“A lawyer sending or receiving substantive communications with a client via email or other electronic means must warn the client … [if] there is a significant risk that a third party may gain access.  In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system [owned by the employer].”

Before the ABA opinion, some courts and attorneys distinguished between communications with clients via employer-owned email accounts, and communications via personal webmail accounts (such as Gmail, Yahoo!, MSN, AOL, etc.) using an employer-owned device.  For example, courts in Massachusetts and New Jersey had recognized that the webmail communications do not necessarily loose privilege just because the employer can recover them from the residual (or deleted) data on the electronic device.

No matter the technicalities, the moral of the story is clear.  If you are an attorney advising an employee-client, you should instruct your client not to send you email from a company account, not to text you using a company cell phone, and not to send you instant messages or otherwise communicate with you using an employer-owned device, but instead to use a personal email account on a personal device, or to text you using a personal cell phone.  According to the ABA, your obligation to do so ordinarily will arise “as soon as practicable after a client-lawyer relationship is estsablished.”

If you are an employer, you should adopt a comprehensive information use policy advising employees that (1) electronic data accessed or maintained on company-owned devices is the property of the company, (2) employees should not and cannot expect that such data is or will be private, and (3) the company can and periodically does review and monitor data accessed or maintained on company-owned devices.  Here is the first page, with some standard language, for such a comprehensive information use policy.

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A new decision has emerged prohibiting companies from adopting and enforcing policies that impact employees’ use of social media.

The company in Karl Knauz operated adjacent BMW and Land Rover dealerships, where the employee worked as a BMW salesperson.  On June 5, 2011, the BMW sales manger held a meeting to announce the “Ultimate Driving Event” on June 9, 2011, during which the dealership would introduce the redesigned BMW 5 series.  When the manager informed the sales staff that the dealership would serve hot dogs, chips and water, two people questioned whether the food was appropriate for the event, and several of the salespeople continued to discuss that matter after the meeting.  An employee then took pictures of the food service at the event, and told his fellow salespeople that he would post the pictures to Facebook.

On June 14, 2011, an accident occurred at the Land Rover dealership.  The thirteen year son of a potential customer drove a vehicle into a lake in front of the dealership.  The same employee took pictures of the vehicle in the lake and the individuals involved in the accident.

Later that day, the employee posted to Facebook his pictures of both events, and annotated the pictures with comments.  He posted the following three comments under pictures of the BMW event:

• I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years … the new 5 series.  A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch … but to top it all off … the Hot Dog Cart.  Where our clients could attain a over cooked wiener and a stale bunn …
• No, that’s not champagne or wine, it’s 8 oz. water.  Pop or soda would be out of the question.  In this photo, [another employee] is seen coveting the rare vintages of water that were available for our guests.
• This is not a food event. What ever made you realize that?

The employee also posted the following three comments in relation to the Land Rover accident:

• This is your car: This is your car on drugs.
• This is what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything.  The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck.  OOOPS!
• I love this one … The kid’s pulling his hair out … Du, what did I do?  Oh no, is Mom gonna give me a time out?

The ALJ found that the employee’s postings with respect to the Ultimate Driving Event were concerted activity, because he had “spoke[n] up at the meeting commenting on what [he] considered to be the inadequacies of the food being offered at the event, and the subject was discussed by the salespersons after the meeting.”  Moreover, since 25% of salesperson compensation was based on commission, the activity was protected “as it could have had an effect upon compensation,” because “there may have been some customers who were turned off by the food offerings at the event.”

The ALJ also considered “whether the tone of the Facebook” postings “rose to the level of disparagement necessary to deprive otherwise protected activities of the protection of the Act.”  He concluded that the postings did not because, although the employee’s Facebook postings “clearly had a mocking and sarcastic tone that, in itself, does not deprive the activity of the protection” of the National Labor Relations Act (Act).

However, the ALJ also found that the employee’s Land Rover postings were not concerted activity, because they were “posted solely by [the employee], apparently as a lark, without any discussion with any other employee …, and had no connection to any of the employees’ terms or conditions of employment.”  Because (according to the ALJ) the company had terminated the employee for his unprotected postings about the Land Rover accident, not his protected postings about the BMW event, the company avoided having to reinstate the employee to his job.

In addition to scrutinizing the company’s termination of the employee, the ALJ also reviewed and invalidated certain of the company’s policies.  The following four policies were at issue in the case:

• Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.” If you are asked questions about the Dealership or its current or former employees, you are to refer that individual(s) to your supervisor.
• Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department.  No information should be given regarding any employee by any other employee or manager to an outside source.
• Bad Attitude: Employees should display a positive attitude toward their job.  A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.
• Courtesy: Courtesy is the responsibility of every employee. 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.

The ALJ found the first two policies unlawful because they explicitly restrict protected activity.  “If employees complied with the dictates of these restrictions,” reasoned the ALJ, “they would not be able to discuss their working conditions with union representatives, lawyers, or [NLRB] agents.”  He also found the third policy unlawful.  The “problem” with that policy “was the word disrespectful,” which the ALJ reasoned could lead employees to “believe that their protected rights were prohibited,” since defining “due respect … seems inherently subjective.”

However, the ALJ upheld the fourth policy, which prohibited a “bad attitude” at work, on the basis that “the one sentence prohibition would reasonably be read to protect the relationship between the [company] and its customers, rather than to restrict” the employees’ rights.  Because “BMW is a top of the line automobile,” the company had a “right to demand that employees not display a bad attitude toward customers.”

The decision in Karl Knauz underscores the points in our prior blogs. Specifically, companies should review their policies to assess whether they may chill concerted activity, and adopt social media policies that comply with current NLRB requirements.  Also, companies should beware when disciplining or discharging employees for any social media related conduct, to ensure that the conduct does not involve concerted activity.

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Activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” 

The nature and breadth of this definition has significance to social media, which frequently involves on-line conversations about work between employees who are social media “friends.”

Though the scope of concerted activity is broad, businesses can sometimes rely on countervailing rules often applicable in the social media context to manage their workplaces and avoid potential liability.  For example, under the NLRB’s decision in Atlantic Steel Co., “even an employee who is engaged in concerted activity can, by opprobrious conduct, lose the protection” of the National Labor Relations Act (Act).  Whether the employee has crossed the line depends on the following:

1. The location of the conduct and statements.
2. The subject matter of the conduct and statements.
3. The nature of the employee’s outburst.
4. Whether the outburst was provoked by the employer’s unfair labor practice.

As the NLRB also explained in Valley Hospital Medical Center, Inc., employee conduct “may be so disloyal, reckless, or maliciously untrue as to lose protection.”  Thus, “a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income” is unprotected.  But “an employee’s public criticism of an employer must evidence a malicious motive,” and the “mere fact that statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue.”  Also, “the fact that an employee’s statements are hyperbolic or reflect bias does not render them unprotected.”

These principles were at the heart of the decisions and advice memoranda in Hispanics United of Buffalo, Inc., Bay Sys Technologies, LLC, Wal-Mart, JT’s Porch Saloon & Eatery, Ltd., Rural Metro, Monmouth Ocean Hospital Service Corp., and Martin House.  The NLRB also raised these issues in complaints filed in Karl Knauz Motors, Inc. d/b/a Knauz BMW, American Medical Response of Connecticut, Inc., and one other case discussed in the NLRB’s Report of the General Counsel (Report).

 As the following discussion of these cases shows, businesses should tread very carefully when disciplining or discharging an employee for social media related conduct.  The protections given to such conduct as concerted activity are broader than typically anticipated, and the distinctions between protected and unprotected conduct can be quite difficult to discern.

In Hispanics United, an employee (Cruz-Moore) told another employee (Cole-Rivera) that Cruz-Moore intended to raise issues with the work performance of a third employee (Ortiz) to the executive director.  That evening, Cole-Rivera posted a comment to Facebook that she had “about had it!” with Cruz-Moore, and inquiring, “My fellow coworkers how do u feel?”  Several co-workers responded, making statements like “What the f…. Try doing my job,” and “Tell her to come do my fucking job.”  Ortiz responded as follows: “I think we should give our paychecks to our clients so they can ‘pay’ the rent, also we have to take them to their Dr’s appts, and serve as translators (oh! We do that).  Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in the house watching tv.”  Cole-Rivera replied: “Lol.  I know!  I think it is difficult for someone [not in our department] to really grasp and understand what we do.  I will give her [Cruz-Moore] that.  …  I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human :) love ya guys.”

The employer discharged Cole-Rivera, Ortiz, and the other employees who posted the Facebook comments.  The NLRB and an Administrative Law Judge concluded that the terminations were unlawful because the Facebook posts were concerted activity. “Employees have a protected right to discuss matters affecting their employment amongst themselves,” and “explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussions is protected.”  In addition, “the activities of a single employee [i.e., Cole-Rivera] in enlisting the support of fellow employees in mutual aid and protection is as much concerted activity as is ordinary group activity.”

The Facebook posts were concerted activity because the employees were “taking a first step towards taking group action to defend themselves against [another employee's] accusations.”

The NLRB and Judge also addressed and rejected the employer’s contention that the Facebook posts were “so opprobrious as to lose protection under the Act.”  They reached this conclusion on the basis that the posts were not made at work or during working hours, were related to clearly protected activity, and did not involve any “outbursts.”

In contrast to Hispanics United, the NLRB has issued several advice memoranda finding that social media conduct is not concerted activity.  For example, the employee in Wal-Mart posted the following comment to Facebook: “Wuck Falmart!  I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!”  Two co-worker “friends” responded as follows: “bahaha like! :)” and “What the hell happens after four that gets u so wound up???”  The employee replied: “You have no clue … [my manager] is being a super mega puta!  Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price … that’s false advertisement if you don’t sell it for that price … I’m talking to [the store manager] about this shit cuz if it don’t change walmart can kiss my royal white ass.”  Another co-worker gave the posts to Wal-Mart, who suspended the employee for one day (which precluded him from obtaining a promotion for one year).

While “activity is concerted even if it involves only a speaker and listener,” it is equally true that “mere griping is not protected.” 

The employee’s Facebook posts in Wal-Mart were not concerted activity because “no language suggested that [the employee] sought to initiate or induce coworkers to engage in group action,” but rather he was “express[ing] only his frustration,” and “none of the coworkers’ Facebook responses indicated that they otherwise interpreted the [employee’s] postings” as initiating a call to action.

In JT’s Porch Saloon, the employee was a bartender who was upset that he had to help the wait staff serve food but did not share in their tips.  In the fall of 2010, he and another bartender discussed this policy, but did not raise the issue to management.  In February 2011, the employee posted to Facebook complaints that he “hadn’t had a rise in five years and that he was doing the waitresses work without tips.”  He also called the restaurant’s customers “rednecks” and stated that he “hoped they choked on glass as they drove home drunk.”  Upon discovering the post, the employer notified the employee – by Facebook – that he was fired.

Recognizing that “individual activities that are the ‘logical outgrowth of concerns expressed by the employees collectively’ are considered concerted” activity, the NLRB nonetheless found that the Facebook posts were not protected.  While the posts addressed the “terms and conditions of employment,” the employee “did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded.”  There were “no employee meetings” on the matter, no “attempt to initiate group action,” and “no effort to take the bartenders’ complaints” to management.  Finally, the NLRB concluded (without meaningful explanation) that the “internet ‘conversation’ did not grow out of [the employee’s] prior conversation with a fellow bartender months earlier.”

The employee in Rural Metro worked for a medical transport service, and posted comments to a U.S. Senator’s Facebook page about her employer.  She complained about low wages, and stated that the first responders to a particular incident in which a person had died “didn’t even know how to perform CPR!”  The NLRB concluded that the employer’s discharge of the employee did not violate the Act because the post was not protected.  While the employee wanted to make the Senator “aware that she disagreed with how emergency medical services were handled,” she “did not think [he] could help her employment situation in any way.”  In addition, although the employee “had discussed wages with other employees in response to [the employer’s] announcement of a wage cap, there was no evidence that employees had met or organized any group action or desired to raise wage issues with the employer as a group.”

In Martin House, an employee at a residential facility for homeless people posted the following to Facebook while at work: “Spooky is overnight, third floor, alone in a mental institution”; and “My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters.”  The employer’s discharge of the employee was lawful, because the employee “did not discuss her Facebook posts with” coworkers, “none of her coworkers responded,” the employee “was not seeking to induce or prepare for group action,” her posts were “not an outgrowth of the employees’ collective concerns,” and the “posts did not even mention any terms or conditions of employment.”

The employee in Monmouth Ocean was a nurse and the union president, who used Facebook to communicate extensively about union matters.  One of her posts intimated that she and two others “might withhold care if they were personally offended by the patients.”  When confronted about this, the employee asked how the employer obtained the post, and the employer told her that a coworker had provided it.  The employer suspended the employee and reported her to the state board of nursing in response to the Facebook post.  The NLRB acknowledged that “an employer’s discipline of an employee based on website statements related to terms or conditions of employment” is unlawful, but concluded that the employee’s Facebook post simply “was not linked to working conditions” and therefore did not implicate concerted activity.

The NLRB also used that case to address when surveillance of social media may violate the Act.  “Surveillance or creation of an impression of surveillance” is unlawful.  “An employer creates an impression of surveillance when the employee would reasonably assume from the employer’s statement that [the employee’s protected] activities have been placed under surveillance,” such as “when an employer reveals specific information about [protected] activity that is not generally known, and does not reveal its source.”  “On the other hand, no impression of surveillance is created where the employer explains that it obtained the information from other employees, particularly in the absence of evidence that the employer solicited information.”  The employer in Monmouth Ocean did not engage in actual surveillance, and the NLRB found that it did not give the employee an impression of surveillance, because it informed her when she asked that “a concerned employee had produced” the Facebook post to it.

In contrast to the advice memoranda issued in the cases discussed above, the NLRB has filed complaints against several employers for disciplining or discharging employees for social media conduct, which are discussed in the NLRB’s Report.  These cases are more consistent with the outcome in Hispanics United, and show the extent to which the NLRB will go to protect social media conduct, even in the face of employee misconduct.

The employee in Karl Knauz was a salesperson at a BMW dealership.  In June 2010, a customer accidentally drove a car into the pond in front of the dealership, and the employee took pictures of the incident.  Later that week, the employer held a staff meeting to discuss a sales event to introduce a new car, including that the dealership would serve hot dogs, cookies, snacks and water at the event.  A co-worker asked why better refreshments were not being served, and the salespeople discussed after the meeting among themselves their concern that the inexpensive fare would send the wrong message.  The employee then took pictures at the event.

The next week, the employee posted to Facebook the pictures of the car accident and sales event.  He annotated the pictures with comments “reflecting his critical opinion of the inexpensive food and beverages provided.”  He also posted “that he was happy to see that the employer had gone all out for the important car launch by providing small bags of chips, inexpensive cookies from the warehouse club, semi-fresh fruit, and a hot dog cart where clients could get overcooked hot dogs and stale buns.”  The employer discharged the employee because of these posts.

The NLRB concluded that the discharge violated the Act because the employee’s Facebook post was concerted activity.  It reasoned that the posts “related to the employees’ terms and conditions of employment,” because “the employees worked entirely on commission [and therefore] were concerned about the impact the employer’s choice of refreshments would have on sales.”  The NLRB also found the employee’s conduct “concerted,” because he “told his coworker that he would put the photographs on Facebook,” and by doing so “was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when the salespeople raised their concerns at the staff meeting” the previous week.

The NLRB also rejected the employer’s contention that the employee’s conduct was so disloyal that it was unprotected.  It reasoned that the “postings were neither disparaging of the employer’s product nor disloyal,” because they “did not refer to the quality of the cars or the performance of the dealership” and “did not criticize the employer’s management.”

In American Medical, the employee asked for, but was not given, a union representative to help complete a report related to a customer complaint about her work.  Later that day, the employee posted a comment to Facebook from her home about her supervisor, which drew supportive responses from coworkers.  Specifically, the employee referred to her supervisor as a “dick” and “scumbag,” and stated, “Love how the company allows a [psychiatric patient] to be a supervisor.”

The NLRB concluded that the Facebook post was concerted activity because “protest of supervisory actions is protected.”  It also found that the employee’s conduct was not so opprobrious as to lose protection, because it “occurred outside of the workplace and during nonworking time,” was made in the course of engaging in protected activity, and was “provoked by the supervisor’s unlawful” conduct.  The NLRB downplayed the nature of the outburst, which it characterized as “name-calling,” by reasoning that it “was not accompanied by verbal or physical threats, and the [NLRB] has found more egregious name-calling protected.”

The final case discussed in the NLRB Report involved employees who discovered they owed state income tax on wages.  One of them raised the issue and it was scheduled for discussion at an upcoming management meeting.  In the meantime, a former employee posted on Facebook a criticism about owing taxes because the employer “could not even do paperwork correctly.”  One employee responded to the post by clicking “like.”  Another responded that she also owed taxes, and referred to one of the owners of the employer as “an asshole.”

The NLRB found that the Facebook posts concerned a “term and condition of employment – the employer’s administration of income tax withholdings.”  The conduct was concerted because a “shared concern had been brought to the employer’s attention by at least one employee,” and it was scheduled to be “discussed at an upcoming management meeting,” which demonstrated that the conduct “contemplated future group activity.”

The NLRB also found that the posts were not so opprobrious as to lose protection, because they involved protected activity that took place “outside of the workplace” and during “nonworking time.”  It recognized that the outburst was “not provoked by any unfair labor practice,” but still downplayed the nature of it, reasoning that the post “was much less offensive than other behavior found protected” by the NLRB.

Because most non-unionized businesses are unfamiliar with the National Labor Relations Act, there is very real danger that they may unwittingly stumble into legal problems with the NLRB’s protection of social media related conduct.  All businesses should become aware of this area of the law, review their policies to determine whether they may chill concerted activity, and adopt social media policies that comply with current requirements.  Businesses also should be very careful when disciplining or discharging employees for any social media related conduct, to ensure that the conduct does not involve concerted activity.

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The “mere maintenance” of a policy or practice that tends to chill employees’ exercise of their right to engage in concerted activity violates the National Labor Relations Act (Act),

1. Employees would reasonably construe the policy or practice to restrict or prohibit concerted activity.
2. The policy or practice was promulgated in response to union activity.
3. The policy or practice is applied to restrict protected concerted activity.

The NLRB has issued three decisions applying these principles to social media – Sears Holdings (Roebucks), Lee Enterprises, Inc., and Salon/Spa at Boro, Inc.  It also has filed several complaints against businesses alleging that their policies or practices unlawfully restrict concerted activity – including in American Medical Response of Connecticut, Inc., Healthcare Ventures of Ohio, LLC, and Ingham Regional Medical Center.  And the NLRB recently discussed several additional cases (without identifying the employers) in a Report of the General Counsel (Report).

As the following discussion of these cases shows, general employment policies (as well as social media policies) can unwittingly create legal liability.  Businesses therefore should review all their policies to determine whether they could be viewed as chilling concerted activity, and adopt social media policies that comply with NLRB regulations.

In Sears, the company adopted a social media policy that prohibited employees from engaging in a variety of conduct, such as discussing confidential information, making sexual comments, using obscenity, and disparaging a person based on a protected status.  However, the portion of the policy at issue prohibited employees from criticizing Sear’s “products, services, executive leadership, [and other] employees.”  While that portion of the policy could chill concerted activity, the NLRB found that it was not unlawful.

A policy must be given a “reasonable reading,” without “reading particular phrases in isolation.”  Just “because a [policy] could conceivably be read to restrict [concerted] activity” does not mean the policy is unlawful.  It was important to the NLRB that the policy in Sears “covers a list of proscribed activities, the vast majority of which are clearly not protected.”  Also, “sufficient examples and explanation of purpose” were given to ensure that a “reasonable employee [would] understand” that the policy did not prohibit concerted activity.  Although this is a beneficial decision for businesses, for the reasons discussed below, the outcome in this case is somewhat inconsistent with the more recent position of the NLRB in the Report.

In Lee Enterprises, the company instructed the employee that he was “not allowed to tweet about anything work related” after discovering some inappropriate work related tweets.  The NLRB concluded that this was not an unlawful policy or practice because the instruction was “made solely to the [employee] in the context of discipline, in response to specific inappropriate conduct, and not communicated to any other employees or proclaimed as ‘new rules.’”

In Salon/Spa, the employer’s general policies prohibited negativity at work, and the employer specifically told employees to “confine their remarks to ‘positive’ comments” on social media sites.  The employer also warned employees “not to respond to former employees” and to “be careful” what they say in social media, because “it could hurt [the] business.”  The NLRB concluded that these practices did not unlawfully restrict concerted activity because they were “educational and almost parental in nature,” and “not coercive.”

While the businesses in Sears, Lee Enterprises and Salon/Spa prevailed, in other recent cases, businesses have had to settle to avoid highly publicized legal battles and potential liability.  For example, the Internet policy at issue in American Medical prohibited employees from making disparaging comments when discussing the company, supervisors, or other employees, and from engaging in “offensive conduct” and “rude or discourteous behavior.”  The NLRB asserted that the policy was unlawful because it “contained no limiting language to inform employees that it did not apply to [concerted] activity.”  The employer settled with the NLRB by agreeing to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their … working conditions with co-workers and others while at work, and that they would not discipline or discharge employees for engaging in such discussions.”

The policy at issue in Healthcare Ventures prohibited employees from disclosing information about wages, corrective action, and performance.  The NLRB asserted that the employer interrogated an employee about Internet discussions he had concerning the termination of former co-workers.  To settle the case, the employer agreed to rescind this policy, and refrain from adopting or enforcing any policy restricting employees from discussing wages, corrective action, performance, or other terms of employment with co-workers.

In Ingham Regional, the NLRB asserted that the employer had unlawfully terminated an employee for discussing working conditions with a co-worker during off-duty hours pursuant to a policy that prohibited certain use of cell phones and other personal communications equipment.  Under the settlement agreement, the employer agreed to reinstate the employee and refrain from applying its policies in a manner that restricts employees from discussing working conditions.

In August 2011, the NLRB published a Report summarizing its position with respect to social media.  While couched in terms of educating businesses, the Report clearly stakes a claim for the NLRB in this area, and forewarns businesses about the extent to which the NLRB will go to protect social media as concerted activity.

The Report summarizes four additional cases involving social media policies that the NLRB determined were unlawful.

1. A restaurant maintained a policy about “internet blogging, chat room discussions, e-mail, text messaging, or other forms of communication” preventing employees from “revealing confidential and proprietary information about the employer, or engaging in inappropriate discussions about the company, management, and/or coworkers.”
2. A hospital maintained a policy prohibiting “any communication or post that constituted embarrassment, harassment or defamation of the hospital or any employee, officer, board member, representative, or staff member” and “any statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff or employees.”
3. A supermarket had a social media policy that “precluded employees from revealing, including through photographs, personal information regarding coworkers, company clients, partners, or customers,” and from using the “logos and photographs of the employer’s store, brand, or product.”
4. An employer’s social media policy “prohibited employees on their own time from using [social media] to talk about company business on their personal accounts” and “from disclosing inappropriate or sensitive information about the employer” on social media.

The NLRB found these policies unlawful on the basis that employees would believe that they restricting conduct protected as concerted activity.  It reasoned that all the policies (A) “utilized broad terms that would commonly” encompass protected activity, (B) “did not define” or give “specific examples” of unprotected conduct sought to be prohibited, and (C) did not contain any language “that would exclude [concerted] activity” from the policies.

While the policies at issue in the NLRB’s Report are somewhat different than the policy at issue in Sears, the variations in the language of the policies do not justify the contrary results.  This signals a broadening of the NLRB’s position with respect to employment and social media policies unlawfully impairing the exercise of concerted activity.  As a result, businesses should review all their policies in light of the foregoing cases to determine whether their policies could be perceived by the NLRB as chilling concerted activity, and businesses should adopt specific social media policies that comply with the current state of the law.

This is Part 2 of a 3 Part blog post concerning Social Media and the NLRB.  Part 1 of is here.  Stay tuned for Part 3 coming shortly.

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New and exciting developments are a hallmark of the social media revolution.  The least expected of these developments, however, is that social media would be regulated by the National Labor Relations Board (NLRB).

Businesses with non-unionized workforces often do not expect to be governed by the NLRB, and are understandably unfamiliar with the rules of the National Labor Relations Act (Act).  However, the NLRB’s reach into social media has not spared non-unionized businesses and, in fact, the NLRB has targeted these businesses in the majority of cases it has pursued.

While the Act primarily addresses union-related activities, one provision of it applies to all businesses, even those without unionized workforces.  It is referred to as the “concerted activity” provision, and states as follows:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.

It is not surprising that the Act protects concerted activity designed to form a union, and perhaps not surprising that it protects non-union activities designed for the mutual aid and protection of a workforce.  What is surprising is the NLRB’s intense focus on social media, as if it were a super-special forum for concerted activity.  Also surprising is the sheer breadth of the NLRB’s application of the concerted activity provision to social media.

The NLRB’s intervention into social media impacts businesses in two ways.  First, the NLRB has targeted policies – both general policies and social media policies – that chill concerted activity, which is the topic of the next part of this blog post.   Second, the NLRB will protect an employee from discipline or discharge related to any social media conduct that qualifies as concerted activity, which will be addressed in the last part of this post.

As a result, businesses should review their policies to assess whether they may chill concerted activity, and adopt social media policies that comply with current NLRB requirements.  Also, businesses should beware when disciplining or discharging employees for any social media related conduct, to ensure that the conduct does not involve concerted activity.

This is Part 1 of a 3 part blog post concerning Social Media and the NLRB.  Please stay tuned for Part 2 and Part 3 coming shortly.

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Beagle Research Group, LLC is a market research and consulting firm focusing on front office business processes and white collar productivity.  The company is led by Denis Pombriant, who is a well-known analyst and thought leader in the CRM space.  Denis writes for CRM Magazine, Destination CRM, Search CRM, and CRM Buyer, conducts research in emerging areas of front office technology and business, and consults regularly to many of the leading companies in CRM.

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The first bill that passed the Senate Judiciary Committee was the Personal Data Privacy and Security Act of 2011, sponsored by Senator Patrick Leahy.  It would require a business to implement a comprehensive data security program, and notify individuals affected by a security breach.  It also would amend the Computer Fraud and Abuse Act to counteract court decisions that have found liability where an employee takes or uses information in violation of a contractual obligation or the terms of an acceptable use policy.

The second bill was the Data Breach and Notification Act of 2011, sponsored by Senator Dianne Feinstein.  It is limited exclusively to data breach notification.  Notably, it would not require notice if a business conducts a risk assessment and can prove to the Federal Trade Commission that no significant risk of harm exists to affected individuals.

The third bill was the Personal Data Protection and Breach Accountability Act of 2011, sponsored by Senator Richard Blumenthal.  It would significantly expand the requirements of any state data security law or proposed federal law.   Under this bill, businesses would have to provide affected individuals with written and telephonic notice.  If more than 5,000 individuals are affected, the business also would have to provide public notice through the media, as well as electronic notice (such as on the business’ own website).  This bill also would prohibit businesses from attempting to “monitor, manipulate, aggregate, and market the data collected in the process of intercepting a web search or query entered by an authorized user of a protected computer.”

Stay tuned as the both the Senate and House continue to consider a variety of different federal data security legislation.

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Given that these sites are “social,” it should come as no surprise that users often do not think critically about the content of their posts, or believe the information is personal and private because only “friends” can see it.  However, courts are finding that information on social media sites is both discoverable in litigation and admissible in court.

For example, in Romano v. Steelcase Inc., a trial court in New York ordered the plaintiff to disclose current and old Facebook and MySpace information, including deleted data.  The basis was that the plaintiff “had placed certain information on these social networking sites … believed to be inconsistent with her claims … concerning the nature of her injuries, especially her claims for loss of enjoyment of life.”

Similarly, in two Pennsylvania cases, Zimmerman v. Weis Markets, Inc. and McMillen v. Hummingbird Speedway, Inc., the courts ordered disclosure not only of information in the publicly accessible portions of social media sites, but also information available only to friends, at least where the publicly available information revealed that the friends-only information may be relevant to the lawsuits.  These courts even took the extraordinary step of ordering the plaintiffs to disclose their user names and passwords, so the attorneys for the defendants could examine the information on the social media sites themselves.

To introduce social media information in court, a party must authenticate it.  As the Maryland court recently noted in Griffen v. State of Maryland, “anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.” To authenticate such the information, the court suggested obtaining testimony from the creator of the profile, conducting a forensic investigation of the person’s computer to determine whether that computer was used to create the profile and the post at issue, or obtaining information directly from the social networking site.

Social networking sites let us communicate more easily, with more people, than ever before.  With the click of a button, we can connect or reconnect with family and friends and share photographs of birthdays, holidays, and our most recent vacation.  But social networkers also must be cognizant that the information they create will be discoverable and admissible in court.



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