NLRB “Likes” Facebook.

10 Wednesday Dec 2014

Posted by Celia C. Elwell, RP in Civil Rights, Employment Law, First Amendment, Social Media

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Employment Law, Facebook, First Amendment Right, John R. Martin, NLRB, Rhoads & Sinon LLP, Social media

Social Media Update: Recent Developments from the Land of Facebook…, by John R. Martin, Rhoads & Sinon LLP

I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has come down hard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….

This Time, Employer’s Social Media Policy Does Not Violate Employee’s Rights.

06 Sunday Jul 2014

Posted by Celia C. Elwell, RP in Administrative Law, Employment Law, Social Media

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Administrative law judge, Employment Law, Jason Shinn, Michigan Employment Law Advisor, NLRB, Shinn Legal PLC, Social media

Employer’s Social Media Policy Found Not To Violate Employees’ Rights, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor

http://tinyurl.com/q8pogjs

A recent social media case involving the NLRB should be cause for celebration for employers. Specifically, in Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB administrative law judge (ALJ) had found a social media policy concerning its subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., did not violate the National Labor Relations Act (NLRA).

Initially, the General Counsel argued that Bubba Gump’s social media policy infringed on employee’s rights under the NLRA because it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties. That social media stated as follows:

‘While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.’

The ALJ agreed that without ‘more,’ the first sentence could violate the NLRA. But the ALJ noted that the social media policy did not outright restrict speech on job related issues – job related subject matters – but, instead, the manner in which such issues are being discussed and debated, i.e., being civil to others and their opinions:

‘Without more, it would be reasonable for employees reading this language to conclude that the Respondent generally frowns upon all job-related postings of any type. However, the cautionary language is modified by the language in the next sentences which may be understood to clarify that the 40 avoidance of morale problems may be ‘accomplished’ by simply being civil to others and their opinions.’

Employer Take-Aways

From an employer’s perspective this case is a good result. But it is also a reminder that the NLRB’s General Counsel continues to closely scrutinize employers’ social media policies. For this reason, it continues to be important to carefully draft social media policies that will give ALJs the opportunity to sensibly read the policies so as to not find a violation of employees’ rights under the NLRA. . . .