Crossroads: Harassment, Bullying, Griping & Social Media

On August 18th the Acting General Counsel for the National Labor Relations Board (Board) published a report on recent social media cases that were decided by the Board upon a request for advice from a Regional Director in the last year. The purpose of the report was to "...be of assistance to practitioners and human resource professionals." In five of the 14 cases the Board found that employees' use of Facebook was not "protected concerted activity" under the National Labor Relations Act (NLRA). The Board found in four cases, however, that such activity was protected and/or that an employer's social media policy violated the NLRA. 

The NLRA covers nearly every private sector employer and grants to employees, non-union as well as those represented by a union, the right to engage in protected, concerted activity.

Following are some highlights from some of the cases. 

Employers Beware: The Board Held...

• Employees' Facebook postings about job performance and staffing were protected concerted activity, despite the fact that the messages included "swearing" and were reported to the employer by another coworker who described them as "cyber-bullying" and harassing behavior.
•  An individual employee's Facebook posting on her personal page during nonworking time protesting her supervisor's actions in conducting an investigation about her work performance and which drew sympathetic comments from coworkers during their nonworking time was protected activity, despite that she called her supervisor a "scumbag" in violation of the company's blogging and internet policy which prohibited employees from making "disparaging remarks when discussing the company or supervisors."  
• An employee's posting on his Facebook page of photos from a company event in which he made fun of the "cheap" food his employer provided, including photos of coworkers who shared his concerns about the impact the poor event might have on their commissions was protected, concerted activity.
• Employees' postings on Facebook outside of the workplace and on non-working time one of which called one of the owners of the company "[s]uch an a--hole," and which was "Liked" by a coworker after the employees learned that some of them owed back taxes on wages paid was protected, concerted activity.
• Several provisions of an employer's social media policy were overly broad and thus violated the NLRA. Portions of the policy prohibited "any communication or post that constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee, officer, board member, representative, or staff member...statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees."

Employers Be Advised. The Board Also Held...

• An employee who tweeted critical comments about other employees and after being counseled to not do so subsequently tweeted derogatory comments about a competitor was not engaged in protected concerted activity.
• An employee who posted a comment on his Facebook page complaining to a relative about his employer's (restaurant) tip-sharing policy, calling customers "rednecks" and stating he hoped they "choked on glass as they drove home drunk" was not engaged in concerted activity.
• An employee who posted on her Senator's "wall" comments about her employer's compensation practices, possible safety concerns and other concerns related to business operations was not engaged in concerted activity.
• An employee who had a Facebook conversation with friends during her work time making derogatory comments about the employer's clients was not engaged in concerted activity.
• An employee who posted "gripes" including derogatory, profane remarks about his manager on his Facebook page was not engaged in concerted activity despite the fact that two coworkers replied with "supportive" comments, such as "hang in there." 

So what now?

As you read, compare and contrast the case summaries above you can probably identify several common factors.  Here are some key considerations that may indicate whether an employee's use of social media constitutes concerted activity protected under the NLRA:

• To establish "concerted" activity the employee must act with or on the authority of other employees, and not solely by and on behalf of the employee himself." It may also include "circumstances where individual employees seek to initiate or to induce or to prepare for group action" (such as surveying coworkers to ask their opinion about a particular workplace policy or practice).
• Protection under the Act may be lost where the otherwise protected activity unduly disrupts the work of another employee(s), business operations or undermines supervisory authority.  But where the conduct occurs wholly outside of the workplace and on nonworking time this may be harder for the employer to establish.
• An employer violates Section 8(a)(1) of the NLRA if it maintains a policy or practice (rule) that would "reasonably tend to chill employees in the exercise of their Section 7 rights." Accordingly, more than once the Board explains that policies it found overbroad, "contained no limiting language to inform employees that [the policy] did not apply to Section 7 activity." Work rules that are narrowly drawn, such as to restrict the use of social media to harassing conduct the Board has found lawful.

Want more info?  Join FiveL Company's September 28th webcast at 10:00 a.m. EST, "Workplace Harassment, Bullying, Griping & Social Media." Speaking of social media - follow Ms. Walters on Twitter for even more timely legislative and regulatory updates!  www.hrpeeps.net

Visit the calendar of events for a full listing.

Thursday, September 15th, Ms. Walters will be giving the morning plenary plus one concurrent presentation during the Cumberland Valley SHRM's 2011 Legal & Legislative Conference, Hagerstown, MD.

Friday, September 20th, Ms. Walters will be giving two concurrent session presentations followed by a book sale and signing at the Iowa SHRM State Conference, Coralville, IA.  

Upcoming Client Training Programs

"Managing for Performance Improvement" (2 sessions)

 "Maintaining an Inclusive Workplace" (4 sessions; 3 clients + E-Learning modules)

"Conducting Prompt & Proper Workplace Investigations" (2 sessions)

NEXT WEBCAST: 

September 28th, 10:00 - 11:00 a.m. EST 

"Workplace Harassment, Bullying, Griping & Social Media" 

On August 18th the Acting General Counsel for the National Labor Relations Board published a report on social media cases that were decided by the Board in the last year. The purpose of the report was to "...be of assistance to practitioners and human resource professionals."  Join this interactive webcast as we compare and contrast cases held in favor of employees, employers, and proactive practice to ensure continued compliance with the National Labor Relations Act, Title VII of the Civil Rights Act of 1964 and more.

THIS WEBCAST IS PRE-APPROVED BY HRCI FOR 1.0 GENERAL CREDIT HOUR.

 Click here to register.

Use of this seal is not an endorsement by HRCI of the quality of the program. It means that this program has met HRCI's criteria to be pre-approved for recertification credit.

What's Old is New Again

If you have subscribed to this E-newsletter for the last year or more then you will recognize this article, usually entitled, "Pete and Repeat Were Sittin' on a Wall." (If you don't know the rest of this click here)  It's that time of year again for certain covered employers, contractors and subcontractors to file EEO-1, VETS-100 and/or VETS-100A reports.  Here's some guidance and general information with regard to who must file, what and when:

The above listing of covered contracts may include banks and financial institutions with agreements to serve as a fund depository, for federal share and deposit insurance, or to serve as issuing and paying agent for U.S. savings bonds and notes.

What gets reported and when? A similar snapshot as described above but with regard to employees' status as a covered veteran as defined in the current VETS-100 and VETS-100A reports. These reports are also filed online by September 30th of each year.

How is that data collected? Same as above with the EEO-1 report but in the case of being a protected Veteran, the employer likely cannot make a reasonable assessment based on visual observation.

Click here for more information.

 This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly.