NLRB’S RECENT SCRUTINY OF SOCIAL

MEDIA AND OTHER PERSONNEL POLICIES

John A. DiNome, EsquireSherri A. Affrunti, Esquire

Joel S. Barras, EsquireLabor & Employment Group

What is Social Media?

Defined broadly as ….

“…activities, practices and behaviors among communities of people who gather online to share information, knowledge, and opinions using conversational media.”

Essentially, it is any tool or service that uses the Internet to facilitate conversations.

Social Networking is Here to Stay A 2009 Deloitte study revealed that 23% of employees visit

social networking sites 1-4 times per week; 10% admitting that some access is for personal reasons In the same study: 74% of employees agreed it is easy to damage a company

reputation on social media 23% of employees said they do not consider the ethical

consequences of posting comments, photos or videos online 72% of executives revealed that their company does not have

any formal policies governing social networking use Deloitte LLP, 2009 Ethics & Workplace Survey

Results, Social Networking and Reputational Risk in the Workplace

Facebook boasted 5 million + members in 2005. In December 2009, reports indicated upwards of 350 million active Facebook members. In 2013, membership is projected to balloon to 1 billion.

But Feelings Remain Mixed on Appropriate Use of Social Media

32% of employees fear that use of social networking sites will negatively affect their careers.

62% of employees prefer not to be “friends” with their managers on social networking sites.

40% of executives say that their companies block access to sites. Deloitte LLP, 2010 Ethics & Workplace Survey

Results, Trust in the Workplace.

. . . there is a persistent gap between employee and employer views on the appropriate use of and access to social media sites . . .”

Sharon Allen—Chairman, Deloitte LLP

Social Media Technology Has a Significant Impact on the Workplace

Employees may upload information that an employer believes is inconsistent with its image or mission

Employees may participate in a variety of online groups to discuss work-related issues outside of employer oversight

Employees may inadvertently or intentionally disclose confidential business information

Employees may disparage your customers, consultants or vendors

Other Concerns Surrounding Employee Use of Social Media

Violation of copyright and other laws

Real and perceived conflicts of interest

Violation of FTC Rules on Use of Endorsements

LinkedIn Endorsements (Good and Bad)

Violations of standards of conduct (Harassment)

Loss in productivity

Protected concerted activity

2012 Survey of the Society for Human Resources Managers (SHRM) found:

Methodology | A sample of HR professionals was randomly selected from SHRM’s membership database, which included approximately 250,000 individual members at the time the survey was conducted. The sample was composed of members with the job function of recruiting/staffing. 532 responses were used, yielding a response rate of 19%. Data were collected December 17, 2010, through February 1, 2011. The margin of error for this poll is +/- 4%. © January 2012. Society for Human Resource Management

- Overall, 40% of organizations reported having a formal social media policy – leaving 60% of companies reporting to not having a social media policy yet in place

- Among organizations with a formal social media policy, the majority of organizations (43%) reported HR is responsible for creating and enforcing these policies

- Among organizations with a social media policy, 33% indicated taking disciplinary action against an employee who violated their policy within the last 12 months

Why Such a HOT Topic?

Increasing popularity of social media networks Increasing accessibility through smart phones & mobile

devices Increasing liability concerns Increasing realization of many employers that their

policies are significantly behind the technology and the law, particularly in the face of recent NLRB rulings which extend to non-unionized employers

“Many view social media as the new water cooler,” said Mark G. Pearce, the board’s chairman, noting that federal law has long protected the right of employees to discuss work-related matters.

“All we’re doing is applying traditional rules to a new technology.”

Even if It Enrages Your Boss, Social Net Speech Is Protected. By Stephen Greenhouse

National Labor Relations Board (NLRB) National Labor Relations Act (NLRA)

NLRB taking action through… Rulemaking Administrative decisions Litigation

Employee-Friendly Agenda Critical social media issues…

Employer training on NLRA

“At-will” acknowledgements

Confidentiality in internal investigations

Union organization

Company-related social media posts

Intellectual property rights

Disciplining employees

Employee-Friendly Agenda (cont.)

NLRB focused on…

Overbroad or restrictive social media policies

Discipline or discharge for social media use

Unionization through social media

NLRB Acting General Counsel Three critical-advice memos issued since

August 2011

Objectives of the memos

Limit scope of social media policies

Protect employee comments on social media

Examples of Impermissible Policy Rules Blanket prohibitions

“No disparaging comments about the company through social media”

“Do not release confidential information about the company, its employees, or its clients”

“Only discuss on a need-to-know basis”

Examples of Impermissible Policy Rules (cont.)

Accuracy of communications

“Comments about the company must be accurate and not misleading, even if based on your personal view”

Guidance from employer

“When in doubt, do not post on social media. Checking with the company is a good idea.”

Examples of Impermissible Policy Rules (cont.)

Discouraging communications orrequiring reporting of communications

“Be careful when ‘friending’ coworkers”

“Address concerns by speaking directly to coworkers, supervisors, or managementrather than posting on the Internet”

“Report any inappropriate social media activity”

Examples of Impermissible Policy Rules (cont.)

Communications with government officials or media

“Notify the company if you are contacted by any federal, state, or local agency”

“Notify the company if you are contacted by the media”

“Never speak publicly about the company’s business without prior authorization”

Examples of Impermissible Policy Rules (cont.)

Photographs and videos

“Do not post photos, music, videos, or personal information without the owner’s permission”

“Do not post the company’s trademark on social media sites without its permission”

NLRB’s Social Media CasesCostco Wholesale Corporation, 358 NLRB No. 106 (Sept. 7, 2012)

Employer’s policy…

“statements posted electronically … that damage the Company, defame any individual or damage any person’s reputation … may be subject to discipline …”

NLRB’s Social Media Cases (cont.)

Costco Wholesale Corporation, 358 NLRB No. 106 (Sept. 7, 2012)

ALJ dismissed

Ensures “civil and decent workplace”

NLRB reversed

Prohibits protected concerted activity

NLRB’s Social Media Cases (cont.)

Salon/Spa at Boro, Inc., 356 NLRB No. 69 (Dec. 30, 2010)

Policy prohibited “negativity”

Employer encouraged staff to “exercise judgment and restraint” in using social media

Employer warned about disgruntled employees making disparaging comments

NLRB’s Social Media Cases (cont.)

Salon/Spa at Boro, Inc., 356 NLRB No. 69 (Dec. 30, 2010)

NLRB dismissed

Not a threat of reprisal

Educational warning of negative impact on employees’ reputation

Constitutionally protected speech

NLRB’s Social Media Cases (cont.)

Mashantucket Pequot Gaming Enterprise d/b/a Foxwoods Resort Casino, 356 NLRB No. 111 (Mar. 17, 2011)

Employer objected to union election

Claims of racially “inflammatory appeals” on Facebook and non-social media outlets

NLRB’s Social Media Cases (cont.)

Mashantucket Pequot Gaming Enterprise d/b/a Foxwoods Resort Casino, 356 NLRB No. 111 (Mar. 17, 2011)

NLRB dismissed

Union statements “not demeaning” or “inflammatory” toward Native Americans

Union simply stating facts about policy

NLRB’s Social Media Cases (cont.)

Mashantucket Pequot Gaming Enterprise d/b/a Foxwoods Resort Casino, 356 NLRB No. 111 (Mar. 17, 2011)

Key takeaway

Racially inflammatory campaign propaganda distributed through social media can provide grounds to set aside an election

Settlement AgreementsIngham Regional Medical Center

Two discharged employees claimed:

Discharge because of electronic discussions about terms and conditions of employment

Cell phone policy overly broad

Settlement Agreements (cont.)

Ingham Regional Medical Center

Settlement agreement

Reinstatement with back pay

Post notice

Limit scope of policy

Settlement Agreements (cont.)

Healthcare Ventures of Ohio, LLC

Employee claimed:

Confidentiality policy overly broad

Supervisor interrogated employee about others who electronically discussed termination of coworkers

Settlement Agreements (cont.)

Healthcare Ventures of Ohio, LLC

Settlement agreement

Not to maintain an “overly broad confidentiality rule” prohibiting employee discussions of terms and conditions

Settlement Agreements (cont.)

American Medical Response of Connecticut

Division of advice claims:

Overly broad policy against the depiction of company without authorization

Overly broad policy against disparaging comments against company, supervisors, coworkers and competitors

Settlement Agreements (cont.)

American Medical Response of Connecticut

Division of advice claims:

Employee asked to prepare incident report without union representation

Employee discharged for vulgar remarks on Facebook about her supervisors

Settlement Agreements (cont.)

American Medical Response of Connecticut

Settlement agreement

Not to maintain an overly broad policy restricting employee discussions about work conditions while not at work

Settlement Agreements (cont.)

Build.com

Discharged employee claims:

Retaliation for Facebook postings alleging labor code violations

Other “Facebook friend” employees responded to postings

Settlement Agreements (cont.)

Build.com

Settlement agreement

Reinstatement with back pay

Post notice about employees’ right to post comments on social media about terms and conditions of employment

Tips for Developing Policies That Withstand NLRB Scrutiny

Clearly communicate that all systems are owned by the company Clearly communicate that all systems provided are for company

business use and not personal use Clearly communicate that employees have no reasonable

expectation of privacy in use of any technology owned/provided by the company (including email, laptop computers, PDAs, internet, etc.) Communicate notice of intent to monitor and the frequency and

purpose of monitoring Assure legal compliance with all monitoring activities Electronic Communications Privacy Act Stored Communications Act State Wiretapping Laws

Tips for Developing Policies That Withstand NLRB Scrutiny (cont.)

Clearly explain that monitoring extends to all aspects of the company systems, social media and technologies:

All information forwarded or received on company email system is subject to monitoring and may be stored

All information sent, received or viewed on the internet (including personal emails on yahoo, msn and other personal email accounts), web-based communications, instant messages, text messages or other forms of communication can be stored on the computer’s hard drive and/or the company’s servers and can be reviewed and retrieved by the company at any time

Back-up copies of electronic communications may exist, even if they have been “deleted” from the computer

Tips for Developing Policies That Withstand NLRB Scrutiny (cont.)

Clearly describe and specifically define prohibited activities (do notuse vague or overbroad language that might chill employee speech):

Disseminating Confidential Information; Engaging in actions or downloading materials that are vulgar, harassing,

threatening, intimidating, defamatory, discriminatory, or libelous; Engaging in “hacking” or intentionally introducing computer viruses; Tampering with or disabling security mechanisms on company computers

and other equipment; and Violating copyright laws, trademarks, and third-party privacy rights.

Tips for Developing Policies That Withstand NLRB Scrutiny (cont.)

Obtain express notice and consent – obtain employee acknowledgment and issue periodic reminders of policy. System log in page Email disclaimers Periodic policy review Periodic policy re-distribution

Warn employees that their violations of the policy – as with other policies – are grounds for disciplinary action, up to and including termination of employment

Tips for Developing Policies That Withstand NLRB Scrutiny (cont.) Address shared sites and weblogs as applicable: Employees can blog on their own time, but remind them to exercise

decorum, comply with all Terms of Use for sites, and restrict them from presenting their opinions in a manner that can be viewed as the company’s opinion

When endorsing company products/services, remind employees that they must disclose employment relationship with the company

When employees are authorized to establish or administer company-sponsored social networking sites, set ground rules – Sites belong to the company; Post only accurate information about the company and its

products/services; Maintain appropriate decorum and professionalism when posting and

responding to posted comments; and Bring false comments posted by others to the immediate attention of

management (for uniform corporate response).

Tips for Developing Policies That Withstand NLRB Scrutiny (cont.)

Beware your duty to monitor certain activities - Doe v. XYZ Corp., 382 N.J. Super. 122 (App. Div. 2005). Various state statutes imposing affirmative obligation on computer

technicians or internet service providers to report child pornography if then encounter it in the scope of their work (e.g., AR, IL, MI, NC, OK, SC)

Inform employees in policies that company will cooperate with criminal investigations

Train employees responsible for monitoring to promptly investigate allegations of unlawful conduct

But also beware, limitations that may be set on your ability to monitor, i.e., for what there is a business-related need to know - Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010).

Tips for Developing Policies That Withstand NLRB Scrutiny (cont.)

Include a disclaimer to explain that the policy does not prohibit, and is not intended to prohibit, employees from engaging in protected concerted activity or discussing wages, hours and working conditions

Example: “Nothing in this policy is designed to interfere with, restrain or prevent employee communications regarding wages, hours or other terms and conditions of employment. Employees have the right to engage in, or refrain from, such activities.”

Other Recommendations for Employers Developing Policies Enforce the policies and punish policy violators Be consistent in your policy and practices Investigate carefully before issuing discipline Carefully evaluate whether a posting is directed to co-workers or

could be construed as an attempt to initiate group action (i.e., do not discipline employees for engaging in concerted activities, such as postings aimed to engage co-workers in discussions of working hours, wages and conditions)

When searching, search reasonably Don’t undermine your own policies! Train employees on the policies Train managers on the policies Recruitment Access to password protected sites References Discipline

Posting Requirements NLRA Rights Notice

Right to act together to improve wagesand working conditions

Right to form or join union

Right to bargain collectively

Right to refrain from above activities

Posting Requirements (cont.)

NLRA Rights Notice must be

Posted in conspicuous place in workplace

Made available on Internet or intranet

Posted in foreign language if 20 percent of workforce not proficient in English

Union Organization UsingEmployer Email SystemRoundy’s, Inc., 356 NLRB No. 27 (2010)

Registered Guard:

Employer may deny access to employees using for purposes of union organization

Central issue in Roundy’s:

Whether Registered Guard applies to non-employee access cases

Union Organization UsingEmployer Email System (cont.)

Roundy’s, Inc., 356 NLRB No. 27 (2010)

NLRB Acting GC has advocated:

Registered Guard should be overruled

Sandusky Mall should apply to all access cases

Briefing concluded, but no ruling yet

ConfidentialityCostco Wholesale Corporation, 358 NLRB No. 106 (Sept. 7, 2012)

Employees’ NLRA rights infringed by:

Policies prohibiting unauthorized posting on, or removal of materials from, company property

Policies prohibiting disclosure of private or sensitive information (e.g., health information, private contact information, SSNs, credit card information)

Confidentiality inInternal InvestigationsBanner Health Sys. d/b/a Banner Estrella Med. Ctr., 358 NLRB No. 93 (July 30, 2012)

Hospital employee refused to follow supervisor’s instructions and complained to HR

HR investigator asked interviewed employees not to discuss with others

Employee discharged for insubordination

Confidentiality inInternal Investigations (cont.)

Banner Health Sys. d/b/a Banner Estrella Med. Ctr.,358 NLRB No. 93 (July 30, 2012)

ALJ dismissed

Purpose to protect integrity of investigation

NLRB reversed

Legitimate business reason must outweigh right to protected concerted activity

At-Will Acknowledgements NLRB acting GC has issued contradictory

advice memoranda on topic

Hyatt Hotels – GC against policy requiring employees to acknowledge that their at-will status could not be altered without agreement

Months later, GC upheld handbook disclaimers comparable to that in Hyatt Hotels

“[I]t is not the purpose of the [NLRA] to give the Board any control whatsoever over an employer’s policies”

Any Questions?

Thank you!