Social Media Headaches: Take two aspirin and call your lawyer!

Social Media Headaches:Take two aspirin and call your lawyer! Diane A. Seltzer, Esquire The Seltzer Law Firm 5335 Wisconsin Avenue, N.W., Suite 920 Washington, DC 20015 202-355-9385 www.seltzerlawfirm.com dseltzer@seltzerlawfirm.com

What LAW IS AT ISSUE? • The National Labor Relations Act (NLRA), which applies to unionized AND non-unionized workplaces, makes certain employer actions Unfair Labor Practices (ULP). • Actions that employers take in response to their employees’ use of Social Media could constitute ULPs.

ULP CLAIM – IMPOSING DISCIPLINE UPON EMpLOYEE WHO ENGAGES IN PROTECTED COnCERTED ACTIVITY An employer violates Section 8(a)(1) of the NLRA by threatening to impose discipline upon an employee who exercises their Section 7 rights by engaging in “concerted activity for mutual aid or protection.” • “Concerted Activity” is when an employee acts with or on the authority of other employees, and not solely by and on behalf of the employee himself. Meyers I, 268 NLRB 493 (1984) • “Concerted Activity” also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints to management’s attention.” Meyers II, 281 NLRB 882 (1986). • Concerted activity is for “mutual aid or protection” where “the activity directly implicates terms and conditions of employment and were initiated in preparation for a meeting with the Employer to discuss matters related to these issues.” • The lone act of a single employee is concerted if it “stems from” or “logically grew” out of prior concerted activity.

MORE ULP CLAIMS – MAINTAINING UNLAWFUL WORKPLACE RULES. An employer violates Section 8(a)(1) of the NLRA through the maintenance of a workplace rule if that rule would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enf’d 203 F.3d 52 (D.C. Cir. 1999). NLRB uses a two part test to determine if a work rule would have such an effect: 1. Rule is unlawful if it explicitly restricts Section 7 activities. 2. If the rule does not explicitly restrict protected activities, it is is unlawful only upon a showing that: (a) employees would reasonably construe the language to prohibit Section 7 activity; (b) rule was promulgated in response to union activity; or (c) rule has been applied to restrict the exercise of Section 7 rights.

WHAT SHOULD WE DO- AND NOT DO - TO AVOID ULP CLAIMS BASED ON EMPLOYEES’ SOCIAL MEDIA USE? • HAVE A GOOD SOCIAL MEDIA USE POLICY! • According to the SHRM Survey Findings, “Social Media in the Workplace” published in November 2011, 43% of organizations block access to any social networking services (e.g., Facebook, LinkedIn, MySpace, Twitter) on company-owned computers or handheld devices. • That means that 57% of organizations don’t block access and need social media use policies.

WHAT SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? • A definition of what is “Social Media.” A good definition is one that includes, but is not limited to, personal blogs; sites such as FaceBook, LinkedIn, MySpace and Twitter; video or wiki postings; chat rooms; personal websites; or other forms of online journals, diaries or websites not affiliated with the company.

GENERALLY SPEAKING - WHAT SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? • A code of conduct for employees’ personal use of Social Media • A notification of the employer’s right to monitor Social Media usage • Guidelines for Social Media communications • A code of conduct for employees’ use of Social Media for professional purposes, if they are authorized to use it in that way

WHAT SPECIFICALLY SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? • A statement that the company takes no position on the employee’s decision to start or maintain a blog or participate in other social media or social networking. • A statement that the company has the right and duty to protect itself from unauthorized disclosure of confidential and/or proprietary information.

WHAT SPECIFICALLY SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? • A statement that the company has the right and duty to protect itself from having employees indicate that they are speaking on behalf of the company when they are not authorized to do so.

WHAT SHOULD OUR SOCIAL MEDIA USE POLICY LOOK LIKE? • First, include a statement that the company respects the employees’ right to write blogs, use social media, and use social networking sites. • Second, state that the company does NOT want to discourage employees from self-publishing and self-expression. • Third, state that the company takes a NEUTRAL STANCE towards employees who use Social Media in connection with personal interests and affiliations, or for other lawful purposes.

TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA • Employees MUST make clear that their comments and posts are made by each of them as an individual – not as an employee, agent or representative of the company. • Unless specifically authorized in writing by the President of the company, Employees are not authorized to – and are therefore restricted from – speaking on behalf of the company through Social Media.

TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA • Employees may not discuss patients, specific patient matters, or any privileged, confidential and/or proprietary work-related matters and information through Social Media. • Employees cannot post through Social Media privileged, confidential and/or proprietary patient-related, client-related, company-related, or vendor-related documents. • Employees are personally responsible for their commentary and posts through Social Media.

TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA • Employees can be held personally liable for commentary that is considered defamatory, threatening, intimidating, harassing, obscene, proprietary or libelous. • Employees cannot use company equipment – including computers, company-licensed software or other electronic equipment, facilities or work time – to conduct personal blogging or social media/social networking activities.

TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA • Employees must use their own personal e-mail address, and may not use their company e-mail address, as their means of identification and communication for Social Media use. • Employees cannot use blogs or social media/social networking sites to defame, disparage, threaten, intimidate, harass, discriminate against or retaliate against employees, the company, its customers, or anyone associated with the company.

TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA • If an employee chooses to identify himself/herself as an employee of the company, others may view him or her as a spokesperson for the company. Therefore, employees must, when using Social Media, state clearly that they are speaking on behalf of themselves, that their comments, posts and views are their own, and that they are not authorized to speak on behalf of the company. • Employees cannot link from a personal blog, social media or social networking site to the company’s internal or external web site.

WHAT WE SHOULD NEVER INCLUDE IN OUR SOCIAL MEDIA USE POLICY. UNLESS these provisions contain limiting language stating that they do not apply to Section 7 activity, do NOT include them in your Social Media policies: • Policies that prohibit employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors. • Policies prohibiting employees from posting pictures of themselves in any media, including the internet, that depict the company in any way. • Standards of conduct policies that prohibit “offensive conduct” or “rude or discourteous behavior.” • Policies that state that employees are subject to discipline for engaging in “inappropriate discussions” about the company, management and/or coworkers, where the term “inappropriate discussions” is not defined by specific examples. • Policies that prohibit employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.

WHAT WE SHOULD NEVER INCLUDE IN OUR SOCIAL MEDIA USE POLICY. UNLESS these provisions contain limiting language stating that they do not apply to Section 7 activity, do NOT include them in your Social Media policies: • Policies that prohibit any communication or post that constitutes embarrassment, harassment or defamation of any company employee, officer, board member, representative or staff member, where these broad terms were not defined. • Policies that prohibit statements that lack truthfulness or that might damage the reputation or goodwill of the company, its staff or employees, where these broad terms were not defined. • Policies that prohibit employees on their own time from using micro-blogging features to talk about company business on their personal accounts.

WHAT WE SHOULD NEVER INCLUDE IN OUR SOCIAL MEDIA USE POLICY. UNLESS these provisions contain limiting language stating that they do not apply to Section 7 activity, do NOT include them in your Social Media policies: • Policies that prohibit employees from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy, where there is no definition or guidance as to what communications the company is referring that would put employees’ jobs in jeopardy. • Policies that prohibit employees from disclosing inappropriate or sensitive information about the company, where there is no definition or guidance as to what information the company would consider inappropriate or sensitive. • Policies that prohibit employees from posting any pictures or comments involving the company or its employees that could be construed as inappropriate. • Policies that prohibit employees from using the company name, logo, address, photographs of their stores, or other company information on their personal profiles.

MONITORING EMPLOYEE SOCIAL MEDIA USE AND HANDLING VIOLATIONS • Employees should be cautioned that the company may (or will) monitor the comments, posts, blogs, forums, and discussions about the company, its employees, customers, and the industry that employees post on the internet. • Employees should be urged to report any violations or perceived violations of the Social Media Use policy and to provide a screenshot or printout of the page(s) that they believe contains the violation. • Employees should be assured that all reports of violations will be investigated and responded to, and that disciplinary action will be taken against those who violate the policy.

WE WANT TO FIRE AN EMPLOYEE BECAUSE OF WHAT S/HE SAID ON SOCIAL MEDIA. CAN WE? Many NLRB decisions address whether an employee has engaged in protected concerted activity for mutual aid and protection. Disciplining or terminating that employee could be an ULP.

Examples of protected conCERTED ACTIVITY under section 7 • Discussing supervisory actions with coworkers on a FB post, where employee referred to her supervisor as a “17” (company code for psychiatric patient), a “dick” and “scumbag” was protected concerted activity. • FB postings did not interrupt work of any employee because they occurred outside workplace and during non-working hours; name-calling was not accompanied by verbal or physical threats; and postings were provoked by employer’s unlawful refusal to provide employee with union representative when required by law to do so. American Medical Response of Connecticut, Inc., Case 34-CA-12576 (October 5, 2010) (Advice Memorandum from OGC); see Datwyler Rubber and Plastics, Inc., 350 NLRB 669 (2007).

Examples of protected conCERTED ACTIVITY under section 7 • Posting photographs and making comments on FB expressing disappointment with the cheap manner in which management handled an all-day sales event to introduce a new car model, where the FB activity was a direct outgrowth of an earlier discussion amongst salespeople that followed a meeting with management. The employees worked entirely on commission, so they were concerned about the impact the Employer’s choice of refreshments would have on sales, and therefore, on their compensation. Karl Knauz Motors, Inc. & Robert Becker, Case 13-CA-46452 (Sept. 28, 2011) (ALJ Decision)

Examples of protected conCERTED ACTIVITY under section 7 • FB communications amongst five employees, in reaction to a co-worker’s criticisms of the manner in which employees performed their jobs, were protected concerted activity. Discussions about criticisms of their job performance were protected. • Discharging these employees for these FB postings was unlawful. Hispanics United of Buffalo, Inc. & Carlos Ortiz, Case 3-CA-27872 (Sept. 2, 2011) (ALJ Decision)

Examples of protected conCERTED ACTIVITY under section 7 • Posting comments on other employees’ FB pages so they could concertedly complain about the employer not having issued their paychecks on time was protected concerted activity. • Newspaper published the FB conversation, and employee was terminated. • Discharge was unlawful. Bay Sys Technologies, LLC & Dontray Tull, Case 5-CA-36314, 357 NLRB 28 (Aug. 2, 2011)

Can the employee’s activity lose protection under the act? • Two ways to lose the protection: • 1. When the employee makes public outbursts against a supervisor. Atlantic Steel Co., 245 NLRB 814 (1979) • **ASK: Was the nature of the outburst so opprobrious as to lose the Act’s protection? Did the tone rise to the level of disparagement necessary to deprive otherwise protected activities of the protection of the Act? LOOK AT: 1. place of discussion 2. subject matter of discussion 3. nature of employee’s outburst 4. whether outburst was, in any way, provoked by an employer’s ULP.

Can the employee’s activity lose protection under the act? • 2. When the employee has made allegedly disparaging comments about the employer or its product in the context of appeals to outside or third parties. Jefferson Standard, 346 U.S. 464 (1953). • **ASK: Was the inquiry related to an ongoing labor dispute and was it so disloyal, reckless or maliciously untrue as to lose the Act’s protection?

Example: WHAT IS NOT PROTECTED conCERTED ACTIVITY under section 7 • Employer (newspaper) discharged employee (reporter) for posting unprofessional and inappropriate tweets to a work-related Twitter account. • Employee’s tweets critical of his Employer’s copy editors, where the tweet was in response to his concerns about sports department headlines, but there was no evidence that he had discussed his concerns with any of his coworkers, and where other tweets were about matters relating to his public safety beat and about homicides in the city. The tweets did not relate to the terms and conditions of his employment and did not seek to involve other employees in issues related to employment. Re Employee had been warned not to tweet about anything work-related. • Although some of Employer’s statements could be interpreted to prohibit activities protected by Section 7, these statements were not “rules” – they were made solely to this employee in the context of discipline and in response to specific, inappropriate conduct. Lee Enterprises, Inc., Case 28-CA-23267 (April 21, 2011) (Advice Memorandum from OGC).

ExamplE: WHAT IS NOT PROTECTED conCERTED ACTIVITY under section 7 • Employee (truck driver) claimed employer constructively discharged him for (among other things) posting FB comments expressing his frustration and boredom while stranded by the weather and griping about his inability to reach the on-call dispatcher. • There was no evidence of concerted activity, as employee did not discuss his FB posts with any of his fellow employees; and none of his coworkers responded to his complaints about work-related matters; there was insufficient evidence that his FB activity was a continuation of any collective concerns; and he was not seeking to induce or prepare for group action. Buel, Inc., Case 11-CA-22936 (July 28, 2011) (Advice Memorandum from OGC)

Example: WHAT IS NOT PROTECTED conCERTED ACTIVITY under section 7 • Employee (technical support analyst) claimed employer discharged him for posting FB comments complaining about his supervisor’s preferential treatment of his colleagues. • There was no evidence of concerted activity, as employee made complaints solely on his own behalf, and complaints were not designed to advance any cause other than his own. There was no evidence of intention to instigate group action or bring any group concern to management. Coworkers’ participation in FB “conversations” was to express amusement or sympathy – but not because they shared a common concern about effects of supervisor’s conduct upon their terms and conditions of employment. Sagepoint Financial, Inc., Case 28-CA-23441 (August 9, 2011) (Advice Memorandum from OGC)

Example: WHAT IS NOT protected conCERTED ACTIVITY under section 7 • Employee, in response to a question from a non-employee, posted complaint on his FB page that he hadn’t had a raise in 5 years and was doing the waitresses’ work without tips, and called customers “rednecks” and stated that he hoped they choked on glass as they drove home drunk. • Employee was not engaged in protected concerted activity. Employee’s FB posting addressed terms and conditions of employment, but employee did not discuss the posting with his coworkers, and none of them responded to the posting. There had been no employee meetings or any attempt to initiate group action concerning the tipping policy or raises. There was no effort to take complaints to management. JT’s Porch Saloon & Eatery, Ltd., Case 13-CA-46689 (July 7, 2011) (Advice Memorandum from OGC).

Example: WHAT IS NOT protected conCERTED ACTIVITY under section 7 • Employer (nonprofit facility for homeless people) terminated employee for making inappropriate FB post that referred to Employer’s mentally disabled clients. • Employee was not engaged in protected concerted activity, because she did not discuss her FB posts with any of her fellow employees, none of her coworkers are FB friends; none of her coworkers responded to the posts, she was not seeking to induce or prepare for group action, and her activity was not an outgrowth of the employees’ collective concerns. In fact, her FB posts did not even mention any terms or conditions of employment. • Employee was merely communicating with her personal friends about what was happening on her shift. • Thus, discharge did not violate Section 8(a)(1). Martin House, Case 34-CA-12950 (July 19, 2011) (Advice Memorandum from OGC).

Example: WHAT IS NOT protected conCERTED ACTIVITY under section 7 • Employer (retail store operator) disciplined customer service employee for posting profane FB comments that were critical of local store management. Comments posted expressed employee’s frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced items. • Employee’s postings were individual gripe, not concerted activity. They contained no language suggesting that employee sought to initiate or induce coworkers to engage in group action. None of the coworker’s FB responses indicated that they had otherwise interpreted employee’s postings. Also, there was no evidence that employee’s postings were logical outgrowth of prior group activity. Comments were an individual gripe. Wal-Mart, Case 17-CA-25030 (July 19, 2011) (Advice Memorandum from OGC).

Example: WHAT IS NOT protected conCERTED ACTIVITY under section 7 • Employee posted messages on her U.S. Senator’s FB page because she wanted her Senator to know that she disagreed with how emergency medical services were handled in her state and that her kind of company was not helping with the situation. She did not think that the Senator could help with her employment situation. Employer terminated her for publicly posting disparaging remarks about Employer and confidential information about its response to a service call, and her termination for stated that her comments violated Employer’s code of ethics and business conduct policy. • Employee did not engage in concerted activity, because there was no evidence that employees had met or organized any group action to raise [wage] issues with Employer. Employee did not discuss her posting with any other employee. There had been no employee meetings or any attempt to initiate group action. She was not trying to take employee complaints to management and did not expect Senator to help her situation. Rural Metro, Case 25-CA-31802 (June 29, 2011) (Advice Memorandum from OGC).

Example: WHAT IS NOT protected conCERTED ACTIVITY under section 7 • Employee who posted criticism of a supervisor on his FB page did NOT engage in protected activity, even though the postings addressed his terms and conditions of employment. • Postings did not seek to initiate or induce coworkers to engage in group action, and none of the coworkers responded to the postings with similar concerns. • Postings were not an outgrowth or prior employee meetings or attempts to initiate group action with regard to employer’s sick leave or absenteeism policy. • Employee characterized his conduct as “just venting.” Frito-Lay, Inc., Case 36-CA-010882 (October 11, 2011) (Action of Regional Director)

Can WE FIRE AN EMPLOYEE BECAUSE OF S/HE VIOLATED OUR SOCIAL MEDIA USE POLICY? Many NLRB decisions address whether a Social Media Use policy provision is unlawful. Disciplining or terminating that employee for violating an unlawful policy provision could be an ULP.

Policy provisions that are unlawful UNDER Section 8(a)(1) • Employer (car dealership) had various policies deemed unlawful by the NLRB: • Policy prohibiting employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors. • Policy prohibiting “disrespectful conduct” and use of profanity towards others. • Policy stating that employees are subject to discipline for engaging in “unauthorized interviews” with, or for answering inquiries concerning employees by, attorneys, peace officers, investigators, reporters, or someone who “wants to ask a few questions.” Karl Knauz Motors, Inc. & Robert Becker, Case 13-CA-46452 (Sept. 28, 2011) (ALJ Decision)

Policy provisions that are unlawful UNDER Section 8(a)(1) • Employer (hospital) policy prohibited employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity (Rule 4); prohibited any communication or post that constitutes embarrassment, harassment or defamation of the hospital, its employees, officers, board members, representatives, or staff members (Rule 5); and prohibited statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff or employees (Rule 6). • Employee was terminated after posting comment on her FB page complaining about colleague’s pattern of calling in sick or absent, saying that colleague disrupted the work that weekend, and asking anyone with other details to contact her. Employer said that she had “talked badly about the hospital” in violation of Employer’s social media policy. • Provisions of Rule 4 in policy deemed overly broad, as employees could reasonably construe them to prohibit protected conduct. Policy gave no guidance as to what Employer considered to be private or confidential, yet it relied on that rule to terminate employee. Absent any limitations on what was covered, and in light of Employer’s application of the rule to protected conduct, that provision could reasonably be interpreted as prohibiting protected employee discussion of wages and other terms and conditions of employment. • Provisions of Rules 5 and 6 in policy also deemed overly broad, as they included broad terms that would commonly apply to protected criticism of Employer’s labor policies or treatment of employees, and they did not define these broad terms or limit them in any way that would exclude Section 7 activity. Flagler Hospital, Case 12-CA-27031 (May 10, 2011) (Advice Memorandum from OGC)

Policy provisions that are unlawful UNDER Section 8(a)(1) • Employer (emergency medical services provider) policy that prohibited “offensive conduct” and “rude or discourteous behavior” proscribed a broad spectrum of conduct. Absent limiting language, employees would reasonably construe these provisions as prohibiting Section 7 activity. • For same reasons, policy provision prohibiting employees from posting pictures of themselves in any media which depicts the company in any way (including but not limited to a company uniform, corporate logo, or an ambulance), and policy provision prohibiting employees from “making disparaging comments when discussing the company or the employee’s superiors, co-workers, and/or competitors” is unlawful. American Medical Response of Connecticut, Inc., Case 34-CA-12576 (October 5, 2010) (Advice Memorandum from OGC).

Policy provisions that are unlawful UNDER Section 8(a)(1) • Employer’s policy prohibited employees on their own time from using micro-blogging features to talk about company business on their personal accounts; from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy; from disclosing inappropriate or sensitive information about the Employer; and from posting any pictures or comments involving the company or its employees that could be construed as inappropriate. • Prohibited conduct section of the policy was unlawful, because its prohibitions were broad terms that would reasonably be construed to apply to protected discussion about, or criticism of, Employer’s labor policies or treatment of employees. Absent limitations or examples of what was covered, the rules would reasonably be interpreted as prohibiting employees’ right to discuss wages and other terms and conditions of employment, as well as to communicate through posting pictures.

Policy provisions that are unlawful UNDER Section 8(a)(1) • Employer policy that precluded employees from revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent. Policy also precluded use of Employer’s logos and photos of Employer’s store, brand or product, without written authorization. • Prohibition upon revealing personal information was unduly broad and could reasonably be interpreted as restraining Section 7 activity, because employees have right to share information about themselves or their fellow employees with each other or with nonemployees. There were no limitation or examples of what was covered. • Prohibition on using Employer’s logo or photos of Employer’s stores would restrain employee from engaging in protected activity, because employee could not post pictures of employees carrying picket sign depicting Employer’s name, peacefully carrying a handbill in front of a store, or wearing a tee-shirt with Employer’s logo in connection with a protest involving terms and conditions of employment.

Policy provisions that are lawful UNDER Section 8(a)(1) • Employer policy precluded employees from pressuring their coworkers to “friend”, connect or communicate with them via social media. • This admonition was sufficiently specific in its prohibition in pressuring coworkers and clearly applied only to harassing conduct, so it could not reasonably be interpreted to apply more broadly to restrict employees from attempting to “friend” or otherwise contact colleagues for the purposes of engaging in protected concerted or union activity.

Policy provisions that are lawful UNDER Section 8(a)(1) • Employer policy stated that, in order to maintain the company’s reputation and legal standing, certain subjects may not be discussed by employees in any form of social media. Provision at issue was prohibition on “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects. • Looking at preamble and policy as a whole, reasonable employee could not construe the rule as a limit on Section 7 conduct. • Further, employees continued to discuss union campaign on the listserv after the policy was implemented, and no discipline was imposed. Sears Holdings, Case 18-CA-19081 (Dec. 4, 2009) (Advice Memorandum from OGC)

Policy provisions that are lawful UNDER Section 8(a)(1) • Employer (grocery store chain) policy stated that public affairs office was responsible for all official external communications; that employees were expected to maintain confidentiality about sensitive information; that one person should speak for Employer to deliver appropriate message and avoid giving misinformation; that employees were prohibited from using cameras in store or parking lot without prior approval from corporate office; and that employees were to respond to all media questions by replying that they were not authorized to comment for Employer or did not have information being sought, to take name and number of media organization, and to call public affairs office. • Purpose of policy was to ensure consistent, controlled company message and cannot be reasonably interpreted to restrict Section 7 communications. Employees could exercise their Section 7 right to speak with reporters about working conditions. • Prohibition against cameras was to news cameras, not to employee’s own personal cameras; therefore, this part of policy would not chill employees’ Section 7 rights.

Social Media Headaches: Take two aspirin and call your lawyer!