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Employers who discipline employees for their social media activity could unwittingly violate protections under the National Labor Relations Act (NLRA) for employees who engage in “protected concerted activity.”  An employee engages in protected concerted activity when acting together with other employees, or acting alone with the authority of other employees, for the mutual aid or protection of co-workers regarding terms and conditions of employment.  Since social networks by nature connect people, online gripes about work—which could be read by co-workers of the author within the same social network—could constitute protected concerted activity.  Three recent National Labor Relations Board (NLRB) decisions highlight this risk.

In Hispanics United of Buffalo, Inc., 359 NRLB No. 37 (Dec. 14, 2012), an employee at a domestic violence relief organization posted on Facebook about a co-worker (Cruz-Moore) who threatened to complain about the work habits of other employees to the executive director of the organization.  The employee wrote: “Lydia Cruz, a coworker feels that we don’t help our clients enough . . . .  I about had it!  My fellow coworkers how do u feel?”  Four off-duty employees responded to this post with disagreement over Cruz-Moore’s alleged criticisms.  Cruz-Moore saw these posts, responded to them, and brought them to the attention of the executive director.  The employee who authored the original post and the employees who responded were fired.  Two NLRB members of a three-person panel found the termination to be a violation of Section 8(a)(1) of the National Labor Relations Act (NLRA).  The NLRB found the posts to be “concerted” because they had the “clear ‘mutual aid’ objective for preparing coworkers for a group defense to [Cruz-Moore’s] complaints.”   The NLRB also considered the posts “protected” because they related to job performance matters.

In Pier Sixty, LLC, 2013 WL 1702462 (NLRB Div. of Judges Apr. 18, 2013), the service staff of a catering company were in the process of taking a vote on union representation when a staff member (Perez) got upset by what he perceived as harassment by his manager.  During a break, Perez went to the bathroom and posted on Facebook: “Bob is such a NASTY M***** F****R don’t know how to talk to people!!!!!  F**k his mother and his entire f*****g family!!!!  What a LOSER!!!!  Vote YES for the UNION.”  Various co-workers responded to the post.  The company fired Perez after learning about the post.  An administrative law judge of the NLRB held that the employer violated Section 8(a)(1) of the NLRA.  The judge found the post to constitute “protected activity” because it was part of an ongoing sequence of events involving employee attempts to protest and remedy what they saw as rude and demeaning treatment by their managers.  The post was also “concerted” because it was activity undertaken on behalf of a union.

In Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013), employees of a clothing store repeatedly but unsuccessfully attempted to persuade their employer to close the store earlier so that they wouldn’t have to walk through an unsafe neighborhood at night.  The employees posted Facebook messages lamenting the denial of their request and criticizing their manager.  In one message, an employee said she would bring in a book on workers’ rights to shed light on their employer’s labor law violations.  Another employee saw the messages and sent them to the HR director, who in turn forwarded them to the store owner.  The owner fired the employees who posted the messages, allegedly for insubordination.   A NLRB administrative law judge found the terminations unlawful because the messages were a continuation of an effort to address concerns about work safety (i.e., leaving work late at night in an unsafe neighborhood) and thus constituted protected concerted activity.

LegalTXTS Lesson:  What should employers learn from these decisions?  To avoid violating Section 8(a)(1) of the NLRA, employers might consider the following before disciplining employees based on their social media activity:

  • Check whether the employee’s post attracted or solicited a response from co-workers.  The interactive nature of social networking means that communications via social media are often “concerted.”
  • Calls for co-workers to take action likely constitute “protected” activity.
  • Complaints about work or co-workers—even if vulgar—can be considered “protected” activity.
  • Messages posted outside of the workplace or work hours can still be considered protected concerted activity.
  • Be especially sensitive to messages that reference collective bargaining activity or labor requirements.  Those are red flags indicating the need to exercise caution.
  • Often, social media is not the initial venue for airing work-related complaints.  Investigate whether the complaints voiced online were previously brought to the attention of the employer.  If they were, the online messages are more likely to be found to be part of a series of protected activity.
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Hawai‘i has jumped on the bandwagon of states (along with 31 other states, according to the National Conference of State Legislatures) introducing legislation to ban employers from requesting access to social media accounts of job applicants.  Several bills on the subject were introduced in this year’s legislative session, but the one that appears to have the best chance of becoming law is HB713 H.D. 2 S.D. 1 (HB713).  The bill has passed the House and gained the approval of two Senate committees.  Next up for the bill is review by the Senate Judiciary Committee.  As HB713 gains traction, let’s take a look at what it says and some issues it raises in its current form.

SUMMARY OF HB713, H.D. 2

HB713 would insert a new section into the Hawai‘i statute governing discriminatory employment practices, Hawai‘i Revised Statutes (HRS) chapter 378, part I.  The proposed law would apply to both job applicants and existing employees.  Employers are prohibited from gaining access to a “personal account,” which is defined as:

An account, service, or profile on a social networking website that is used by an employee or potential employee exclusively for personal communications unrelated to any business purposes of the employer.  This definition shall not apply to any account, service, profile, or electronic mail created, maintained, used, or accessed by an employee or potential employee for business purposes of the employer or to engage in business-related communications.

Specifically, an employer may not “require, request, suggest, or cause” an employee or job applicant to: (1) turn over access to his or her personal account; (2) access his or her personal account while the employer looks on; or (3) divulge any personal account.  An employer also may not fire, discipline, threaten, or retaliate against an employee or job applicant for turning down an illegal request for access.

There are exceptions, however.

  • An employer may conduct an investigation to ensure compliance with law, regulatory requirements, or prohibitions against work-related employee misconduct based on receipt of specific information about activity on a personal online account or service by an employee or other source.
  • An employer may conduct an investigation of an employee’s actions based on the receipt of specific information about unauthorized transfer of the employer’s proprietary information, confidential information, or financial data to a personal online account or service.
  • An employer may monitor, review, access, or block electronic data (a) stored on an electronic communications device that it pays for in part or in whole, or (b) traveling through or stored on an employer’s network, in compliance with state and federal law.
  • An employer may get an employee’s login credentials to access an electronic communications device supplied or paid for in whole or in part by the employer.
  • An employer may get an employee’s login credentials to access accounts or services provided by the employer or “by virtue of the employee’s employment relationship with the employer” or that the employee uses for business purposes.
  • HB713 specifies that the proposed law is not intended to prevent an employer from complying with other law or the rules of self-regulatory organizations, and that the proposed law should not be construed to conflict with federal law.

OBSERVATIONS AND CONCERNS

Shoulder surfing nixed.  The bill appears to make “shoulder surfing” by an employer illegal per se.  Suppose an employee tells his boss, “Man, you cannot believe the whales my friend saw on her boat this weekend!  She sent me a video of it on Facebook.”  Intrigued, the boss says he wants to see the video.  The employee obliges by logging on to her Facebook account while her boss watches over her shoulder.  Did the boss unlawfully “request” that the employee grant him access to her “personal account”?  Technically, yes.  Note that HB713 has no exception for voluntary consent of the employee.

“Friending” employees might become illegal.  Employers and employees sometimes connect on the same social network.  While it isn’t always a good idea for an employer to “friend” an employee, it’s not illegal to do so—unless, perhaps, HB713 becomes the law.  HB713 bans an employer from requesting that an employee “divulge any personal account.”  Yet, that’s exactly what a friend request does—it requests access to portions of a social media account that can be viewed only by the account owner’s “friends.”  The “divulge” language probably was intended to reach situations where an employer demands that an employee hand over access to another employee’s personal account.  But as written, HB713’s prohibition against divulging any personal account could be interpreted to apply to innocent “friending.”

The line between personal and private is blurry.  In a perfect world, employees would use business social media accounts strictly for business purposes and conduct all of their personal social media activity using separate social media accounts.   That’s a best practice, not necessarily reality.  The line between personal and business can get blurry in the social media space.  It’s not unusual for employees to talk about work or promote their company within their personal social networks.  If the employee uses his or her personal account for work purposes, shouldn’t the employer, who might have responsibility for the actions of its employee, be entitled to access the employee’s personal account in certain circumstances?  On the other hand, to what extent must an employee use his or her personal account for work-related interactions before the employer should be allowed access to the account?  These are difficult issues.

To address the issue, the latest draft of the bill tightens up the definition of “personal account” a bit and specifies that an employer may obtain login credentials from an employee to access “[a]ny accounts or services provided by the employer or by virtue of the employee’s employment relationship with the employer or that the employee uses for business purposes.”  This language is somewhat vague.  For example, what does “by virtue of the employer’s employment relationship with the employer” mean?  It might well be that HB713 is trying to draw artificial distinctions between personal and work social media accounts when in practice, the distinction is sometimes fuzzy at best.

HB713 still has a few hurdles to overcome before it becomes law.  Here at LegalTXTS, we’ll keep an eye out for the status of the bill.

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Court finds that Coyote president/founder’s blog post and director of operation’s Facebook status update could qualify as “adverse action” against employees for purposes of FLSA retaliation claims—Stewart v. CUS Nashville, LLC,  2013 WL 456482 (M.D.Tenn. Feb. 6, 2013)

We’ve seen cases  where employees were disciplined or fired for venting online (see posts here and here).  But what about when the employer does the venting?  That can create legal problems as well.

Employees of different bars in the well-known Coyote Ugly Saloon franchise filed a class action against corporate entities related to the franchise and Coyote Ugly’s president and founder, Liliana Lovell.  The lawsuit claimed violations of the Fair Labor Standards Act.  One of the plaintiffs (Stewart), claims that her employer retaliated against her shortly after the lawsuit was filed.  The alleged retaliation came in the form of this entry on Lovell’s “Lil Spills” blog, which appears on Coyote Ugly’s website:

“By the way Lil, you should be getting served with a lawsuit. No worries just sign for it”. This particular case will end up pissing me off cause it is coming from someone we terminated for theft. I have to believe in my heart that somewhere down the road, bad people end up facing bad circumstances!
I have been reading the basics of Buddhism and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously , I am still a very new Buddhist cause my thoughts are ” fuck that bitch”. Let me do my breathing exercises and see if any of my thoughts change. Lol

Stewart claimed that the entry falsely accused of her theft.

A second employee (Stone), claimed that Coyote Ugly’s Director of Operations (Huckaby) made the following post to his Facebook page: “Dear God, please don’t let me kill the girl that is suing me .… that is all …..”  Huckaby was intoxicated when he made this post.  According to Stone, Huckaby was sitting across the bar from her when he made the post.  Stone, who at the time was Facebook friends with Huckaby, saw the post on her phone almost an hour later, but the post was removed the next day.  Huckaby did not remember making or removing the Facebook post.

Stone further claimed that Huckaby made retaliatory comments the next night after learning that a customer threatened to sue after falling down some stairs.  Huckaby allegedly said: “Why does everyone sue?  I’m tired of all these bi***es taking their issues out on our company.  They’re f***ing idiots.”  Huckaby made the statements while Stone was approximately two feet away.  Stone quit her job the next day.

The defendants moved for summary judgment on the two individual retaliation claims.  One of the issues relating to Stewart’s claim was whether the Lil Spills blog entry was an “adverse action.”  A plaintiff claiming retaliation “must show that a reasonable employee would have found the challenged action material adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Burlington N. & Santa Fe. Ry. V. White, 548 U.S. 53, 67 (2006).  Applying that standard, the court found that a blog entry written by the employer’s founder and president accusing an employee of theft could constitute an adverse action.  A jury could find that the blog entry would have likely dissuaded a reasonable worker from making or supporting a FLSA claim.  Because genuine issues of material fact existed, the court denied summary judgment on Stewart’s retaliation claim.

Similarly, factual issues precluded summary judgment on Stone’s retaliation claim.  The court found that a reasonable person could find that Huckaby’s Facebook post was directed at Stone given that he knew she had joined the lawsuit and had made the post while seated across from her at the bar.  The Facebook post, together with the comments Huckaby made the following night, could be reasonably construed as the employer’s official hostility toward employees who bring lawsuits against it.  The court found that a reasonable person in Stone’s situation would have felt compelled to resign.  On the flip side, the court also denied Stone’s motion for summary judgment on the retaliation claim because there were factual disputes over Huckaby’s state of mind.  There was no evidence that Huckaby mentioned the lawsuit or Stone’s name while making either of the statements, and it was undisputed that he was drinking in both instances.

LegalTXTS Lesson: Authenticity can be an important part of a company’s brand or social engagement strategy, but sometimes a company’s self-expression can go too far.  As this case illustrates, even stray remarks can have legal consequences.  Like employees, employers need to exercise good judgment when posting content online.  Complaining about employees on the Internet rarely constitutes good judgment.  This is especially true if managers are connected to their subordinates on the same social network and therefore share content with each other.

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Check out the article on Internet firings posted on HR Hero’s “Technology for HR” blog.  The article talks about the firing of the Applebee’s waitress who snapped a picture of a receipt on which the customer,  a pastor, wrote: “I give God 10%  Why do you get 18?”  and posted it on Reddit.  I was happy to provide commentary for the article on Applebee’s social media policy and suggest tips for employers dealing with embarrassing Internet activity of employees like the Applebee’s incident.