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Concerted concern: labor board steps in when employees are punished for sharing complaints on Facebook.

The National Labor Relations Board (NLRB) sparked headlines when it issued a complaint against a Connecticut ambulance company that fired an employee who used her own Facebook page to complain about her supervisor and then responded to comments from co-workers. The case touched a nerve with employers grappling with writing policies governing employee use of social media. [paragraph] As it turns out, American Medical Response (AMR) settled the NLRB complaint in February by agreeing to revamp its social media rules to ensure they don't interfere with employee rights to discuss their wages, hours and working conditions with co-workers. The company reached a separate settlement with the fired employee.

But consternation continues over the role of the labor board in applying National Labor Relations Act (NLRA) Section 7 rules governing protected concerted activity to employees' social media activities. Both nonunionized and unionized employers are vulnerable because the protected concerted activity provisions of the NLRA apply to both. In fact, some see the social media cases as a key element in the board's attempt to extend its influence into nonunion workplaces.

"The Facebook and Twitter cases show the board's agenda goes beyond just the union area," says Ken Yerkes, a partner at Barnes & Thornburg. "They are trying to manage the nonunion workplace to build in the concept of protected concerted activity and limit employer rights."

While the social media cases to date either have settled or are yet to be litigated, employers worry that the current labor-oriented NLRB will eventually rule on a case and establish a precedent that will curb employers' ability to protect themselves against employees' misuse of social media. In the meantime, the NLRB is keeping the issue in the media spotlight.

"The whole issue of social media is yet to be fully resolved," says Stefan Marculewicz, a Littler Mendelson shareholder. "What we are seeing is the NLRB doing a lot of publicity around its issuance of complaints and settlement of cases. There are no published decisions yet on social media, but they are taking a very active role in driving policy on the way companies behave though their prosecution and publicity of that prosecution".


Employer Dilemma

While the AMR case involved a unionized employee, the NLRB signaled that it will look just as closely at social media policies in nonunion workplaces when it filed suit in May against a non-profit organization in Buffalo, N.Y., that fired five employees who complained about working conditions on their personal Facebook pages. The case illustrates that employers may face a dilemma when discipline of employees for harassment collides with the workers' right to discuss working conditions.

The case, pending at press time, began when an employee of Hispanics United of Buffalo posted a co-worker's allegation that employees did not do enough to help the organization's clients. The initial post generated responses from other employees, who defended their job performance and criticized their working conditions. Hispanics United fired the five employees who participated in the online dialog, claiming their comments in the posts, and other conduct, constituted harassment of the employee mentioned in the original post. The NLRB complaint alleges they were illegally fired for discussing working conditions.

Another pending case illustrates that employers trying to protect their image from disparaging employee comments on social media may also be vulnerable. In May, the NLRB filed a complaint when a Chicago car dealership terminated a salesman who posted photos and comments critical of the food and beverages the dealership offered at a promotional event. When asked to remove the posts, the salesman did so, but was terminated anyway.

The NLRB said the salesman's posting was protected concerted activity because it related to a discussion among employees about the terms and conditions of their employment. The dealership said the salesman was fired for other reasons.

"Just the mere fact they're prosecuting these cases means a company has to incur risks of dealing with an NLRB claim," says Marculewicz. "That is going to adjust behavior from a corporate standpoint."

Tip of the Iceberg

The cases publicized to date may well be just the tip of the iceberg. The NLRB's acting general counsel, Lafe Solomon, told his regional directors to submit any potential social media cases to the Advice Division, which investigates ways to implement the general counsel's policies.

"He's telling the regional directors, 'You must check with me' because he is looking for fact patterns to move the law to be more favorable to unions and employees, " says Yerkes.

Solomon's team apparently has a wealth of cases from which to draw. In response to a recent Freedom of Information Act request from the U.S. Chamber of Commerce for all pending social media cases, the NLRB released information on 115 cases, some routine and others that will be closely watched.

"In the ho-hum category are cases that allege the employer did not bargain with the union over a new social media policy," says Mike Eastman, the chamber's director of labor policy. "The most interesting area is to what extent is a Facebook conversation the same as a water cooler conversation" about working conditions, which is protected concerted activity.

There is one important difference: A social media posting usually is disseminated to a much wider audience, including nonemployees, and has some degree of permanence.

"Will the board give the employer more leeway in regulating that conduct than they do in regulating the conduct of a couple of guys having an after-work conversation in the local pub? That will be interesting when they get down to these issues," Eastman says.

Policy Considerations

In the absence of case law, employers have no choice but to try to define a policy that walks the fine line between protecting the company and preserving employees' rights. Along with discrimination concerns, employers should consider Section 7 rights.

"Companies are really struggling with social media policy in general and how to deal with it from a whole host of areas within employment law," says Marculewicz. "This is another aspect of it."

While there is no formal guidance, in its settlement with AMR, the NLRB required management to promise they would not "restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees from engaging in such discussions."

Nonunion employers especially need to be reminded of their liability.

"This means general counsel have to take a very careful look at all company policies related to off-duty social media utilization and figure out a way to craft a policy so it is clear it is not intended to chill or limit discussion of working conditions," Yerkes says.


Board claims social media policies can violate Section 7 rights

Liability extends to nonunion as well as union employers

Acting GC seeks cases to establish precedent

RELATED ARTICLE: Handbook Hardball

THE NATIONAL LABOR RELATIONS BOARD'S (NLRB) FOCUS ON PROTECTing employees' Section 7 rights to engage in concerted activity is not limited to social media policies. It also includes employee handbook confidentiality policies that might be interpreted as restricting employees from discussing wages, hours and working conditions.

In a case involving Jurys Boston Hotel, the NLRB in March overturned a union decertification election after the union complained about three written policies it had never brought up before. Although the company withdrew the policies, the NLRB found they were overbroad and violated Section 7. It invalidated the election.

"It's a real stretch to say an overbroad policy should overturn decertification," says Hal Coxson, a shareholder at Ogletree Deakins. "Now, every employer must see if there is any policy that anyone could interpret as interfering with employees' right to engage in concerted activity."
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Title Annotation:LABOR
Author:Swanton, Mary
Date:Sep 1, 2011
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