starrMy colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not.

There are outer limits to insulting speech, but a recent decision seems to indicate that it is really really far out there.

The questions up for consideration: When can an employer fire an employee for profanity during a union organizing drive?  When does the employee who stoops to insult not only his supervisor, but his mother, lost the protection of the National Labor Relations Act?

The Second Circuit faced these questions and provided a glimmer of hope for employers.

During the course of a nasty union organizing drive at a catering company, an employee became very upset at what he considered the employer’s continued disrespect for the employees.

In response, Perez used his iPhone during a work break to post the following:  “Bob [his supervisor] is such a NASTY MOTHER F****R don’t know how to talk to people!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”

Perez had about ten other employees as friends on Facebook, but the post was also available to the public. Management learned of the post, investigated, and then fired Perez, just days before the election.

An administrative law judge found that the firing violated the law as Perez was engaged in protected, concerted activities.  This decision was upheld by the NLRB.  The case was then appealed to the Second Circuit.

At the court, the question was whether the post exceeded the bounds of protection by using profanity and insulting the supervisor’s mother.

While the Court in NLRB v. Pier Sixty was disturbed by the language and by the Labor Board’s failure to adequately take into account the employer’s interests in assessing how to evaluate a social media posts, it nonetheless, found a violation of labor law by the employer.

The Court noted that the employer had not disciplined many others for profanity in the past, even though profanity was a common occurrence in the kitchen,  that the language was not used at a catered event or in front of customers, that the message focused on matters that are protected, concerns about respect, that the message concluded by urging readers to vote for the union, and that the discharge occurred two days before the voting.

While the Second Circuit upheld the Labor Board’s decision, it sent a message that these facts are on the “outer-bounds of protected, union-related comments.”   It cautioned the Labor Board that it needed to be sensitive to employers’ legitimate disciplinary interests and to properly balance the competing interests of employees, unions and employers.

The facts in this case presented the court with hurdles it could not get over.  Profanity was common in the workplace, employees had not been disciplined for using profanity in the past, and the incident was almost on the eve of the union vote.  The employer was unable to show that the posting online had harmed its business.  But in another context, using union organizing as a shield to insult supervisors’ mothers may not work.

yankees-300x300On Friday, at my firm’s annual Labor & Employment Law seminar, I’ll be talking about the NLRB and Employee Handbooks with my colleague, Chris Engler.  Among the topics we had planned to discuss was the ongoing Triple Play Sports Bar & Grille case that I had previously posted about here and here.

So of course yesterday, the Second Circuit released an long-awaited decision on that very case. And it’s a strikeout for the employer.

The case involves a mix of old and new concepts. Old: Employees have the right to improve the terms and conditions of their workplace — so called “Section 7” rights to protected concerted activity under the National Labor Relations Act, even if they are not “unionized”.  New: It applies to Facebook and other types of social media.

And now, even to Facebook “likes”.

In the case, 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!!!!”

Continue Reading Employer Strikes Out; Facebook Likes Protected by NLRA, Says Second Circuit

Connecticut Supreme Court
Connecticut Supreme Court

In an unanimous decision that was released late this morning, the Connecticut Supreme Court ruled the limits to free speech limits established by the U.S. Supreme Court in its Garcetti decision — namely that speech pursuant to an employee’s official job duties was not protected — did not apply to claims brought under the Connecticut Constitution.

In other words, there are broad protections for employees who raise issues of public concern in both the private and public workplaces after this decision.

Back in 2012, the Connecticut Supreme Court ruled in Schumann v. Dianon that First Amendment’s protections in the workplace didn’t extend to speech related to an employee’s job duties.

But the court left open the question of whether the Connecticut Constitution provide an independent and greater right of free speech for public (and even private) employees than the First Amendment of the U.S. Constitution.  In doing, the court stated: “We decline to reach the state constitutional issue raised in the plaintiff’s alternative ground for affirmance….”

That question was finally decided by the Court today in Trusz v. UBS Realty Investors, LLC and ruled that Connecticut’s Constitution does apply such protection.  It is, in essence, an adoption of the dissent in Garcetti.

The decision had been expected for some time.  Before oral argument in March, I previewed the decision in a post.

Mara Lee of the Hartford Courant, also previewed the decision back then.

Back in January before oral argument , I predicted a victory for employers but that the decision wouldn’t be unanimous.  So much for predictions.

In so ruling, the court is bringing its ruling back in line with the modified “Pickering/Connick” test outlined years ago by the court. The rule does not use the bright-line test of Garcetti, but still afford some protection to employers.  We’re reviewing exactly what that means today.

In full disclosure, my colleagues and I prepared an amicus brief on behalf of the Connecticut Business & Industry Association, in which we argued for a limited application of the Connecticut Constitution so I’m not going to get into an in-depth discussion yet in this post.

But suffice to say that this is probably one of the most significant Connecticut Supreme Court cases for employers in some time.  Stay tuned.

Not the Confederate flag.
Not the Confederate flag.

There’s been lots of talk lately about the Confederate flag and its symbolism in the aftermath of the Charleston shootings.

But I wondered: How has this flag come up in the context of employment discrimination cases?

It’s actually referenced a bunch according to a quick search by Google.  A case out of Alabama alleged a racially hostile environment with displays of the flag in 2011.  Indeed, in another case, an employee complained that various co-workers wore lots of clothes adorned with the Confederate flag.

So yes, displays of the flag at work can cause issues and give rise to discrimination claims. Not a big surprise. (Notably, my search did not highlight any particular displays of the Confederate flag coming up in Connecticut state or federal court cases.)

Then I came across the case of Duke v. Hamil, a federal court case from 2014 out of Georgia, in which a university police officer was demoted after he displayed a Confederate flag on his Facebook page along with the phrase “It’s time for the second revolution.”  He claimed that being demoted violated his First Amendment speech rights.

And on that ground, you might be surprised that the court agreed with him — in part.  The court held the display was actually a matter of public concern and subject to the protections of the First Amendment:

However, the Court finds that Plaintiff’s speech can be fairly considered to relate to matters of political concern to the community because a Confederate flag can communicate an array of messages, among them various political or historical points of view. Combine this symbol with a statement calling for a revolution right after an election, and it is plausible that Plaintiff was expressing his dissatisfaction with Washington politicians. Even if Plaintiff had intended to convey a more radical message by using the Confederate flag and the word revolution, that message would also relate to political and social concerns of the community regardless of how unpopular or controversial that point of view may be. Plaintiff’s speech was thus a matter of public concern because it expressed disapproval of elected officials, certainly a topic “upon which `free and open debate is vital to informed decision-making by the electorate.'”

But before you start ranting about this decision on Reddit, there’s more. The court went on to apply a balancing test in which the plaintiff’s speech is weighed against the interest of the police to take action when speech “may unreasonably disrupt the efficient conduct of government operations.”

And this is where the employee’s claim ultimately falls apart”

Appearing to advocate revolution during a presidential election, and to associate that idea with a Confederate flag, Plaintiff likely sent a partisan, if not prejudicial, message to many in the … Police Department and the community it serves.

After carefully weighing these factors, the Court finds that the … Police Department’s interests outweigh Plaintiff’s interest in speaking. It is obvious that speech invoking revolution and the Confederate flag could convey a host of opinions that many would find offensive, especially when associated with a senior law enforcement official.

Even though the case concerned a police officer, it’s likely that other courts could come to similar conclusions. Any right to display the flag, will be outweighed by the disruption in the workplace.

Of course, Connecticut has its own flag case – Cotto v. United Technologies — in which the court had to look at whether an employee’s refusal to display an American flag was protected speech.  I’ve talked about that case here.

If you want to learn more about “good” and “bad” flag design, I highly recommend this discussion of vexillology here.

Let’s all agree, at the outset, that getting people re-employed — particularly those who have been unemployed for a while — is a worthy goal.

How do you get there?  Job training? Education?

The Connecticut General Assembly is taking a different tactic — just make it illegal for employers to discriminate against those who are unemployed. A bill on that very point passed the House of Representatives on Friday afternoon by a 81-55 vote.

But the CBIA has pointed out that the House Bill 5274 has numerous problems with it that could open employers up to frivolous claims, as the CBIA highlighted in a post on Friday:

…HB 5274 could open the door to countless, meritless and costly civil claims against businesses by unemployed individuals who believe, with or without any evidence, the reason they were not hired is because they are currently unemployed.

HB 5274 prohibits discrimination against unemployed people in job postings. However, it also allows those individuals to bring a claim against a business that doesn’t hire them if the candidates believe their jobless status was the reason they weren’t hired.

Unlike any type of legal claim, under HB 5274, an unemployed individual’s ability to guess the motivations and thoughts of another individual can now be the basis for civil claims.

A state legislator posed the issue a different way during the debate:

“Under this bill, someone could send out 100 resumes, [have] zero employment history, not get a job and then file 100 complaints with the labor commissioner,” said Rep. John Shaban, R-Redding. “Is that what we’re really pushing for?”

Employers who want to review the bill for themselves can review the bill status here, the text of the bill here (along with a passed amendment), and the bill analysis here.

The bill now moves on to state Senate.  Governor Malloy has indicated his strong support for such a measure.

Connecticut would appear to be the first state to advance such protections — though New Jersey, Oregon and District of Columbia have some type of laws that bar employers from stating in advertisements that they will only hire currently employed individuals.  New York City, however, has adopted full “protected category” status to being unemployed.

The General Assembly is not yet done for the season. For employers interested in the issue, be sure to contact your state Senator to express your views.

In a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1” on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

Everyone ok out there?

Election Day is Nearly Here

What a wild couple of days we’ve had in Connecticut and, for those still without power, it’s not over yet.  Much like Irene and the October snowstorm before it, Sandy has left her mark. 

But it’s time to get back to business today. We’re less than a week away from the election. 

And a question that has been on the minds of many this year is the extent to which employers can (or should) talk politics in the workplace.

Lots of posts have been written about it, so I’m not going to try to reinvent the wheel here. Rather, I’ll attempt to highlight some key issues to think about.

Robin Shea, of the Employment & Labor Insider, is quick to note a new November rule: “If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home. ”

But Robin is quick to add a number of important tips about understanding when political speech is protected by the NLRA and when employers should be “very careful” about engaging in political speech of their own.

The Duff on Hospitality Law blog has some helpful tips too saying that just because it may be legal to express your endorsement of a candidate and to relay that to your employees, that doesn’t make it a good idea.  “The real risk of such public endorsement (and perceived veiled threats) in the workplace is the inherent tension and negative atmosphere that results.”

Stoel Rives World of Employment blog provides some do’s and don’ts as well. Among them: “Do set the tone” and “Don’t allow bad behavior in the name of ‘free speech’.  Importantly, it notes that employers should be aware of any state or local laws that may provide greater protection to political speech.

Connecticut may be one of those states. As I’ve discussed before, Section 31-51q of Connecticut law, applies First Amendment protection to private employee speech. So, be cautious of posts that say that the First Amendment doesn’t apply to the private workplace — Connecticut law is different. 

The Proactive Employer blog reminds readers that to many of us, voting is a personal issue.

While employers may have the legal right to voice their opinion and tell you how they think you should vote, last I knew actually casting your ballot was a personal choice and a confidential matter. Though I in no way agree with employers using intimidation tactics or attempting to control employees, perhaps we should quit wasting time questioning employers’ motives and possible unethical behavior regarding politics.

There are plenty of other good pieces on this issue too, including posts from Employment Law Daily here and here.  The New Jersey Human Resources blog discusses the issue here and the Fisher and Phillips blog/newsletter on the subject is here too.   

In short, politics and the workplace are a dangerous mix. Before you delve in too deep, understand the limits to employer speech and the protections afforded to private employees.

I’ll admit something that might seem a little unusual and ironic:  I’ve grown a bit tired about writing about the NLRB and social media. 

Perhaps, it’s because I’ve seen too many law firms and lawyers issuing newsletters, blog posts, and alerts each time the NLRB says something, anything, about social media. 

Hearing Too Many “Alerts” on the NLRB?

Because people on social media love WRITING about social media, decisions on the subject keep getting a disproportionate share of coverage.  Frankly, it’s like drivers that use their horns too much. After a while, it’s just noise.

With some notable exceptions, what’s missing from the coverage is perspective.  

Take the latest decision by the NLRB in the Knauz BMW case this month. Yes, it’s one of the first times the Board (as opposed to an administrative law judge) has upheld the legitimacy of a firing that was based on some inappropriate photos posted by the employee Facebook page. 

But that really wasn’t a big issue for the Board because the ALJ’s decision on this topic was affirmed without comment.  Indeed, there was nothing to indicate that the Facebook post was “protected and concerted” — i.e. discussing the terms and conditions of employment with co-workers. 

As the Workplace Prof blog correctly noted, the Knauz BMW cases is just one of a series of “largely run-of-the-mill concerted and protected cases….” 

Of course, as the NLRB has said they would do, the Board has also been issuing decisions that attack what appear to be  facially neutral employment policies and finding that these policies violate the employees’ rights to engage in protected activity.  (Jon Hyman, of the Ohio Employer’s Law Blog, recaps three of them.)  On first glance, this too, has seemed somewhat important to follow.

But its important to recognize that this “trend” is not new.  For example, back in 1998 (and in several other cases beforehand as well), the NLRB issued a decision in Lafayette Park Hotel that attacked bans on “derogatory” statements or policies that prohibited the disclosure of “confidential” information if it prevented employees from discussing wage & benefit information. 

The larger view is that the NLRB is doing, unfortunately, what is always does — which is change policies and logic based on which party controls the White House. It has done it before under the Clinton and Bush years, and the latest decisions merely continues that trend. 

Should anyone really be surprised that the NLRB’s rulings are reverting back to a perspective that we had under the Clinton White House?

So, where does that leave employers? Resist the urge to act (and overreact) based on each decision or pronouncement from the NLRB.  Yes, the law is developing, and yes, its important to make sure that you are compliant with the law, but the overall principles have been in play and in flux for years. 

Review your policies. Check to be sure that they’re not so one-sided that they could be interpreted as chilling protected concerted activity. And seek counsel when terminating employees for social media activity. 

Ultimately, resist the urge to obsess over each decision from the NLRB.  Becuase it just may change again before you know it.

I’ve had a little more time to digest the latest memo from the NLRB opining on what is and what isn’t appropriate for employers to have in their policies. And I’ve come to a very serious conclusion:

It’s an utter mess. 

New Guidance = Utter Mess

(Fellow employment lawyers use the phrases “bungled mess” (Jon Hyman), “not good” (Molly DiBianca), and “Inconsistent, overreaching, it’s a hot tepid mess” (Eric Meyer) to describe the latest missive.)

For employers, make no mistake: This is the NLRB’s attempt at an all-out, crazy assault on an employer’s ability to have policies that have any teeth to them. Even the most innocuous of policies can get shot down by the NLRB as being over broad and illegal. 

For example, telling employees “Don’t release confidential guest, team member or company information. . . .” is now deemed to be “illegal” because it could, in the NLRB’s view, “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves–activities that are clearly protected by Section 7.”

Continue Reading After NLRB’s Memo, Drafting Employment Policies Got Trickier

A confession.

I’m a little tired about writing about social media and labor law.  Perhaps you are a little tired about reading about it too.

Unfortunately for us both, expect a lot more about it over the next years because the National Labor Relations Board has social media in its sights and its not letting go anytime soon.

Why am I so confident? Because of what I heard repeatedly at the ABA’s 5th Annual Labor & Employment Law Conference in Seattle earlier this month.  Speaker after speaker — including members of the NLRB’s leadership — all indicated that this was an area of undisputed focus for the NLRB.

This is important for two reasons: First, the NLRB takes the position that it can enforce its laws against unionized employers and non-unionized ones too. Thus, an active NLRB is something that all employers need to be concerned about.

Second, the NLRB is going after policies not just actions.  In other words, even if the employer is otherwise complying with the law, it may bring actions against employers who have over broad policies that restrict an employee’s right to engaged in protected concerted activities.  Of course, the NLRB hasn’t said exactly what language in a policy WILL pass muster so its up to employers to seek legal advice to figure out if their policies are over broad.

But all hope is not lost for employers. One case highlighted by the speakers was decided in the employer’s favor last month.  The case involved in a Chicago-area BMW dealer that fired an employee over his Facebook post. But the uncertainty that surrounds this area will continue for some time.

As another speaker joked at the meeting, that may mean lots of work for employment lawyers for myself. But its bad news for employers who just want some certainty.

If you’d like some resource materials, the ABA has posted some sessions online here. I would strongly recommend the program entitled:  “Using the Control Key—How Far Can and Should Employer Social Media Policies Go.”  Good stuff.