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 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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Texting & Privacy Issues Case Heard by U.S. Supreme Court

May 22, 2010 at 6:49 pm | Posted in Employee, Employer, Employment Law, harassment | Leave a comment
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On April 19, 2010, the U.S. Supreme Court heard oral arguments in the infamous “texting” case, City of Ontario v. Quon.  The issue of interest to employers before the Court was whether an employee, in this case a police officer (public employee), has a reasonable expectation of privacy in text messages sent on equipment provided by the employer.  The employer in this case disseminated a policy stating that employees should have no expectation of privacy in their e-mail and Internet usage on official systems.  The employee in the case argued that the police department had an informal policy and practice of not monitoring personal text messages of officers who paid for additional text messaging.  The employee further argued that because “texting” was no specifically stated in the policy, it was not subject to the monitoring policy.

The employee, Quon, had used the employer’s equipment to send text messages containing sexual content to his wife, his girlfriend, and to others during and outside of work hours.  Quon’s text messages were accessed via a department audit.  Quon disputed accessing those text messages based upon a Fourth Amendment unreasonable search and seizure argument – an argument not available to employees who work in the private sector.  It will be interesting to see what understanding the Supreme Court has about the prevalence of texting in modern society.  Based on the exchange between the Justices and counsel, it doesn’t appear that the Justices have unlimited texting plans for their personal cell phones:  Justice Alito asked the following question about texting, “If someone wanted to send a message to one of these pagers, what sort of a device would you need? Do you need to have another pager, or can you — could you send a message to one of these devices from some other type of device?”  Such an exchange does not bode well for the definitive answer on how employers need to create appropriate privacy and monitoring policies.

Nonetheless, employers are hopeful that the Supreme Court may provide some guidance as to privacy rights vs. the employer’s rights to enforce policies in this digital instant access era.  Employers would do well to ensure that they notify employees of any monitoring the employer may do for work done on employer provided equipment or systems.

The Obama administration is backing the employer in the case, The City of Ontario, arguing that the employer’s promulgated and published policy, not some unwritten informal rule, should govern the employee’s conduct.  Most employers hope such a view prevails.  Once the Court rules, an update on this blog will be provided.

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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