NLRB Issues Second Report Reviewing Social Media Enforcement Actions

Posted on January 30, 2012 by Shannon Harell Source: Information Law Group http://www.infolawgroup.com/tags/nlrb/

On January 25, 2012 the National Labor Relations Board ( NLRB ) Office of the General Counsel released a report summarizing fourteen cases that were before the NLRB concerning the protected and/or concerted nature of employees social media postings and the lawfulness of employers social media policies and rules ( Report ). The Report followed up on an earlier report issued by the NLRB Office of the General Counsel on August 18, 2011 and reiterated two main principles set forth in that earlier report:
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Employer policies should not be so broad such that they prohibit, discourage or chill activity that is protected by Section 7 of the National Labor Relations Act ( NLRA ) (e.g., discussion of wages or working conditions). Specifically, the Report made clear that: o Specific examples of the type of conduct prohibited should be included in any social media policy (i.e., do not disclose trade secrets , as opposed to do not post sensitive information about the company). o The policy should carefully carve out and protect employee s specific rights under NLRA; a general saving clause is insufficient. o The policy should not use vague terms like appropriate or professional without providing clear definitions for those terms. Employee comments on social media networks generally are not protected if those comments are mere complaints about or general dissatisfaction with the job (e.g., I hate my job! or My boss is mean! ). The comments will be protected if they are associated with an expression of shared concern, such as a dialogue about how bad the work environment is and what employees can do to fix it in response to a single employee s wall post about the job.

Summaries of each of the cases reviewed in the Report are as follows: 1.

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Employee Discussion on Facebook Can Be Protected Concerted Activity The terminated employed had posted on Facebook about a self-proclaimed demotion that she thought was unfair and unwarranted based upon her performance. Several co-workers with whom she was also friends posted their support on Facebook, including comments discussing the employer s dishonest and unfair practices. The employee was terminated 5 days after making her post for violating the employer s rule prohibiting [m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.

The NLRB found that this policy was unlawful on the basis that it would reasonably be construed to restrict Section 7 activity, such as statements that the Employer is, for example, not treating employees fairly or paying them sufficiently. Further, the NLRB found that the employee s initial post and the subsequent discussion that it generated fell within the definition of concerted activity since the discussion clearly centered on working conditions. 2. Broad Policies That Do Not Provide Examples or Clear Definitions Are Often Found Invalid by the NLRB
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An employer implemented a social media policy restricting the use of the employer s confidential and/or proprietary information provided that, in external social networking situations, employees should generally avoid identifying themselves as the employer s employees, unless there was a legitimate business need to do so or when discuss terms and conditions of employment in an appropriate manner. The policy did not define what appropriate or inappropriate meant under the policy and therefore employees could reasonably interpret the rule to prohibit protected activity, including criticism of employer s labor policies, treatment of employees and terms and conditions of employment." A provision requiring that social networking site communications be made in in an honest, professional, and appropriate manner, without defamatory or inflammatory comments regarding the employer and its subsidiaries, and their shareholders, officers, employees, customers, suppliers, contractors, and patients. Without defining broad terms like professional and appropriate the provision could be construed to prohibit communications protected by NLRA. Policies that Subjectively Infringe on NLRA Section 7 Rights Are Invalid

3.
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An employer discharged an employee for violation of a company policy that stated that insubordination or other disrespectful conduct and inappropriate conversation would be subject to disciplinary action. The NLRB found that this policy would reasonably be construed by employees to preclude Section 7 activity. An employer s social media policy prohibits employees from using social media to engage in unprofessional communication that could negatively impact the employer s reputation or interfere with the employer s mission or unprofessional/inappropriate communication regarding members of the employer s community. Although the rule contained some clear examples of unprotected conduct (e.g. revealing trade secrets), it also contained examples that could reasonably be read to include protected conduct and, therefore, could be construed to chill employees in the exercise of their Section 7 rights."

4. Social Media Policies Inhibiting Free Communication Between Employees and Between Employees and Third Parties Are Generally Invalid The Report discussed the following overbroad provisions from a single social media policy:
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A provision that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department is unlawful because employees have a right to communicate such information to third parties. A provision preventing use of the company s name or service marks outside of the course of business without prior approval of the law department is unlawful because employees have a right to use their employer s name or logo in conjunction with protected concerted activity, such as to communicate with fellow employees or the public about a labor dispute. A provision prohibiting employees from publishing any representation about the company without prior approval by senior management and the law department is unlawful because employees have a Section 7 right to make representations about their employer that are part of and related to an ongoing labor dispute. A provision providing that employees needed approval to identify themselves as the employer s employees and that those employees who had identified themselves as such on social media sites must expressly state that their comments are their personal opinions and do not necessarily reflect the employer s opinions is unlawful because the provision stifled employees ability to locate other employees, thus, inhibiting their ability to organize, a protected right under Section 7. A provision requiring employees to first discuss with their supervisor or manager any work-related concerns, and it provided that failure to comply could result in corrective action, up to and including termination is unlawful because it inhibits the ability for employees to organize to discuss working conditions.

5. Social Media Policies that Are Adequately Tailored to Uphold Workplace Confidentiality and Discrimination Rules are Lawful
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The policy originally prohibited discriminatory, defamatory, or harassing posts about specific employees, the work environment or work-related issues on social media sites. Broad terms like defamatory especially when applied to workrelated issues could be construed to apply to protected activity.

The amended policy prohibited the use of social media to post or display comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic. The amended policy, on the other hand, could not reasonably be construed to apply to protected activity as it provides a list of plainly egregious conduct.
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The employer s social media policy provided that the employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws. [Further,] [i]t prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media embargoed information, such as launch and release dates and pending reorganizations. In context, the prohibition applied only to communications that could impact security regulations or disclose proprietary information and, as such, was narrowly tailored and withstood scrutiny.

The Report also provides updated guidance regarding the scope of concerted activity under Section 7: 1. Facebook Posts Can Only Be Considered Concerted Activity Where There Is Active Participation from Facebook Friend Co-Workers In the Discussion
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The terminated employee (a truck driver) posted to Facebook criticizing the way that the business was run, including, that the company was running off all the good drivers . No other employees joined the discussion and the employee s comments did not attempt to induce a group action. The NLRB further noted that there was no unlawful surveillance since the employee had invited his supervisor to be his friend on Facebook. The terminated employee posted criticism of a supervisor on Facebook, including use of the phrase setting it off . The employer deemed the phrase to be threatening and inappropriate. The post was not concerted activity, because although the posts addressed terms and conditions of employment he did not intend to initiate or induce coworkers to engage in group action and no friends that were co-workers responded to his post.

2.

Social Media Postings That Are a Direct Result of Concerted Activity Are Protected
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The terminated employee, an individual to whom other employees confided in about on the job issues, posted about those shared concerns over the terms and conditions of employment. Co-worker responses to her posts contained suggestions for action by the group to change those conditions.

Her termination was found to be unlawful because it was directly related to her involvement in her co-workers work-related problems, including her discussions with fellow employees about the terms and conditions of employment.
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The terminated employee made various online (e.g. on local newspaper message boards) and Facebook posts about the employer s poor management style, which allegedly included bullying, harassment and abuse of employees that had been ongoing for at least 3 years. Several co-workers posted messages of support on the terminated employee s Facebook Page, e.g. Thank you for speaking for us who do not dare. Since the posts were part of an ongoing labor dispute related to treatment of employees, and the statements were a logical outgrowth of other employees concerns or were made with or on the authority of other employees , it was clear that they contained unfair labor practice charges, which are protected by Section 7. The NLRB further found that the comments were not unprotected disparagement or defamation.

3. Comments to Facebook Postings Have Equal Protection and Privilege As Original Postings
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The terminated employee posted his frustration on Facebook that another individual was promoted over him and that the promotions were not aligned with the performance. Responses to his post included suggestions that all the good employees should quit. These posts demonstrated shared concerns about the terms and conditions of employment and were therefore concerted activity for mutual aid and protection and protected activity under Section 7. The terminated employee posted on a co-worker s Facebook wall about his supervisor s bad attitude and poor management style, and the co-worker agreed responding that she wished she could work elsewhere. The employees had previously complained about the supervisor to a higher up. Protest of supervisory action is protected under Section 7 and NLRB found that the discussion constituted concerted activity for mutual aid and protection. The NLRB further found that the comments were not unprotected disparagement or defamation.

As we have previously noted in prior posts about the NLRB s social media enforcement actions, employers should carefully review and adjust their social media policies and practices in light of the NLRB s guidance and enforcement. Social media policies must be narrowly tailored so as not to infringe upon employees Section 7 rights. NLRB Holds "Facebook" Firing Justified on Alternative Grounds, but Finds Policy Unlawful Posted on November 3, 2011 by Boris Segalis As we have discussed on our blog, the National Labor Relations Board (NLRB) has continued a campaign of enforcement actions against employers who, according to the NLRB, have unlawfully terminated employees for discussing working conditions on social media.

As we reported, in the first of such Facebook enforcement actions to come before an NLRB administrative judge, the employer was ordered to reinstate five employees and to pay back their wages. On September 28, 2011, in the second Facebook case to reach an NLRB administrative judge, an employer was found to have been justified in terminating an employee car salesman for Facebook postings that mocked the employer and did not concern working conditions. NLRB Allegations In this proceeding, the NLRB alleged that the employer a car dealership fired a salesman in violation of the National Labor Relations Act (NLRA) for criticizing on Facebook the quality of a dealership sales event. According to the NLRB complaint, the dealership held a sales event to promote a new vehicle model. After the event, the salesman posted photos and commentary on his Facebook page mocking the dealership for serving hot dogs and bottled water at a sales event for a luxury car. Other employees had access to and commented on the Facebook page. The NRLB alleged the dealership managers fired the salesman after they learned of his critical Facebook posts. The NLRB argued that the firing violated Section 8(a)(1) of the NLRA, which deems an unfair labor practice for an employer to interfere with, restrain, or coerce an employee in the exercise of the employee s NLRA Section 7 right to engage concerted activities for the purpose of collective bargaining or other mutual aid or protection. The dealership argued, however, that it terminated the salesman not for criticizing the sales event, but rather for posting on Facebook pictures of bloopers from another dealership owned by the salesman s employer. The pictures showed a customer s 13year old son driving a brand new luxury SUV from the dealership into a pond, which the salesman captioned as This is your car: This is your car on drugs. Decision Dealership Sales Event The judge agreed with the NLRB that the salesman s Facebook posts criticizing the sales event were protected by Section 7 of the NLRA in part because the employees expressed their concerns before the salesman posted the event-related photos and commentary on Facebook. The judge reasoned that [t]he lone act of a single employee is concerted if it stems from or logically grew out of prior concerted activity. The judge also found that the inadequate refreshments offered at the sales event, could have had an effect on [the salesman s] compensation, deeming them an appropriate object of discussion. In finding the activity protected, the judge was undeterred by the posts mocking and sarcastic tone, noting that the NLRB s general position is that unpleasantries uttered in the course of otherwise protected concerted activity do not strip away the [NLRA s] protection.

SUV in the Pond The judge, however, ruled that the firing was nevertheless justified because the salesman s Facebook posts depicting the luxury SUV in a pond were not entitled to NLRA protection. The judge found that the salesman posted about the accident as a lark without any discussion with other employees and, more importantly, the posts had no connection to any of the terms and conditions of the salesman s employment. Based on testimony from both parties, the judge determined that the dealership fired the employee solely for the accident-related posts and, therefore, did not violate the NLRA. Employee Policy The judge also ruled on the NLRB s allegation that the dealership s employee policy provisions were overly broad in violation of the NLRA. The NLRB challenged the policy s statements that: (a) [a] bad attitude creates a difficult working environment and prevents the [d]ealership from providing quality service to our customers and (b) [n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the [d]ealership. Paragraphs (c) and (d) broadly prohibited employees from participating in interviews or responding to inquiries concerning employees. The judge held that paragraph (a) was lawful, as it would reasonably be read to protect the relationship between [the dealership] and its customers, rather than to restrict the employees [NLRA] Section 7 rights. Noting that the dealership sold luxury cars, the judge held that a dealer in that situation has the right to demand that its employees not display a bad attitude toward its customers. The judge agreed with the NLRB that paragraph (b) was unlawful because it could reasonably be interpret as curtailing Section 7 rights. The judge cited NLRB precedent finding unlawful a similar employer-created rule that prohibited insubordination or other disrespectful conduct because it chilled employee rights. As for paragraphs (c) and (d), the judge stated that if employees complied with these restrictions, they would not be able to discuss their working conditions with union representatives, lawyers, or Board agents. The judge held that paragraphs (c) and (d) were clearly unlawful as they explicitly restricted activities protected by Section 7 of the NLRA. Although the dealership had rescinded paragraphs (a) through (d) of their employee policy prior to the hearing, the judge held that simply rescinding the provisions was insufficient to relieve the dealership of liability. Accordingly, the dealership was ordered to post a notice informing employees of their right to engage in protected concerted activity. Our Take While ultimately favorable for the employer, the decision in this second Facebook firing case is consistent with the positions on employee rights that the NRLB has articulated in its recent enforcement actions.

Another important takeaway from the decision is the judge s finding that the policies that chill employees rights under Section 7 of the NRLA are unlawful on their face, regardless of whether an employer actually enforces the policy or the manner in which the policy is enforced. This ruling further emphasizes the importance of reviewing and, as appropriate, revising employee policies to ensure consistency with the NLRB social media guidance.

Nonprofit Must Rehire Employees Axed for Facebook Complaints Posted on September 8, 2011 by Nicole Friess In the first decision of its kind, a National Labor Relations Board ( NLRB or the Board ) Administrative Law Judge recently ruled on September 2, 2011 that a nonprofit organization unlawfully discharged employees for complaining about their jobs on Facebook. As we have previously discussed on our blog, the NLRB has been very aggressive in enforcing employees' right to engage in work-related discussions on social media. This is the first case involving Facebook that resulted in an ALJ decision following a hearing. Unlike prior NLRB enforcement actions, this case did not target the organization s social media policy or involve a unionized workplace. According to the NLRB decision, the employer Hispanics United of Buffalo fired five employees for criticizing work conditions on a Facebook comment thread. After one of the employees notified the NLRB regional office, NLRB Regional Director Rhonda Ley issued a complaint alleging that Hispanics United conducted unfair labor practices in violation of the National Labor Relations Act by interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the NLRA. Section 7 provides in part that employees have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRB has interpreted Section 7 rights to apply to both unionized and non-unionized personnel. Judge Arthur Amchan found that the employees were illegally discharged because the Facebook discussion was concerted activity protected under Section 7 of the NLRA. The discussion was protected because it involved a conversation among coworkers about their terms and conditions of employment. Although Hispanics United argued (in part) that the Facebook comments were not protected because persons other than Hispanics United employees may have seen them, Judge Amchan found that irrelevant as the first comment in the thread specifically asked for responses from co-workers. Furthermore, just as the protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing Judge Amchan noted, it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions.

The judge determined that the employees had not engaged in any conduct that could have forfeited their Section 7 rights. According to the decision, the comments were related to subject matter the employees had a protected right to discuss, there were no outbursts, and the employees had not violated any Hispanic United policies or rules. Although Hispanics United asserted that the employees conduct constituted harassment of an employee named on the Facebook comment thread in violation of its zero tolerance harassment policy, Judge Amchan found no evidence in the record supporting Hispanics United s position. In a first for a case involving employees' rights in the context of social media, the NLRB judge ordered Hispanics United to reinstate the five employees and awarded the employees back pay. Hispanics United was also ordered to cease and desist from discharging its employees due to their engaging in protected concerted activities and to post a notice at its Buffalo facility concerning employee rights under the NLRA and the organization's violations of those rights. On the heels of the NLRB report on social media enforcement, this ruling provides further guidance to employers regarding the NLRB's application of Section 7 to social media and the growing number of NLRB's social media enforcement actions. As we noted both in the context of discussing the NLRB s recent enforcement actions and the agency's social media report, employers should carefully review and adjust their communications and social media practices and policies to comply with the NLRB's guidance on employees' Section 7 rights.

NLRB Report Reviews Social Media Enforcement Actions Posted on August 31, 2011 by Boris Segalis On August 18, 2011, the Associate General Counsel of the National Labor Relations Board ( NLRB or the Board ) issued a report analyzing the Board s recent social media enforcement actions. The report seeks to provide guidance to employers that want to ensure that their social media policies appropriately balance employee rights and company interests. As we have discussed on our blog, the NLRB has been very active since late 2010 in enforcing employees rights to discuss working conditions through social media. The Board's numerous enforcement actions have focused on employees work-related statements on social media platforms such as Facebook, Twitter and YouTube. The enforcement actions have addressed employees social media activities in the context of their rights under Section 7 of the National Labor Relations Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Employers may not discipline or terminate employees (either unionized or nonunionized) for exercising their Section 7 rights. The report suggests that the NLRB views as protected a broad scope of social media activity that addresses working conditions.

It also suggest that the Board sets a low threshold for finding that such activity is concerted i.e., undertaken with or on the authority of other employees, and not solely by and on behalf of the employee himself. While each enforcement action represents a unique set of circumstances, generally, the NRLB has found employees social media activity to be protected when the statements expressed employees sentiment about working conditions, whether or not the actual postings involved one or more employees. Examples of activities the Board deemed protected include discussions on social media that implicated working conditions and that were initiated by one coworker in an appeal to other coworkers for assistance; postings provoked by a supervisor s allegedly unlawful activity; and postings that vocalized employees' sentiment about working conditions that the employees expressed in off-line conversations, even where coworkers did not post comments to the initial post by one of the employees. The report also sets out various employee social media policy provisions that the NLRB found to infringe on employees Section 7 rights. According to the report, the NLRB may view as unlawful (often because the Board viewed them as overly broad) social media policies that:
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Prohibit employees from posting pictures of themselves in any media, including the Internet, which depict the company in any way, including posting featuring a company uniform or corporate logo; Prohibit employees from making disparaging comments when discussing the company or the employees' superiors, coworkers or competitors; Generally prohibit, in the application to social media, offensive conduct and rude or discourteous behavior; Prohibit inappropriate discussions about the company, management or coworkers; Prohibit any use of social media that may violate, compromise or disrtegard the rights and reasonable expectations as to privacy and confidentiality of any person or entity; Prohibit any communications or posts that constitute embarrassment, harassment or defamation of the employer or its employees, officers, board members, representatives or staff members; Prohibit statements that lack truthfulness or might damage the reputation or goodwill of the employer, its staff or employees;

Prohibit employees on their own time from using social media to talk about company business, from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy, from disclosing inappropriate or sensitive information about employer, or from posting any pictures or comments involving the company or its employees that could be construed as inappropriate; Prohibit employees from using the company name, address or other information on their personal profiles; Prohibit employees from revealing personal information regarding coworkers, company clients, partners or customers without their consent; or Prohibit the use of employer s logos and photographs or of the employer s store, brand or product without written authorization.

As we have previously noted in the context of discussing the NLRB s social media enforcement actions, the Board s view of employees Section 7 rights in the context of social media requires employers to carefully review and adjust their communications and social media policies and practices. The Board's report further suggests that employers need to tailor their social media policies narrowly to protect company interests without infringing on employees rights.

NLRB Social Media Enforcement Article in LawyersUSA Quotes Partner Boris Segalis Posted on July 6, 2011 by Boris Segalis The LawyersUSA article discusses the recent enforcement actions the National Labor Relations board has taken to assert and protect employees' right to discuss working conditions, including through social media. The article also suggests steps employers may take to navigate the evolving legal landscape. Please visit the InfoLawGroup blog for more on NLRB privacy enforcement.

Facebook Firing III -- NLRB Strikes Twice in May! Posted on May 26, 2011 by Boris Segalis Yesterday, we reported that the National Labor Relations Board (NLRB) took enforcement action on May 9, 2011 against against Hispanics United of Buffalo, a nonprofit organization that provides social services to low income clients, for firing employees over Facebook comments.

The NLRB announced today that it took yet another "Facebook firing" enforcement action on May 20, 2011. In this latest action, the NLRB alleged that a Chicago area BMW dealership fired an employee for posting critical photos and comments on Facebook. The car salesman and coworkers were concerned about the quality of food and beverages at a dealership event promoting a new BMW model. The salesmen complained that their sales commissions could suffer as a result. Following the event, one salesman posted photos and commentary on his Facebook page criticizing the employer for serving only hot dogs and bottled water to customers at the event. Other employees had access to the Facebook page. The following week, the dealership s management asked the salesman to remove the posts, and he immediately complied. Nevertheless, shortly after a meeting with managers, the employee was terminated for posting the images and comments on Facebook. The NLRB alleged that the employee s Facebook posting was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments. The case is scheduled to be heard by an administrative law judge on July 21, 2011 in the Chicago Regional office of the NLRB. InfoLawGroup Says: The NLRB's third enforcement action makes a strong statement about the agency's view on the scope of employee social media protections, including the discussion topics the agency views as protected. The action item for employers is to carefully review and, as appropriate, revise their social media and employee conduct policies to ensure consistency with the NLRB guidance.

Another Facebook Firing Enforcement Action Brought by NLRB Posted on May 24, 2011 by Boris Segalis We previously reported on our blog that a Connecticut ambulance company settled the National Labor Relations Board's (NLRB's) allegations that the company violated an employee s federal rights by firing her for criticizing a manager on Facebook. The NLRB continues its enforcement blitz with another Facebook firing complaint. On May 18, 2011 NLRB announced that it filed similar allegations against Hispanics United of Buffalo, a nonprofit organization that provides social services to low income clients. The NLRB alleged that the nonprofit unlawfully discharged five employees after they criticized working conditions, including work load and staffing issues, on Facebook.

According to the NLRB, one employee, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker s allegation that the organization's employees did not do enough to help clients. Other employees responded on Facebook, defending their job performance and criticizing working conditions, including work load and staffing. After learning of the posts, the employer discharged the five employees who participated in the Facebook exchange. The organization claimed that the employees' comments constituted harassment of the employee originally mentioned in the post. The NLRB alleged that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. The complaint will be the subject of a hearing before an administrative law judge on June 22, 2011, in the Buffalo office of the NLRB. InfoLawGroup Says: The action item for employers is to carefully review and, as appropriate, revise their social media and employee conduct policies to ensure that the policies balance business needs and employees' rights consistently with federal law and NLRB guidance.

InfoLawGroup's Boris Segalis Interviewed by Fox Live on NLRB Facebook Firing Settlement Posted on February 9, 2011 by Boris Segalis Yesterday we wrote on our blog about the NLRB's Facebook firing settlement. I was interviewed on Fox Live this morning about the case, its implications for employees and businesses, and other developments in workplace privacy. You can view the clip by clicking here.

Employer Settles Facebook Firing Suit with NLRB Posted on February 8, 2011 by Boris Segalis The National Labor Relations Board (NLRB) has announced that settlement has been reached in the closely watched Facebook firing suit brought by the agency. We have previously reported that the NLRB filed an administrative complaint against a Connecticut ambulance company alleging that the company violated an employee s federal rights by firing her for criticizing a manager on Facebook.

In the complaint, the NLRB took the position that union and non-union employees have a right to criticize their employers, management or working conditions, and cannot be punished for engaging in such protected activity. The NLRB also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. The complaint asserted that an employee s right to criticize the employer and management is an extension of the federal right to discuss unionization and form unions. Under the terms of the settlement approved by the NLRB s Regional Director Jonathan Kreisberg, the company agreed to revise its policies to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work. The company also committed not to discipline or discharge employees for engaging in such discussions. The allegations involving the employee s discharge were resolved through a separate, private agreement between the employee and the company. The NLRB hopes that the action delivers a broader message to employers. According to AP, Mr. Kreisberg stated that the settlement sends a message about what the NLRB views the law to be. Mr. Kreisberg viewed as most significant the employer s agreement to revise its rules to relax the restrictions on the employees right to discuss their work conditions with others and with their fellow employees. Mr. Kreisberg added that the NLRB is looking at a growing number of complaints that explore the limits of corporate Internet policies. The NLRB suit and the settlement do not mean that the right to talk about employers on the Internet or outside of work is absolute. For example, if an employee lashes out against a supervisor, but is not communicating with employees in doing so, the activity may not be protected. In addition, making false, defamatory statements about the employer or disparaging remarks unrelated to work (for example, about a supervisor's family or personal life) is likely not protected by federal law. The action item for employers is to carefully review and, when appropriate, revise their social media and employee conduct policies to ensure that the policies balance business needs and employees' rights consistently with federal law and NLRB guidance.

Employee Privacy Gains in the United States Posted on January 13, 2011 by Boris Segalis 2010 arguably was a breakout year for consumer privacy in the U.S., but the year also brought about significant changes to the legal landscape of employee privacy. Federal and state court decisions, state legislation and agency actions suggest that the U.S. may be moving towards a greater level of privacy protection for employees. Employers are well-advised to consider these developments in reviewing and revising policies that affect the privacy of their employees.

Traditionally, in the U.S., employees have enjoyed little privacy in the workplace. With respect to workplace communications, for example, employees generally are deemed not to have a reasonable expectation of privacy. With some limitations, this allows employers to freely monitor and review employee communications. Employees in the U.S. often must abide by company rules that limit or prohibit personal use of workplace email and provide for monitoring of all employee electronic communications. Companies also may impose sanctions on employees for criticizing or disparaging the employer outside of work, including on social networking websites. In another example of limited workplace privacy, employers regularly obtain credit reports regarding job applicants or employees being considered for promotions. While obtaining a credit report for employment purposes requires the consent of the individual, applicants and employees often are reluctant to withhold consent for fear of compromising their chances of landing a job or a promotion. Many employers obtain credit reports regardless of whether financial considerations are relevant to the job. The recent court decisions, laws and agency actions we recap in this blog post are changing the workplace privacy rules. Employers should consider these developments carefully in evaluating their human resources, information technology, electronic communications and other policies that affect employee privacy. U.S. Supreme Court Offers Guidance on Employee Privacy in City of Ontario, California v. Quon On June 17, 2010, the U.S. Supreme Court ruled in City of Ontario, California v. Quon that a police department did not violate an officer s Fourth Amendment rights when the officer s supervisor reviewed personal text messages the officer sent using a workissued pager. The Court held that the search of the messages was reasonable, and did not resolve the question of whether the officer had a reasonable expectation of privacy in the text messages. The Court stated that it was reluctant to wade into employee privacy debate in light of the novelty of the issue, the implications of opining on emerging technology before its role in the society has become clear, and the risk of making a ruling that is not fully informed. The Court, however, set out some of the issues it could have considered had it been inclined to make a ruling on the employee s privacy expectations. The Court observed that in Quon a finding of an expectation of privacy in text messages could have been supported by the ubiquity of mobile communications that makes the communications essential or necessary instruments for self-expression, even self-identification. On the other hand, the Court suggested that the ubiquity of messaging devices also made them generally affordable, so that employees who need mobile devices for personal use can purchase and pay for their own. The Court observed that employee communications policies shape the reasonable expectations of their employees, especially when such policies are clearly communicated to the employees. The Court left open, however, the possibility that a supervisor s statement guaranteeing the privacy of an employee s communications, even if contrary to the company policy, may create an expectation of privacy in the communications by the employee.

The court also noted the difference between an employer s review of workplace communications vs. personal communications. Specifically, the Court observed that an audit of messages on an employer-provided device was not nearly as intrusive as a search of an employee s personal email account or pager would have been. Lower courts likely will look to the Supreme Court s views on employee privacy in considering privacy claims. Likewise, employers should consider the Court s discussion of employee privacy in developing and implementing employee monitoring policies. The key lessons for private employers from Quon are to (i) have a communications policy that is clear and comprehensive in scope and clearly communicated to employees; (ii) train management to follow company policies and not contradict them; (iii) when conducting a review of communications that might be inconsistent with the company s electronic communications policy, ensure that there is a legitimate business reason for the review and be cautions to review only what is necessary; (iv) stay abreast of changes in privacy laws and relevant court decisions. New Jersey Supreme Court Upholds Privacy Claims in Stengart v. Loving Care Agency, Inc. Private employers should pay equal if not greater attention to many state court cases that have dealt with the issue of employee privacy. Unlike Quon, these state court decisions (as well as federal court decisions that apply state law) are directly applicable to private employers. In arguably the most important state decision on employee privacy of 2010, the New Jersey Supreme Court ruled, on March 30, 2010, for the former employee on the employee s claim that state s common privacy law protected certain of the employee s emails from review by her employer. The New Jersey Supreme Court considered whether the former employee Ms. Stengart had a reasonable expectation of privacy in certain emails she exchanged with her attorney. The email exchange took place over Stengart's personal, web-based email account. Stengart, however, used her company-issued computer for the communications. Images of the emails were saved by the employer s monitoring system, which retained every web page visited on the computer. In the course of subsequent litigation against Stengart, Loving Care the former employer retrieved Stengart s communications with her attorney from the laptop and sought to use the emails in the litigation. Stengart argued that the employer could neither review the emails nor use them in the litigation because she had a reasonable expectation of privacy in the communications. The New Jersey Supreme Court agreed. The Court found the company s electronic communications policy to be ambiguous and interpreted the ambiguity against the employer. The policy stated that the company could review any matters on the company s media systems and services at any time, and that all emails and communications were not to be considered personal or private to employees. The Court found the policy s disclosure of employee monitoring insufficient because it did not inform employees that the company stored and could retrieve copies of employees private web-based emails.

The Court also concluded that the policy failed to state expressly that the company would monitor the content of email communications made from employees personal email accounts when they were viewed on company-issued computers. The Court held that Stengart had a subjective expectation of privacy in communications she sent using her personal web-based email account, and that the company s ambiguous boilerplate electronic communications policy did not quash Stengart s expectation of privacy in the emails. The Court acknowledged that employers may adopt and enforce lawful policies relating to computer use to protect the assets and productivity of a business. The Court held, however, that an employer may not read the contents of an employee's attorney-client communications sent or received using personal web-based email. The Court held that a policy that allows the employer to review such communications is unenforceable. Although the decision dealt with attorney-client communications, it also has implications for any personal emails (such as communications regarding health or financial issues) employees send over private web-based email accounts. For example, the court noted that employers that record and review screen shots on workplace computers will need to provide employees with a detailed, specific notice of such monitoring to the extent the screen shots also record emails employees send or receive via private web-based accounts. The Court also cautioned that a policy that permits occasional personal use of workplace email systems may create an expectation of privacy by employees with respect to personal emails they send or receive via company email. NLRB Alleges Firing an Employee for Facebook Comments Violates Federal Law On November 8, 2010, the National Labor Relations Board (NLRB) filed an administrative complaint against an employer, alleging that the company violated an employee's federal rights by firing her for criticizing her manager on her Facebook page. The NLRB took the position that employees have a right to criticize their employers, management or working conditions, and cannot be punished for engaging in such protected activity. The terminated employee was a union member, but the NLRB asserted that the right to criticize is equally applicable to nonunion employees because it is an extension of the federal right to discuss unionization and form unions. Employers should consider the NLRB complaint carefully in reviewing their policies regulating social media use and behavior outside of the workplace. In this case, the employer's policy was rather extreme; it barred employees from depicting the company in any way on Facebook or other social media sites where the employees posted their pictures, or from making disparaging or discriminatory comments when discussing the employer or management. The NLRB action does not mean that the right to talk about employers on the web or outside of work is absolute. For example, if an employee lashes out against a supervisor, but is not communicating with employees in doing so, the activity may not be protected (in this case, other employees participated in the Facebook discussion of the former employee s manager).

In addition, making false, defamatory statements about the employer or disparaging remarks unrelated to work (for example, about a supervisor's family or personal life) is likely not protected by federal law. States and Federal Regulators Push to Restrict Use of Credit Reports for Employment Purposes The drive to limit the use of credit reports for employment purposes is in large part a reaction to the damage the continuing economic downturn has inflicted on individuals credit histories, creating a barrier to the individuals ability to reenter the workforce. In 2010, Illinois and Oregon enacted legislation that limits the use of credit reports for employment purposes. Similar laws are in place in Hawaii and Washington and are being considered in Connecticut, Illinois, Maryland, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, South Carolina, Vermont and Wisconsin. In addition, the federal Equal Employment Opportunity Commission (EEOC) filed an unusual action accusing an employer of discriminating against black job applicants in the hiring process on the basis of using the applicants credit histories. The Illinois law, the Employee Credit Privacy Act, became effective January 1, 2011. The Act makes it illegal for employers to discriminate against job applicants on the basis of their credit histories and outlaws inquiries about applicants and employees credit histories. The law permits employers to conduct background investigations that do not include a credit history or report. In addition, the Act allows employers to obtain and consider credit reports in connection with jobs that involve (i) bonding or security under state or federal law; (ii) custody of, or unsupervised access to, $2,500 or more in cash or marketable assets; (iii) signatory power over businesses assets of $100 or more per transaction; (iv) management and control of the business; or (v) access to personal, financial or confidential information, trade secrets, or state or national security information. The law includes a private right of action, including the right to sue for injunctive relief and obtain attorneys fees. The Oregon law came into effect on July 1, 2010. With certain exceptions, the law prohibits Oregon employers from using credit history in making hiring decisions or any decision affecting current employees. The law exempts from the prohibition federallyinsured banks and credit unions, businesses required by law to consider employee credit history, and police and other public employers when hiring for law enforcement or airport security positions. In addition, the law permits employers to conduct credit checks for substantially job-related reasons provided the reasons are disclosed to the employee in writing. The Oregon law gives individuals the right to file an administrative complaint or a private lawsuit, and allows the recovery of attorneys fees. While there is no federal prohibition against the use of credit reports for employment purposes, it appears that federal regulators may be seeking to curtail the practice. Specifically, in December 2010, the Equal Employment Opportunity Commission sued an employer in connection with use of credit reports in the hiring process. The EEOC alleged that the company used the reports in a way that discriminated against black job applicants.

Emphasizing the broader reasons for the suit, the EEOC signaled that it believes that employers are denying jobs to applicants with damaged credit histories in cases where creditworthiness does not appear to be directly relevant to the job. The EEOC noted that credit histories are not complied to evaluate responsibility, are often inaccurate, and may not be a good indicator of an individual's qualifications for a particular job. In the suit, the EEOC alleged that rejecting applicants based on credit histories had a significant disparate impact on black applicants. In addition to other relief, the EEOC is seeking a permanent injunction to stop the employer s use of credit histories in hiring and other employment decisions. Additional Information Regarding Workplace Privacy Issues For more information about privacy issues in the workplace, please join us for a webinar on January 27, 2011. The webinar, offered through Park Avenue Presentations, will focus on workplace privacy in the U.S. and Europe. Please email bsegalis@infolawgroup.com for registration details.