In 2012, the National Labor Relations Board (NLRB or the “Board”) found a “courtesy” policy unlawful. Since then, the NLRB has continued to create more and more tension between the National Labor Relations Act (NLRA or the “Act”) and employers’ legitimate interests in maintaining and enforcing workplace guidelines governing courtesy in a nondiscriminatory fashion.

This article focuses on the maintenance and enforcement of courtesy and civility rules. In these cases, the Board has taken extreme positions that increasingly ignore competing interests and obligations of employers. Among the obligations that can conflict with Section 7 in this context, employers must protect their employees from harassment, including on the basis of sex and race, by disciplining employees making harassing comments and engaging in harassing behavior and by maintaining civil workplaces that are not conducive to harassment. Employers also have a legitimate interest in maintaining a civil workplace simply to promote employee productivity and job satisfaction, as well as ensuring appropriate levels of customer service.

The Framework: Regulating Workplace Rules Under the NLRA

Employees have the right to engage in concerted activity under Section 7 of the NLRA. Concerted activity is activity undertaken for the employees’ mutual aid and protection, including, for example, discussing the terms and conditions of employment, such as wages, policies, and workplace treatment. Under Section 8(a)(1) of the Act, 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.”

Under the general framework of the Act, the National Labor Relations Board regulates employer maintenance and enforcement of generally applicable workplace rules in several ways.

First, an employer commits an unfair labor practice, under Section 8(a)(1), if it maintains a rule that would reasonably tend to chill employees in the exercise of their Section 7 rights. If it expressly restricts Section 7 activity, the rule is unlawful. Further, if it does not expressly restrict Section 7 activity, the rule is still unlawful under Lutheran Heritage Village if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” In reading the rule, the Board should “refrain from reading particular phrases in isolation.” Similarly, the Board should not seek out “arguable ambiguity . . . through parsing the language of the rule, viewing [a] phrase . . . in isolation, and attributing to the [employer] an intent to interfere with employee rights.” Lafayette Park Hotel.

Second, employers may not discipline employees for engaging in protected activity. In the event that “the very conduct for which employees are disciplined is itself protected concerted activity,” then the discipline violates Section 8(a)(1) regardless of the employer’s motive or a showing of animus. Burnup & Sims, Inc. Similarly, if an employee violates a workplace rule and is disciplined, the discipline is unlawful if the employee “violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.” Continental Group, Inc.

Continue Reading The Death of Courtesy and Civility Under the National Labor Relations Act

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we summarize the FFIEC’s recently-issued final guidance on social media use by financial institutions; we report on a new NLRB decision holding that particularly egregious social media postings by employees may fall outside the protections of the NLRA; we provide an update on the California Attorney General’s guidance regarding compliance with the state’s “do-not-track” disclosure requirements for websites; we discuss a recent case that calls into question the status of domain names as intangible property; we take a look at the latest in a string of cases exploring the First Amendment status of social media activity by government employees; and we highlight an important FTC settlement with a mobile app publisher related to data collection and sharing disclosures. All this plus a collection of surprising statistics about the most popular people, videos, tweets and hashtags of 2013.

If an employee calls his supervisor a “nasty motherf[**]ker” on Facebook, would the employee lose the protection that he would otherwise enjoy under the National Labor Relations Act (NLRA)?  Probably not, according to National Labor Relations Board (NRLB) decisions like Pier Sixty LLC.

In Pier Sixty, an employee reacted to a labor dispute by posting the following message about his supervisor on Facebook: “Bob is such a NASTY MOTHER F[**]KER don’t know how to talk to people!!!!!  F[**]k his mother and his entire f[**]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Despite the obscenities, the administrative law judge decided that the employee’s posting was concerted activity under the NLRA, which is activity by two or more employees that provides mutual aid or protection regarding terms or conditions of employment. This concerted activity was not egregious enough to cause the employee to lose the NLRA’s protections. Accordingly, the judge ordered the employer to reinstate the employee. This decision is not an anomaly among decisions interpreting the NLRA. In fact, a number of NLRB cases have held that use of the “f-word” did not exceed the bounds of the NLRA’s protection.

This has left employers wondering: Is there any limit to what an employee can post? Can postings otherwise covered by the NLRA ever go too far and cross the line into unprotected activity? In a recent decision, Richmond District Neighborhood Center, the NLRB demonstrated that it will draw a line in the sand, albeit a thin and distant one. Certain situations, particularly egregious postings by employees on social media sites, may fall outside the protection of the NLRA, even when the postings otherwise involve concerted activity.

Richmond District Neighborhood Center concerned a Facebook conversation between Ian Callaghan and Kenya Moore, who were both employed as teen activity leaders at the Richmond Neighborhood District Center, a non-profit organization that provides youth and family community programs. In a conversation visible only to their Facebook friends, Callaghan and Moore complained about management and discussed plans to defy the Center’s rules, posting statements such as:

“…let them figure it out and they start loosin’ kids I ain’t help’n HAHA.”

“…we’ll take advantage, play music loud … teach kids how to graffiti up the walls…. I don’t feel like being their b*tch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money. No more Sean. Let’s f*ck it up.”

“HAHA we gone have hella clubs and take the kids.”

“[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!”

“I’ll be back to raise hell wit ya. Don’t worry.”

The Center fired Callaghan and Moore after another employee brought the conversation to its attention. Callaghan and Moore contended their activity was protected under the NLRA.

The administrative law judge found that the employees were engaged in concerted activity when voicing their disagreement with the Center’s management. The judge concluded, however, that even though the employees’ remarks constituted concerted activity, the activity was not protected under the NLRA. He stated: “[T]he question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.”

The Center explained that the employees’ Facebook conversation was detrimental to its eligibility for grants and could raise serious concerns for parents of the youth served by the Center. The judge agreed, finding that the conversation was not protected under the NRLA because it “jeopardized the program’s funding and the safety of the youth it serves.” Moreover, the conduct rendered the two employees “unfit for further service.” The judge dismissed Callaghan and Moore’s complaint.

Although this decision uncovers a previously obscured line in the sand with regard to protected social media activity, employers should still exercise considerable caution when responding to complaints about an employee’s use of social media. Postings that are otherwise protected by the NLRA are unlikely to lose that protection merely because they are offensive, even if they use profanity. Nonetheless, the Richmond case reveals that conduct found to endanger an employer’s funding or client safety may potentially cross the line and fall outside the wide protection of the NLRA.

Editors’ Note:  The original posts quoted in this article did not contain asterisks; such asterisks have been added by the authors of this article.

2012 was a momentous year for social media law. We’ve combed through the court decisions, the legislative initiatives, the regulatory actions and the corporate trends to identify what we believe to be the ten most significant social media law developments of the past year–here they are, in no particular order:

Bland v. Roberts – A Facebook “like” is not constitutionally protected speech

Former employees of the Hampton Sheriff’s Office in Virginia who were fired by Sheriff B.J. Roberts, sued claiming they were fired for having supported an opposing candidate in a local election. Two of the plaintiffs had “liked” the opposing candidate’s Facebook page, which they claimed was an act of constitutionally protected speech. A federal district court in Virginia, however, ruled that a Facebook “like” “…is insufficient speech to merit constitutional protection”; according to the court, “liking” involves no actual statement, and constitutionally protected speech could not be inferred from “one click of a button.”

This case explored the increasingly-important intersection of free speech and social media, with the court finding that a “like” was insufficient to warrant constitutional protection. The decision has provoked much criticism, and it will be interesting to see whether other courts will follow the Bland court’s lead or take a different approach.

New York v. Harris – Twitter required to turn over user’s information and tweets

In early 2012, the New York City District Attorney’s Office subpoenaed Twitter to produce information and tweets related to the account of Malcolm Harris, an Occupy Wall Street protester who was arrested while protesting on the Brooklyn Bridge. Harris first sought to quash the subpoena, but the court denied the motion, finding that Harris had no proprietary interest in the tweets and therefore did not have standing to quash the subpoena. Twitter then filed a motion to quash, but the court also denied its motion, finding that Harris had no reasonable expectation of privacy in his tweets, and that, for the majority of the information sought, no search warrant was required.

This case set an important precedent for production of information related to social media accounts in criminal suits. Under the Harris court’s ruling, in certain circumstances, a criminal defendant has no ability to challenge a subpoena that seeks certain social media account information and posts.

The National Labor Relations Board (NLRB) issued its third guidance document on workplace social media policies

The NLRB issued guidance regarding its interpretation of the National Labor Relations Act (NLRA) and its application to employer social media policies. In its guidance document, the NLRB stated that certain types of provisions should not be included in social media policies, including: prohibitions on disclosure of confidential information where there are no carve-outs for discussion of an employer’s labor policies and its treatment of employees; prohibitions on disclosures of an individual’s personal information via social media where such prohibitions could be construed as limiting an employee’s ability to discuss wages and working conditions; discouragements of “friending” and sending unsolicited messages to one’s co-workers; and prohibitions on comments regarding pending legal matters to the degree such prohibitions might restrict employees from discussing potential claims against their employer.

The NLRB’s third guidance document illustrates the growing importance of social media policies in the workplace. With social media becoming an ever-increasing means of expression, employers must take care to craft social media policies that do not hinder their employees’ rights. If your company has not updated its social media policy in the past year, it is likely to be outdated.

Fteja v. Facebook, Inc. and Twitter, Inc. v. Skootle Corp. – Courts ruled that the forum selection clauses in Facebook’s and Twitter’s terms of service are enforceable

In the Fteja case, a New York federal court held that a forum selection clause contained in Facebook’s Statement of Rights and Responsibilities (its “Terms”) was enforceable. Facebook sought to transfer a suit filed against it from a New York federal court to one in Northern California, citing the forum selection clause in the Terms. The court found that the plaintiff’s clicking of the “I accept” button when registering for Facebook constituted his assent to the Terms even though he may not have actually reviewed the Terms, which were made available via hyperlink during registration.

In the Skootle case, Twitter brought suit in the Northern District of California against various defendants for their spamming activities on Twitter’s service. One defendant, Garland Harris, who was a resident of Florida, brought a motion to dismiss, claiming lack of personal jurisdiction and improper venue. The court denied Harris’s motion, finding that the forum selection clause in Twitter’s terms of service applied. The court, however, specifically noted that it was not finding that forum selection clauses in “clickwrap” agreements are generally enforceable, but rather “only that on the allegations in this case, it is not unreasonable to enforce the clause here.”

Fteja and Skootle highlight that potentially burdensome provisions in online agreements may be enforceable even as to consumers; in both cases, a consumer seeking to pursue or defend a claim against a social media platform provider was required to do so in the provider’s forum. Both consumers and businesses need to be mindful of what they are agreeing to when signing up for online services.

Six states passed legislation regarding employers’ access to employee/applicant social media accounts

California, Delaware, Illinois, Maryland, Michigan and New Jersey enacted legislation that prohibits an employer from requesting or requiring an employee or applicant to disclose a user name or password for his or her personal social media account.

Such legislation will likely become more prevalent in 2013; Texas has a similar proposed bill, and California has a proposed bill that would expand its current protections for private employees to also include public employees.

Facebook goes public

Facebook raised over $16 billion in its initial public offering, which was one of the most highly anticipated IPOs in recent history and the largest tech IPO in U.S. history. Facebook’s peak share price during the first day of trading hit $45 per share, but with a rocky first few months fell to approximately $18—sparking shareholder lawsuits. By the end of 2012, however, Facebook had rebounded to over $26 per share.

Facebook’s IPO was not only a big event for Facebook and its investors, but also for other social media services and technology startups generally. Many viewed, and continue to view, Facebook’s success or failure as a bellwether for the viability of social media and technology startup valuations.

Employer-employee litigation over ownership of social media accounts

2012 saw the settlement of one case, and continued litigation in two other cases, all involving the ownership of business-related social media accounts maintained by current or former employees.

In the settled case of PhoneDog LLC v. Noah Kravitz, employer sued employee after the employee left the company but retained a Twitter account (and its 17,000 followers) that he had maintained while working for the employer. The terms of the settlement are confidential, but news reports indicated that the settlement allowed the employee to keep the account and its followers.

In two other pending cases, Eagle v. Edcomm and Maremont v. Susan Fredman Design Group LTD, social media accounts originally created by employees were later altered or used by the employer without the employees’ consent.

These cases are reminders that, with the growing prevalence of business-related social media, employers need to create clear policies regarding the treatment of work-related social media accounts.

California’s Attorney General went after companies whose mobile apps allegedly did not have adequate privacy policies

Starting in late October 2012, California’s Attorney General gave notice to developers of approximately 100 mobile apps that they were in violation of California’s Online Privacy Protection Act (OPPA), a law that, among other things, requires developers of mobile apps that collect personally identifiable information to “conspicuously post” a privacy policy. Then, in December 2012, California’s Attorney General filed its first suit under OPPA against Delta, for failing to have a privacy policy that specifically mentioned one of its mobile apps and for failing to have a privacy policy that was sufficiently accessible to consumers of that app.

Privacy policies for mobile applications continue to become more important as the use of apps becomes more widespread. California’s OPPA has led the charge, but other states and the federal government may follow. In September, for instance, Representative Ed Markey of Massachusetts introduced The Mobile Device Privacy Act in the U.S. House of Representatives, which in some ways would have similar notice requirements as California’s OPPA.

Changes to Instagram’s online terms of service and privacy policy created user backlash

In mid-December 2012, Instagram released an updated version of its online terms of service and privacy policy (collectively, “Terms”). The updated Terms would have allowed Instagram to use a user’s likeness and photographs in advertisements without compensation. There was a strong backlash from users over the updated Terms, which ultimately led to Instagram apologizing to its users for the advertisement-related changes, and reverting to its previous language regarding advertisements.

Instagram’s changes to its Terms, and subsequent reversal, are reminders of how monetizing social media services is often a difficult balancing act. Although social media services need to figure out how they can be profitable, they also need to pay attention to their users’ concerns.

The defeat of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA)

Two bills, SOPA and PIPA—which were introduced in the U.S. House of Representatives and U.S. Senate, respectively, in late 2011—would have given additional tools to the U.S. Attorney General and intellectual property rights holders to combat online intellectual property infringement. A strong outcry, however, arose against the bills from various Internet, technology and social media companies. The opponents of the bills, who claimed the proposed legislation threatened free speech and innovation, engaged in various protests that included “blacking out” websites for a day.  These protests ultimately resulted in the defeat of these bills in January 2012.

The opposition to and subsequent defeat of SOPA and PIPA demonstrated the power of Internet and social media services to shape the national debate and sway lawmakers. With prominent social media services such as Facebook, YouTube, Twitter, LinkedIn and Tumblr opposed to the bills, significant public and, ultimately, congressional opposition followed.  Now that we’ve witnessed the power that these services wield when acting in unison, it will be interesting to see what issues unite them in the future.

In the latest issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we look at recent First Amendment, intellectual property, labor and privacy law developments affecting corporate users of social media and the Internet. We also recap major events from 2012 that have had a substantial impact on social media law, and we take a look at some of the big numbers racked up by social media companies over the past year.

To read the latest issue of our newsletter, click here.

For an archive of previous issues of Socially Aware, click here.

This article was first published by ALM Media Properties LLC in Internet Law & Strategy (January 2013).

For over a year, the National Labor Relations Board (NLRB) has been taking employers to task for intruding too far into employees’ social media activities. The NLRB’s enforcement actions have provided a well-publicized reminder that the protections of the National Labor Relations Act (NLRA) are alive and well, applying with as much force to employees’ use of social media as to picketing or other traditional forms of collective activity, and to both non-union and unionized workforces.

The NLRB’s activity in this area has important consequences for employers. While employers may seek to regulate what employees may or may not say in their social media postings, this objective may be at odds with current NLRB authority. When considering the likelihood of enforcement action, it is noteworthy that the NLRB has taken action against employers ranging from large corporations to small businesses and non-profits. This underscores that the NLRB’s enforcement priorities are not limited to any single organizational profile.

We offer below a set of frequently asked questions (“FAQs”) with answers distilling the key points that U.S. employers should understand about this new area of NLRA enforcement activity. These FAQs are accompanied by practical suggestions to help employers navigate these issues in drafting and updating their own social media policies.

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With the issuance of its third guidance document on workplace social media policies in the past year, the National Labor Relations Board (NLRB) continues to refine its position on how to craft workplace social media policies that are consistent with the terms of the National Labor Relations Act (NLRA).

Section 7 of the NLRA provides employees with the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  This right applies regardless of whether the employees are members of a labor union.  The NLRB’s guidance on this subject suggests that employee social media policies that discourage the exercise of these rights may run afoul of the NLRA.

The NLRB’s third memorandum, issued by Acting General Counsel Lafe Solomon, analyzes in detail seven different social media policies at issue in recent cases before the NLRB.  Six of these policies were found by the NLRB to contain provisions that are contrary to the NLRA, while the seventh “revised” policy was upheld in its entirety as lawful.  The NLRB specifically questioned the breadth of the following types of provisions, many of which are commonly found in social media policies:

  • Prohibitions on the disclosure of confidential or “non-public” information, or of matters concerning individual privacy rights, via social media. Instructions not to reveal non-public information may be unenforceable as applied to discussions about, or criticism of, the employer’s labor policies and its treatment of employees. The NLRB noted such a tension in policy requiring social media users not to “reveal non-public company information on any public site,” where the explanation of non-public company information did not include appropriate carve-outs for activities protected under Section 7.
  • Prohibitions on the disclosure of an individual’s personal information via social media.  The NLRB took issue with a social media policy instructing employees: “[D]on’t disclose [personal information regarding employees and other third parties] in any way via social media or other online activities.” As the NLRB explained, “[I]n the absence of clarification, employees would reasonably construe it to include information about employee wages and their working conditions.”
  • Discouragements of the “friending” of one’s co-workers.  According to the third memorandum, a policy statement advising employees to “think carefully about ‘friending’ other co-workers” could be construed as unlawfully discouraging employees from communicating regarding the terms of their employment.
  • Requirements that employee grievances be addressed through internal procedures, rather than aired online.  A social media policy providing the employer “believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet” was found to be unlawful, according to the NLRB, because it might inhibit employees from “seeking redress through alternative forums.” The NLRB noted, however, that employers may “reasonably suggest” availing of internal dispute resolution procedures.
  • Prohibitions on the sending of unsolicited communications to other employees. The NLRB found a policy requiring employees to report receiving “unsolicited or inappropriate electronic communications” to be an impermissible restraint on employees’ right to discuss their employment conditions.
  • Restrictions on public discussions of personal opinions regarding work.  One policy discussed in the memorandum expressly permitted employees to discuss online their personal opinions about work-related issues, but only to other employees and not to the general public. The NLRB found this overbroad because the right to discuss employment conditions extends to discussions with non-employees.
  • Prohibitions on comments regarding pending legal matters.  A policy providing, “Don’t comment on any legal matters, including pending litigation or disputes,” was found to be unlawful on the basis that it “restricts employees from discussing the protected subject of potential claims” against their employer.
  • Prohibitions on responding to government inquiries.  The NLRB found that one employer’s direction to employees not to respond to communications from government agencies was overbroad “to the extent that it restricts employees from their protected right to converse with [NLRB] agents or otherwise concertedly seek the help of government agencies regarding working conditions, or respond to inquiries from government agencies regarding the same.”
  • Requirements that employees check with the legal department or human resources (HR) department prior to posting or communicating with the media.  Requiring employees to secure permission from their employer before engaging in activities protected under Section 7, the memorandum noted, is prohibited by the NLRA.

Analyzing employer social media policies under the NLRA continues to be major enforcement priority of the NLRB, although the NLRB’s position on social media policies remains, for the most part, untested by the courts.  The third memorandum underscores how the precise wording of the policy is critical to whether it is considered overbroad by the NLRB.  Social media policies that distinguish between the prohibited behavior and concerted activities excluded by the policy, and that provide examples of each, would be more likely to withstand NLRB scrutiny.  By contrast, the third memorandum cautions employers against relying on a so-called “savings clause” (such as a general statement that the policy will not be interpreted in a manner inconsistent with the NLRA) if “employees would not understand from this disclaimer that protected activities are in fact permitted.”

Alongside its long list of examples of potentially unlawful policy language, the third memorandum provides one example of a social media policy that it considered lawful.  Although this exemplar, which is attached to the NLRB memorandum in full, will not meet the needs of all employers, it may serve useful as a resource against which to compare your company’s social media policy.  As the NLRB’s position on this subject evolves, we suggest consulting counsel to address whether specific provisions of your company’s social media policy are consistent with the NLRB’s guidance.

On August 18, 2011, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel released a report discussing the outcome of fourteen cases that its Division of Advice has investigated this year involving social media use in the employment context.  While the report does not reflect actual decisions of the NLRB, it does indicate the thinking of the NLRB’s Chief Attorney, who sets guidelines for what cases will be presented to the NLRB for litigation and decision.  In releasing the report, Acting General Counsel Lafe Solomon stated, “I hope that this report will be of assistance to practitioners and human resource professionals.”

In furtherance of Solomon’s goal, we have identified the major takeaways of this report, which can be divided into two categories:

First, when does employee social media use rise to the level of concerted activity that falls under the protection of the National Labor Relations Act (“NLRA”)?  The various decisions chronicled in the report provide some guidelines.  To begin, social media use is more likely to qualify as protected concerted activity where the employee discusses the terms and conditions of his or her employment in a manner that is meant to induce or further group action.  The General Counsel appears more inclined to characterize social media use in this fashion when it either is directed to fellow co-workers, or grows out of an earlier discussion about terms and conditions of employment among co-workers.

On the other hand, employee social media use is unlikely to rise to the level of protected concerted activity where it is best characterized as an individual complaint about working conditions specific to the employee, and is not directed to co-workers or meant to induce group action.

The report also suggests that employee comments that are “maliciously false,” a seemingly high standard, will not be protected under the NLRA and that offensive or inappropriate comments about an employer’s clients are also unlikely to be protected.

Second, where will the General Counsel draw the line between a valid and invalid employer social media policy?  The report suggests that social media policies will be found to be invalid where they would effectively prohibit employees from engaging in protected activity.  For example, the General Counsel found a social media policy to be overbroad where it prohibited “inappropriate discussions” about the company, its management, or its employees because this prohibition encompassed protected concerted activity.

Employers should not only avoid such overbroad prohibitions, but should also consider including a disclaimer in their social media policies specifically indicating that none of the prohibitions contained therein should be interpreted to interfere with employee rights under the NLRA.

At the end of the day, situations must always be examined on a case-by-case basis.  However, as the General Counsel investigates more cases and continues to issue guidance, and as the NLRB issues case decisions, the law in this area will quickly develop and produce more tangible guidelines for employers to consider.