pcodqjeziWe are all watching and reading how Uber is responding to yet the latest scandal and legal problem to confront the on-demand ride service giant.  About a week ago, a former Uber employee, Susan Fowler, posted a blog about why she left Uber last December. Susan alleges (and these are only allegations at this point) that during her one year at Uber as an engineer, she was subject to harassment and a rampant sexist culture at Uber, and when she complained, Uber did nothing. Continue Reading What Does the Ex-Uber Employee’s Blog Teach Employers about the Power of Social Media?

Recently, The Century Foundation, a group that pursues “non-partisan research and policy analysis” released a report on virtual labor organizing. The report assesses how a mobile application (“app”) or website could provide a platform that would help workers organize for labor campaigns.

According to the report, approximately 96 percent of workers use Internet, e-mail, or mobile devices to connect to work, and approximately 81 percent spend at least one hour on e-mail during the workday. The Foundation further reports that the group of workers that would likely be most interested in labor organizing through social media and digital platforms are younger workers, including millennials, who, according to the report, are more receptive to unionization.

The report lays out aspects of what such an app would need to contain, including providing a common digital forum for employees to communicate about the workplace, coordinate local and regional organizing campaigns, and connect with experienced organizers and labor lawyers.

The National Labor Relations Board “quickie election” rules, in combination with union organizing apps, may increase what has already been a drastic uptick in petitions filed with the NLRB. An organizing app can assist unions in connecting to voters more efficiently and discreetly, making it more difficult for employers to learn of organizing activity in their workplace. Supervisors or management might now find a union flyer in the company parking lot, but soon, those flyers may be replaced with apps that are accessible only through cell phones of the individual employees.

One way to counteract the new wave of technology-driven union organizing is to properly train managers and front-line supervisors to take notice of and address changes in the workplace, including changes in employee personality and morale. This is crucial because an employee who feels as though she is not being heard by her supervisor may soon be able to download an app that provides a way for her to discuss her concerns regarding her workplace, and potentially find other employees who feel similarly.

If and when such an app is developed and implemented properly, it may drastically change the way that unions run organizing campaigns. Employers must be proactive and maintain constant communication between front-line supervisors and rank and file employees to ensure that employees’ concerns are being addressed.

People are increasingly turning to social media to vent their frustrations, and those frustrations frequently involve the workplace. The problem is that managers, who are deemed to speak and act for the company as a matter of law, can cause problems with a social media rant.

This issue is on my mind because it recently struck close to home. A friend had applied and was being considered for a department head position at a prestigious university – an excruciating process involving repeated trips to the university for multiple rounds of interviews. After many months, the choice was narrowed down to my friend and another candidate. My friend then received a call – FROM HER SISTER – saying, “You better take a look at this blog!” The blog post had been written by a member of the selection committee, who was upset that the committee majority had chosen the other candidate for the position! Yes, that’s right – my friend found out that she did not get the position from a blog post!

What’s the lesson here? Managers should be cautioned to be careful when sharing work-related information on social media. They can be told not to discuss confidential company information – certainly internal decision-making processes should be confidential. Moreover, disclosing disagreement about a company decision undermines that decision and can create dissension and morale issues within the ranks. At a minimum, managers certainly should  not be discussing a decision before it has been officially announced.

Of course, employees’ rights to complain about the terms and conditions of their employment are protected by the National Labor Relations Act – they can complain about management and corporate decisions, and even call managers vulgar names. But managers do not enjoy that same protection, and private employers can take action to prevent managers from sharing information that the employer deems inappropriate – and take action against the managers if they do. (Note that I am not talking about public employers, whose managers may be entitled to certain free speech rights under the 1st Amendment, and different rules may apply in states that have statutes protecting certain off duty legal activities, although for goodness’ sake, companies should still be able to tell managers to “keep it zipped” about hiring deliberations!).

Once upon a time, the National Labor Relations Board actually found Facebook posts by employees to be unprotected by the National Labor Relations Act…  A fairy tale for employers, you say?  No really, it actually happened, in the case of Richmond District Neighborhood Center.

Over the past several years, it seems that the Board will find almost any kind of employee speech – especially in social media – to be protected by the Act.  Under past Board rulings, employees can seemingly say the most outrageously derogatory things about co-workers and management and drop four-letter words all over the place – all without consequence.  So it’s nice to know that even the Board thinks that there are lines that cannot be crossed.

In this case, two unhappy employees of an afterschool program had a Facebook conversation about their employment.  This is considered concerted activity that is therefore protected by the Act.  So when another employee took a screenshot of the conversation to the employer, and the employer decided not to rehire the employees for the coming school year, one of the employees filed a charge with the Board claiming that his rights under the Act had been violated.

Concerted activity, however, can lose the protection of the Act if its is sufficiently egregious or if it makes the employee unfit for further employment.  That is what the Board determined happened here.  Specifically, the Board found that the employees made statements that:

  • they would refuse to obtain required permission before organizing youth activities (“ordering s***, having crazy events at the [center] all the time. i don’t want to ask permission…”, “Let’s do some cool s***, and let them figure out the money”, “field trips all the time to wherever the f*** we want!”)
  • they would disregard specific school-district rules (“play music loud”, ‘teach the kids how to graffiti up the walls”)
  • they would undermine leadership (“we’ll take advantage”, “I would hate to be the person takin your old job”)
  • they would neglect their duties (“I AINT GOBE NEVER BE THERE”)
  • they would jeopardize the future of the youth center (“they start loosn kids i aint helpn”, “Let’s f*** it up”)

[NOTE: all misspellings are original!]

The Board stated: “We find the pervasive advocacy of insubordination in the Facebook post, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render [the employees] unfit for further service.”  The Board found that, given the “magnitude and detail” of the planned insubordinate acts, a reasonable employer would refuse to take the risk that such plans would be carried out if these individuals continued to be employed.

So for once, the employer lived happily ever after.  The End.

As I’ve said before, it amazes me what people will put on their Facebook (and other social media) pages.  Many users, particularly Gen-X’ers, Y’ers, and millienials (and my crazy teenagers), tend to think of Facebook as being a private conversation (with 500 of their dearest friends).  Savvy employers should keep this in mind when faced with defending a (meritless) lawsuit brought by an employee.  It is amazing what you can find on a Facebook page, as the employer learned to its delight in Mealus v. Nirvana Spring Water NY Inc.

An employee told her supervisor that she had accepted another job.  The job offer was subsequently withdrawn, apparently because the employee had talked to others about what she would be making, which the new company viewed to be a breach of confidentiality.  (I question whether the company’s “confidentiality” policy violates the right of employees to discuss their pay under the National Labor Relations Act, but that’s a whole other issue…).  The employee ranted about this on her Facebook page.  There was conflicting testimony about whether the employee then asked for her job back, but in the end, she had a verbal altercation at work and claims that she was “forced to quit.”  That evening, she sent an email to the employer, claiming that she had been sexually harassed by the chairman of the Company’s Board of Directors (and brother of the CEO).

The employee then sued the employer, claiming that the sexual harassment made her physically ill, and that the harassment was the sole cause of her illness.  But, as the employer pointed out when asking the court to dismiss her claims, within days after her resignation, the employee had posted on her Facebook page that her boyfriend’s ex-girlfriend “caused utter chaos in our lives and he let it happen and I was so upset that I got sick every day for 4 months.”  Months later, she described her relationship with the then-ex-boyfriend as a “10-month nightmare.”  The court found that these posts, as well as other evidence including the employee’s own emails, directly contradicted the claims and allegations in her complaint.  The court then threw out her lawsuit.

So, the lesson for employers here is that an employee’s social media activity can contain incredibly helpful information for a defense, particularly since it’s in the employee’s own words.  In the course of litigation, employers should always seek access to the employee’s social medial activity.  But caution – if an employer wants to view an employee’s social media activity before a lawsuit is filed (like during an internal investigation into possible employee misconduct), there may be state laws that restrict access by an employer to private social media accounts.  And you can’t get around those restrictions by asking another employee who is “friends” with the employee to access the private account.  But hey – anything that is publicly available is fair game, and it is astounding how many people do not put privacy settings on their social media accounts!

Teenagers!  In the world of social media, they seem to have no sense of privacy.  They will share anything and everything with their multitude of Facebook “friends.”  And in one case, doing that cost the teenager’s father $80,000 for breach of the confidentiality provision in his settlement agreement.

In Gulliver Schools Inc. v. Snay, a headmaster sued his school for age discrimination and retaliation.  The parties settled for a total of $150,000 – $10,000 in back wages, $80,000 in other compensation, and $60,000 for attorney’s fees.  The settlement agreement included a confidentiality provision, stating that the headmaster “shall not directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…. A breach…will result in disgorgement of the Plaintiff[‘]s portion of the settlement Payments.”

So it appears that, practically before the ink was dry on his signature, the headmaster told his daughter about the settlement, because she immediately posted on her Facebook page: “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”  This charming comment was shared with her 1200 Facebook “friends,” many of whom had attended Gulliver or were current students there.  Unsurprisingly (because really, kids, social media is not private!), Gulliver found out about the posting and notified the headmaster that he had breached the agreement.  Therefore, the school initially refused to pay the monies that were to go directly to the headmaster, although it paid the attorney’s fees.  It later paid the $10,000 in wages, but continued to withhold the $80,000.

The Florida Court of Appeals agreed with the school that there had been a breach – the headmaster had “violated the agreement by doing exactly what he had promised not to do” by telling his daughter that the case had been settled.  And then she “did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”  Bottom line, the daughter’s Facebook post cost her father $80,000.

From management’s perspective, this case illustrates the importance of a strong confidentiality provision – and making sure that plaintiffs understand what that actually means.  From a parental perspective, I would have grounded my daughter for the next ten years.

What should a company consider in deciding whether to engage in electronic workplace monitoring of employees?

Companies, concerned with the abuse of workplace technologies, are increasingly considering electronic monitoring programs.  Motivating considerations include the prospect of liability for sexual harassment lawsuits arising from inappropriate emails or web site usage, concerns about employee transfers of proprietary company data to unauthorized recipients, or the loss of productivity from employee web usage.

Before deciding to engage in monitoring, companies should consider whether the cure might be worse than the problem.  For example, undertaking monitoring as a means for avoiding harassment claims may have the opposite effect if an employer becomes aware of a potential problem and fails to act.  The specter of monitoring can also have a negative impact on employee morale.

If an employer decides to proceed with monitoring, it should provide employees with notice that monitoring will take place prior to initiating monitoring.  This is required by law in some states, such as Connecticut, and is a good practice even if not required by law.  Notice should be through a written policy or computer sign-on notification, to avoid legal claims.  Finally, monitoring should not be undertaken without consulting legal counsel.

The Labor Board has released its long-awaited second “Facebook case.”  To nobody’s surprise, the NLRB has largely adopted the ALJ decision that the Facebook postings in question constitute protected concerted activity under Section 7.

In Hispanics United of Buffalo, an employee threatened to report several of her co-workers to management who she felt did not provide timely and adequate assistance to the organization’s clients.   One “criticized” employee learned of this and took to Facebook, where other co-workers chimed in, posting the allegation from the co-worker, criticizing her, defending their job performance, and complaining about working conditions, such as work load and staffing issues.

Most of the Facebook posts were “unprofessional” to say the least – at least one used the F-word, and others insulted the organization’s low-income clients.   The criticized employee who started the conversation, however, never informed the other employees that the original co-worker was going to voice the complaint to management.   After being made aware of the Facebook posts, the employer terminated the “criticized employees,” believing that their Facebook comments constituted harassment of the original co-worker.

The ALJ and NLRB sided with the “criticized employees,” finding that their discussion was protected concerted activity.   The activity was protected because the “employees were directly responding to allegations they were providing substandard service to the Respondent’s clients” and such “criticism” could “negatively impact . . . their employment.”   The postings were concerted because the employees were joining a “common cause” and “taking a first step towards taking group action to defend themselves against the accusation they could reasonably believe . . . was going to [be made] to management.”

In dissent, Board Member Brian Hayes – in one of his last decisions before his term expired on December 16, 2012 – made some compelling points – including that the actions were not concerted because the employee who started the discussion on Facebook failed to tell her co-workers that the original employee was going to complain to management.   Board Member Hayes said that there is a difference between “sharing a common viewpoint and joining in a common cause” and that the employees in question were only “venting to one another in reaction to . . . complaints.   This does not constitute concerted activity under the precedent.”   The majority rejected this view, instead finding that the employee who started the Facebook conversation had the “object of preparing her coworkers for group action.”

Protected concerted activity and social media cases are a major enforcement priority for the Labor Board.   As a reminder, two or more employees have the right to voice complaints about terms or conditions of employment – even on Facebook, with a global audience.   A single employee is also protected if the employee acts on the authority of other employees, seeks to initiate or induce group action, or expresses a concern which is a “logical outgrowth” of other concerns expressed by a group.  The protections afforded by this doctrine apply to both non-union as well as union employees.

Many employers are frustrated by these Labor Board cases involving Facebook, believing that employees now have free reign to criticize them in a way that can impact their reputation.   In the “old days,” protected concerted activity rarely left the shop floor.   To the extent that the employee’s claims were misleading or exaggerations, few people ever knew it.   Of course, Facebook changes all of that and now these same misleading or exaggerated claims can go viral in a matter of hours.

Unfortunately, it appears that the NLRB has little sympathy for this concern.   While the General Counsel, in its Second Report on Social Media, said that it would consider the extent to which the Facebook posts “disparage the employer’s products and services,” before bringing a complaint,  the employees in Hispanics United of Buffalo did not cross the line in the Board’s view – even though many employers would disagree with that position.   For now, employers must take a very cautious approach to issuing employee discipline for Facebook postings, or face the wrath of the NLRB and possible reinstatement and back-pay for any such discipline.

On October 1, 2012, Maryland’s first-in-the-nation law prohibiting employers from requiring – or even requesting – that employees provide pass codes to personal websites and devices took effect.  Colloquially, this is the “Facebook Privacy Right.”  Employers that fail to hire an applicant or discipline or discharge an employee for refusing to disclose a personal pass code violate the law (although the statute, itself, contains no remedy).Illinois and, most recently,California, have enacted similar laws and legislation is pending in nearly a dozen other states, as well as federally.

What is remarkable is how little evidence there is that employers have actually requested or required applicants or employees to disclose this personal information as a condition of employment.  Indeed, Maryland’s new law does not in any way restrict an employer’s right to “Google” employees or applicants or otherwise scour the web for information on them, although there are good reasons to refrain from such sleuthing.  What an employer knows – the sexual orientation or history of mental illness, for example, of an applicant or employee – may be alleged to be the motive for an adverse action such as a refusal to hire or termination.  That’s a quick ticket to a lawsuit.  Rather, what generated the law was a Maryland Department of Corrections requirement that individuals wishing to be prison guards disclose their Facebook passwords so that the DOC could “vet” them for gang connections.  This was based on the real concern that people with gang affiliations were infiltrating the prison system.  One can fault the DOC for going too far in addressing the problem (and when challenged by the Maryland ACLU, the DOC abandoned the practice).  But, what is not apparent is that this is a widespread problem that required legislative action.

The cure may create more mischief than the perceived ill it was intended to address.  For example, the law prohibits an employer from even requesting a personal pass code, such as in response to allegations of sexual or racial harassment online by one employee of another.  And, while the law quite reasonably does not constrain an employer from demanding pass codes to “non-personal” sites and devices, it does not provide any definition of what would be “personal” as opposed to “business.” If I am permitted to use my personal iPhone for work and I use my account for business-related mischief, is or is this not subject to employer review?  And, what about that company-issued iPad?  If I register it personally with Apple and use cloud storage for work-related documents, does this law limit my employer’s ability to demand the pass code to see what I am up to if it suspects I am up to no good?  All unclear.  And while there is a clause in the law that says it is not intended to prevent an employer from investigating theft of confidential information or trade secrets (something that employers have a right to do without the law), the drafters of the legislation failed to specify that an employer can demand a personal pass code during this investigation.  All of this is why some groups representing the interests of businesses, such as the Maryland Chamber of Commerce, opposed the legislation.  It is not because they are Neanderthals.  It is because they have to contend with the consequences of the laws that are passed, including the costs of litigation to flesh out what the law “really means.”