Employers, Social Media, & Law: Recent NLRB Activity

We've seen a lot of recent NLRB action touching on social media issues.  But what’s an employer supposed to do with all of this information?  Let’s take this in some bite-sized chunks, shall we?

 

First, an employer has to understand the general kinds and sources of the guidance, decisions, or information all the excitement has been about.  Generally, we have: 

• Reports or Memorandum from the Office of the NLRB’s acting General Counsel.  Think of the GC’s office as a kind of “prosecutor’s office” – that is, the enforcement arm of the agency. These reports or memoranda are guidance documents. The GC’s opinion is valuable, but these aren’t binding on the NLRB, and not the same thing as an NLRB decision.
• ALJ Decisions.  If a charge is filed with an NLRB Regional Office and the investigation leads to formal action, then a complaint is filed. An Administrative Law Judge presides and issues the initial decision.  A party may appeal that decision by filing exceptions and to transfer the case to the Board.
• Board Decisions.  So, NLRB decisions are issued after a party appeals an ALJ decision and the Board renders its own conclusion.  In other words, a Board decision carries more weight than an ALJ decision.
• Court Decisions.  Board decisions can be appealed to federal courts.  So, even when we have an actual NLRB decision, keep in mind it’s still not necessarily the final say.

Second, an employer should understand the context of the more specific documents and filings we’ve been reading about in the press regarding NLRB action and social media, and the context in which that information is released.  Generally, we have:

• Guidance documents out of the NLRB Office of the General Counsel.  The excitement ramped up in summer 2011, when the GC issued its first report summarizing investigations and outcomes in 14 cases involving social media.  In January 2012, the General Counsel issued an updated report, and by May, issued its third report in a year. 
• ALJ Decisions.  We’ve also seen a number of ALJ decisions handed down recently.
• Board Decisions.  In September of 2012, we saw the first two Board decisions addressing social media policies:  the Costco decision issued on September 7, 2012, and the Karl Knauz Motors decisions issued on September 28, 2012.  Of course, we also have the Hispanics United decision just issued on December 14, 2012 that I just blogged about yesterday. 
• Other principles.  We also have some general principles being pulled from complaints filed against employers, but settled before ever resolved.  Some commentators and lawyers have extrapolated bits and pieces from actions like that, where it may make sense do so (generally trying to err on the side of being most prudent).

Third, employers should understand how freak-fast this area of law really is developing.  Just to illustrate the kind of rapid changes we’ve been seeing (and the interplay among the various kinds of documents):  the General Counsel’s May 30, 2012 report discusses seven recent cases.  On the same day that report was issued, an ALJ issued a decision in one of the cases discussed within the GC’s report.  In other words, the May 30, 2012 GC guidance was at least arguably outdated on the very date it was issued!

 

Taking all these principles together may help employers process and apply the flurry of NLRB-related information flooding inboxes these days.

• When reading a tip or interpretation, pay attention to the framework and context. Sometimes an online summary fails to clearly explain what kind of document is even being examined!  It’s difficult (if not impossible) to weigh the relative importance without knowing the context. Being an educated consumer of information allows more effective policy drafting.  Very slight wording changes and nuances can leave a well-intentioned employer in a lurch.
• Much of the emphasis has been on the General Counsel’s advice and guidance.  Keep in mind that although valuable, it’s not binding. 
• Recognize the importance of staying on top of recent developments in this area.  It’s a ridiculously fast developing area of the law.  Policies should be updated and checked regularly, and be sure you are (or your attorney is) familiar with the recent changes. 

Another NLRB Decision: Termination of Employees for Facebook Comments Violated NLRA

The National Labor Relations Board issued another decision that impacts both union and non-union employers who fire an employee because of online activities.  In Hispanics United of Buffalo, the Board concluded that an employer violated the National Labor Relations Act when it fired five employees for remarks they made on Facebook in response to a coworker’s criticisms of their performance on the job.

According to the facts in the Board’s decision, Lydia Cruz-Moore often criticized other employees about their work habits.  In October 2010, Cruz-Moore text messaged co-worker Marianna Cole-Rivera, saying she (Cruz-Moore) planned to take her complaints to the executive director.  Cole-Rivera then posted the following message on her Facebook wall at 10:14 am:

Lydia Cruz, a coworker feels that we don’t help our clients enough at [work].  I about had it!  My fellow coworkers how do u feel?

By 10:19 am (a mere five minutes later), Cole-Rivera’s post generated its first response from another off-duty employee:  “What the f. . . . Try doing my job I have 5 programs."

In less than 10 minutes after that, a second off-duty co-worker responded:  “What the Hell, we don’t have a life as is, What else can we do???”

Within an hour, a third exclaimed:  “Tell her to come do [my] f[*]cking job n c if I don’t do enough, this is just dum.”

A fourth employee responded 30 minutes later, and the discussion continued – and it also eventually involved a member of the HUB Board of Directors, the secretary to the executive director, and a response from Cruz-Moore herself.

Cruz-Moore then complained to the executive director about the Facebook comments, claiming she had been "slandered and defamed."  After reviewing printouts of the Facebook comments, the executive director fired Cole-Rivera and the four co-workers who responded online -- saying the Facebook remarks violated the company's policy against "bullying and harassment" of another coworker.

The Board agreed with the administrative law judge's conclusion:  the employees' Facebook comments amounted to concerted activity protected under Section 7 of the NLRA.  The NLRB said that when applying long-standing Board principles and authority, "there should be no question that the activity engaged in by the five employees was concerted for the 'purpose of mutual aid or protection' as required by Section 7." 

The Board went on to explain, "As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee's complaint that they 'don't help our clients enough,' stated that she 'about had it' with the complaints, and solicited her coworkers' views about this criticism.  By responding to this solicitation with comments of protect, Cole-Rivera's four coworkers made common cause with her, and, together, their actions were concerted" within the meaning of the Act. 

Indeed, Section 7 protects employee discussion about job performance, and as the Board noted, "the Facebook comments plainly centered on that subject." 

Just in September of this year, the Board issued its first two decisions addressing social media issues.  You can bet we'll see much more development in this area in the coming months. 

ACLU & Facebook Say Facebook "Like" Button = Free Speech

The ACLU and Facebook "Like" free speech!  As do I!  I mean, the First Amendment protects the F-bomb on the back of a dude's jacket.  (See Cohen v. California.)  Shouldn't it protect a Facebook "like," too?
What a great constitutional law question facing the Fourth Circuit!

A deputy sheriff in a Virginia lost his job after "liking" the Facebook page of his boss's challenger in the 2009 election for sheriff.  The deputy (and others fired after the sheriff won re-election) sued, but a federal judge granted summary judgment in favor of the sheriff, saying that "merely 'liking' a Facebook page is insufficient speech to merit constitutional protection."  The plaintiffs appealed, and the case now awaits consideration by the Fourth Circuit Court of Appeals.  On August 6, 2012, Facebook and the American Civil Liberties Union filed friend-of-the-court briefs to support the plaintiff-appellants' appeal -- arguing the district court got it all wrong. 

Facebook poignantly argues in its brief:

When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked – the 21st-century equivalent of a front-yard campaign sign. In addition, an announcement that Carter likes the campaign’s Page was shared with Carter’s Friends, and Carter’s name and photo appeared on the campaign’s Page in a list of people who Liked the Page. If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.

The ACLU also persuasively argues in its brief:

With “one click of a button,” an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive activities. The ease of these actions does not negate their expressive nature. . . .  That many people today choose to convey what they like or which political candidates they support by “Liking” a Web page rather than by writing the actual words, “I like this Web page” or “I like this candidate,” is immaterial. Whether someone presses a “Like” button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: one is telling the world about one’s personal beliefs, interests, and opinions. That is exactly what the First Amendment protects, however that information is conveyed.

I'll be eager to see how the Fourth Circuit comes down on this one.  I think the amici curiae briefs lay out compelling arguments, and I agree a Facebook "like" should be just as protected as other forms of speech. Come on, folks.  With 955 million monthly active users at the end of June 2012, and an average of 552 million daily active users in June 2012, how can any statement via Facebook be considered somehow less significant than a statement made through some other medium? 

Social Media Evidence: If It's Relevant, It's Discoverable

I've been looking at a 2011 case out of a Pennsylvania court, Zimmerman v. Weis Markets, Inc., and think it raises a nice point about discovery of social media evidence.

The plaintiff in this case was an employee of a Weis subcontractor,  and sued for injuries he suffered while running a forklift at Weis.  Zimmerman sought damages for injuries he suffered as a result of the accident -- including lost wages, lost future earning capacity, pain and suffering, scarring, and embarrassment.

At deposition, plaintiff testified (among other things) that he no could no longer participate in certain activities, and his injuries affected his enjoyment of life.  Plaintiff also testified he never wore shorts because he was so embarrassed about the scar from his injury.

But after looking at the publicly accessible portions of Zimmerman's online profiles, Defendant wasn't so sure.  Zimmerman’s Facebook profile showed his interests included “ridin” and “bike stunts.”  His MySpace profile showed recent photos of Zimmerman with a black eye and a motorcycle before and after an accident.  Pictures also showed Zimmerman wearing shorts, with the scar from his accident clearly visible.

Not surprisingly, Defendant sought an order compelling disclosure and preservation of non-public portions of plaintiff’s Facebook and MySpace profiles.

Not surprisingly, Plaintiff resisted.  Plaintiff argued first that his privacy interests outweighed Defendant's need to obtain the discovery.  But court explained, privacy concerns are reduced where the beneficiary himself chose to disclose the information. 

Alternatively, plaintiff argued the court should conduct in camera review and decide what materials should be provided.  The court "flatly rejected" plaintiff’s request for in camera review “as an unfair burden to place on the Court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also would require the Court to guess as to what is germane to defenses which may be raised at trial.”

The court ordered plaintiff to provide all user names, log-in names, and passwords for his MySpace and Facebook accounts, and ordered not to delete or alter existing information/posts.

A significant piece of the defendant’s argument and court’s rationale:  

“Based on what was observed on the publicly available portions of Plaintiff’s Facebook and MySpace profiles, Defendant believed there may be other relevant information as to Plaintiff’s damage claims on the non-public portions.”

I understand this certainly made the request reasonably calculated to lead to discovery of admissible evidence.  However, where a party claims significant damages for loss of enjoyment of life – and that party maintains a profile on a website devoted to sharing information about social lives – it shouldn’t matter what appears on the publicly viewable portion of an online profile.  Why would we reward a party for successfully concealing relevant evidence?

I think this is the better rationale from Zimmerman Court: 

“With the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.”

A party's right to discover non-public information should not hinge upon the publicly viewable portion of an online profile.  Bottom line:  If there’s relevant information on the non-public portion, it’s discoverable.