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On January 1, 2017, the National Labor Relations Board (NLRB) Office of the General Counsel released an advice memorandum (dated September 22, 2016) reviewing the social media policy in Northwestern University’s revised Football Handbook.  The memorandum contains valuable guidance in an area full of uncertainty, as the NLRB has struck down seemingly common sense social media policies because of their potential to chill employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted protected activities.”  Section 8 of the NLRA prohibits employees from restraining employees from exercising their Section 7 rights.

According to the memorandum, Northwestern voluntarily revised its Football Handbook after receiving a charge alleging that the handbook violated the NLRA.  The advice memorandum reviewed the revised handbook for compliance with the NLRA.  Assuming for the purpose of the review that Northwestern’s football players are “employees” under the NLRA, the advice memorandum concluded that the revised social media policy passed muster.

The memorandum reprinted the original language of the policies along with the revisions in redline, as follows (deleted language in strikeout and new language in bold):

[W]e are concerned about… protecting the image and reputation of Northwestern University and its Department of Athletics and Recreation. . . .

Publicly posted information on social networking websites can be seen may be regularly monitored by any person with a smart phone or internet access, including individuals a number of sources within Northwestern University (e.g., Athletics Department, Student Affairs, University Police). . . .

Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassing harassing, unlawful or dangerous behaviors such as full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, unlawful activity or any content that violates Northwestern University, Athletics Department or student-athlete codes of conduct and/or state or federal laws.

….

Do not post any information, photos or other items online that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity could embarrass you, your family, your team, the Athletics Department or Northwestern University.

Although the advice memorandum did not elaborate on why the original policy could violate the NLRA while revised policy would not, it provides important clues on drafting lawful social media policies.  The modifications to the policy generally substituted vague terms like “inappropriate” and “embarrassing” with descriptions of the content that the policy prohibits.  For example, the revised policy specifically prohibits social media posts depicting “nudity,” “racial or sexual epithets,” and “underage drinking,” among other things.  The revised policy also eliminated protection of the employer’s “image and reputation” from the description of the policy’s purpose.  In previous guidance, the NLRB has determined that employers may not require employees to refrain from engaging in activity that generally damages the employer’s reputation because that could be construed to prohibit “concerted protected activity” such as criticism of work conditions or compensation policies.

The recent advice memorandum reinforces the need to be precise when drafting a social media policy.  Experienced counsel can assist in identifying the types of social media content that the NLRB has allowed employers to prohibit employees from posting.

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Tax season is miserable for many because it means having to cut a check to the IRS.  But it’s not just Uncle Sam who’s interested in your money.  Scammers are also looking to get paid, and they’ll do it by stealing personal information.  Employees tasked with preparing tax forms, like human resources (HR) professionals, are prime targets of scams.  Using various forms of subterfuge, scammers convince HR to hand over private information about an employee, which they’ll then use to file false tax refund claims.  The surge in tax scams has prompted the IRS to issue multiple alerts and host National Tax Security Awareness Week last December to educate the public about tax-related cybercriminal activity.

What’s the scam?

Scammers impersonate people whom the victim is likely to trust, like a well-known service provider (e.g., FedEx) or a person with a legitimate need for access to sensitive information (e.g., an IRS agent).  This is known as “spoofing.”  Sometimes a “spoofed” email tries to get the recipient to open an attachment containing a virus or click on a link to a malicious site (which might look legitimate).  A specific type of spoofing attack known as “phishing” aims to convince the victim to divulge personal or financial information.  For example, a phisher posing as an employee might email the HR department for a copy of his W-2 form.  Even more targeted is a “spear phishing” attack aimed at a specific individual.  The IRS has warned of spear phishing schemes involving emails to an HR professional sent from the spoofed email address of a C-suite executive.  The email will ask the HR professional to send a tax form or to provide information about an employee supposedly for a tax filing. Once the scammer has the information, he or she will file a tax refund under the employee’s name.

Protective measures

The best way to avoid being a victim of a phishing attack is to raise awareness.  Employees should be regularly trained to practice the following defensive measures:

  • Be suspicious of all email requests for confidential information, even if they come from high-level personnel within the company. Tell-tale signs are spelling or grammatical errors or language that the sender doesn’t typically use.
  • Confirm requests for confidential information by calling the requester.
  • Avoid sending confidential information electronically. Hand deliver the information or send it by mail to a verified address.
  • If confidential information has to be transmitted electronically, encrypt it before sending.
  • Never send confidential information by hitting the “reply” button. If an email is spoofed, the reply email will go to the imposter.  Instead, compose a new email and manually type in the email addresses of the recipient.
  • Apply extreme caution when opening attachments. Never open an attachment with the .exe extension.  Note that an attachment might be altered to look like an ordinary word processing document, spreadsheet, or PDF.  When in doubt, send your IT department a screenshot of the email and consult with them on what to do next.

Responding to a security breach

In the unfortunate event that a company falls victim to a phishing attack, it should immediately gather facts about the incident including the number of employees involved, where the affected employees are located, what information was stolen, and whether the stolen information has been put to use.  Consult with a lawyer to determine next steps.  In Hawaii (as in many states), a business is legally obligated to provide notice to victims of a security breach.  Experienced counsel can navigate the company through data breach notification laws and advise on liability and remedial measures to take.

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It’s generally a good practice to set standards of online employee conduct to prevent the social media activity of employees from disrupting the workplace or tarnishing your organization’s reputation.  But the mere fact that an employee comments on controversial subjects on social media doesn’t necessarily justify disciplinary action.  That’s especially true in the case of a public employer.  Disciplining a government employee for posting social media messages about a topic of public concern could violate the First Amendment, as illustrated by a recent Ohio decision.  Hamm v. Williams, Case No. 1:15CV273 (N.D. Ohio, Sept. 29, 2016).

Hamm centered around the controversy over the fatal police shooting of two unarmed African-Americans following a high-speed car chase.  The incident — sometimes known as the “137 shots” in reference to the number of bullets that were fired at the couple — was highly publicized and the target of protests by the Black Lives Matter movement.  Seven Cleveland police officers were indicted as a result.  While off-duty, a Cleveland police officer (Hamm) used his home computer to post Facebook comments criticizing the indictments and showing support for his colleagues.  Approximately one week later, Hamm wrote on Facebook that an unidentified individual found his original comments offensive and had reported the first post to his supervisors.

After conducting an investigation, the supervisors determined that Hamm had breached department rules against using social media to discuss a criminal investigation involving the department or posting material that would “tend to diminish” public esteem for the department.  The department suspended Hamm for 10 days.  Hamm sued the city for retaliating against him for exercising his First Amendment right to free expression.

Under U.S. Supreme Court precedent, government employees have a First Amendment right to speak as private citizens on matters of public concern.  However, an employee’s constitutionally protected right to free expression must be balanced against a public employer’s interest in efficient delivery of public services.

The court determined that Hamm was speaking as a private citizen, as he had posted the Facebook comments while he was off-duty using his home computer.  The subject of his comments – a highly publicized police shooting and the aftermath – was a matter of “political, social or other concern to the community” and not just a “quintessential employee beef.”

The city argued that a police department, as a paramilitary organization charged with maintaining public safety and order, had a greater interest in regulating the speech of its employees than an ordinary public employer.  The city contended that it was justified in ensuring that officers are not publicly criticizing an investigation or placing a stigma on the criminal justice system or internal police operations.

The court rejected the city’s arguments because it found no evidence that Hamm’s posts actually resulted in work stoppages or that any officers declined to fulfill his or her duties because of Hamm’s posts.  The court therefore allowed Hamm to proceed to trial on his First Amendment retaliation claim.

Hamm is a good reminder that discipline should not be a knee-jerk reaction to controversial social media posts of an employee.  Conduct an investigation and collect evidence of the actual or potential disruptive impact of the comments before taking disciplinary action.  If you’re a public employer, the First Amendment adds an extra layer of protection for employees.  Consult experienced counsel to help you analyze the impact of constitutional protections for online employee speech.

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Six years ago, the National Labor Relations Board (NLRB) became one of the first governmental agencies to regulate social media use in the workplace.  In 2010 and 2011, the NLRB issued a series of guidance memos and decisions sketching the contours of acceptable limitations on social media conduct of employees.  Largely aimed at protecting the right of employees to act together to improve their working conditions and terms of employment – what Section 7 of the National Labor Relations Act (NLRA) calls “protected concerted activity” – the NLRB’s social media guidelines can be downright frustrating for employers.  Conduct that might seem proper to ban, like making defamatory comments about management personnel or discussing confidential company information online, could be protected under Section 7, according to the NLRB.

Little has changed after six years.  Three recent cases show that the NLRB is still as confounding as ever when it comes to regulating social media work rules.

  • In Chipotle Services LLC d/b/a Chipotle Mexican Grill, Case No. 04-CA-147314 (Aug. 18, 2016) the NLRA struck down parts of Chipotle’s “Social Media Code of Conduct” that prohibited employees from posting “incomplete, confidential or inaccurate information” and making “disparaging, false, or misleading statements” about Chipotle, other employees, suppliers, customers, competitors, or investors. Chipotle fired an employee for violating this rule by posting tweets that criticized Chipotle’s hourly wage.  The NLRA concluded that the rule was unlawful because it could reasonably chill employees in the exercise of their Section 7 rights.
  • In G4S Secure Solutions (USA) Inc., 364 NLRB No. 92 (Aug. 26, 2016), the NLRB ruled that a private security company’s policies concerning confidentiality and social media postings violated Section 7 rights of employees.  The confidentiality policy prohibited employees from making “public statements about the activities or policies of the company[.]”  The NLRB found this rule overbroad because it could be understood to prohibit discussion of rules concerning employee conduct, which is a term and condition of employment.  Also unlawful was a social media policy banning social media postings of pictures of employees dressed in their security guard uniforms.  The NLRB rejected the company’s argument that the policy protected a legitimate privacy interest.
  • In Laborers’ International Union of North America and Mantell, Case No. 03-CB-136940 (NLRB Sept. 7, 2016), the NLRB found that a union violated the Section 7 of the NLRA by disciplining a union member who criticized union leadership for giving a journeyman’s book to a mayoral candidate who had not gone through the union’s 5-year apprenticeship program.  The comments were posted on a Facebook page accessible to approximately 4,000 people, some of whom were union members.  Even though certain aspects of his comments were false, they did not lose protection because they were not “knowingly and maliciously untrue.”

Does your organization have similar social media rules concerning anti-disparagement, confidentiality, or privacy?  If so, it might be time to freshen up your social media policy with the help of experienced counsel.

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You’ve heard the buzz about Pokemon GO and decide to give it a try.  After installing the game on your phone and moving past the initial splash screen, you’re presented with the game’s Terms of Service, which you may “Accept” or “Decline.”  Just a single click stands between you and Pokemon-hunting goodness!

If you clicked the “Accept” button, you just entered into a “clickwrap” agreement.  Does that mean you’re now bound by everything stated in the Terms of Service?  The answer to that question is important from an HR perspective because work forms are increasingly being digitally executed by current and prospective employees over a computer network.  Thankfully, the answer is yes, as a recent New Jersey decision confirmed.

In ADP, LLC v. Lynch (D.N.J. June 30, 2016), a business outsourcing company (ADP) sued two former employees to enforce non-compete, non-disclosure, and non-solicitation provisions in a restrictive covenant agreement.  The defendants had enrolled in ADP’s stock award program electronically.  In order to receive awards in the program, they were required to click an “Accept Grant” button.  The option to click this button was unavailable until they affirmatively check a box acknowledging that they had read a collection of documents, including the restrictive covenant agreement.  The defendants had checked the box and clicked on the “Accept Grant” button.

The significance of this fact became apparent when the defendants, who were not residents of New Jersey, argued that the New Jersey court lacked personal jurisdiction over them.  The court noted that defendants had consented to the personal jurisdiction of New Jersey courts in the restrictive agreements.  The defendants argued that that the forum selection clause in the restrictive covenant agreement was unenforceable because they did not receive adequate notice of the clause.  The court rejected this argument as well, noting other cases in which clickwrap agreements incorporating additional terms by reference were regarded as providing reasonable notice that additional terms apply.  Some courts have even enforced clickwrap agreements that do not require affirmative confirmation that the signatory reviewed the terms before agreeing to them.  ADP was therefore allowed to pursue its lawsuit.

ADP confirms that electronic consent to agreements incorporated by reference into a clickwrap agreement is legally valid, assuming the agreements are supported by adequate consideration.  To build an even better case for enforceability, employees should be required to confirm their agreement with (not just acknowledgment of) the incorporated documents.  But beware of the clickwrap agreement’s close cousin—the “browsewrap” agreement, which states that continued action (like browsing the contents of a web page) constitutes agreement with certain terms.  Courts routinely refuse to enforce browsewrap agreements.   Requiring employees to manifest their agreement through affirmative conduct – like clicking on a button – is essential.

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