Before you fire or otherwise discipline an employee on the basis of a social media post, consult your organization s lawyer

Transcription

1 October 15, 2013 Emily Sneddon Mitchell, Blackstock, Ivers & Sneddon, PLLC 1010 W. Third St. Little Rock, AR (501) These materials are for instructional purposes only, and are not to be relied on for legal advice. Legal counsel should always be consulted for specific problems or questions.

2 Before you fire or otherwise discipline an employee on the basis of a social media post, consult your organization s lawyer Rules evolving on acceptable workplace policies on social media use. 2

3 Company reputation Violations of laws on private information (medical, financial, passwords) Source of adverse evidence in regulatory matters or litigation NLRB scrutiny of social media policy s content and enforcement DOL scrutiny of hours worked by employees Government employers: First Amendment rights of government employees Defamation 3

4 What can you look at? 4

5 Can an employer require a prospective or current employee to provide the employer with user names or passwords to social media accounts like Facebook and Twitter? 5

6 NO 6

7 Social media accounts of current and prospective employees. (a) As used in this section: (1) "Employee" means an individual who provides services or labor for wages or other remuneration for an employer; (2) "Employer" means a person or entity engaged in business, an industry, a profession, a trade, or other enterprise in the state or a unit of state or local government, including without limitation an agent, representative, or designee of the employer; and 7

8 (3)(A) "Social media account" means a personal account with an electronic medium or service where users may create, share, or view user-generated content, including without limitation: (i) Videos; (ii) Photographs; (iii) Blogs; (iv) Podcasts; (v) Messages; (vi) s; or (vii) Website profiles or locations. 8

9 (B) "Social media account" does not include an account: (i) Opened by an employee at the request of an employer; (ii) Provided to an employee by an employer such as a company account or other software program owned or operated exclusively by an employer; (iii) Set up by an employee on behalf of an employer; or (iv) Set up by an employee to impersonate an employer through the use of the employer's name, logos, or trademarks. 9

10 (C)"Social media account" includes without limitation an account established with Facebook, Twitter, LinkedIn, Myspace, or Instagram. (b)(1)an employer shall not require, request, suggest, or cause a current or prospective employee to: (A) Disclose his or her username and password to the current or prospective employee's social media account; (B) Add an employee, supervisor, or administrator to the list or contacts associated with his or her social media account; or (C) Change the privacy settings associated with his or her social media account. 10

11 (2) If an employer inadvertently receives an employee's username, password, or other login information to the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer is not liable for having the information but may not use the information to gain access to an employee's social media account. (c) An employer shall not: (1) Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his or her rights under subsection (b) of this section; or (2) Fail or refuse to hire a prospective employee for exercising his or her rights under subsection (b) of this section. 11

12 (d) This section does not prohibit an employer from viewing information about a current or prospective employee that is publicly available on the Internet. (e) Nothing in this section: (1) Prevents an employer from complying with the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations; or (2)(A) Affects an employer's existing rights or obligations to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee's social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee's violation of federal, state, or local laws or regulations or of the employer's written policies. 12

13 (B) If an employer exercises its rights under subdivision (e)(2)(a) of this section, the employee's username and password shall only be used for the purpose of the formal investigation or a related proceeding. 13

14 The National Labor Relations Board has taken a keen interest in social media policies Affects even non-union at-will employers 14

15 Looking for violations of Section 7 rights in the National Labor Relations Act Applies to both union and non-union workers Gives employees right to engage in concerted activities for mutual aid and protection Discussion of wages and working conditions 15

16 Aggressive attitude toward social media policies Strikes down those that could reasonably be construed to chill Section 7 rights In May 2012, NLRB reviewed 7 policies and struck down 6 of them. 16

17 If social media policy violates Section 7, and you rely on it to terminate an employee, employer can have to reinstate the employee with back wages and benefits, interest, clean personnel file, rescission of the social media policy, prominent posting of a notice from the NLRB 17

18 Instructing employees not to release confidential guest, team member or company information could be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, like wages or working conditions. Telling employees to be sure that their posts are completely accurate and not misleading and that they do not reveal nonpublic information on any public site is an overly broad, improper restriction because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer s labor policies and its treatment of employees. Telling employees not to post any information if they are in doubt about whether the information falls into a prohibited category, and to check with the employer first, is unlawful because any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the Act. 18

19 Prohibiting employees from using the Employer s logos and trademarks when posting photos or videos is unlawful because employees would reasonably interpret these provisions as proscribing the use of photos and videos of employees engaging in Section 7 activities, including photos of picket signs containing the Employer s logo. Telling employees to [t]hink carefully about friending coworkers is unlawful because it would discourage communications among co-workers, and thus it necessarily interferes with Section 7 activity. Asking employees to report any unusual or inappropriate internal social media activity is unlawful because it could be construed as encouraging employees to report to management the union activities of other employees. 19

20 Must provide examples of prohibited behavior Examples should show employer s reasonable justification for the prohibition A business reason showing employer does not intent to chill Section 7 rights NLRB sees generalizations as creating overly broad and unlawful policies that an employee could reasonably interpret as prohibiting lawful Section 7 conduct. 20

21 Be Respectful policies. A general rule to be respectful and fair and courteous in the posting of comments, complaints, photographs, or videos, could be overly broad. But providing sufficient examples of plainly egregious conduct can cause the NLRB to conclude that employees would not reasonably construe the rule to prohibit Section 7 conduct. Sufficient examples included: avoid posts that "could be viewed as malicious, obscene, threatening or intimidating" and; explaining that prohibited harassment or bullying would include offensive posts meant to intentionally harm someone s reputation or posts that could contribute to a hostile work environment on the basis of race, sex 21

22 Confidentiality. The rule should provide sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions. Inappropriate Postings. It is okay to prohibit posts that include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct. 22

23 A savings clause in a social media policy that says the employer does not intend its social media policy to restrict Section 7 rights will NOT stop the NLRB from finding the policy improper. 23

24 Can an employer tell employees not to friend other employees? 24

25 Probably not NLRB found unlawfully overbroad a policy telling employees to think carefully about friending coworkers... on external media sites. Discouraged communications among co-workers and therefore interfered with protected Section 7 activity What is probably okay: Prohibition on an employee or supervisor pressuring another worker to friend or otherwise connect on social media Prohibition on managers making friend requests to a subordinate 25

26 NLRB case Cannot prohibit or discourage co workers from friending each other Can, in my opinion, tell supervisors that they are not to initiate friend requests to those they supervise Policy language can inform employees that they are never obligated to accept friend requests from anyone at work and that supervisors have been instructed to not friend employees 26

27 Harassment evidence Evidence of knowledge of protected status 27

28 Public employee clicks the like button Protected speech under First Amendment Government employer could not punish employee for liking campaign of political rival of employer. (Deputy sheriffs liked campaign of sheriff s opponent.) Bland v. Roberts, No (4 th Circuit, Sept. 23, 2013). 28

29 Discussion of termination EMT Norvell, off work on worker s compensation, used his personal computer to post on the Facebook page of his former work partner Zalewski. Discussion between Norvell and Zalewski is joined by at least one other employee and concerns Zalewski s separation from employment and comments she purportedly made to a patient about the condition of the employer s vehicles. 29

30 Novell suggests that Zalewski get a lawyer and contact the labor board. Employer s HR director gets a printed copy of the FB posts and fires Norvell based on the posts being a violation of company to not use social networking to discredit the employer or damage its image. NLRB judge said this was protected activity under the NLRA and Novell should not have been fired. Butler Medical Transport, LLC and Michael Rice and William Lewis Norvell, Case nos. 5-CA-97810, 5-CA and 5-CA (Sept. 4, 2013) 30

31 Untrue statements In the Butler case, NLRB judge found it was permissible to fire another employee, Rice, on the basis of an untrue FB post that conveyed the idea that his work vehicle had broken down for a second time in two weeks and the company did not want to spend money on repairs. NLRB judge said the posting was not protected by the NLRA because it was maliciously untrue. Logos, photos and videos 31

32 32

33 Religion Disability Past alcohol or substance abuse Child-bearing plans National origin Race Ethnicity 33

34 Politics First Amendment rights (government employers) 34

35 Current illegal conduct Evidence of deceiving current employer and violating current employment policies 35

36 In the social media context, repeatedly engaging in any of the following behaviors: Isolating the targeted persons from opportunities and outings Intrusion on the privacy of others by sneaking around to overhear conversations, to look at screens on phones or computers, to look over employees desks and personal items, etc. and then sharing the information on social media Pretending to be friends with a target in order to discover personal information that will later be used against the target including on social media Gossiping and asking inappropriate questions, i.e., So how much does she make here anyway? and then sharing the information on social media Negative comments about the targeted person s commitment, abilities, personal life, appearance, financial situation, etc. Blaming others for mistakes Taking credit for others work 36

37 Harassment is unwelcome conduct that is based on: race, color, religion, gender, national origin, disability, age of 40 or older, or on genetic information about the person. Unlawful if enduring the harassment becomes a condition of continued employment or if the conduct is severe or pervasive enough that it creates a work environment that a reasonable person would consider intimidating, hostile or abusive. 37

38 Verbal abuse or yelling. Consistent angry demeanor when interacting with targeted persons. Non-verbal actions that are demeaning, threatening, humiliating, or that create unnecessary problems for others, i.e., mistakenly throwing away another employee s lunch; forgetting to deliver a message from a spouse. Interference with or sabotage of others work. 38

39 Acting in a way to increase the likelihood that employees will fail in their assignments through a pattern of, for example, changing project requirements in mid-stream, refusing to provide needed feedback, engaging in constant criticism that is not constructive and aims to undermine an employee s belief that success in the task can be achieved, giving impossible deadlines, putting unreasonable pressure on employees, or assigning too much work. Throwing things. 39

40 Smartphones or home computers connected to workplace Expectation that will be checked outside compensated working hours? After hours work phone calls Expectation that employee will take such calls? 40

41 Requires employer to pay non-exempt employees minimum wage and overtime Work not specifically requested by employer is compensable if employer has actual or constructive knowledge of the work De minimis work time treated as noncompensable but and call times may be aggregated and may equal substantial work time 41

42 Limit company issuance of smartphones to exempt employees. Prohibit non-exempt employees from having remote access to work on their personal devices. If non-exempt employees must have company smartphones or 24-hour remote access to work on their own devices, require employees to keep detailed time records and compensate them appropriately. DOL app on hours worked 42

43 Policy on smartphone use for work purposes Disciplinary action for employees who violate See if you have a delayed delivery feature on your Outlook so employees do not receive a manager s until work time begins each day. 43