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

A federal district court broke new social media law ground in August 2014 when it held in favor of the cable network Black Entertainment Television (BET) in a suit brought by the founder of an unofficial Facebook fan page for one of the network’s television shows. In holding that BET acted lawfully when it asked Facebook to transfer the fan-created page’s “likes” to a BET-sponsored page, the U.S. District Court for the Southern District of Florida established important precedent: The only individual who can possibly claim to own a “like” on a Facebook page is the individual user responsible for it.

Background

Insurance agent Stacey Mattocks was so devoted to the television series The Game that she created an unofficial Facebook fan page for the show in 2008. By the time BET acquired the rights to The Game from the CW Network in 2009, Mattocks’ fan page had garnered a huge following, and BET—reportedly having failed to attract similar support for the show’s official fan page—wanted to capitalize on the social media audience that Mattocks had amassed.

Thus began a series of negotiations between Mattocks and BET, with Mattocks at one point managing the page for the Viacom-owned cable channel for $30 an hour. During Mattocks’ tenure in that part-time position, BET provided her with exclusive content to post on the Facebook page and began displaying its trademark and logos on it. The page’s following grew from two million to more than six million fans.

At this point, in early 2011, Mattocks and BET entered into a letter agreement granting BET administrative access to the Facebook page and the right to post content on it in exchange for the network’s promise not to change Mattocks’ administrative rights to the page. But Mattocks broke the agreement in 2012 when, after refusing a reported $85,000 annual salary offer from BET, she cut off the network’s control of the Facebook page and informed BET that she would maintain that restriction until the parties reached “an amicable and mutually beneficial resolution” concerning her employment.

BET reacted to being cut off by asking Facebook to “migrate” the page’s fans to a BET-sponsored page. After determining that the BET-sponsored page officially represented The Game’s brand owner, Facebook complied. Twitter also complied with BET’s separate request to disable The Game Twitter account that Mattocks maintained.

Mattocks filed suit in the U.S. District Court for the Southern District of Florida, alleging that BET tortiously interfered with Mattocks’ contractual relationships with Facebook and Twitter; breached its letter agreement with Mattocks; breached a duty of good faith and fair dealing with Mattocks; and converted a business interest that Mattocks had in the page. In late August 2014, the court held that BET was entitled to summary judgment on all of Mattocks’ claims.


Continue Reading She Liked It. She Really, Really Liked It: Federal District Court Holds Facebook Fan Page Manager Doesn’t Own “Likes”

  • In-tweet purchases. Twitter is testing the ability for its users to make purchases directly from tweets. The popular social network is working with a number of sellers, nonprofits and artists—as well as a small handful of social shopping and e-commerce platforms—to test “in-tweet purchases,” which will enable users to hit the “Buy” button straight

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 current status of various state laws restricting employer access to the personal social media accounts of applicants and employees; we

A 2013 CareerBuilder survey of hiring managers and human resource professionals reports that more than two in five companies use social networking sites to research job candidates. This interest in social networking does not end when the candidate is hired: to the contrary, companies are seeking to leverage the personal social media networks of their existing employees, as well as to inspect personal social media in workplace investigations.

As employer social media practices continue to evolve, individuals and privacy advocacy groups have grown increasingly concerned about employers intruding upon applicants’ or employees’ privacy by viewing restricted access social media accounts. A dozen states already have passed special laws restricting employer access to personal social media accounts of applicants and employees (“state social media laws”), and similar legislation is pending in at least 28 states. Federal legislation is also under discussion.

These state social media laws restrict an employer’s ability to access personal social media accounts of applicants or employees, to ask an employee to “friend” a supervisor or other employer representative and to inspect employees’ personal social media. They also have broader implications for common practices such as applicant screening and workplace investigations, as discussed below.
Continue Reading Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations

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

Our global privacy + data security group’s Data Protection Masterclass Webinar series is turning the spotlight on social media marketing and policies in January.

Please join Socially Aware contributors Christine Lyon and Karin Retzer, along with Ann Bevitt in our London office for a webinar that will examine the laws and regulations in the

Social media platforms have become an increasingly important means for companies to build and manage their brands and to interact with their customers, in many cases eclipsing companies’ traditional “.com” websites. Social media providers typically make their platforms available to users without charge, but companies nevertheless invest significant time and other resources to create and

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

On September 27, 2012, California Governor Jerry Brown signed a bill that restricts employer access to the “personal social media” of employees and applicants for employment.

Assembly Bill 1844 (“AB 1844”) adds to the California Labor Code new section 980.  Under this section, an employer may not “require or request” an employee or applicant to