Social Media

Employee Relations

In the Age of Social Media

There is a constant
balancing act between two
conflicting priorities.

Employee rights to engage in
Reasonable workplace policy
“concerted activity” for their
which maintains order and
“mutual aid and protection.”
helps avoid liability.

It is still unclear
where social media
fits into this balance.


And the courts have
yet to produce a
ruling that settles it.


When considering workplace privacy rights
in the age of Facebook and Twitter,
“we are not walking on paths of concrete….

John Quirke, Archer & Greiner
SHRM Employment Law and Legislative Conference, 14 March 2011

We are walking on paths of shifting sand.”


At the end of the day, hopefully the
sand you stand on will be a little firmer.



This presentation will enable you to
(1) recognize protected concerted activity
and (2) craft a defensible internet policy to
make sure you respond appropriately to it.



The NLRA

i.e., a piece of legislation from 1935.

The NLRA

That‟s when we got Social Security, too.

The NLRA

And in case you‟re curious in what ways
the world was different back then, a
house cost $6,300, the average salary
was $1,500, and gas was $.19/gallon.

The NLRA

Just to name a few.

The NLRA

And we all know what people
from 1935 can be like.

Section 7. [29 U.S.C. § 157]
Right of Employees to Organize
Employees shall have the right to… engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.

Section 8. [29 U.S.C. § 158]
Unfair Labor Practices by Employer
It shall be unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7.

Section 7. [29 U.S.C. § 157]
The intent was to equalize bargaining
power between the big, bad company
and wittle-ittle employees.

Section 8. [29 U.S.C. § 158]

Section 7. [29 U.S.C. § 157]
Concerted activity includes
discussion of wage, hour, and
working conditions.

Section 8. [29 U.S.C. § 158]

Section 7. [29 U.S.C. § 157]
For example, employees getting
together and talking about their
pay or benefits are protected.

Section 8. [29 U.S.C. § 158]

Section 7. [29 U.S.C. § 157]

You “chill” these rights…

Section 8. [29 U.S.C. § 158]

Section 7. [29 U.S.C. § 157]
…when you discourage
(i.e. interfere with, restrain, coerce)
employees from exercising them.

Section 8. [29 U.S.C. § 158]

Section 7. [29 U.S.C. § 157]

Brrrr.

Section 8. [29 U.S.C. § 158]

Section 7. [29 U.S.C. § 157]
Yet how employees need to be “organized”,
or joined, in their engagement is unclear
as the influence of social media grows.

Section 8. [29 U.S.C. § 158]

Now, you may be thinking that employees
can say anything they want about their work
and the people they work with.

Well, they can‟t. So, if you‟ve been waiting
decades to tell that %$@!#$ @#$%*& of a
boss what you really think of him…

Congress shall
make no law…

abridging the
freedom of speech

The First Amendment
prohibits Congress from
infringing on free speech.

Congress shall
make no law…

abridging the
freedom of speech

It doesn‟t say anything
about employers.

Congress shall
make no law…

abridging the
freedom of speech

Technically, employers can prohibit
employees from engaging in any speech
during work time that is not work-related.

Congress shall
make no law…

abridging the
freedom of speech

And technically, employees can be fired
for “talkin‟ smack” about their bosses.

Congress shall
make no law…

abridging the
freedom of speech

For example…

Wal-Mart Stores, Inc. v. Smitherman (1999)

An employee is discharged for making a profane and derogatory
statement about a district manager. She made this statement in front
of two other employees while in the break room.

Wal-Mart Stores, Inc. v. Smitherman (1999)

An employee is discharged for making a profane and derogatory
statement about a district manager. She made this statement in front
of two other employees while in the break room.

On the bright side, she can profane
as much as she wants now.

Recent Cases

Involving Social Media

Meaning that, in the
grand scheme of things…

…it‟s more of a
“guideline” than a “rule”.

Counsel. Suggestion.
Innuendo.

Employee requests union representation for an
investigatory interview. Request is denied.

Employee is upset, and makes vulgar comments on her
Facebook page.

Co-workers join in the online discussion in support of
employee‟s disparaging comments about supervisor.

Two months later, employee is terminated.

Case Issue Ruling Result

Employee requests union representation for an
investigatory interview. Request is denied.

Employee is upset, and makes vulgar comments on her
Facebook page. This brings in the
“concerted” of “protected
concerted activity”.

Co-workers join in the online discussion in support of
employee‟s disparaging comments about supervisor.

Two months later, employee is terminated.


Then comes the lawsuit.

There were two other issues in addition to
the termination, but the termination is the
one we‟re concerned with.


“A settlement has been reached…

“Blah, blah, complaint alleged, blah,
violated federal law, blah…

“The allegations involving the
employee‟s discharge were resolved
through a separate, private agreement
between the employee and the
company.”




company.”

The issue that is the most
relevant wasn‟t even
settled with the NLRB.




company.”

Not that a settlement
matters anyway.




company.”

(Remember
the spoiler?)


Plus…


…because of the settlement, the
reason for termination was never
determined definitively.


Meaning, we don‟t know if she was
really fired for the Facebook comments,
or just being a terrible employee.


So we don‟t really have anything “legal”
to go on as a result of this case.


Sorry for the lame ending.


Ha.

Sorry for the lame ending.


This went to trial, so
we get a lot more
out of this case.

ADS encourages reporters to open Twitter accounts.

Reporter creates an account, references the ADS as his
employer, and includes a link to the ADS website.

“The ADS‟s copy editors are the most witty and creative
people in the world. Or at least they think they are.”

Reporter meets with HR and managers –
directed not to air grievances like that.





And the reporter
shaped up. The end.





Just kidding.


“You stay homicidal, Tucson.
See Star Net for the bloody deets.”

“What?!?!? No overnight homicide? WTF?
You‟re slacking Tucson.”

“Hope everyone‟s having a good Homicide Friday,
as one Tucson police officer called it.”

“ „Drug smuggler tries to peddle his way into the U.S.‟
Um, I believe that‟s PEDAL. Stupid TV people.”


Reporter meets again with managers; told not to tweet
anything work related until a follow-up meeting.

Reporter changes his Twitter name, removes
some of his supervisors as followers,
and tells co-workers to “be careful.”

Reporter is suspended and subsequently terminated.


Was the conduct of the reporter
“protected concerted activity”?


The termination was legal because the
reporter “was terminated for writing
inappropriate and offensive Twitter
postings that did not involve protected
concerted activity.”


The termination was legal because the
reporter “was terminated for writing
inappropriate and offensive Twitter
postings that did not involve protected
concerted activity.”

It did not relate to the terms and
conditions of his employment or
seek to involve other employees
in issues related to employment.


“Stop airing grievances or commenting
about the ADS in a public forum.”

“You are not allowed to tweet anything work related.”

“You are to refrain from using derogatory comments
in any social media forums that may damage
the goodwill of the company.”


Employers can take action based on
comments made in social media
forums, as long as the comments do not
constitute protected concerted activity.


Recent Cases

Involving Protected Concerted Activity

Lutheran Heritage Village - Livonia

This case answers the question, “What policies
could reasonably chill Section 7 rights?”


Brrrr.

A policy chills
protected activity if:

The rule does not explicitly
The rule explicitly restricts
restrict protected activities,
protected activities
but:

Employees would reasonably construe the
language to prohibit protected activity

The rule was promulgated in response to
union activity

The rule has been applied to restrict the
exercise of protected rights

Sears Holdings

This case answers the question, “What do
companies need to do to meet the criteria set up
in Lutheran Heritage Village-Livonia?”

Sears Holdings

The Sears‟ Policy had the
following characteristics:

It was given a purpose

It had a disclaimer

“Egregious misconduct” was clarified by examples

No disciplinary action was taken based on the policy.

Sears Holdings

It was given a purpose

“In order to ensure that the Company and its
associates adhere to their ethical and legal
obligations…”
“In order to maintain the Company’s reputation
and legal standing…”

Sears Holdings

It had a disclaimer

“The intent of this Policy is not to restrict the
flow of useful and appropriate information, but
to minimize the risk to the Company and its
associates.”

Sears Holdings

“Egregious misconduct” was clarified by examples

• Confidential information of company or clients
• Embargoed information or intellectual property
• Explicit sexual references
• Reference to illegal drugs
• Obscenity or profanity
• Disparagement of protected classes

Sears Holdings

No disciplinary action was taken based on the policy.

Sears Holdings

“No employee could reasonably construe the
(Policy) to prohibit Section 7 activities.

“(There is no evidence) that the Policy was
promulgated in response to the Union campaign,
the s-tech listserv discussions, or any other
Section 7 activity.

“There is no evidence that the Employer has used
the policy to discipline any employee for engaging
in protected activity.”

Sears Holdings


Section 7 activity.

in protected activity.”

Sound familiar? Remember the
criteria that was set up in
Lutheran Heritage Village case?

Sears Holdings


Section 7 activity.

in protected activity.

What Now?

How to Apply NLRB Decisions

Formulate a specific policy regarding the
use of social media.
• Define social media
• State the employer‟s position on the use of
social media to discuss the company
• Identify specific prohibited topics
• Encourage employees not to mix business
with personal postings

“Ultimately, the „keep it job-related mantra‟
needs to come into play.”

Remove prohibitions against discussing wage, hour, and working
conditions with other employees from any policy you maintain.

Content Format Implementation

Have a purpose.
Have a disclaimer.
Use lists to clarify policy and give prohibitions context.


Do not impose policies in response to unionization.
Do not discipline employees for talking about protected topics.


Like when an employer allows employees to check their
Facebook pages during break time, but then prohibits them
from doing so when employees start complaining on
Facebook about working conditions.




This is why the Twitter case worked out – the
employee was not fired for talking about
protected topics. He was fired for talking about
unprotected topics.


Bad homicide jokes.




Yes. Bad homicide jokes. Thank you.


Businesses are currently on a sandy foundation when it comes to social media.

There is a fine balance between the need for protection and employee rights.

The NLRA gives employees the right to organize.
The NLRA prohibits employers from interfering with this right.

Employees do not have absolute rights to the freedom of speech at work.

Social media forums are acceptable places for employees to “organize”.

Posting within social media forums can still leave employees vulnerable.

There is a clear criteria around which to frame a social media policy.

Don‟t prohibit protected activity.
Use a purpose, disclaimer, and lists in policies.

Call real lawyers with concerns.

Daniel Larsen ▪ http://www.linkedin.com/pub/daniel-larsen/19/8b8/910

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