Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

Recent court decisions related to employees’ online postings have centered on whether disciplinary decisions regarding those postings may violate the National Labor Relations Act (NLRA). The NLRA protects certain employee “concerted activities” aimed at discussing or improving working conditions, and precludes interference with such communications, including online messages. However, individuals also have brought other legal causes of action against employers for so-called “Facebook firings.” Recently, a Texas appeals court was asked to determine whether the firing of an employee on the basis of her Facebook comment violated that employee’s state law privacy rights. The court held that it did not. Roberts v. CareFlite, Texas Court of Appeal 2d District, No. 02-12-00105-cv, Oct. 4, 2012.

Janis Roberts was a paramedic with CareFlite, a helicopter/ambulance service. Roberts posted on a fellow employee’s Facebook wall that she “wanted to slap” a patient who had needed restraints during a transport. When CareFlite compliance officer learned of the posting, she sent a message to Roberts – also through Facebook – reminding her that the public sees such postings, and asking her to “consider removing that post.” In response, Roberts curtly stated “Yeah, whatever,” and went on to state that sometimes “a patient needs an attitude adjustment.” Roberts ultimately removed the original posting, but before she did, the company’s CEO was made aware of it.

Roberts was terminated for her post, and for her “unprofessional and insubordinate” response to the compliance officer. She subsequently filed a lawsuit asserting that the company’s reaction use of and reaction to her personal and private Facebook message postings invaded her privacy under two state law claims: public disclosure of private facts, and intrusion upon seclusion.

After the lower court dismissed both of Roberts’ claims, she appealed the intrusion upon seclusion claim. However, in order to establish such a claim, Roberts would have to show an intentional intrusion on her privacy that was “highly offensive to a reasonable person.” Roberts argued that the rights of employees to privately discuss issues of patients who might affect employees’ safety outweighed issues of public concern (in this case, the public’s confidence in the ambulance company) and that, therefore, the employer’s intrusion into that discussion was a violation of privacy. In essence, Roberts attempted to assert the state-law equivalent of an NLRA Section 8 claim, which precludes companies from interfering in employees’ work-related safety discussions. However, because Roberts’ invasion of privacy claim was brought under state law tort theory, the court found that argument to be irrelevant, and dismissed the lawsuit for lack of legal support.

While this case was brought under Texas state law, the rationale is applicable to other circumstances, as well: courts will not read an “appropriate” cause of action into a lawsuit that fails to assert it. Whether or not Roberts’ allegations would have supported a cause of action for violation of the NLRA, her failure to specifically allege that claim, and her reliance on the state-law invasion of privacy claim, doomed her lawsuit. Obviously, employers should not become complaisant based upon this decision – employees’ rights to communicate about the terms and conditions of their employment remain protected under federal law.
 

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On September 28, 2012, a three-member panel of the National Labor Relations Board (NLRB) affirmed the decision of an Administrative Law Judge (ALJ) who upheld a car dealership’s firing of a salesperson that was based on a Facebook posting. But it also found a way to include its Notice of Employee Rights poster in the resolution of the case. Karl Knauz Motors, Inc. Case 13-CA-036452 (Sept. 28, 2012).

In May of 2011, NLRB issued a complaint (and accompanying press release) alleging unlawful termination of the car salesman for posting photos and comments on Facebook.  The complaint, which was similar to other complaints filed by the NLRB in the months prior to that case, alleged that a Chicago area BMW dealership illegally fired the employee after that individual posted information on his Facebook page that arguably was critical of the dealership.

In that case, the BMW dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. At the time, a Huffington Post reporter summarized the issue this way: “[The salesman] and a few co-workers apparently felt that Sam's Club hot dogs and bottled water were no way to hype a luxury car -- and they thought their sales might suffer because of it. The salesman's critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.”  Other employees had access to that Facebook page. When the dealership’s management asked the salesman to remove the posts, he immediately complied. Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated.

However, the employer/dealership stated that in reality, the salesman was fired because he also posted photos of an embarrassing (and potentially dangerous) accident involving a salesperson and vehicle from a neighboring car dealership, also owned by his employer. That situation involved a saleswoman who imprudently had allowed the 13 year old son of a customer to sit behind the wheel of a luxury SUV that had been purchased by the young person’s father. Apparently, the young man threw the car into gear and hit the gas, running over his father’s foot and jumping a wall, landing in a pond and damaging the vehicle.

The matter was heard by an Administrative Law Judge, who determined that the Facebook posting related to the snack issue was protected concerted activity that discussed “terms and conditions” of employment. Under the NLRA, employee communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity. However, the ALJ went further and determined that the employee actually was fired for his second posting, in which he mocked a dangerous situation and embarrassed others – and neither activity is protected by the NLRA. Therefore, the ALJ upheld the firing. That decision now has been affirmed by the NLRB.

In this era of increased focus on employer limitations on electronic communications, however, the dealership hasn’t gotten away unscathed. Two of the three members of the NLRB panel that heard the case found that the employer’s “Courtesy” policy -- which stated that “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.” – violated the NLRA because the rule might “chill” employees’ protected statements related to working conditions, or in seeking the support of others to improve those conditions.

As a penalty for that violation, the Board has required the dealership to rescind the offending policies and to notify employees of that rescission. The notification is to be done by posting a specific form provided by the NLRB and entitled “Notice to Employees.” That notice specifically informs employees of their right to “form, join, or assist a union.” Worth noting is the fact that this mandated Notice contains wording similar to the “Employee Rights Notice” set forth in a proposed NLRB rule that has been the subject of legal challenges since December of 2010. While those legal challenges have kept the rule from being implemented, the NLRB has taken every opportunity to include the posting as part of any penalty imposed on employers who are found to have violated the NLRA by restricting protected communications among employees. To avoid that scenario, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.
 

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Recently, the National Labor Relations Board (NLRB) has issued a number of decisions restricting the ways in which employers can limit employee electronic communications, even when those communications may damage the company or another employee’s reputation.  For many employers, those decisions have caused serious consternation, as companies now focus on what can and cannot be included in handbooks and policies.  Many companies feel as if they are being faced with a decision between risking a violation of the National Labor Relations Act (NLRA) and protecting proprietary information, including confidential personnel information.   

Earlier this month, the NLRB found that a retail company’s handbook policies, which prohibited certain employee postings and communications, violated Section 8 of the NLRA.  Costco Wholesale Corp., 358 N.L.R.B. No. 106, September 7, 2012.  Section 8 states that it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the NLRA].”  Section 7 provides to all employees - unionized and non-unionized - the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In that case, an employer (Costco) maintained a nationwide handbook for its non-union employees that set out the terms and conditions of employment for those individuals.  The handbook included rules that prohibited: “unauthorized posting, distribution, removal or alteration” of material; discussion of “private matters” of other employees, including sick days, leaves of absence, and personal health information; sharing of “sensitive information” such as employee personal health information, social security numbers, and financial information; and sharing “confidential” information such as employees’ names, phone numbers, addresses, and e-mail addresses.  It also included a specific policy prohibiting electronic postings that “damage the Company, defame any individual or damage any person’s reputation.” 

During the course of an organizing drive to unionize a Costco facility in Milford, Connecticut, unfair labor practice charges were filed in which it was alleged that the Company was maintaining policies that violated the NLRA.  An Administrative Law Judge held a hearing and determined that the policies limiting the sharing of information violated the NLRA, but that the policy prohibiting electronic postings that might damage the Company or defame individuals did not.  Upon review by a three-member panel, the NLRB agreed with the ALJ and adopted his findings that the policies against sharing information violated the NLRA.  However, the panel disagreed with the ALJ regarding the rule prohibiting statements that damage the Company or any person’s reputation, finding - without elaboration - that “employees would reasonably construe this rule as one that prohibits Section 7 activity.”  Therefore, according to the NLRB, an employer’s general prohibition of statements that could damage or defame the company or others could be viewed by the NLRB as violations of employees’ right to “concerted activity.” 

In its opinion, however, the NLRB made statements that could provide to employers a “safe harbor” which may protect a company from allegations that a policy has prohibited employees’ concerted activities.  First, the panel pointed out that Costco’s “broad” prohibition against making statements that damage the Company or any person’s reputation “clearly” encompasses concerted communications, but pointedly adds that “there is nothing in [Costco’s] rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.” The panel goes on to add that Costco’s rule “does not present accompanying language that would tend to restrict its application.”   Those two statements, taken together, flag the fact that, had the rule included language specifically exempting concerted protected activities, such as communications that were critical of Costco’s treatment of employees, or had it prohibited only egregious conduct, such as sabotage or sexual harassment, the NLRB may have found the policy narrowly drawn and not in violation of Section 8. 

It is clear from this decision that the NLRB will not condone company policies that broadly prohibit either the “unauthorized posting, distribution, or alteration” of information or materials, or the sharing or storing of information related to the terms of employment (including wage information), even if that information is viewed as confidential by an employer.  Taken in conjunction with previous NLRB decisions and opinions, this case makes it imperative that handbooks and policies are narrowly drafted to address specific prohibited behavior, and that the language of the policies include the business justification for such prohibitions, in order to avoid unanticipated liability for violation of the NLRA.

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Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media. Employers who terminate an employee based upon a social media posting that ultimately is determined to have been “protected concerted activity” may be violating Section 7 of the NLRA. An employer’s discipline or termination of an employee, if found to violate the NLRA, can lead to legal liability that may result in financial damages and reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers who are trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information.

In August 2011 and January 2012, the Acting General Counsel of the National Labor Relations Board (NLRB) issued reports that both dealt with cases arising in the context of employee communications via social media. Those reports provided to employers a glimpse into the NLRB’s rationale for dealing with cases in which employees claim that an employer’s disciplinary action based on a social media posting violated Section 7 of the NLRA. But those reports did little to stem employers’ concerns related to the delicate balance between employees’ rights to open communication with each other, and implementation and enforcement of company policies related to communications via social media.

On May 30, 2012, the NLRB issued its third report. This one was dedicated primarily to social media policies. The report summarized seven different policies, pointing out provisions in the first six which may be in violation of Section 7 of the NLRA, but holding up the seventh policy – newly revised by a national retail chain -- as “lawful.”

Some of the examples of “unlawful” language in the first six policies may cause some concern among employers. For instance, one company’s policy stating that employees who were in doubt as to whether a posting might violate the policy should “check with [Employer] Communications or [Employer] Legal to see if it’s a good idea . . . .” was deemed a violation of law because a “rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities” automatically violates the NLRA. A company’s policy that required employees to assure that “posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site” was deemed to be unlawfully overbroad and, according to the NLRB, could “reasonably be interpreted to apply to discussions about, or criticism of the Employer’s labor policies and its treatment of employees that would be protected by the [NLRA]. . . .” Of real concern is the NLRB’s evaluation of this company policy: “Offensive, demeaning abusive or inappropriate remarks are as out of place online as they are offline.” According to the Board, that statement is in violation of Section 7 because it “proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”

Employers should disabuse themselves of the notion that a “savings clause” (for example, “This policy will be administered in compliance with applicable laws and regulation, including Section 7 of the NLRA.”) will satisfy the NLRB from finding its policy to be unlawful. Such a provision, according to the May 30 report, “does not cure the ambiguities in [a] policy’s overbroad rules.”

What can an employer do to meet the standards set forth by the NLRB in this latest report? Luckily, the Board provided a roadmap in the form of an “acceptable” policy. According to the Board, the key to that policy’s lawfulness is that the policy “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rule to prohibit Section 7 activity.” While a number of the policy’s provisions are as broad as those found by the NLRB to be in violation of Section 7 in other policies, the concrete examples of what does and does not violate the policy seems to have satisfied the concerns that the Board expressed regarding the six earlier examples.

While some employers may assume that the easiest way to assure full compliance with Section 7 is simply to use the exemplar policy in its totality, those employers should understand that company policies typically are not one-size-fits-all. A more practical solution would be to review the exemplar policy carefully, and then tailor its core concepts to fit the values and existing needs of the specific employer. It also is important to continue to pay attention to the development of case law in this area, to assure an understanding of how the courts will interpret this latest NLRB report.
 

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