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.

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.

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.

 

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.

Last fall, the NLRB made headlines when it brought a complaint against a Connecticut employer for disciplining an employee for her Facebook posts. Back then, some commentators wondered what the limits were going to be.

Think Before You Click

But over the last few weeks, quietly, we’ve been getting some of the answers. Just not in the format you’re used to.

Just recently, the NLRB issued an three Advice Memoranda to local regions suggesting that employers did not violate federal labor laws when they punished employees for their Facebook posts and social networking activity.

Seth Borden, at Labor Relations Today, does a real good job summarizing each of them here and you can read them here, here and here.

At the core of each of these memos is an understanding that federal labor laws only guard “protected concerted activity”.  Personal complaints outside of the workplace aren’t enough to satisfy this standard.

The key language, as Seth points out, can be found in one of the memos:

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted.

This is not a surprising outcome; indeed, in my recap of a session with the local NLRB director a few months ago, I noted that the agency was likely to come out with more decisions outlining what “protected concerted activity” meant.  These newly-released memos simply make that point clear.

For employers, understanding what conduct is protected and not, can make the difference between becoming the next headline or the next dismissed case statistic.