YourABA September 2012 Masthead
 

Can my employer do that? The maze
of social media and the workplace

Labor and employment lawyers get inconsistent guidance with respect to social media and advising their clients, based on an array of case law, administrative law judges’ rulings, advice directives and three National Labor Relations Board general counsel memoranda.

An ABA Section of Labor and Employment Law-sponsored program at the Annual Meeting, “Can My Employer Really Require Me to Friend It? The Latest Word in Social Media, What It Is and What Are the Lawful Uses of This Information,” highlighted some of those court cases and directives, and covered some recent legislative action in social media, and what is and is not allowed by law.

W.V. Bernie Siebert, with Sherman & Howard LLC in Denver, prefaced the discussion with a short primer about Section 7 of the National Relations Labor Act, the “bible for labor and employment lawyers,” which has historically covered union organizing, collective bargaining and other mutual aid activities. The provision covers employees’ rights vis-à-vis concerted and protected activity in relation to repercussions from their employer.

Tweeting and posting to Facebook open up a number of new questions as to the nuances of “concerted” and “protected” activities. Is “liking” someone’s Facebook post an indication of concerted activity? Is an employee protected if she posts that her supervisor is a “scumbag”?

As panelist Angie Cowan Hamada, of Allison, Slutsky & Kennedy PC in Chicago, explained, NLRB’s Division of Advice guidance in a Wal-Mart matter in which a co-worker replied “hang in there” to another’s Facebook post was that there was sympathy but no group action meeting the concerted activity requirement. However, in an American Medical Response of Connecticut case, the 2011 directive stated that a response post of “chin up” was a concerted activity.

Given these nuances, how should lawyers advise their clients on social media usage questions? Hamada, whose work is on the side of employees and unions, suggests that a lawyer try to show that an online communication points to a continuation of an earlier or subsequent conversation to demostrate concerted action; meet the concerted threshold by using such language as “we” and “us” versus “I” or “me”; avoid showing simply sympathetic responses (as in “hang in there”); and highlight conditions of employment, such as wages and benefits, to meet the “protected activity” bar.

Amy Jo Zdravecky, of Franczek Radelet PC in Chicago, represents employers. Zdravecky echoed Hamada’s comments about the inconsistency in guidelines that have been handed down to date. She addressed employer policy regarding social media. It is unlawful for an employer to restrict a protected concerted activity or to have policies that can be reasonably construed to chill such activity.

While there is also some inconsistency as to the lawfulness of certain policy language, Zdravecky said that employers can — through their policy — prohibit harassment and discriminatory and unlawful practices. It is lawful for an employer to prohibit an employee from speaking “on behalf” of the company, and to direct employees to be “honest and accurate” in their communications. However, it is unlawful for an employer’s policy to prohibit “completely accurate and not misleading” practices, because employees don’t necessarily have access to the complete scope of a circumstance.

A number of non-NLRB cases were outlined by Mark D. Risk of Mark Risk PC in New York, including ones addressing employer access to password-protected websites: Pietrylo v. Hillstone Restaurant Group; Konop v. Hawaiian Airlines; and City of Ontario, California, et al v. Quon. Maryland and Illinois have passed legislation outlawing the practice of employers seeking access to a job applicant’s Facebook pages. And Sens. Charles Schumer and Richard Blumenthal are seeking an investigation by the Department of Justice and Equal Employment Opportunity Commission about the practice of employers requesting social media information.

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