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Birth announcements. Girl Scout cookies fundraisers. Leftovers in the company lounge. We’ve all probably received an email at work on these or similar subjects. It’s uncommon for an employee be disciplined for sending an email of such nature. But would that limit a company’s ability to act when employees circulate emails on more controversial topics?

This question was raised in a recent National Labor Relations Board (NLRB) decision involving the Jet Propulsion Laboratory (JPL) affiliated with NASA.  In re California Inst. of Tech. Jet Propulsion Lab, 360 NLRB 63 (Mar. 12, 2014).  Based on a Homeland Security directive, NASA began requiring JPL employees to submit to federal background checks as a condition of continued employment. Twenty-eight JPL employees who believed that the background check process violated their privacy rights filed a federal class action. The case led to a U.S. Supreme Court decision holding that mandatory compliance with the background check process did not violate the right to informational privacy.  See NASA v. Nelson, 131 S. Ct. 746 (2011).

Several of the plaintiffs felt that management did not adequately inform employees about the actual impact of the Supreme Court decision, so they expressed their view of the decision in emails to their colleagues. The emails were sent to several thousand JPL employees using NASA-owned computers and JPL email addresses. After allegedly receiving complaints about the emails, management issued written warnings to the authors of the emails. The warnings alleged that the authors had violated several work policies prohibiting, among other things, “spamming” co-workers; sending unauthorized, non-work-related emails; and implying JPL endorsement of a position on political, social, or legal issues. The authors filed charges with the NLRB claiming that JPL violated their right to engage in concerted protected activity under Section 7 of the National Labor Relations Act.

The NLRB found that JPL employees frequently circulated emails on topics like charity fundraisers and social causes. Such emails technically violated work policies, but there was no evidence of enforcement in those instances. The discipline in this case was thus suspect. Although employees have no legally protected right to use their employer’s computers to engage in protected concerted or union activity, and may be lawfully disciplined for doing so, management may not choose to enforce only work policies involving concerted protected activity.

The decision is not a prompt to start disciplining employees who offer home-baked cookies to co-workers using email. Email can be a convenient tool for building company morale. But the decision does warn against using work policies pretextually to control discussion of work matters. JPL selectively enforced its work policies to silence certain viewpoints on a work-related issue, as highlighted by the fact that JPL supervisors commented on the Supreme Court decision using their work email accounts without being subjected to discipline. Work rules commonly included in an employee manual but inconsistently enforced– like an email use policy – shouldn’t be used as a basis for silencing employees who criticize management or express dissatisfaction with work conditions.

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“It’s my First Amendment right to say what I want!”  The First Amendment is commonly invoked to justify personal expression.  But did you know that the First Amendment applies only when the government is involved?  For example, the First Amendment wouldn’t prevent a private company from firing an employee for making offensive comments about the governor.  If the same employee worked for a government office, then the First Amendment might apply.  As a lawsuit recently filed against the County of Maui illustrates, the First Amendment adds a layer of complexity for public employers dealing with controversial social media activity of its employees.

The First Amendment Lawsuit Against Maui County

Neldon Mamuad is a volunteer Liquor Commissioner for Maui County and part-time aide to a Maui County Council member.  In July 2013, Mamuad started a Facebook fan page called “TAGUMAWatch,” named after a Maui police officer well-known for strict enforcement of parking and traffic violations.  The page was intended to enable Facebook users to post about “Taguma sightings” and share their thoughts about him.  TAGUMAWatch gained popularity quickly and evolved into a discussion forum on a variety of topics including news, traffic, and politics.

Mamuad claims that he didn’t publicize his involvement with TAGUMAWatch until a TV news story about the page named him as its creator.   Mamuad also didn’t identify himself as a County employee when posting to the page or suggest that he spoke for the County.

The County somehow linked Mamuad to the page.  Allegedly under pressure from the County, Mamuad changed the page’s name to MAUIWatch.  A few days later, Officer Taguma submitted a complaint to the County alleging harassment via the page.  After notifying Mamuad of the complaint and conducting an investigation, the County determined that Mamuad had engaged in harassment and cyber-bullying through social media and required him to enroll in an employee counseling program.

On March 3, 2014, Mamuad sued the County in federal court for violating his First Amendment rights.  As of the time of this post, Mamuad’s motion for a TRO was pending.

When Does Employee Discipline Violate the First Amendment?

Most forms of internet expression qualify as “speech” under the First Amendment.  That point has been driven home by recent legal developments,  including a court decision that Facebook “likes” are protected by the First Amendment, a Ninth Circuit opinion recognizing that bloggers have the same First Amendment protections as traditional journalists, dismissal of an appeal from the termination of a public school teacher, and a federal lawsuit filed by a gun rights group alleging that the Honolulu Police Department censored comments on its Facebook page.  Whenever the government is the one restricting speech, the First Amendment becomes relevant.

So how does a public employer know when it may discipline an employee for his or her social media conduct without violating the First Amendment?  The general test in the Ninth Circuit, as spelled out in Mamuad’s TRO motion, looks at these factors:

  1. Did the employee speak on a matter of public concern?
  2. Did the employee speak as a private citizen or public employee?
  3. Was the employee’s protected speech a substantial or motivating factor in the adverse employment action?
  4. Did the government have an adequate justification for treating the employee differently from other members of the general public?
  5. Would the government have taken the adverse employment action even absent the protected speech?

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc).  For a court to find that employee discipline violates the First Amendment, the first and third question must be answered in the affirmative, the fourth and fifth question answered in the negative, and for the second question, the employee must have spoken as a private citizen.  The employee also has the burden to prove the first three factors.  If the employee is successful, then the burden shifts to the government to prove the fourth and fifth factors.

Applying this test to employee social media conduct isn’t simple, but it helps government employers assess whether the First Amendment counsels against disciplinary action.

Links:

Complaint in the Mamuad lawsuit
Motion for TRO in Mamuad lawsuit (w/o attached declarations and exhibits)

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Suppose an email from your company’s in-house attorney instructs you to preserve all documents relating to an ex-employee who is threatening to sue for wrongful termination.  In the days before smartphones and cloud storage, this would have been a relatively limited exercise: paper documents would be set aside and files on the company server would be backed up.  But work-related data can be stored in many places today, including personal devices of employees.  Is a company required to preserve such data?

Costco Wholesale recently faced that issue in an employment discrimination and retaliation lawsuit.  See Cotton v. Costco Wholesale Corp., 2013 WL 3819974 (D. Kan. July 24, 2013).  The plaintiff asked Costco to produce text messages on the personal cell phones of two of its employees who mentioned the plaintiff or his allegations.  Costco objected on the grounds that the discovery request required it to invade the privacy of its employees, and there was no indication that the employees sent inappropriate text messages or used their personal phones for work purposes.  The court denied the request, determining that Costco did not have possession, custody, or control of the text messages.

Although the court in the Cotton case ruled that the employer had no duty to produce information stored on the personal devices of the employees in question, the outcome might have been different if the facts had changed even slightly.  Courts in other jurisdictions might also have taken a contrary approach.

The law in this area is far from clear, but following the guidelines below will help a company address e-discovery issues in their policy on personal electronic devices.  An easy way to remember the guidelines is to think of the acronym “APPS”:

  • Access: Reserve the right to access personal devices that store work-related data.  Access is crucial if the company is legally required to collect and produce data residing in the personal devices of an employee.
  • Permission: Clearly specify what personal devices employees are authorized to use for work-related purposes, if any.  Consider keeping a log of authorized personal devices and require employees to update the log whenever they start using a new authorized device or retire an existing one.  Your company’s document retention policy should extend to authorized devices.
  • Privacy: Notify employees that they should have no expectation of privacy to data stored on a personal device if they use the device for work purposes.  This prevents the company from being liable for invasion of privacy should it need to search the contents of a personal device to respond to a discovery request.
  • Segregation: If possible, segregate work-related content from personal content on personal devices.  Segregation can be implemented with software solutions, but if that is not feasible, at a minimum, instruct and train employees who use a personal device for work on how to keep their personal information separate from work data stored on the device.  For example, storage of work-related data in a personal cloud storage account should be prohibited.

Follow the above guidelines to avoid getting caught off-guard by e-discovery requests.

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It’s time to roundup the bills related to computer technology that the Hawai‘i legislature is considering in its 2014 regular session.  Click here for a chart summarizing the proposed legislation.  Here are the highlights:

Social Media and Internet Account Passwords:  Several bills to prohibit improper requests for access to personal social media accounts of employees and students were introduced in the 2013 session.  None of the them passed.  This year, HB2415 renews the effort to outlaw improper social media password requests.

Internet Sales Tax:  HB1651 would require online companies with arrangements with Hawaii merchants for referral of business  to collect use taxes on sales made in Hawaii.  This bill would affect online retailers like Amazon, who allows local merchants to sell their products through Amazon Marketplace.

Restrictive Covenants:  In an effort to encourage the development of technology business in Hawai‘i, a state with a relatively small geographic area, two bills (HB2617 and SB3126) would prohibit technology businesses from requiring employees to enter into noncompete agreements and restrictive covenants.  “Technology business” is defined as “a trade or business that relies on software development, information technology, or both.”

Cybersquatting: SB2958 would put the burden on a cybersquatter to prove that it did not register a domain name in bad faith or with intent to use it in an unlawful manner, provided that the person claiming cybersquatting can demonstrate the potential of immediate and irreparable harm through misuse of the domain name.

Cybersecurity Council: SB2474 would establish the Hawai‘i cybersecurity, economic, education, anfrastructure security council.

Mobile Devices: Three bills (HB1509, HB1896, and SB2729) would make it a State offense to use a mobile electronic device while operating a motor vehicle.  Certain counties already have similar laws.

3D Printing: In response to the rising availability of 3D printers, HB1802 would make it a crime to create, possess, sell, trade, or give another person a firearm made with digital manufacturing technology.

Computer crimes: A series of bills criminalizes various kinds of computer activity, including unauthorized access to a computer or network and damage to a “critical infrastructure computer” (HB1640); theft of a computer (HB1644);  or personal electronic device for storing or retrieving personal information (HB2080); and revenge porn (SB2319).

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“Smile, you’re on Candid Camera.”  Originally coined on the eponymous TV show, that catchphrase is becoming more of common refrain in the workplace.  Any employee with a smartphone can easily record an office conversation in secret.  But are such covert recordings legal?  And what control, if any, does management have over the making of such recordings?

The Law of Recording Face-to-Face Conversations

A majority of states (approximately 37) follow the one-person consent rule for recording face-to-face conversations.  This rule authorizes the recording of a conversation so as long as one person in the conversation consents.  The consenting party can also be the person recording the conversation.  Practically speaking, this means it is legal to record a conversation with another person without his or her knowledge.

Most other states require the consent of all participants in the conversation.  Covert recording of face-to-face conversations would not be permitted in states that follow the all-party consent rule.

Workplace Bans on Covert Recordings

Even if covert recordings are legal, management may regulate the practice if done so consistently with the right of employees to engage in concerted activity, which is protected under Section 7 of the National Labor Relations Act (NLRA).  A recent National Labor Relations Board decision illustrates this.  Whole Foods Market, Inc., Case No. 01-CA-096965 (Oct. 30, 2013).  The case involved a challenge to a company policy that banned employees from recording conversations without prior management approval.  The company’s stated purpose for the policy was “to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”

The administrative law judge (ALJ) in the case upheld the policy.  The ALJ noted that there is no protected right to record conversations in the workplace, but even if there were such a right, management may regulate the exercise of that right.  It was not adopted in response to union activity, and it was clearly tied to the company’s core value of fostering open and honest dialogue about company matters.  The ALJ disagreed that the policy could reasonably be interpreted as a restriction on using social media to communicate and share information about work conditions through video recordings made at the workplace.  The policy regulated a means of communication as opposed to the protected activity itself.  It also did not prohibit employees from making recordings during non-work time.  The policy therefore did not violate Section 7 rights.

Takeaways

The Whole Foods Market decision suggests questions that management should consider when drafting a work rule against covert recordings to ensure that the rule does not violate the NLRA:

  • Is the rule clearly linked to a purpose besides preventing employees from engaging in Section 7 activity?
  • Does the rule leave open alternative channels for employees to communicate about Section 7 activity?
  • Does the rule allow employees to make recordings during non-work hours?

A ban on covert recordings is more likely to withstand a legal challenge if management can answer “yes” to each of these questions.

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