SOCIAL NETWORKING – WORKPLACE CHALLENGES

EMPLOYMENT LAW UPDATEfor the TENNESSEE HUMAN RIGHTS COMMISSION

& TN DEPARTMENT OF HUMAN RESOURCES

By:

TIM K. GARRETT, Esq.BASS, BERRY & SIMS PLC

150 Third Avenue South, Suite 2800Nashville, Tennessee 37201

(615) 742-6270

Questions? Don’t hesitate to ask

Social Media Challenges• Labor/NLRB Context• Discrimination/EEOC Context

Labor/NLRB Context

• “Protected Concerted Activity”• NLRB – recently issued third guidance

memoranda– Protected nature of employees’ social

media postings – “protected concerted activity”

– Evaluation of Employer policies

Labor Context (cont’d)

• Implementation – be cautious in discipline– Who? Individual or group / even if

individual, is it a “group” complaint?– What? Type of complaint / has it lost

“protected status” for some reason?– When? On-duty vs. off-duty

Concerted Activity

• Activity is concerted when an employee acts “with or on the authority of other employees and not solely by or on behalf of the employee himself.”

• The definition “encompasses those circumstances where the individual employees seek to initiate or to induce or to prepare for group action.”

Unlawful Work Rules

• Violation of Section 8(a)(1) – work rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights.”

• Ex: rule prohibiting discussion of wages• If not explicit, still unlawful if:

• (1) “employees would reasonably construe the language to prohibit Section 7 activities”

• (2) Rule promulgated in response to union activity, or

• (3) Application of rule restricts Section 7 rights

Examples of Unlawful Work Rules

• Rule prohibiting the making of disparaging remarks about the company through any media, including online blogs, other electronic media or through the media

• Held: Unlawful • Could reasonably be construed to restrict Section 7

rights (such as statements that the employer is not treating employees fairly or paying them sufficiently)

• Rule contained no limiting language that would clarify to employees that not intended to restrict Section 7 rights

• Policy that employees should generally avoid identifying themselves as Company employees unless discussing terms and conditions of employment in an “appropriate manner”

Held: UnlawfulDeemed to “implicitly prohibit” inappropriate discussions re: terms and conditions of employment

No definition of appropriateNo Specific examplesAs such, rule could reasonably be interpreted to prohibit protected activitySavings Clause found insufficient to cure ambiguities

Rule prohibiting “insubordination or other disrespectful conduct” and “inappropriate conversation” deemed overbroad

Disrespectful conduct and inappropriate conduct reasonably construed by employees to prohibit

Section 7 activities

Policy Takeaways

Cannot explicitly prohibit Section 7 activities such as discussion of terms and conditions of employment or disparagement of employer

Avoid ambiguous terms such as “appropriate”

Provide specific examples of conduct which violates policy

Ex: disclosing trade secrets or protected information, engaging in harassment or other forms of illegal activity

Incorporate a Savings Clause

Unlawful Discipline* May not discipline employees in response to protected activity, or by using unlawfully overbroad work rule in situations where the employee engaged in protected conduct

* Employer not liable for discipline under overbroad rule if it can establish that the employee’s conduct actually interfered with the employee’s own work or that of other employees or that it actually interfered with the employer’s operations, and the interference was the reason for discipline

Example 1

Supervisor reprimands employee in front of Regional Mgr. for failure to perform a task

EE updated FB account during lunch break with an expletive and the name of the employer’s store

4 individuals and a co-worker “Liked” the status

30 minutes later, EE posted again stating that the ER did not appreciate its employees

Co-worker friends did not respond to this post

EE discharged for violation of policy prohibiting inappropriate comments in social media about employer

Example 1 Cont.

Held: Lawful

FB posts were individual gripe

EE had no particular audience in mind

No language suggested she sought to initiate coworkers to engage in group action

Posts did not grow out of prior discussion with coworkers about terms of employment

While one coworker “offered sympathy” no extended discussions over working conditions

Example 2

EE forced to transfer to new job b/c of low production. New job had smaller earning potential.

Next day EE expressed her frustration to supervisor and disputed reason for transfer.

After work, CP posted status of FB. Using expletives, she stated that ER messed up and that she was done being a good employee.

Coworker FB friends expressed support and complained about ER’s honesty and integrity

One former coworker suggested a class action lawsuit.

EE terminated for making disparaging remarks about ER.

Example 2 Cont.

Held: Unlawful

NLRB noted coworker comments expressing similar frustration and the suggestion of concerted activity (i.e. filing of class action lawsuit)

EE’s FB comment and the discussion it generated involved complaints about working conditions and ER’s treatment of its employees.

Considered concerted activity b/c of the EE’s initiation of group action through discussion of complaints.

Termination unlawful because discharged in response to protected activity

Also found unlawful because discharged pursuant to an unlawfully overbroad rule prohibiting disparagement with no actual interference with the workplace or the ER’s operations

TakeawaysDistinguish between individual gripes and initiation of group activity

Comments to posts and ensuing discussion may convert initial post into protected activity

Specific workplace complaints will be given more protection than general statements

Expletives do not necessarily cause posts to loose protection (NLRB’s perspective)

Personal attacks on supervisors and management will likely loose protection, but criticisms of management style will not.

If conduct happens on the clock, it is entitled to less protection

Discrimination Context• Hiring

– Do not “search” applicant names– Information found may be helpful – But, may learn inadvertently information

that cannot consider– Can you require passwords/log-in

information? Growing legislative initiatives

Discrimination Context• During Employment

– Managers as “friends”– NLRB issues as discussed– Extent of duty to stop “harassment”

Mixed messages from recent cases

– Assistance in investigations?– Again, legislative initiatives on

passwords/log-in information

Discrimination Context• Post-employment

– Defamation– Job References– Caution Managers

Other Questions?