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Thursday, October 13, 2011

A Sign of The Times: Firing Teachers For Facebook Comments: Extreme Lawlessness, Or Denial of Rights?

Should a Facebook post be grounds for firing?

NLRB settlement suggests employee Facebook posts are protected


The controversy began last year when a Connecticut ambulance company fired a worker who complained about her supervisor on Facebook. the employee posted a comment about her boss on her Facebook page: “Love how the company allows a [psychiatric patient] to be a supervisor.” She used several vulgar words to communicate how she felt about her supervisor. Other co-workers joined the online boss-bashing.

The company fired the woman, pointing to its policy that prohibits employees from depicting the company “in any way” on social media sites.

The NLRB stepped in and filed an unfair labor practice complaint against the company. It was the first case in which the NLRB argued that workers’ criticisms on social networking sites are “protected concerted activity.”

Usually, protected concerted activity refers to employee efforts to unionize, but the National Labor Relations Act (NLRA) also protects the rights of all workers to discuss the pay, benefits and other conditions of their employment with co-workers and others, even in a nonunion workplace. It doesn’t matter, the NLRB says, whether those discussions occur in-person or online.

When it filed the complaint, the NLRB noted that, "Whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions...and they have the right to do that."

The NLRB also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting and communications between employees.

Under the terms of the settlement, the company agreed to revise its electronic communication rules 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, and that they would not discipline or discharge employees for engaging in such discussions. The employee and company reached a separate, private agreement to settle her unlawful termination complaint.

This week’s settlement “sends a message about what the NLRB views the law to be,” said the NLRB regional director who approved the settlement. (NLRB, Case 34-CA-12576, Region 34)

Translation: Review your social media policies to make sure they only restrict communications about things you can legitimately restrict, like disclosure of confidential information. If your policies are overly broad, you may be liable for interfering with employees’ rights to engage in concerted protected activity in violation of the NLRA. Consider training employees on proper use of social media.

Can you fire an employee if she ridicules her boss on a social networking site? What seems like a simple “yes” answer isn’t so simple anymore.

In another example of the complex interplay between social media and HR, the National Labor Relations Board (NLRB) reached a settlement on Feb. 7, 2011, in the closely watched “Facebook Firing” case.

The message for employers: Think twice before you try to restrict or punish employees for trashing their bosses (or the organization) on Facebook or other social networking sites. Employees now have more power to claim that such criticisms are “protected activity” under federal law.

First "Facebook Firing" Case Decided by NLRB Administrative Law Judge

Administrative Law Judge finds New York nonprofit unlawfully discharged employees following Facebook posts

Chief FOIA Report

NLRB and Facebook

Hot Doggin’ on Facebook: Relish the Lessons

by Mindy Chapman, Esq., Mindy Chapman & Associates on October 13, 2011 11:45am

Are you scratching your head over all the new Facebook litigation? Who knows which employee comments are considered “protected concerted activity” or when you can legally fire workers who socially slam your company. Well, here’s a new Facebook case that involves hot dogs. The courts are on a roll, so relish these new lessons …

Case in Point: Robert Becker worked as a BMW car salesman in a Chicago suburb. The dealership decided to host a promotional party to introduce a new vehicle. However, Becker and other co-workers expressed concerns that management planned to provide lame food at the party, including hot dogs and chips. Privately, the BMW salesmen complained the cheap spread would hurt their ability to earn commissions. Management ignored the objections and served up the dogs.

At the party, Becker took pictures of the hot dog stand. He posted the photos on his Facebook page with comments ridiculing the event.

In a separate event a few days later, Becker posted pictures of a car accident that took place during a test drive at a nearby Land Rover dealership (owned by the same employer). Becker added inflammatory statements, such as, ”This is your car, this is your car on drugs.”

A week later, Becker was fired for the postings. The National Labor Relations Board (NLRB) sued the dealership, saying Becker’s online comments counted as “concerted protected activity” because they related to his terms of employment and they involved other co-workers. The dealership argued that Becker was terminated for his “bad attitude” in violation of an employee conduct policy.

What happened next and what lessons can be learned?

An administrative law judge (ALJ) ruled that one posting was protected but the other was not.

Specifically, it said Becker was engaged in protected concerted activity when he posted the hot dog photos and comments because the company’s marketing strategy was related, in part, to his compensation. Thus, the posting was related to the “terms and conditions” of his employment.

But the judge reversed the NLRB and ruled that posting pictures of the test-drive accident was not engaging in protected concerted activity. Reason: Becker posted the photo and comments, “apparently as a lark without any discussion with any other employee … and had no connection to any of the employees’ terms and conditions of employment.” (Karl Knauz Motors Inc., NLRB ALJ, 9/28/11)

3 Lessons Learned … Without Going to Court

1. Fire cautiously. In this case, the judge determined the company’s main reason for firing Becker was based on his postings of the car accident, not the hot dog posts.

2. Analyze closely. Don’t fire an employee for engaging in activities related to compensation, which may include voicing opinions about company marketing strategies.

3. Monitor carefully. The court said the company handbook’s conduct policy was reason enough to terminate an employee as long as the identified conduct isn’t protected by the NLRA. Also, remember to enforce all policies fairly and consistently to avoid discrimination claims, too.
NLRB ruling revisited: Can employees really trash you on Facebook?

by Jonathan Hyman,  on April 27, 2011
in Career Management,Employment Law,Management Training,People Management

It was only a matter of time before the National Labor Relations Board (NLRB) inserted itself into the burgeoning intersection of social media and employment relations. After all, it has its own Twitter account, Facebook page, and YouTube channel.

It recently redesigned its web site to highlight this newly discovered social interactivity.

And, last November it issued its first complaint challenging an employer’s social networking policy as a violation of the National Labor Relations Act’s (NLRA) protections of employees’ concerted activities.

Facebook ‘rant’ case

The NLRB issued a complaint against a company that fired an employee after she posted negative comments about her supervisor on her personal Facebook page. The NLRB not only alleged that the employer illegally fired the employee for the posting, but that the company maintained and enforced an overly broad blogging and Internet posting policy.

An NLRB investigation concluded that the Facebook postings were “protected concerted activity,” and that the company’s blogging and Internet posting policy contained unlawful provisions. One barred employees from making disparaging remarks when discussing the company or supervisors. Another prohibited employees from depicting the company in any way over the Internet without company permission.

“Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity,” the NLRB found.

Misportrayed in the media

Many pundits (including me) were carefully watching this case, hoping the NLRB would provide some guidance on the scope of lawful social media policies. In early February, however, the NLRB dashed those hopes by announcing it had reached a settlement with the employer.

According to the NLRB’s press release:

“Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules 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, and that they would not discipline or discharge employees for engaging in such discussions.”

What troubles me about this story is how it has been misportrayed both by the news media and in popular culture.

On the night of the settlement, Cleveland’s NBC affiliate teased its coverage of the story with the following: “Tune in at 11 to find out what you’re allowed to say about your boss on Facebook.”

That misstated the effect of the NLRB’s settlement. Despite this settlement, employees don’t receive a free pass on social media posts.

The NLRA grants employees (unionized or not) the right to engage in protected concerted activity, which includes the right to discuss wages, benefits and other terms and conditions of employment. Neither this case nor any other will give employees carte blanche to trash their employers on Facebook, Twitter, in the press or at a Saturday night cocktail party.

Despite their NLRA rights, employees don’t have license to defame, disparage or otherwise trash their company, management, product or co-workers.

Don’t read too much into this recent foray by the NLRB into the brave new world of social media. Until the NLRB says otherwise, employers shouldn’t treat social media any differently than any other form of employee communications.

Regulating social networking at work

Thinking about establishing or revising a policy on social networking at work? Keeping in mind that more and more employers find there’s marketing value in social media such as Facebook and Twitter, consider these questions:

1. How closely do you want to regulate social networking? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking. Further, a blanket ban is also hard to monitor and enforce.

2. If you limit social networking, how will you monitor it? Turning off Internet access, installing software to block certain sites or monitoring employees’ use and disciplining offenders are all possibilities. Do you want to go there?

3. If you permit social networking, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.

4. How do you define “appropriate business behavior"? Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. If they are posting from work, anything in cyberspace can be used as grounds to discipline an employee.

5. How will social networking intersect with other policies on harassment, technology and confidentiality? Employment policies do not work in a vacuum. Employees’ online presence—depending on what they are posting—can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update and fine-tune other policies.

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