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

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October 15, 2013 Emily Sneddon Mitchell, Blackstock, Ivers & Sneddon, PLLC 1010 W. Third St. Little Rock, AR 72201 (501) 378-7870 esneddon@mitchellblackstock.com

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.

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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

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 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

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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?

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§ 11-2-124. 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

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(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) Emails; or

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(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 email 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.

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(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.

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(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

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(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

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(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

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The National Labor Relations Board has

taken a keen interest in social media

policies

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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

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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.

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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

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 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 non-public information on any non-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.”

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 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’

co-workers” 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

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 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.

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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

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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.

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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.

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Can an employer tell employees not to

‘friend’ other employees?

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Probably not

 NLRB found unlawfully overbroad a policy telling

employees to ‘think carefully about ‘friending’ co-workers ... 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

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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

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Harassment evidence

Evidence of knowledge of protected

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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. 12-1671

(4

th

Circuit, Sept. 23, 2013).

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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.

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 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-94981 and 5-CA-97854 (Sept. 4, 2013)

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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.

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Religion

Disability

Past alcohol or substance abuse

Child-bearing plans

National origin

Race

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Politics

First Amendment rights (government

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Current illegal conduct

Evidence of deceiving current employer

and violating current employment

policies

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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

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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

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 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’

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 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.

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Smartphones or home computers

connected to workplace email

Expectation that email will be checked

outside compensated working hours?

After hours work phone calls

Expectation that employee will take

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 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

non-compensable but email and call times may be aggregated and may equal substantial work time

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 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.

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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 email until

work time begins each day.

Figure

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References

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