Friday, May 27, 2011

NLRB Issues a Trio of Complaints on Facebook Firings

Do you believe in the saying that “bad things come in threes?”  Well, at least for employers, that saying rings true this week given the announcement that the National Labor Relations Board (“NLRB”) has filed a third labor law complaint related to adverse employment actions allegedly based on Facebook postings by employees.  The increasing frequency with which the NLRB is seeking to enforce its stance on Facebook postings is further reason for employers to consider adopting carefully drafted social media and technology policies, related policies on solicitation and distribution in the workplace, and to tread carefully when gathering or acting on data posted by employees online.

On May 24, 2011, the NLRB announced that it had filed a complaint against Knauz BMW, a Chicago-area car dealership, for wrongfully terminating a sales employee after he criticized the company on his Facebook page.  Apparently, the sales employee felt the dealership had negatively impacted sales potential by serving low-end food and drinks at an event promoting a luxury BMW, and the employee posted critical comments and supporting photographs on Facebook.  The employee was subsequently fired, and the NLRB is challenging the termination as violating the employee’s Section 7 labor law rights to engage in “protected concerted activity.”  Other employees of Knauz BMW had access to the Facebook page in question.

We’ve mentioned the NRLB’s earlier two complaints in previous blog posts and in our firm newsletter.  To briefly recap, the NLRB filed its first Facebook complaint last year against American Medical Response (“AMR”), a unionized Connecticut employer, alleging that AMR wrongfully fired an employee whose request for union representation in a meeting was denied and who later complained about her supervisor on Facebook.  The NLRB maintained that the employee’s actions were protected under Section 7 of the National Labor Relations Act (“NLRA”), which protects employees engaging in concerted activity for purposes of collective bargaining or other mutual aid or protection regardless of whether a workplace is unionized.  The NLRB also maintained that AMR’s social media policy, which prohibited disparagement of AMR, interfered with Section 7 rights.  The AMR complaint was settled before a decision was reached.

As mentioned earlier this week by my colleague Bryan Seiler, the NLRB subsequently filed a second complaint on May 9, 2011, against a non-unionized New York non-profit employer for discharging five employees based on statements made on Facebook about their work efforts.  While the NLRB maintains that the employees’ posts were protected concerted activity, the New York employer apparently maintains it fired the employees for harassing a co-worker.  It is not clear whether the employer was seeking to address unlawful harassment based on protected class status (such as gender, race, age, etc.) or whether the employer was trying to address some of other form of “harassment” that might not be unlawful.  If the employer was trying to address it legal obligations to prevent protected class-based discrimination or harassment, the employer’s defense may raise interesting issues given an employer’s obligations to comply with labor law, but also to prevent and respond to unlawful harassment and discrimination in the workplace.

In addition to this trio of complaints, there have been news reports that the NLRB may bring additional complaints and a recent blog post claims there are currently 15 non-NLRB lawsuits pending over Facebook firings.  All of this activity reinforces the need for employers to take great care to comply with the law in adopting and implementing social media and technology policies, gathering online data, and deciding whether and how to act on online data.  Among other steps, an employer may want to include clear language in social media and technology policies that nothing in the policy is meant to contradict or interfere with employees’ legal rights, including but not limited to Section 7 rights under the NLRA.

Technology, Law, and the Workplace: Week in Review

The New York Times ran an article this week that discusses the U.S. Army's increased use of social media to reach out to recruits. In short, the U.S. Army has launched a mobile application and is increasing efforts to reach out to new recruits via social media, including a Facebook page and a mobile blogging web page. Although I wrote about this development in a previous post, this week's article stood out to me in light of the upcoming Memorial Day holiday.

While change in recruiting tactics is nothing new for the U.S. Army, this story provides an interesting reminder to employers everywhere that success in recruiting and retaining your workforce requires constant adaptation. Although the core values and mission of the U.S. Army remain the same, the organization has taken it upon itself to adapt its message into a new medium to reach out to the next generation of its workforce. We could all take a page from the Army's book in this regard.

Technology in the Workplace
Technology and the Law More Generally
Technology in the News
  • Facebook is Developing Ways to Share Media (NY Times)
  • Raptr Wants to Kill Information Overload (Bits)
  • Your Toyota Would Like To Friend You Now (Fast Company)
  • After Joplin Tornado, Social Media Helps Victims Piece Together Lives (Fast Company)

Monday, May 23, 2011

Technology, Law, and the Workplace: Week in Review

This week, the National Labor Relations Board once again waded into the controversial waters of social media. Earlier this week, the Regional Director in Buffalo, New York issued a complaint against a nonprofit employer for its discharge of five employees based on statements made by the employees on Facebook. According to the NLRB's press release:
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.
This latest "Facebook firing" case provides yet another example—as if employers needed one more—of the broad stance being taken by many Regional Offices of the NLRB. Under this view, any online discussions regarding work conditions are protected activity under Section 7 of the National Labor Relations Act. Whether the National Labor Relations Board, and ultimately the courts, will adopt this approach is another matter. However, the message for employers today remains the same: be sure to think carefully before taking action against an employee for that employee's online discussions about work conditions.

Technology in the Workplace
Technology and the Law More Generally
Technology in the News
  • Internet Filters Set Off Protests Around Turkey (NY Times)
  • In This Sky, the Planes Fly Alone (NY Times)
  • Facebook, Foe of Anonymity, Is Forced to Explain a Secret (NY Times)
  • New Ways to Exploit Raw Data May Bring Surge of Innovation, a Study Says (NY Times)
  • Speaking Up in Class, Silently, Using Social Media (NY Times)
  • With Chromebook, the forecast looks increasingly cloudy (American Public Media)

Friday, May 20, 2011

Caution Employees and Former Employees! Big Brother Might be Reading

Last week, I provided some training to a client’s HR team on conducting investigations.  As we were working through some hypothetical situations, the discussion turned to accessing employees’ emails.  The group knew that their company’s policy addressed accessing the emails of current employees, clearly warning company email is not private and that it could be accessed or monitored by the company.  That being said, one individual raised concerns about accessing a recently departed employee’s emails.  She was concerned about who should have access to the email, and for what purpose and time frame the email should be accessed.  These were all good questions and ones that your company should give some thought to in advance.

Depending on the circumstances surrounding an employee’s departure, a review of the departing employee’s email could reveal important and useful information.  For example, you may discover that your departing employee began operating a competing business before he or she left.  Alternatively, it could be critical to your ongoing business operations for you to be aware of recent communications with customers, vendors, or even other employees.  In order for your business to have the ability to access these emails without inviting a viable invasion of privacy claim, there are a few important steps that your company should take. 

First, adopt and disseminate a well-drafted technology policy that clearly outlines that email is not private, and that it can be accessed and monitored by the company with or without notice to the author or recipient of the email.  Although your company will generally want to have a good reason for accessing an employee’s emails, be sure that your written policy doesn’t overly restrict the circumstances under which you can access an employee’s email. 

Second, consider adopting procedures (not to be included in the handbook) for requesting and granting access to a departed employee’s email.  I recommend that those requests be filtered through your HR department and address issues such as: who is requesting access, for what purpose and for what period of time.  Consider whether it might be appropriate to have a disinterested individual (not the employee’s coworker or manager), perhaps someone from HR, do an initial review of the emails to flag those emails that might be relevant.  If, for one reason or another, it isn’t practical to have someone from HR do an initial review, then consider limiting who will have access to the emails.  Additionally, be sure that the individual reviewing the emails is advised that although the company has the right to review these emails, he or she should treat any personal emails as confidential.  For example, if the reviewer reads an email that discloses the former employee’s HIV status, you want the reviewer to be aware that he or she should not share that information with others.  Even though the initial access to the email was proper under the company’s policy, if the individual reviewing the personal email shares that information with others, the company’s policy will do little to protect the individual and the company from a claim of invasion of privacy or infliction of emotional distress.  Giving some careful thought to these issues and implementing a policy and procedures in advance can help your company reduce the risk of facing such claims.

Monday, May 16, 2011

Minnesota Legislators Introduce Anti-Workplace Bullying Law

As Megan Anderson wrote in her post "Does Your Company Have a "Workyard" Bully?," proposed anti-workplace bullying legislation is on the rise across the country.  Earlier this month, the trend made its way to the Land of 10,000 Lakes, as Minnesota became the 21st state to introduce workplace bullying legislation

The legislation, introduced as S.F. No. 1352, has been referred to the Minnesota Senate's Jobs and Economic Growth Committee.  A companion version, H.F. 1701, was introduced in the Minnesota House of Representatives and referred to the House Commerce and Regulatory Reform Committee.  The proposed law forbids both employers and employees from subjecting employees to an abusive work environment, which the law defines as “conduct, including acts or omissions, that a reasonable person would find hostile, based on the severity, nature, and frequency of the conduct.”  Although the law provides employers with affirmative defenses in certain circumstances, the law could significantly expand employer liability for conduct in the workplace.

With Republican majorities in both the Minnesota House of Representatives and Senate, anti-workplace bullying legislation seems unlikely to pass in Minnesota in the near future.  New York came close to passing anti-bullying legislation last year, however, and the passage of a law in that state could create more support for such legislation in Minnesota or other states.  We will continue to monitor and provide updates on the status of this important development for Minnesota employers.

Friday, May 13, 2011

Technology, Law, and the Workplace: Week in Review

This Week in Review highlights the divide between on-duty and off-duty conduct of employees. Several articles from the last week involve stories about employee use of work computers to check Facebook and personal email, look at pornography, and access confidential medical information. This week’s round-up also features articles addressing the uncertainty faced by employers who attempt to regulate the off-duty conduct of employees. Although a recent NLRB Advice Memorandum upheld discipline of an employee for controversial statements on Twitter, another article asks whether employers should even address off-duty conduct in social media policies.

Because the law is so unsettled in this area, there are more questions than answers for employers. However, employers who wish to regulate off-duty conduct should start by carefully defining the conduct involved and avoiding overbroad policies that could be read to restrict employees’ legal rights.

Technology in the Workplace
Technology and the Law More Generally
Technology in the News
  • Foldable Device Screens, Coming Soon to Your Pocket (Fast Company)
  • Google Lobbies Nevada for Laws to Allow Self-Driving Cars (ABA Journal)
  • Stars Gain Control of Online Images (NY Times)
  • Microsoft to Buy Skype for $8.5 Billion (Deal Book)
  • There’s No Data Sheriff on the Wild Web (NY Times)
  • The Wall Street Journal Launches WikiLeaks Competitor (Fast Company)

Thursday, May 12, 2011

Department of Labor Releases iPhone App for Employees

The U.S. Department of Labor has an app for that. On Monday, the DOL announced the launch of its DOL - Timesheet App, for iPhones (click here to download the app on iTunes). The application provides employees with an easy way to keep track of their working time. It also allows employees to add notes about time entries and easily export the entries. There's even a glossary with links to the DOL website, meant to educate employees about their rights under the Fair Labor Standards Act.

Here's what the DOL says about the use of the DOL - Timesheet App:
This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.
The app is primarily a simple time tracking tool, so the information it records is subject to the same arguments about accuracy and reliability that could be made about any time record. It will not provide employees with a guarantee that their records will control in a dispute. Because the app is easy to use and enjoys a DOL stamp of approval, however, it needs to be on employers' radar.

Hat tip to the Ohio Employer's Law Blog.

Saturday, May 7, 2011

Technology, Law, and the Workplace: Week in Review

The worlds of technology and labor and employment law are always on a collision course, but this last week these areas seemed to intersect even more than usual. (Maybe I just have David Foley's "Worlds Colliding" post on the brain.) This week witnessed a host of news about technology-related employment and labor litigation, including settlement of the NLRB's threatened complaint against Thomson for the news organization's social media policy. Stories about the theft of customer payment information from Sony have also dominated the technology news, coming in the wake of the recent Apple location data scandal and Epsilon security breach.

The flurry of news relating to data security reminds me of a recent conversation with a colleague at the ABA National Symposium on Technology in Labor & Employment Law. The lawyer felt that the rhetoric about electronic information security is such that employers and other custodians might get the message that the law somehow demands perfection in their electronic storage system. He felt that this standard is misleading, insofar as the law only requires reasonable measures to protect information. He gave the example of the theft or other loss of a briefcase by an attorney on a crowded bus. In his view, the loss of the briefcase would only be actionable if the lawyer had not taken reasonable measures to protect the information.

There are many important distinctions that apply to the briefcase analogy. For example, the volume and ease of transmittal of electronic information could be interpreted to create correspondingly higher standards of reasonableness for electronic storage of confidential information. However, there is still an important lesson to be learned from this analogy: as the worlds of technology and employment and labor law interact on an ever-increasing basis, the law of the briefcase will evolve to account for the new electronic realities of the workplace. Who knows: maybe someday the concepts of social media or cloud computing may be as common and settled as the briefcase is today!

Technology in the Workplace
Technology and the Law More Generally
Technology in the News
  • Turning to Social Networks for News (NY Times)
  • A New Kissing Device Lets You Make Out Over The Internet (Fast Company)
  • Military Blogging Goes Mainstream (NY Times)
  • Trying to Stir Up a Popular Protest in China, From a Bedroom in Manhattan (NY Times)
  • Hackers Claim to Have PlayStation Users’ Card Data (Bits)

Wednesday, May 4, 2011

Supreme Court Decision May Pave the Way For Employers to Include Class Action Waivers in Arbitration Agreements...But Do You Really Want to Arbitrate?


In a consumer products case that will likely have a significant impact on employers and employees who enter into arbitration agreements, the U.S. Supreme Court ruled last Wednesday, April 27, 2011, that the Federal Arbitration Act preempts states from prohibiting enforcement of arbitration agreements that bar arbitration of class action disputes (AT&T Mobility LLC v. Concepcion, Docket No. 09-893, April 27, 2011). In a divided decision, the Court reversed a Ninth Circuit Court of Appeals decision that a class action arbitration waiver in AT&T’s wireless service agreement was unconscionable and unenforceable under California state law.