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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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In the last few years, we’ve seen how the private social media activity of employees can get employers in trouble for violating a variety of laws. The National Labor Relations Act. HIPAA. Title VII. Now you can add the Americans With Disabilities Act (ADA) to the list.

In Shoun v. Best Formed Plastics, Inc., 2014 WL 2815483 (N.D. Ind. June 23, 2014), a federal judge held that an employer may be liable under the ADA for an employee’s Facebook comments about the medical condition of a co-worker. George Shoun, an employee at Best Formed Plastics, sustained a workplace injury and took leave to recover. Shoun’s co-worker, Jane Stewart, learned about his injury because she processed his worker’s compensation claim and monitored his medical treatment for the company. Stewart posted this snarky message on her personal Facebook account: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”

Shoun sued the company, alleging that Stewart’s post made it liable for violating the ADA. According to Shoun, the post was visible to the business community. Shoun claimed that prospective employers refused to hire him because of the post, causing him emotional distress and mental pain and suffering.

The court refused to dismiss the ADA claim against the company, reasoning that Stewart obtained the information through an employment-related medical inquiry and then wrongfully disclosed it. As a result, Shoun could sue for violation of Section 102 of the ADA, which provides that any information relating to a medical condition of an employee obtained by an employer during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.” Moreover, the company could be liable for Stewart’s actions even though she posted the message on her private Facebook account in her own time.

Shoun is another reminder of how easily the lines between personal and professional conduct can get blurred on social media. Employers must train their employees about what they may and may not disclose on social media. It is almost never proper for an employee to share medical information obtained at work on his or her personal social media account. The confidential nature of medical information needs to be emphasized especially when training employees who handle workers’ compensation claims, medical leave requests, billing for health services, FMLA claims, etc.

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In two weeks, the NLRB has issued just as many decisions agreeing with the positions of the NLRB’s Office of General Counsel (OGC) on employee social media use, as stated in the OGC’s well-known guidance memos.  On September 18, the NLRB invalidated Costco’s policy prohibiting employees from making statements on social media that could damage the company or other employees’ reputations.  Yesterday, the NLRB publicly released a decision weighing in on the BMW dealership case that was discussed in the OGC’s August 18, 2011 memo. (The decision and briefing in the case are available here).

Here’s a quick review of the case for those not familiar with it.  A salesperson at a BMW dealership posted photos on Facebook showing a car that a test driver accidentally drove into a pond in front of a Land Rover dealership across the street (who shares a common owner with the BMW dealership).  The employee  included mocking comments about the incident in the post.  That same day, the employee posted photos on Facebook depicting the low-quality food and beverages that the BMW dealership provided at a sales event to promote a new car model.  Again, the employee accompanied the photos with sarcastic remarks.  The employee was discharged for the Facebook posts regarding the Land Rover incident.  The employee claimed that the primary reason for his discharge was the Facebook posts regarding the sales event, which he argued was protected activity.

The NLRB agreed with the findings of the Administrative Law Judge (ALJ) that the discharge was based on the Land Rover posts, which were not concerted or protected activity because they were in no way connected to the terms or conditions of employment.  The ALJ’s decision also stated that the sales event posts could constitute concerted or protected activity because they could be construed as legitimate concerns about compensation.  Salespeople at the dealership were paid partly by commission, which are tied to sales.  Sales could be negatively impacted by damage to the reputation of the dealership due to the low-quality sales event.  The NLRB found it unnecessary to pass on the sales event posts, however, because the discharge was based on the Land Rover posts.

The NLRB also struck down a rule in the dealership’s employee handbook stating:

Courtesy: Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The NLRB found the rule overbroad, as it could have the effect of prohibiting employees from making protected statements to other employees about their working conditions.  However, a dissenting member of the NLRB’s three-member panel found that the courtesy rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

LegalTXTS Lesson:  Here are three quick takeaways from the decision.

  1. Work rules regulating “offensive” social media activity should be vetted for any connection to concerted or protected activity, such as employee discussions about their compensation or the terms and conditions of their employment.
  2. “Courtesy” work rules similar to the one the NLRB struck down should be revisited to ensure they are specific enough to exclude protected activity.
  3. The positions taken in the OGC guidance memos are gaining credibility as the NLRB increasingly adopts those positions in published decisions.