrict Section 7 rights (such as statements that the employer is not treating employees fairly or paying them sufficiently) Rule contained no limiting language that would clarify to employees that not intended to restrict Section 7 rights

9. Policy that employees should generally avoid identifying themselves as Company employees unless discussing terms and conditions of employment in an “appropriate manner” Held: UnlawfulDeemed to “implicitly prohibit” inappropriate discussions re: terms and conditions of employment No definition of appropriate No Specific examples As such, rule could reasonably be interpreted to prohibit protected activity Savings Clause found insufficient to cure ambiguities

10. Rule prohibiting “insubordination or other disrespectful conduct” and “inappropriate conversation” deemed overbroad Disrespectful conduct and inappropriate conduct reasonably construed by employees to prohibit Section 7 activities

11. Policy Takeaways Cannot explicitly prohibit Section 7 activities such as discussion of terms and conditions of employment or disparagement of employer Avoid ambiguous terms such as “appropriate” Provide specific examples of conduct which violates policy Ex: disclosing trade secrets or protected information, engaging in harassment or other forms of illegal activity Incorporate a Savings Clause

12. Unlawful Discipline * May not discipline employees in response to protected activity, or by using unlawfully overbroad work rule in situations where the employee engaged in protected conduct * Employer not liable for discipline under overbroad rule if it can establish that the employee’s conduct actually interfered with the employee’s own work or that of other employees or that it actually interfered with the employer’s operations, and the interference was the reason for discipline

13. Example 1 Supervisor reprimands employee in front of Regional Mgr. for failure to perform a task EE updated FB account during lunch break with an expletive and the name of the employer’s store 4 individuals and a co-worker “Liked” the status 30 minutes later, EE posted again stating that the ER did not appreciate its employees Co-worker friends did not respond to this post EE discharged for violation of policy prohibiting inappropriate comments in social media about employer

14. Example 1 Cont. Held: Lawful FB posts were individual gripe EE had no particular audience in mind No language suggested she sought to initiate coworkers to engage in group action Posts did not grow out of prior discussion with coworkers about terms of employment While one coworker “offered sympathy” no extended discussions over working conditions

15. Example 2 EE forced to transfer to new job b/c of low production. New job had smaller earning potential. Next day EE expressed her frustration to supervisor and disputed reason for transfer. After work, CP posted status of FB. Using expletives, she stated that ER messed up and that she was done being a good employee. Coworker FB friends expressed support and complained about ER’s honesty and integrity One former coworker suggested a class action lawsuit. EE terminated for making disparaging remarks about ER.

16. Example 2 Cont. Held: Unlawful NLRB noted coworker comments expressing similar frustration and the suggestion of concerted activity (i.e. filing of class action lawsuit) EE’s FB comment and the discussion it generated involved complaints about working conditions and ER’s treatment of its employees. Considered concerted activity b/c of the EE’s initiation of group action through discussion of complaints. Termination unlawful because discharged in response to protected activity Also found unlawful because discharged pursuant to an unlawfully overbroad rule prohibiting disparagement with no actual interference with the workplace or the ER’s operations

17. Takeaways Distinguish between individual gripes and initiation of group activity Comments to posts and ensuing discussion may convert initial post into protected activity Specific workplace complaints will be given more protection than general statements Expletives do not necessarily cause posts to loose protection (NLRB’s perspective) Personal attacks on supervisors and management will likely loose protection, but criticisms of management style will not. If conduct happens on the clock, it is entitled to less protection

18. Discrimination Context • Hiring • Do not “search” applicant names • Information found may be helpful • But, may learn inadvertently information that cannot consider • Can you require passwords/log-in information? Growing legislative initiatives

19. Discrimination Context • During Employment • Managers as “friends” • NLRB issues as discussed • Extent of duty to stop “harassment” • Mixed messages from recent cases • Assistance in investigations? • Again, legislative initiatives on passwords/log-in information

20. Discrimination Context • Post-employment • Defamation • Job References • Caution Managers

21. Other Questions?