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.

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

Bans on taking photos at work are addressed in the NLRB report.
Bans on taking photos at work are addressed in the NLRB report.

The NLRB’s General Counsel’s office today released a lengthy report “concerning recent employer rule” cases.

That sounds generic. It’s not.

Rather, the NLRB is now outlining its views on otherwise-neutral employer policies and whether they could be deemed to violate federal labor law.  While part of the report is a recap of existing caselaw, this is probably the most comprehensive approach I’ve seen in a while. And more importantly, it provides policies that were approved by the NLRB in a recent settlement with Wendy’s.

This is an issue I’ve talked about before, whether policies on photos and videos, or social media, or confidentiality.

There’s a lot to take in but this should provide employers with guidance should they wish to avoid the NLRB’s steely gaze.

The “model” policies it approves of may not be your preferred language (and indeed, in one area, it would seem to almost encourage union-related activities), but employers who want to stay well within the limits of the law will certainly want to use this as a guide.

I’ll have more on this in an upcoming post after a more comprehensive review.

Hat tip: Jon Hyman.

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.

Two stories over the last few weeks have been percolating that may be of interest to employers in Connecticut.  You may not see the impact immediately, but the implications are certainly there.

First, the EEOC is now looking to conduct more direct investigations — that is, investigations that are initiated without any claim by an employee or former employee — to see if gender-based pay bias is out there. 

As reported by Employment Law Daily:

In an effort to combat gender-based pay discrimination, the commission has launched pilot programs at three of its district offices to figure out the best approach to using its authority to conduct direct investigations — investigations initiated without any prior charge of pay discrimination — to determine whether Equal Pay Act violations are occurring.

The article goes on to note that the agency is also looking to see if it can use its authority to root out discrimination based on sexual orientation. That will have less impact in Connecticut, where the laws preventing discrimination on the basis of sexual orientation and gender identity are already on the books. 

Second, the NLRB recently issued a decision that calls into question whether an employer can instruct employees to keep an investigation confidential and not discuss it with co-workers.  It left Jon Hyman, from the Ohio Employer’s Law Blog, “speechless”, who noted today that the EEOC is also taking the same position. 

Numerous blogs have recapped the decision.  Here are a few to take a look at:

  • The In-House Advisor blog was quick to note that the NLRB’s admonition isn’t absolute and that an employer may be justified if: a witness needs protection; evidence is at risk of being destroyed; testimony is in danger of being fabricated; or there is a need to prevent a cover-up.
  • The veteran Employer Law Blog says that the “the NLRB’s position puts employers in a tough spot. How do you protect the integrity of an ongoing investigation without asking witnesses to maintain confidentiality at least while the investigation is ongoing? Employers should treat each investigation on an individualized basis. If a decision is made to request confidentiality during an investigation, the employer should document its specific business reason for requesting confidentiality in that case. “
  • The New York Labor & Employment Law Report also does a nice job summarizing the key points.

For employers returning from their summer vacations, these new developments may just make your fall a little more interesting. 

 

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

Last year, I mentioned that I was growing a bit tired about writing about social media in the workplace.

It’s not that the topic isn’t interesting; it’s just that there isn’t that much new to discuss.  For those of us who have been writing about it for years, we’ve seen much of this for a while.

(Though to be fair, my earliest post on Facebook talked more about its use for employment screening; its adoption in the workplace shows just how far Facebook has come in four years.)

And yet, every pronouncement from the NLRB is treated as if it is written in stone with lots of suggestions on how to rewrite all of your policies.

The latest was an updated report last month from the NLRB on the topic again.  Rather than jump on board with a quick summary, I’ve decided to take a step back and really look at how significant this report really is.

According to Jon Hyman at the Ohio Employer’s Law Blog, it’s a “mess.  In a mere 35 pages, the NLRB appears to have ripped the guts out of the ability of employers to regulate any kind of online communications between employees.”

Brian Hall at the Employer Law Report isn’t as critical noting that the Board’s interpretation of a lawful policy is “very nuanced”.  His suggestion?

Where possible, examples or context should be provided for any specific policies that arguably can be interpreted as infringing on employees Section 7 rights. In addition, employers should consider a disclaimer in the policy disavowing any intent to infringe on those rights. Finally, the Board’s consideration of the lawfulness of social media policies appears to be heavily influenced by how those policies are enforced. Employers should seek legal counsel in drafting or reviewing their social media policies and before taking disciplinary action against employees for their social media activity.

Jason Shinn at the Michigan Employment Law Advisor quotes Shakespeare in observing that “the devil can cite Scripture for his purpose.”  In doing so, Shinn observes that employers may want to rethink, rather than double down on drafting broad social media policies and expect such policies to pass muster because of a “savings clause.” 

From my perspective, I think the NLRB’s analysis of the issues remain fluid and not well defined.  Courts have yet to chime in on this and its unclear whether the NLRB’s approach will pass muster.

That does not mean that employers shouldn’t review their policies and consider using narrower language regarding what employees can and cannot do.  But employers who jump at every word that the NLRB says may be missing the larger messages behind those words.  Consider your overall approach and, where appropriate, get legal counsel involved to answer questions you may have. 

But above all else, take a measured approach.  Social media moves fast; the law does not, despite the NLRB’s suggestions to the contrary.

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.

This morning, I had the opportunity to talk with members of the Greater Valley Chamber of Commerce about social media and the law.  My thanks to that organization for the invitation.

We talked for a while about the National Labor Relations Board’s stance on broad social media policies — something which I’ve discussed many times on this blog as well. The topic had particular significance in light of the release last night of the social media policy of Apple.  As I talked about today,  it was a pretty well written policy (and really, would you expect anything less from Apple?).  It covered a lot of the best practices I recommend to employers.

But it seemed open itself up to some questions on its labor law compliance.   Here was the line that caught my eye:

It is fine for Apple employees to disagree, but please don’t use your external blog or other online social media to air your differences.

I’m not the only one to have picked up on this.  Jon Hyman, over at the Ohio Employer’s Law Blog saw this as well in the context of the entire policy.

Why might this be troubling to the NLRB? Because, as noted in the U.S. Chamber of Commerce report from this summer, the NLRB has been cracking down on overbroad social media policies that chill employee speech about terms and conditions of their employment.

There are a variety of ways an employer can handle this, including adding a disclaimer to its policy. I’ve discussed other approaches here.    Will Apple get into trouble over its policy? In the overall context of its policy, perhaps not. But the NLRB’s broad stance on these types of policies could open employers — even Apple — up to arguments like these.

Yesterday, I started my recap of the Connecticut Bar Association seminar on social media & employment law that I had the opportunity to speak at. 

In today’s post, I’m going to focus on another portion of what NLRB Regional Director Jonathan Kreisberg said at the seminar — something that may impact employers that have unions and those that don’t.

Lost in the commotion about the AMR case (popularly known as the "Facebook Firing" case) was the fact that the NLRB also challenged the employer’s personnel policies — saying that they were overbroad and not narrowly tailored to meet the employer’s legitimate business interests.  

What concerned the NLRB was that the company had a rule or policy that, in its view, employees would reasonably construe has prohibiting them from engaging in protected concerted activities.

The NLRB’s support for this proposition is the Lutheran Heritage Village case from several years ago which struck down work rules in other contexts.

In the AMR case, the policy said that employees were prohibited from posting pictures of themselves in any media "which depicts the company in any way, including but not limited to a Company uniform, corporate logo or an ambulance" without prior written approval. 

The NLRB argued that the depiction element was too broad and should be written more narrowly.

In other cases, Kreisberg said that the NLRB has challenged standards of conduct that prohibited "rude or discourteous behavior to a client or coworker" (saying that was too broad because rude behavior is necessary in a workplace) or prohibited use of "language or action that is inappropriate in the  workplace whether racial, sexual or of a general offensive nature" (saying that such standards are also overbroad).    

For employers, does this mean you should engage in a rewrite of all your policies to satisfy the NLRB? Not necessarily.  As Kreisberg noted, some employers can temper the language by adding a waiver (in some but not all cases) that says, in effect, that the policies should not be interpreted to interfere with Section 7 rights. 

At the very least, this ought to serve as a reminder to all employers that your personnel policies and employee handbook should not simply sit on your shelf (or your computer) but should be reviewed as a standard practice.