protected concerted activity

Next week, I will be speaking at the CBIA Annual HR Conference along with my colleague Jarad Lucan about why you should care about the NLRB.

Unfortunately, if you don’t already have tickets, it’s sold out. It’s being held at the Radisson in Cromwell, Connecticut and features some great topics for consideration. 

But the basic gist of our presentation will be a continuation of some of the themes I’ve talked about before on the blog (here, here and here, for example) — namely that the NLRB is continuing to expand its sphere of influence.

Naturally, our presentation is entitled: “The NLRB in 2016: Why it May Be Your Biggest Headache — Particularly If You Don’t Have a Union.”

For employers that are used to dealing with unions in their workplace, many of these issues won’t be a surprise.

But as I’ve talked about before, the NLRB has been critical of even those employers without unions.  The Triple Play case regarding discipline of employees for comments on Facebook is a perfect example.

For employers then, it’s important to understand the concept of “protected concerted activities” and the fact that any employee — whether a union member or not — may be protected by federal law for his or her actions.

If you’re attending the CBIA’s HR Conference next week, feel free to say “hi”.  Should be a great event.

Lucan_J_WebstarrMy colleagues Gary Starr and Jarad Lucan return today with a post that we have sent out as client alert, but which may be of interest to readers of the blog as well.  It tackles the subject of protected concerted activity.  (Hint: It may be broader than you think.)

Is a non-union employee who speaks out about employment matters protected by the National Labor Relations Act?  If so, under what circumstances?

That question is critically important because if the employee is protected and is fired, the employer may have to reinstate him, pay back pay, and post a notice that the employer violated employee rights.

The answers are not so simple.

Was the employee griping to management about work?  Did he take any action to mobilize employees to support him?  Was he seeking to induce group or collective action?

A recent Third Circuit decision (MCPC Inc. v. NLRB) addressed this situation.  A computer engineer went to lunch with his boss and three co-workers to build team spirit, as the company was aware that it was understaffed and wanted to bolster morale.  During lunch the computer engineer complained that there were too few engineers to do all the work and that the company should have hired more engineers rather than a $400,000 per year executive, whom he named.  Two employees at the lunch agreed.

The manager reported the conversation to the company CEO, who was particularly disturbed by the disclosure of the new executive’s salary, which was confidential.  There was an investigation into how the computer engineer knew the executive’s salary.  It was found that a project he was working on allowed him to view confidential information.  The CEO then met with the computer engineer and asked how he obtained the confidential information.  The computer engineer did not give a straight answer.  He first said he found it on the Internet and denied that he had gone into the HR data base.  He next said the executive’s salary was water cooler scuttlebutt, and then claimed he had heard it from two employees.

Shocked at hearing this explanation, the CEO spoke with one of these long-time employees, who denied providing any confidential information.  The CEO concluded that the computer engineer had breached the company’s confidentiality policy, had lied to him, and was not trustworthy.  As the business required maintaining confidentiality of customer data, the CEO fired the computer engineer for lying and disclosing confidential information.

The fired employee fought his discharge at the National Labor Relations Board (NLRB).  After a hearing, an administrative law judge (ALJ), concluded that the computer engineer’s lunch comments were protected, that the Company’s confidentiality policy was overly broad and unlawful, and that the firing was unlawful. The NLRB upheld that decision ordering reinstatement and back pay.  An appeal followed.

The Court noted that the computer engineer had not discussed the work situation with others before the lunch nor did he seek support from others afterwards.  The Court held, however that prior action, being selected as a spokesperson, or having plans to pursue the issue with others afterwards is not required for protected activity.  What does matter is whether the conduct was taken with the intent to induce or effect group action in furtherance of group interests.  As the computer engineer’s complaints related to work, they were protected as two co-workers had agreed with his views.

While the NLRB ended its analysis there, the Court determined that the Company had the right to explain the reason for the termination.  There needed to be a review whether the Company would have fired the computer engineer for a reason that did not involve protected activity, such as his evasiveness, dishonesty, and lack of trustworthiness.

The computer engineer’s shifting explanations raised issues of honesty and trust and could be independent reasons for the firing.  As neither the ALJ nor the NLRB had considered the alternative basis for the discharge and had not explored whether the reasons were a pretext for an unlawful firing, the Court sent the case back for a further examination of the employer’s rationale.  The Court told the NLRB to examine whether the company had established the importance of integrity and honesty in its business and whether employees had been disciplined in the past for similar activities.

We recommend before firing any employee to closely review the facts when an employee is raising concerns about work.

Is he simply griping on his own account or serving as a spokesperson for others?  Have others agreed with him?  If so, he probably is engaged in “protected concerted activity.”  This can occur even if there is no union and no union organizing taking place.  If the comments warrant discipline, conduct a review of what expectations have been violated; are those expectations in writing and narrowly drawn to be enforceable; and have others been disciplined in the past for similar activities.  Undertaking this review in advance could save 5 years of litigation and legal fees.  Further, a review of the policy relied on to support discipline is required as the NLRB has been scrutinizing policies to favor employee rights.

This case is another reminder that terminations should occur only after analysis and reflection and policies need to be carefully drafted to satisfy the NLRB.

As our big Labor Day weekend kicks off, it seems appropriate to bring back a “labor” topic, particularly when mixed with one of our favorite topics here: Social Media.

Today, my colleague Jarad Lucan returns with a case straight out of Connecticut with national implications.

As most readers of this blog have read before (here, here, here — you get the point), Section 7 of the National Labor Relations Act gives employees the statutory right to “improve terms and conditions” of employment or otherwise improve their lot.

The NLRB has said in recent years that this right includes the use by employees of social media to communicate with each other and the public for that purpose.

Late last week, the National Labor Relations Board issued a decision giving a big thumbs up to employees who use the “Like” option to endorse a workplace comments on Facebook. . . .well, sort of.

This isn’t the first time that the issue of a Facebook “like” has made legal headlines. A federal court case last year ruled that a Facebook “like” could be protected speech in some instances under the First Amendment, for example.

And I should point out that the new NLRB case involves a number of interesting issues related to employee use of social media and employers regulation of that use. Because this post only addresses the NLRB’s approval of the “Like” option as part of protected concerted activity, I encourage readers to take a look at the decision in their spare time.

In short, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.

The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . W[*]f!!!!”

LaFrance also posted about the accounting error, blaming it on the owner of Triple Play and stating that “It’s all Ralph’s [the owner] fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

Following this second post, Spinella selected the “Like” option under the LaFrance’s initial update. The discussion continued with several comments being posted, including one from LaFrance referring to Ralph as a “shady little man” who probably “pocketed it all from our paychecks.”

This Facebook discussion was brought to the attention of the owners of Triple Play who subsequently terminated Spinella because he “’Liked’ the disparaging and defamatory comments,” including LaFrance’s references to Ralph and his pocketing of money.

The NLRB, however, determined that Spinella’s termination violated the Act.

According to the NLRB, Spinella merely “Liked” the comments related to Triple Play’s alleged inability to complete tax paperwork correctly and failure to pay a former employee’s wages.

The NLRB rejected the employer’s argument that Spinella’s “like” related to the comments about Ralph, stating that it interpreted Spinella’s “Like” solely as “an expression of approval” of the initial status update. Had Spinella wished to express approval of any of the additional comments deriving from the initial status update, he could have “liked” them individually. He did not.

The NLRB, therefore, found that, even if the “shady little man” and “pocketed it all” comments were defamatory and therefore unprotected, Spinella’s use of the “Like” option during the discussion did not attribute those particular comments to him and he could not be terminated because of them.

Although this is the first case issued by the NLRB addressing an employee’s use of the “Like” option on Facebook, it appears that the NLRB’s position is that “Liking” comments that amount to protected concerted activity is itself protected concerted activity. Frankly, it’s not altogether surprising given the recent cases decided by them.

But whether “liking” comments that are defamatory (i.e. maliciously untrue or made with knowledge of their falsity) or that publically attack an employer’s product or services is protected is a question left for another day.

So, feel free to “like” this post. We won’t hold it against you.

Let’s try something a little new today: I’ll give you some facts and see if you can pick the result that a court or agency found. (Hat tip to Overlawyered for highlighting some of these issues.)  I’ll give you the lesson learned from these cases at the end.

Used Car Salesman Loses Temper

1.  Nick is hired in late August 2008 as a used car salesman (really).  On the first day on the job, Nick worked in a tent sale and inquired about the bathroom facilities.  The manager responded that it was in the store.  The next week, when he asked if he could use the bathroom during tent sales, the manager responded “you’re always on break buddy … you just wait for customers all day”.  He told Nick that he could leave if he did not like the employer’s policies.  During the next tent sale, he asked other salespeople about the compensation policy. He also raised the issue of bathroom breaks as well.

At another tent sale (apparently, tent sales are very popular), Nick asked his manager about the commissions for a vehicle and thought the employer was stealing money from him in calculating his commissions.  He then went to the state’s wage & hour agency to obtain more information about commission-based payments.

By October 2008, his manager met with Nick in private office saying that he had no intention of firing Nick but that he was “talking a lot of negative stuff” and asking too many questions.  The manager also said that if Nick did not trust the employer, he didn’t need to work there.  Nick then lost his temper calling the manager a “f–ing mother f–ing”, a “f—ing crook” and an “a–hole.”  Nick also told the manager he was “stupid” and stood up, pushed his chair aside and told the manager that if he was fired, the manager would regret it.

Nick is then fired and brings a claim against his employer.

Will Nick win his claim?

a) No, yelling at his boss is “obscene and denigrating” and thus grounds to fire the employee, even if he did engage in some “protected” activity.

b) No, while he made threats against his boss, they were empty words and he did not engage in “protected” actvity anyways because mere discussions regarding compensation are not covered.

c) Yes, because Nick’s outburst was not menacing, physically aggressive or belligerent and he engaged in “protected” activity.

d) Yes, because the right to use a bathroom is protected under state law and Nick was right to be upset that his use was restricted.

Continue Reading You Be The “Judge”: Is Swearing at Work Protected by Federal Law?

There is a certain bit of irony about recording an interview at work that appears on YouTube about, well, employees posting videos from work.

But if you can look past the irony, you might learn a few things.

In my interview with LXBN this week, we talked about how we got to this point with photos and videos in the workplace and why this is seemingly the NLRB’s “Next Big Thing”.

I talked about it in a prior post here.

My thanks to LXBN for the opportunity to appear. Always fun.

Besides, if you want something actually ironic, you should probably follow this meme.

Kodachrome

You give us those nice bright colors

You give us the greens of summers

Makes you think all the world’s a sunny day, oh yeah!

I got a Nikon camera

I love to take a photograph

So Mama, don’t take my Kodachrome away

Paul Simon, “Kodachrome”

A few months back, I was one of the first to highlight the perils of a new video sharing service, Vine, in the workplace.  And then a month ago, I predicted that the NLRB was likely to jump in on the issue of photo and video sharing.

Little did we all know how soon that time would come.

As Jon Hyman, of the Ohio Employer’s Law Blog, highlighted:

It appears that Dan’s prediction was right on the money. Last week, the NLRB’s Office of General Counsel published an Advice Memorandum [pdf] (dated March 21, 2012, but, for reasons unknown, which sat unpublished for 16 months).

Among other issues, the memo took up the following prohibition in a supermarket chain’s social media policy:

Do not use any … photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.

According to the NLRB Office of G.C., that policy is, on its face, an overly restrictive ban on employees’ rights to engage in protected concerted activity.

As so, the idea that an employer can “take away” the employees’ photographs and videos — taken digitally, even on a Nikon camera — is now up for dispute.  This isn’t the last word on the issue so I would expect to see more news on this front in the not too distant future.

Until then, enjoy the greens of summer and this Paul Simon song.

 

Yesterday, The New York Times — about a gazillion years after this blog and other employment law blogs talked about it ad nauseum — wrote their definitive piece entitled on how “federal regulators” are “ordering employers to scale back policies that limit what employees can say online.”

The headline?  “Even If It Enrages Your Boss, Social Net Speech Is Protected.”

Are you scared yet? Hopefully not, because if you’ve been following this blog at all, you know that such pronouncements are misguided and overblown.

That’s not to say that you shouldn’t review your policies to make sure that they are appropriately tailored. And that’s not to say that you shouldn’t exercise caution before firing an employee who just said something about someone at work on Facebook. 

But, it is far past the time when we should treat each pronouncement or each article on social media as this huge development that requires employers to change everything time and again.

Social media — like the telephone, fax machine or e-mail before it — is now just another communications tool that is here to stay in one form or another.   If you don’t get it yet or look at those who use it with disdain, you’re simply missing out on a tool that can be useful to your employees and to you.   The one billion people who use Facebook aren’t suddenly going to wake up tomorrow and decide that its not useful.    

Let me give you a real-world example outside the workplace and how I’m convinced that social media is for everyone now.

Continue Reading The Last Post About Social Media & Employment Law Ever. (Maybe.) (Not Really.)

As another week passes by (seriously, where did January go already?), here are a few odds and ends that are worth a mention:

  • Earlier this month, new rules regarding limits on the use of mobile phones went into effet by the Federal Motor Carrier Safety Administration.   The rule covers “both, drivers of CMVs in interstate commerce, and also any drivers who operate a vehicle transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.” Presumably, you should know if you’re covered but if you still have questions, here are the FAQ
  • The NLRB continues to issue memoranda addressing whether an employee’s use of social media is protected under federal labor laws.  Brian Hall, of the Employer Law Report, suggests that the NLRB “may be settling in on, dare I say, a more reasoned position when it comes to these kinds of cases.”   The takeaway? Not all employee conduct is going to qualify for protection but the rules are still being developed.
  • A while back, I noted about a little-known provision on the new health care law that mandated employers provide space in the workplace for mothers to lactate. Since that time, just 23 companies have been cited under the law, reports the Ohio Employer’s Law Blog
  • At the very end of last year, the Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the FLSA and the FMLA.  Nothing altogether new, but useful nonetheless. 
  • And if you haven’t thought about wehther LinkedIn connections are trade secrets and who owns them, then this post by The Employer Handbook is worth a read too. 

Finally, if you’re looking for other law blogs to follow, you could do a lot worse than to check out this list by BlogRank of the top 50 blogs by various metrics. Yes, this blog is on there, but there are plenty of others worth exploring.

Last year, I talked a lot about a U.S. Supreme Court case that seemed to open the door for employers to use mandatory arbitration agreements that precluded employees from using class actions to sue their employers. 

But I noted at the time that this was a quickly shifting landscape.

A few days ago, the NLRB issued a decision that puts this issue in the “up for grabs” category.  In D.R. Horton, Inc., concluded that these type of agreements “unlawfully restrict[] employees’ Section 7 right to engage in concerted action for mutual aid or protection.” It concluded that the employer “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”  

(For additional analysis of this issue from other blogs, check out the following links here, here and here.) 

Employers shouldn’t rip up those agreements just yet, though.  First, this decision likely applies only to those who work for private companies and can organize.  Second, the decision is likely going to be appealed to the federal Courts of Appeals and then, if necessary, the U. S. Supreme Court.

And there is also the fact that NLRB precedent sometime changes with the political cycles.  But for now, employers should understand the possible limits of their arbitration agreements in light of this new important decision.

For a while now, there’s been a lot of chatter about the NLRB’s take on social media and whether employees’ use of Facebook could be “protected concerted activity”.  I’ve done many recaps including here and here.

Now, for the first time, an administrative law judge (in Hispanics United of Buffalo) has found that employees’ comments about their working conditions on Facebook could be protected under federal labor laws.

Other blogs have already summarized the decision this morning, including the Employer Handbook and Labor Relations Today.

What’s the impact in Connecticut?

Frankly, given the positions staked out by the NLRB, the ALJ’s decision isn’t particularly surprising.  For well over a year, the NLRB has been seeking to have an expansive interpretation of what it means to be engaged in “protected concerted activity” and social media just falls within that view.

Remember too, that we have yet to see a full NLRB decision on the topic and have not seen any appeals to federal court either.  Nevertheless, this ALJ decision will certainly be used in other cases as precedent.

Employers in Connecticut have long had to worry about the free speech rights of employees.  Conn. Gen. Stat. Sec. 31-51q grants private employees some free speech rights. The scope of what that section means is actually the subject of two appeals to the Connecticut Supreme Court that were argued earlier this year.

So for now, employers should continue to be cautious about their reactions to employee use (or misuse) of social media.  Not all conduct will be protected (for example, harassing conduct is still illegal), but trying to figure out where the line is between protected and unprotected activities just got a little harder.