Can You Fire An Employee for A Facebook “Like”?

Since the arrival of social media sites such as Facebook and Twitter, employers have worried about protecting themselves from disparaging comments by their employees. Meanwhile, the National Labor Relations Board (NLRB) has intensified its scrutiny of employers’ social media policies and whether such policies prohibit employees from discussing the terms and conditions of their employment. The National Labor Relations Act (NLRA) gives employees the right to act together “to improve terms and conditions of employment or otherwise improve their lot as employees,” and social media has become one of the main avenues through which employees do so. An employer who violates this right and disciplines or fires an employee for engaging in protected activity faces big penalties, including having to reinstate the employee.

In a series of rulings over the past few years, the NLRB has taken the position that social media sites are “virtual water coolers,” and whatever employees have a right to discuss around the workplace with respect to the terms and conditions of employment, they may also discuss on social media. In an August 22, 2014 decision, the NLRB decided that “liking” a Facebook post that deals with working conditions is also “protected concerted speech.” Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). The NLRB found that Triple Play Sports Bar and Grille violated the NLRA when it terminated two employees for participating in a Facebook discussion about the additional state income taxes they owed because of the employer’s withholding mistakes, including the one who had only “liked” the post.

The NLRB concluded that the Facebook discussion was protected activity because “the purpose of [the] employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation….” The judge found that the employee’s “like” “expressed his support for the others who were sharing their concerns and therefore ‘constituted participation in the discussion that was sufficiently meaningful as to rise to the level of’ protected, concerted activity.” In balancing the interest of Triple Play’s owners in preventing harmful comments by their employees, the NLRB held that the comments were not “so disloyal” as to lose protection under the NLRA.

The NLRB also reviewed Triple Play’s Internet/Blogging Policy, and found that restricting online communications involving “confidential or proprietary information about the Company, or…inappropriate discussions about the company, management, and/or co-workers” violated the NLRA because it could reasonably include protected discussions. While the NLRB acknowledged that the policy did not “explicitly restrict protected activity,” it was still problematic because employees could reasonably interpret it as “proscribing any discussions about their terms and conditions of employment [that the employer] deemed ‘inappropriate.’”

As this decision makes clear, because a “like” standing alone can be protected, employers should tread carefully when considering taking action against employees for their social media activities and employer social media policies should be narrowly tailored to avoid prohibiting protected discussion. The NLRB will likely continue to scrutinize employer social media policies, and now is the time for employers to assess how to properly limit and respond to employees’ social media use.

Sara Dajani is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Sara can be reached at sdajani@BerenzweigLaw.com. 

Company Cannot Prohibit Employees From Disclosing The Personal Contact Information Of Other Employees

Tiffany & Company, the famed jewelry store, has a confidentiality policy that states, among other things, that its employees are prohibited from publicly disclosing other Tiffany employees’ contact information, including their names, addresses, telephone numbers, and e-mail addresses.  Though Tiffany is a non-union workplace, its policy recently came under scrutiny by the federal National Labor Relations Board (NLRB) after it received a complaint that the policy could interfere with an employee’s federally protected right to make the workplace better.  Tiffany countered that employment records are proprietary to the company, and allowing public disclosure of personal contact information could violate the privacy rights of its employees.

Tiffany’s policy was recently deemed unlawful.  According to the NLRB, the policy could prevent an employee of Tiffany from sharing co-worker information with a prospective union potentially looking to organize the workforce at Tiffany.  There was no evidence presented of any such union activity afoot at Tiffany, but the NLRB found that the mere existence of the confidentiality policy might chill an employee from collaborating with a union to organize at Tiffany.  The NLRB did caution that an employee would not be permitted to unlawfully access Tiffany’s employment records to get the contact information.  But if the employee was able to obtain employee contact information in the normal course of work, Tiffany cannot have a policy that prohibits the employee from publicly disclosing that information.

This is yet another case that reflects a growing trend in decisions by the NLRB of clamping down on companies that seek to restrict employees’ public discussion of workplace matters.  Companies need to carefully review their handbook and employee contract provisions to make sure they can withstand legal scrutiny by the federal government.

Declan Leonard is a Managing Partner of Washington, DC area business law firm Berenzweig Leonard, LLP. Declan can be reached at DLeonard@BerenzweigLaw.com.

NLRB Continues the March Madness by Recognizing College-Athletes as Employees

Yesterday, the Chicago regional office of the National Labor Relations Board (“NLRB”) issued a decision that could dramatically change the landscape of college athletics as we know it today. The Regional Director for the NLRB found that scholarship football players at Northwestern University are considered employees within the meaning of the National Labor Relations Act (“NLRA”), and therefore, eligible for union representation. This drastic departure from the traditional notion of a student-athlete will almost certainly be appealed and litigated for years to come.

In reaching its conclusion, the Regional Director defined an “employee" as "a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment." The RD found that the scholarship football players performed valuable services for the university that resulted in Northwestern generating approximately $235 million in revenue over a nine year period. The RD found that these players were compensated in the form of tuition, fees, room and board up to $76,000 per year and that the “tender” they signed before being granted a scholarship was akin to an employment agreement. The RD also found the players are subject to the university’s control taking into consideration the fact that players devoted almost 40-50 hours of their time each week to football-related activities and the coaches exercised control over most aspects of the players’ private lives, including living arrangements, outside employment, and even Internet postings.

The university argued that the scholarship football players were analogous to graduate assistants, who were previously found by the NLRB to not be employees. The Regional Director distinguished this argument by finding that football players are not primarily students given their time commitment to football-related activities, the fact that their athletic duties did not constitutes a core element of their educational degree, and ultimately found “that the overall relationship between the graduate assistants and their university was primarily an educational one, rather than an economic one.”

The Northwestern football players are seeking to bargain for guaranteed scholarships, post-career medical benefits, and limited contact for practices. If this ruling is upheld, players would now be able to bargain for additional matters such as allowing athletes to accept endorsements while in school or even being paid for playing collegiate athletics. As we’ve seen with professional sports, collective bargaining can also lead to player strikes and lock outs, which has canceled seasons in their entirety in the event players and universities are at an impasse.

Though this could lead to a significant change in college athletics, the decision is limited to scholarship players (not walk-ons) at private schools. Public universities comprise the vast majority of FBS Division I teams, and they would need to follow their own state’s laws related to collective bargaining. However, the ripple effects of this decision could lead to other employment related consequences, such as a determination that players are considered “employees” under the FLSA, thereby entitling them to back wages and potential overtime claims, workers compensation claims from football-related injuries, and unemployment compensation in the event a student is cut from the program.

In our opinion, this decision undermines the true meaning of collegiate student athletes – they are students first, and athletes second. By regarding students as “employees,” this administration is now taking the position that these players should be considered blue-collar workers. By treating students as blue-collar workers, the true reason for why they are at a given university – to receive an education – is eroded even further, if not entirely as universities will now view their players purely through economic lenses and measured by the revenue they bring in.

A more practical approach to solve this dilemma may be to set up an educational trust for these athletes. Revenue generated from collegiate programs could go into a trust that is set-up exclusively to benefit these athletes’ continued educational pursuit. The vast majority of collegiate athletes will not go on to play professionally and by setting up a trust that can be used to pursue graduate and doctoral degrees, you are incentivizing these athletes to continue their education, and using their prior athletic commitment as a means to fund that pursuit. This is just one of the alternatives we feel is better than throwing blue collars on these student athletes and leaving the majority of them at the end of their collegiate career without any means to pursue a career in anything other than sports. The government should not pigeonhole these student athletes into the football field or basketball court, but rather, promote incentives that allow these players to continue their educational pursuit beyond their playing days.

Nick Johnson is an attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at njohnson@BerenzweigLaw.com.

Are Employee’s Social Media Discussions Protected?

As we’ve reported, the National Labor Relations Board (“NLRB”) continues to take an aggressive stance on regulating employment decisions based on employee social media postings. Contrary to the recent trend of broadly construing employee social media postings as covered under protected activity, the NLRB reversed course and recently ruled in favor of an employer after terminating an employee based upon what it believed was an improper Facebook group message post.

In the case, an employee worked at a small medical office performing various office duties for her employer. The employee at issue in the case, along with nine other individuals who were comprised of both former and current employees, took to a private group chat on Facebook to organize a social outing. After briefly planning the social event, the subject quickly changed after the employee mentioned that another former employee may be returning to the company as a supervisor. This led to the employee beginning an attack on her current supervisor claiming that her supervisor "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." The employee’s rant did not stop there as she began using profanity and stated “FIRE ME …Make my day.” Other than one other current employee stating that the employee’s comments made her laugh, no other current employees took part in this part of the discussion.

To no surprise, one of the current employees on the group chat showed this discussion to their employer. The employer called the disgruntled employee’s bluff and ended up firing her as it was clear to the employer that she was no longer interested in working for the company.  The terminated employee responded by filing an NLRA charge against the company claiming that her Facebook comments constituted protected concerted activity.

The NLRB found that the employee’s conduct on the Facebook group message did not constitute protected activity as the postings did not involve shared employee concerns over terms and conditions ofemployment. The NLRB largely focused on the test for “concert” and whether the employee is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Ultimately, the NLRB concluded that the terminated employee’s “comments merely expressed an individual gripe rather than any shared concerns about working conditions,” and therefore, the terminated employee’s charge should be dropped.

This is a big victory for employers as up until this opinion, the NLRB has continuously taken a very aggressive stance against employers on social media policies and terminations based on violations thereof. When making these termination decisions related to online postings, employers will want to consider what was said, by whom, and who responded in order to determine whether such conduct would be considered “protected concerted activity.” Though this opinion does give employers comfort if and when it decides to make a termination decision based on improper Facebook postings, it is always critical for you first to discuss these decisions with an experienced employment attorney.

The author, Nick Johnson, is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Nick can be reached at NJohnson@BerenzweigLaw.com.

Government Continues to Scrutinize Workplace Social Media Policies

Concerned about its image and the protection of its employees, retail giant Costco enacted a policy restricting employees from making statements on social media sites such as Facebook or Twitter that:

“. . . damage the company, defame any individuals or damage any person’s reputation.”  

The Federal Government caught wind of Costco’s social media policy, and brought an action to stop it on the ground that the policy interfered with the right of Costco employees to band together to improve workplace conditions.  Costco defended the policy by saying it was merely trying to protect the company and its employees from online harassment and disparagement.

The National Labor Relations Board (NLRB) recently ruled that Costco’s policy violated the right of all employees (even non-union employees) to improve workplace conditions.  This is a tough decision for many companies to swallow, since on the surface it appears that Costco’s social media policy was aimed at the type of conduct that would be labeled defamation or disparagement.  But it is actually consistent with many other recent decisions from the NLRB clamping down on any company provisions that it feels could have a chilling effect on the ability of employees to protest against work conditions.

Traditionally, the NLRB has been associated with union workplaces.  But with the decline of union membership nationwide, the NLRB has become more and more active in enforcement actions related to non-union employers.  Social media policies such as the Costco policy at issue in this case have become a prime target of the NLRB’s enforcement arm.  Companies that have not had their employee handbook reviewed in a few years would be wise to undergo a qualified legal review.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Social Media Policies Under Scrutiny by the Government

Social media is everywhere.  Most people are interacting through social media outlets such as Facebook, Twitter and LinkedIn.  The ability to interact with friends, family and colleagues in real-time is unprecedented in modern day society.  However, given the transparent nature of social media outlets, privacy issues can be problematic, especially in the employment context.

Recently, the National Labor Relations Board (“NLRB”) has taken an aggressive stance on analyzing employee social media policies and has issued multiple reports over the last year guiding employers in drafting them.  The NLRB’s main focus is whether the policies hinder or violate an employee’s right to engage in protected concerted activity, such as discussing the terms and conditions of employment. Given the uptick in social media, most policies receive scrutiny when an employee is terminated based on discussions or comments posted on a social media site.

Important take-aways regarding recent NLRB opinions:

• Employers are allowed to prohibit employees from sharing confidential and/or proprietary information online.  It is Best Practice to give examples of what is considered confidential and/or proprietary information.
• Employers are allowed to prohibit employees from posting vulgar or obscene language, as well as intimidating or harassing material. 
• A simple disclaimer such as “nothing herein prohibits protected conduct under Section 7 of the NLRB” will not, by itself, save an overly broad social media policy. However, it is Best Practice to include it, thus ensuring that the remaining social media policy is not overly broad. 
• Policies cautioning employees about posting inaccurate, misleading or internal company information have been determined to be overly broad.
• Policies stating that employees are prohibited from disparaging or defaming the company through social media have consistently been struck down, thus employers should avoid such language. 

There is a clear trend from the NLRB to strike down social media policies that are overly broad or determined to be restrictive.  As an ever-evolving area of the law, social media policies that may have been acceptable a few years ago may no longer be considered lawful. Employers should be mindful of this and understand that drafting employee handbooks and policies is not a one-time event, but rather a continuing and evolving process.

Nick Johnson, is an Associate Attorney for Washington, DC business law firm, Berenzweig Leonard, LLP. Email Nick Johnson