Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

This post was written by  Roy D. Prather, III, Joel S. Barras and Eugene K. Connors.

In yet another instance illustrating the National Labor Relations Board’s (“NLRB’s”) intent to prosecute violations of the National Labor Relations Act (“NLRA”) related to employee activity on social media sites, the NLRB’s Buffalo, NY regional office has issued a complaint against Hispanics United of Buffalo Inc. (HUB), a New York nonprofit agency. The complaint alleges that the employer fired five employees because they complained about working conditions on Facebook in violation of NLRA sections 8(a)(3) and 8(a)(1). Those provisions prohibit employers from taking or threatening adverse action against employees for engaging in so-called “concerted” activities protected by the NLRA. Firing or threatening employees with adverse action for voicing complaints or concerns over working conditions has been illegal for decades. But the NLRB has logically extended its reach to include email exchanges and, more recently, discussions and comments made using social media such as Facebook and Twitter.

According to the complaint, a HUB employee on Facebook named a co-worker who claimed that HUB employees failed to adequately assist its clients. This prompted Facebook rejoinders from other HUB employees who, in defending their job performances, criticized HUB’s working conditions, including workloads and staffing issues. HUB discharged five employee participants in this online forum on the basis that their comments illegally harassed the co-worker who made the “inadequacy” claim.

As noted, the NLRB asserts that the Facebook discussions were concerted activities under NLRA section 7 because they involved terms and conditions of employment such as job performances, workloads, and staffing levels. 

A hearing before an NLRB Administrative Law Judge is set for June 22, 2011, in Buffalo. We will track and report on this case as it progresses.

This matter is on the heels of two recent attempts by the NLRB to regulate employers’ reactions to employee use of social media to discuss workplace issues. The first concerned an NLRB complaint against American Medical Response, Inc., a Connecticut ambulance provider, for discharging an employee over her criticism of her supervisor on Facebook. In the second, the NLRB threatened a complaint against Thomson Reuters Corp. for its restrictive social media policy and for disciplining a reporter for a message she posted on Twitter. Both cases settled.

The lessons to be learned from the NLRB’s new and increased attention to social media activities are simple but crucially important. First, be ever-vigilant on what the NLRA permits and what it condemns. Second, “where” discussions and other protected actions occur makes no difference. Protected activities are protected if they are face-to-face, over the telephone, in a letter, in a fax, on TV, on the radio, in a news story, and “spoken” electronically, in emails or on social media sites. Put simply, the NLRA applies fully to the “cloud.” For this reason, take a thorough look at every policy to make sure that it recognizes and complies with the NLRA by balancing employer needs against the NLRA’s protections.

Feel free to discuss any concern with one of the authors or with another Reed Smith attorney of your choosing.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The National Labor Relations Board (“NLRB” or “Board”) recently issued a complaint against a Connecticut ambulance service accusing it of illegally discharging an employee for posting negative comments about her supervisor on her Facebook page. The NLRB also challenged the employer’s blogging and Internet policy, asserting that it chills employee rights under the National Labor Relations Act (the “Act”). The Act protects the right of all workers, both union and non-union, to communicate with one another about wages, hours, and other terms and conditions of employment, and prohibits employers from taking action against employees for having engaged in such “protected concerted activity.”

According to the NLRB’s complaint, Dawnmarie Souza was asked to prepare an incident report after the company received a customer complaint about her. A supervisor denied Ms. Souza’s request for assistance from her union, Teamsters Local 443, in completing the report. The Board also alleges that the supervisor threatened Ms. Souza with discipline because of her request for union representation.

Later that day, on her own time and using her own computer, Ms. Souza posted negative comments about the supervisor on her Facebook page. In support of Ms. Souza, her coworkers also posted negative comments about the supervisor on the same page. The company discharged Ms. Souza just three weeks later, and the NLRB claims it did so because she violated the company’s Internet policy. The employer, however, contends that it discharged Ms. Souza based on several serious complaints about her behavior. 

Following an investigation, the NLRB’s Hartford office determined that the Facebook postings were “protected concerted activity.” In addition, the Board viewed the company’s Internet and blogging policy, which barred employees from making disparaging remarks when discussing the company or a supervisor and which prohibited employees from depicting the company online without company approval, as a violation of the Act. An NLRB administrative law judge is set to hear the case in January.

Until a decision is rendered, all facts relating to this case, including the company’s Internet and blogging policy, will not be publicly available. The Board’s position, however, is that the policy chilled employees’ rights under the Act by barring employees from making any disparaging remarks or depicting the company in any way on the Internet without prior permission. Such policies are bound to be viewed as overly restrictive by the Board, especially because employees would generally be protected if they engaged in the same sort of behavior on their own time in any public forum.

This is not the first time that the Board has closely examined whether a social media policy infringes upon employee rights. On December 4, 2009, the NLRB’s Office of General Counsel issued an Advice Memorandum analyzing a social media policy adopted by Sears Holdings, which prohibited employees from using social media to disparage “a company’s or competitor’s products, services, executive leadership, employees, strategy and business prospects,” to discuss confidential and proprietary information, or to make explicit sexual references. The Office of General Counsel found this policy was permissible because a reasonable employee, viewing the policy as a whole, would not believe it limited conduct protected by the Act. 

Every employer, whether it has a union or not, is now on notice that the NLRB will focus on examining employers’ efforts to limit employees’ use of social media, challenging those it views as likely to chill employee rights to act together to complain about or address work issues. Employers should thus analyze their social media policies to ensure that employee restrictions are not so broad as to interfere with or chill such employee rights. While an employer can restrict disclosure of confidential and proprietary information and require compliance with its harassment policy, it cannot prohibit employees from discussing the employer with other employees on social media sites, at least not where such discussion could be “concerted activity” protected by the Act.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This post was written by Laurence G. Rees, Sara A. Begley, Eugene K. Connors, Casey S. Ryan, Carl De Cicco, Amber M. Spataro.

In our everyday lives, we've all noticed or become a part of the phenomenon of social media Facebook, Twitter, YouTube, Flickr, MySpace and more. The options offered and growth of the media have been staggering. With that growth has come new legal risks, including employment issues, quite unlike anything we've seen before. And with things happening at lightning speed, it's hard to keep up, much less react when something goes awry.

In October 2009, we published a White Paper on social media and United States law entitled Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon. The response was unlike quite anything we'd ever seen before as clients, friends, and colleagues from around the globe asked for copies and praised the work.

This month, we've published the second edition which includes a chapter on Employment Practices that addresses employment issues arising from the use of social media in both the U.S. and Europe.

Click here for the new edition and bookmark the entry to be sure to get ongoing revisions.  You can also read the employment chapter by clicking here on our sister technology blog, Legal Bytes.

• Email This
• Print
• Comments
• Trackbacks
• Share Link