The National Labor Relations Board files a complaint based on Facebook comments – with the NLRB entering the mix, will a ruling alter social media/social networking policies in the private or public sector?

November 10, 2010 at 8:23 pm | Posted in ADA, discrimination, Employee, Employer, harassment, Legal, New employment laws/amendments, Social Media/Social Networking, union | Leave a comment
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The National Labor Relations Board – “NLRB” – has taken up the cause of a Connecticut employee who was fired after making a post on her Facebook page.  The employee in question used some vulgar language when making comments about her supervisor, and then maligned the supervisor’s psychiatric state by using one of her Company’s codes for a psychiatric patient in her post: “Love how the company allows a 17 to become a supervisor.”  The termination caught the NLRB’s attention as the employee suggested she posted the criticism because the supervisor in question would not let a union representative prepare a response to a customer’s complaint regarding work she had done for the customer.

The company at issue, American Medical Response, took the proactive step of having a policy in place governing conduct Facebook and other social media/social networking sites.  I regularly advise my clients to have such policies in place as having rules in place reduces confusion later – and protects one’s brand and reputation in the cyberspace community.

The NLRB argues that the Company’s policy is overly broad.  Even more interesting is the NLRB’s theory that the Company’s policy violates the National Labor Relations Act’s prohibition against punishing employees for engaging in or soliciting discussions about working conditions or unionization.  A lawyer for the NLRB likened the Facebook posting to a “water cooler discussion among co-workers.”  Is Facebook analogous to the public square such that the protections of the NLRA apply?  Is it ever acceptable to hurl insults at one’s supervisor and expect no repercussions?  Does the inquiry change if the employee in question had her privacy settings set so that the general public could not see her posts?  Does commenting on a supervisor’s mental health status implicate the employer’s anti-harassment/anti-discrimination policies or perhaps the ADA?  Would the decision be different in a state such as Florida where we have a constitutional right to privacy guaranteed by Florida’s State Constitution?  Does the First Amendment come into play considering the comment was likely made on the employee’s own time?

To aid in framing the discussion, the NLRB provides guidance as to when Facebook comments lose protected concerted activity status under the NLRA.  Where is this guidance found?  On the NLRB’s Facebook page!  The NLRB states that a four point test applies: (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.

Employers would be wise to review their social media and social networking policies for overreaching in light of the NLRB’s stance. The bigger picture question is whether a successful action by the NLRB results in employee rants, however vulgar,  being deemed protected activity under the NLRA?  While it is unlikely that protection will be found for an employee’s publicly ridiculing of a supervisor and suggesting that the supervisor was mentally unstable, stranger things have happened when dealing with the NLRB.

A hearing on the NLRB complaint is currently scheduled for January 25, 2011.  Updates will be provided on this blog.  You can also check out the NLRB’s Facebook page for updates on the issue as well:  http://www.facebook.com/NLRBpage.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

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Manatee County Drama Teacher Suspended for Classroom AND Social Media & Social Networking Issues

October 31, 2010 at 7:06 pm | Posted in Employee, Employer, Employment Law, Legal, New employment laws/amendments, Social Media/Social Networking, union | Leave a comment
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My last few blogs have been on the Manatee County School District’s desire to implement a broad and potentially chilling social media/social networking policy governing the on-line behavior of teachers on and off the job.  There’s a case pending before DOAH challenging the proposed social media/social networking policy but while that matter is pending, the School Board has started proceedings to terminate a drama teacher, partially based on postings found on the teacher’s Facebook page.  The teacher, Charles Willis, “friended” over 100 current students and posted comments that could be viewed by all his “friends”, including posts regarding drinking too much, and posts which referenced popular internet abbreviations that usually include profanity, such as “WTF” and “LMFAO.”  Other allegations are being made regarding Mr. Willis but the notion that the complaint against Mr. Willis includes numerous references to his virtual life as posted on Facebook makes this an interesting matter from the employment law perspective.

The Herald Tribune in Sarasota has written several articles on Mr. Willis and the actions of the Manatee County School District, which links are provided below:

http://www.heraldtribune.com/article/20101021/ARTICLE/10211054

The Herald Tribune also provided a link to the allegations being alleged against Mr. Willis such that his ability to continue to teach is in jeopardy:

http://www.heraldtribune.com/article/20101021/ARTICLE/10211054

Readers, what do you think?  Do you believe teachers should be held to a different standard than other professionals as regards to their on-line communications?  Should a teacher be allowed to “friend” students?  Should teachers be prohibited from communicating with students for any reason – including extra curricular service clubs or for community service purposes?  Should teachers be restricted in criticizing administration, the School Board, curriculum, or laws regulating education or educators?  How does the First Amendment come into play, or does it?

Tom Lyons, a regular columnist for the Herald Tribune, provided two recent columns on the issues of both the Manatee County School District’s proposed policy and Mr. Willis.

http://www.heraldtribune.com/article/20100921/COLUMNIST/9211019?p=2&tc=pg

http://www.heraldtribune.com/article/20101021/ARTICLE/10211054

While I do not necessarily agree with the views expressed by Mr. Lyons, I do think there’s fodder for debate and discussion in both of his columns.  As someone who represents companies and sometimes individuals in employment related disputes, the notion of the blurring of private life vs. public life is regularly blurred and confusion about the “rules” exists on both sides of the table.  Taking the step of having policies in place provides a level playing field but overreaching will result in morale issues, some of which may be insurmountable.

Gentle readers, I look forward to your thoughts on these very current issues.  Times are changing, how we communicate and interact with each other is changing too – should we focus on how to address those changes or should we be the proverbial ostriches with our heads in the sand?

I will continue to provide updates on this issue – and on the rule challenge filed by the teacher’s union related to Manatee County School District’s proposed social media/social networking policy.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

Update on Manatee County School District’s proposed social networking policy

October 26, 2010 at 6:33 pm | Posted in Employee, Employer, Employment Law, Legal, New employment laws/amendments, Social Media/Social Networking, union | 2 Comments
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The Manatee School Board was scheduled to vote Monday October 25th on a controversial social networking policy discussed previously on this blog.  The issue was tabled on Monday due to the Manatee Education Association – the teacher’s union in Manatee County – and Manatee Education Association member Patricia Barber’s filing of a “Petition to Invalidate Rule” with the Department of Administrative Hearings, “DOAH”.   Paragraph 42 of the filed Petition gets to the crux of  the matter:

The Policy gives the District unbridled discretion: (i) to discipline employees in whatever manner it pleases, regardless of the severity of the conduct; (ii) to violate Chapter 447, Fla. Stat. by determining appropriate discipline without collective bargaining, as required by law; (iii) to identify conduct, without any articulated standard, which the District deems inappropriate or in violation of the Policy at its sole discretion; (iv) to determine the meaning of vague and undefined Policy terms, such as “inappropriate statements,” “inappropriate communications,” and “offensive documents,” among others; to discretionarily deem materials “offensive” or “inappropriate”, even though discipline would result from this whim; (v) to regulate and punish, without limitation, the content of District employees’ private email communications and internet postings made on their own time, from their home computers, and from private operated servers; (vi) to discipline employees for engaging in aspects of their private lives protected by Art. I., s. 23, Florida Constitution (“Right to Privacy”), for which freedom from government intrusion is constitutionally guaranteed; (vi) to discipline employees for exercising speech on matters of public concerns, contrary to Art. I, s. 4, Florida Constitution, and the First Amendment, U.S. Constitution; and (vii) to engage in searches of employee property which may violate Art. I, s. 12, Florida Constitution and the Fourth Amendment, U.S. Constitution.  The foregoing list is not exhaustive.”

Go to the following address for a copy of the entire Petition:  http://www.doah.state.fl.us/docdoc/2010/009760/10009760M-101910-12273827.PDF.  If the link or address does not work, you can search for the case on DOAH’s website using the case number, 10-9760RP at http://www.doah.state.fl.us.  The Manatee County School Board’s proposed social networking/social media policy is attached as an exhibit to the Petition.  There’s definitely some interesting reading here!

As written, the proposed policy could be broadly construed as permitting discipline against teachers in Manatee County for making negative or offensive comments on public policy issues on social media sites, including but not limited to Facebook, MySpace, LinkedIn, and Twitter.  Private sector employers regularly restrict employee’s speech regarding the employer, the employer’s workforce, the employer’s clients, and essentially, the employer’s brand.  The difference here is that public sector employees are being subjected to restrictions on potentially private speech; speech that they are likely protected to make under Article I, §23 of the Florida Constitution:

Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

The Manatee School District is a governmental entity so unlike private employers, Florida’s Constitutional Right to Privacy should apply to actions by the School District.  The Manatee County School District denies trying to govern private communication and instead reiterates that teachers are bound by a Code of Ethics and the social networking policy simply reminds teachers that the Code of Ethics may apply to such communication.

Until DOAH hears the matter, the Manatee County School District will delay voting on the policy.  A hearing before DOAH is currently scheduled for November 19th.  Stay tuned for updates!

For additional information about the policy and the School District’s meeting, read Natalie Neysa Alund’s article found in the Bradenton Herald:  http://www.bradenton.com/2010/10/26/2682453/noles-logo-proposal-still-unsettled.html.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

Manatee County Schools Social Media Policy Update: Twitter, Facebook & Friending – “To friend or not to friend, that is the question.”

October 5, 2010 at 2:20 pm | Posted in Social Media/Social Networking | 1 Comment
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At its September meeting, the Manatee School Board decided to move forward with its plan to restrict the use of teachers in Manatee County from social media and social networking sites such as Twitter, Facebook, LinkedIn, and many others. As was stated in my prior blog entry, the social media/social networking policy proposed by the Manatee School District prohibits teachers from communicating with students through such sites without parental permission, and prohibits teachers from using the Manatee County School district’s name in online forums without permission. The ACLU is rattling cages and saying such a policy violates the right of teachers to free speech. The Manatee County teacher union joined in the criticism of the proposed restrictions and voiced the opinion that the rules are too restrictive.

The Manatee School Board’s attorney informed the School Board that under the Ethical Code of Conduct under which teachers are bound and can be disciplined for violating, off duty behavior can result in consequences at the workplace. This code applies to all manner of conduct, whether on-line or taking place in the “real” world.

The Miami School District allows teachers to use Facebook to post assignments and answer questions from students. The Santa Rosa School District put a social media/social networking policy in place but rescinded it soon thereafter when suit was threatened. Lee County considered implementing a policy but instead issued guidelines advising teachers that what they post is public; information posted on the internet is out there forever and available to anyone so use caution and common sense when posting.

A public hearing is scheduled for 5:45 on October 25th at the School Board Administration Building in Manatee County. This should be a raucous good time! I will provide an update about the meeting on this blog.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

Social Media/Social Media Restrictions Proposed by Florida’s Manatee County School District on Teachers – to paraphrase Bo Diddley, “Who do you friend?”

September 25, 2010 at 3:48 pm | Posted in Employee, Employer, Employment Law, harassment, New employment laws/amendments, Social Media/Social Networking | 3 Comments
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In response to a post by a Manatee County teacher on Facebook where the middle school teacher said that he hated his students and his job, the teacher was ordered by School District leaders to remove the comment and the teacher was suspended for five days. To prevent such postings on social media in the future, the Manatee County School District is proposing new rules banning teachers from posting negative comments or photos about the Manatee County School District on social networking sites.

The rules would prohibit Manatee County teachers from using Facebook, Twitter, LinkedIn, FourSquare and numerous other social networking/social media sites to:

Post pictures or comments that cast the Manatee County School District, its teachers or its students in “a negative, scandalous or embarrassing light.”

Communicate with students using websites like Facebook and MySpace unless parents sign a consent form 10 days in advance. Permission must also be granted by parents for teachers to e-mail students from personal e-mail accounts outside of the official email address provided through the Manatee County School District.

Use the Manatee County School District’s name in online forums unless they are authorized spokespersons.

Manatee County School District spokesperson Mike Barber said the District does not want to infringe on their staff’s freedom of speech, the District simply want to make sure everyone is safe. As a public sector employer, the Manatee County School District must consider the safety of the students entrusted to them for an education. At the same time, how does one balance Florida’s constitutional right to privacy against the lack of First Amendment rights when it comes to employment matters? The Constitution of the State of Florida, as revised in 1968 and subsequently, Article I, Section 23 states:

Right of privacy.–Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

The proposed policy by Manatee County’s School District may have unintended consequences. For instance, does this policy mean someone who is running for the Manatee County School Board cannot use “Manatee County School Board” in their political advertising? On any Facebook or websites used to communicate with voters? Unlike criticism of one’s employer, political speech does carry with it the protections of the First Amendment.

The social networking/social media phenomenon has opened up a whole new world of communication for families and friends, siblings, parents and children – and a whole new set of problems for employers. Those of us in the private sector have likely heard of companies that respond decisively to employees’ social media/social networking activities, particularly if the employer’s name is mentioned. Some recent and well publicized social media/social networking scandals include:

The Pittsburgh Pirate Pierogi Mascot: The employee who donned the pierogi mascot uniform for the Pirates was upset that certain contracts had been extended and posted a notice on his Facebook page saying the action “means a 19-straight losing streak.” The mascot was terminated for his criticism.

An applicant for a job at Cisco Systems Tweeted that she would probably hate the job but would relish the “fatty paycheck.” Cisco discovered the Tweet – the applicant did not get the job.

Former MLB player and current sportscaster Mike Bacsik, upset after a Mavericks loss to the Spurs Tweeted “Congrats to all the dirty Mexicans in San Antonio…” He later posted an apology but was “suspended indefinitely.”

A waitress in North Carolina complained of patrons who came late, stayed for hours, then left a meager tip. Despite not naming her employer or the patrons, she was terminated.

IBM, Coca-Cola, Oracle/Sun Systems, and Nordstrom have well written and well publicized policies about their social networking/social media policies. Links to these policies follow this blog entry. While these are large employers with the revenue to allow for monitoring of the myriad of social networking/social media sites, what’s a small employer to do when employees, former employees, and even job applicants take to the Internet to reveal company or trade secrets, post disparaging remarks about the company, the company’s employees, the company’s clients? What is an employer to do when an employee posts racist or sexist remarks, threats against other workers, comments about drunken binges, arrests? What is an employer to do when the employer discovers an applicant has questionable judgment based on a Google search or Facebook page perusal – when all the information being garnered is public and privacy settings are not in place? Should such searches impact the employer’s decision to hire an individuals?

Very few laws governing employers’ rights and responsibilities when it comes to managing what employees, former employees and job applicants can post on social networking/social media sites as it relates to their companies. Employers need to be pro-active in determining what type of social media/social networking policies need to implemented. Privacy settings, “friending” and “defriending” or “unfriending” are concerns that must be addressed. Conduct on – and off – the job needs to be considered.

These issues will continue to develop – as will the case law on this topic!

FYI: The Manatee County School Board will discuss the proposed policy at a meeting on Monday, September 27th. Pending the Board’s approval, a public hearing will be held on October 25th before the Board makes a final vote on the policies. Stay tuned for updates as Manatee County is breaking new ground with this policy.

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