"Should We Fire Him for That Post?"Commentary by Moritz in Harvard Business Review

Reprinting BrownWinick's recent announcement regarding my commentary in Harvard Business Review:

The March edition of the Harvard Business Review ("HBR") features expert commentary by BrownWinick employment law attorney, Megan Erickson Moritz, in response to the magazine's monthly Case Study.

HBR's fictional Case Studies pose challenges faced by real business leaders, with solutions and analysis from experts in response - usually featuring two different viewpoints.

HBR invited Moritz to provide her response to the March 2016 Case Study: Should We Fire Him for That Post? This Case Study features a small business owner's reaction to an employee's questionable Facebook remarks. Moritz was one of two industry experts providing featured commentary.  

The print edition of the HBR is available on newsstands, and the Case Study and Commentary is available online here. Clients who would like a complimentary copy of the HBR Case Study and Moritz's Commentary are welcome to e-mail BrownWinick's Marketing Coordinator, Debi Bull to request a copy. Megan may be contacted at moritz@brownwinick.com.

DOL Issues Update on New Overtime Regulations

More than a year ago, President Obama asked the Department of Labor to update its overtime regulations. Yesterday, the DOL finally announced its proposed rule. The proposed rule would extend overtime pay and minimum wage protections to almost 5 million US workers within a year of its implementation. The proposal also includes raising the salary threshold applicable to many of the exemptions from $455 a week to $970 a week. 

The Office of Management and Budget has reviewed and approved the Notice of Proposed Rulemaking, but the Notice has not yet been published in the Federal Register.  When it is officially published in the Federal Register, the Notice will specify the dates for the public comment period. The OMB-approved version of the Notice is available for review online at the DOL's website as a courtesy, but does not trigger the official comment period.

With more employees likely to be entitled to overtime, it's all the more important for employers to not only get up to speed on the coming regs -- but also to assess whether non-exempt employees are using mobile technology outside of normal working hours, and whether they are recording that time as work time.

More information about the DOL's announcement is available here.

LinkedIn Agrees to Pay Nearly $6 Million for Wage & Hour Violations Following DOL Investigation

The US Department of Labor today announced that the popular online professional networking company, LinkedIn Corp., has agreed to pay nearly $6 million to its employees for various wage and hour violations that were uncovered in a recent DOL investigation.  Specifically, LinkedIn agreed to pay $3,346,195 in unpaid overtime back wages and $2,509,646 in liquidated damages to 359 current and former employees working in California, Illinois, Nebraska, and New York.  

The DOL's Wage and Hour Division determined that LinkedIn violated overtime and record-keeping requirements of the federal Fair Labor Standards Act.  According to the DOL's investigation, LinkedIn failed to keep an accurate record of, or pay employees for, all hours worked in a workweek.  Not only did the company agree to pay all overtime back wages that were owed, the company also paid liquidated damages and agreed to an "enhanced compliance agreement" with the DOL under which it agreed to take a number of proactive steps to help ensure future FLSA compliance.

This is just one more example of the DOL Wage and Hour Division's increased attention and enforcement efforts aimed at preventing FLSA violations.   

US Supreme Court Rules Recess Appointments to NLRB Were Unconstitutional

The US Supreme Court today ruled that President Obama lacked authority to appoint three National Labor Relations Board members in 2012 during a short Senate break. All nine Justices agreed the President's so-called "recess appointments" were unconstitutional. This ruling impacts -- and probably invalidates -- hundreds of Board decisions that have been issued since the unconstitutional appointments. 

The National Labor Relations Board v. Noel Canning decision is available here.

With "Friends Like These . . .

Thanks so much to my friend and colleague, Ann Holden Kendell, for contributing this blog post!  

I asked Megan if I could write a guest blog post regarding a recent case from the U.S. District Court for the District of New Jersey.  This case involves the firing of an employee after her Facebook "friend" and co-worker shared her non-public entries with their mutual employer.  Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (WJM) (D.N.J. Aug 20, 2013).

Why did I want to do this?  In addition to being interested in this case as an employment lawyer and voyeur (this employee had a long disciplinary record and her brother ended up representing her when her original attorney withdrew), I was struck by how Megan could have written this opinion herself.  I have given many speeches to clients and organizations with Megan and have heard her social media presentations. 

Her guidance matches with the takeaways from this case.  In addition to other laws and invasion of privacy issues, the Federal Stored Communications Act (“SCA”) will apply to non-public Facebook posts. However, people with authorized access – i.e., a Facebook friend – may access the information.  In short, Deborah Ehling’s Facebook friend properly had access to her private posts.  He independently chose to pass that information on to their mutual employer.  This was another important piece of the case:  the evidence showed the employer did not force or coerce this "friend" to provide the information; the shared communication was unsolicited.  The court explained:

...the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.

In light of how this all “went down,” the court found that the employer did not violate any statutory or tort law in terminating Ms. Ehling, and it dismissed her lawsuit.

Does this mean employers can do whatever they want?  Simply put, no.  The facts of this case worked out for the employer, but the facts of most cases are often moving targets and not fully known until the witness is under oath.  If this “friend” had indicated there had been some pressure (maybe even just a request) to turn over the Facebook posts, this likely would have turned out very differently.  Or, imagine if the “friend” suddenly received a raise or promotion after turning over the information…this would have looked shady and could have affected the outcome.    

Employers still need to use caution when using Facebook information in employment decisions. True, it's important to determine whether the information found is appropriate for use in an employment decision. But even before we get to that question, employers should pause to consider how it obtained the information. For example, were any underhanded means were used (such as deceit, coercion, etc.)? Was the information requested in good faith, but still in a manner that could suggest another person felt pressure to turn it over? Was it completely unsolicited, as it was in this case? These kinds of questions should guide an employer's analysis. At least that's what Megan tells people, and Judge Martini agreed.

Court of Appeals Rules President's NLRB Appointments Unconstitutional

The US Court of Appeals for the DC Circuit today ruled that President Obama's recess apointments to the National Labor Relations Board "were constitutionally invalid."  According the the Court, the President acted unconstitutionally in the way he filled the vacancies on the NLRB. 

This has the potential to cause even more confusion on the NLRB's position regarding social media issues in the workplace.  Of course, more broadly, there will be procedural and precedential quandaries regarding all the actions by the Board since the time the appointments were made.

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.

Case Against NJ Woman Charged With Identity Theft Via Facebook Will Go Forward

After setting up a fake Facebook profile for her ex, Dana Thornton finds herself fighting a fourth-degree identity theft charge in New Jersey courts. 

She's accused of impersonating her ex-boyfriend, and making personal statements she attributed to him -- reportedly saying he was "high all the time," had herpes, and liked prostitutes. 

The New Jersey Code of Criminal Justice defines the offense of impersonation/identity theft to include "impersonat[ing] another or assuming a false identity and do[ing] an act in such assumed character or false identity . . . to injure or defraud another." Thornton tried to get the case dismissed because the statute makes no mention of electronic communications.  The judge didn't buy the argument, and on Wednesday, ruled the case will go forward.

In my opinion, this court reached the right decision.  The statute unambiguously says that assuming a false identity to injure another person is against the law -- it shouldn't matter what tools are used in the process.

Interestingly, a bill was proposed in the NJ legislature last year that (if passed) would clarify that criminal impersonation using electronic means or the internet is covered by the law.  As I told the Associated Press, amending this particular statute could complicate future prosecutions.  For example, if the legislature amends the identity theft statute to specifically say it covers online conduct, would a court later assume the state’s harassment statute isn’t meant to encompass online communications because it hasn’t been amended to specifically say so?  If this statute is revised to specifically reference online conduct, should the legislature try to amend all other laws that could be implicated in the context of online communications? 

See All Friends & Pages In Your Facebook News Feed -- For Real This Time

OK, so this post may not appear all that law-related . . . but I’ve received the same Facebook-related question from a couple different lawyer friends, so that’s enough for me to assume this is worth sharing!

You may or may not have noticed that not all your Facebook friends show up in your Facebook News Feed. Facebook’s default setting is to publish items from friends and pages you’ve recently interacted with. No one’s quite sure what that means exactly. Presumably, it has something to do with whether you’ve liked someone’s status, posted on someone’s wall, and so on – but it’s not clear what degree of interaction is required. There’s been a Facebook status floating around for quite a while about how to correct this, suggesting users address the issue through their account settings and asking users to copy and paste the setting to spread the word. I, too, copied and pasted this advice because common sense says it should have worked. But alas. Common sense has no place in the world of Facebook. A couple lawyer friends pointed out that this change in account settings didn’t appear to be working. The next time they’d log in, the settings went back to the “recently interacted” instead of “all.” So, I did a little investigating. Turns out, there’s a better way to make this change (at least until Facebook makes its next surreptitious change to our default privacy settings), by editing your News Feed settings specifically. So, if you’d like to see news from all your friends and pages, try this:

Go to your News Feed and click on “Most Recent” at the top of that page. You should see a little drop down box option; select “Edit Options” at the bottom of that drop-down list.

The default says it is showing posts from “Friends and pages you interact with the most.” Change that to “All of your friends and pages.”

I made the change and it made a huge difference in my News Feed!

Missouri Law Bans Certain Teacher/Student Online Communications

Missouri has just passed a law prohibiting certain online communications between teachers and students.  The Amy Hestir Student Protection Action more broadly aims to protect students from sexual abuse, but the controversial provision in the law reaching student and teacher social media usage and online activity is section 162.069, which provides:

By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student. Former student is defined as any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated.

Although it's been coined the "Facebook law," it reaches other online communication tools, as well.  And it doesn't necessarily ban all contact between students and teachers online -- just communications on a "website that allows exclusive access with a current or former student."  The law doesn't define what this is, but it presumably aims to prevent private, direct communications between student and teacher.  This would also seem to prevent a teacher with a private Facebook profile from "friending" a student on Facebook.  (Or would it?  If the only communication between a teacher and student occurred on a publicly visible "wall"?)  A number of analysts have suggested teachers who want to communicate with students on Facebook should create public Facebook fan pages, which students can "like."  This way, students and teachers can communicate on its wall, allowing their exchanges to be publicly visable.  (But this wouldn't take away the ability to send a private message -- that capability is available on Facebook by default, whether you're friends with the person you want to message or not.)

Sure, it may be a decent policy for teachers not to Facebook friend students.  But requiring it by law (a relatively ambiguous law, no less) sets the stage for some likely problems.  Although well intended, the law sure seems to leave open a lot of questions.  What exactly is "exclusive access"?  Does this law go too far?  Does it infringe on students' or teachers' free speech or freedom of association rights?  Does this prohibit communication with students the teacher actually teaches or taught?  Or all students within the district?  What about retired teachers?  Retired teachers who still substitute teach in the school district?  Doesn't this law go much further than necessary to stop improper sexual conduct between student and teacher?  If teachers aren't sure what it means, won't it chill their speech?  The law discusses communications on "websites" -- so it wouldn't reach text messages, or phone calls for that matter.

The law goes into effect later this month, but gives school districts until January 1 of 2012 to implement their new policies.

NLRB Continues Aggressive Response to Employers' Social Media Policies It Deems Overbroad

The National Labor Relations Board recently issued two more complaints against employers that fired employees in response to the employees’ Facebook posts.

On May 9, the NLRB lodged a complaint against a non-profit organization in New York, saying it improperly fired five employees for Facebook posts that amounted to protected concerted activity. According to the press release, an employee posted on her own Facebook wall an allegation by a coworker that employees weren’t doing enough for clients. A group of employees responded to the Facebook post, defending their job performance and complaining about their working conditions (including work load and staffing issues). The employer fired the five employees who participated in the online discussion, saying the remarks amounted to harassment of the employee mentioned in the original post. The NLRB’s complaint claims the Facebook discussion was protected under the National Labor Relations Act because it involved a conversation among coworkers about the terms and conditions of employment, including their job performance and staffing levels.

The NLRB also issued a complaint last month against a Chicago BMW dealership that terminated the employment of a car salesman who posted pictures and commentary on his Facebook page criticizing a promotional event hosted by the dealership. (It sounds like he thought serving customers hot dogs and bottled water was a little lame and might negatively affect sales commissions.) The employee removed the posts immediately after management asked him to, but shortly thereafter, the car dealership still fired him. The NLRB alleges that this employee’s use of social media was also protected under the National Labor Relations Act. The dealership came forward to say the salesman was fired reasons other than his Facebook posts.

The NLRB has been increasingly involved in these Facebook firing cases. You may recall the NLRB complaint filed late last year charging a Connecticut employer with unfair labor practices when it discharged an employee who complained about her supervisor on Facebook. That case settled earlier this year.

These aren’t the only cases out there, and it seems the NLRB intends to keep a keen eye on social media issues. Employers should be careful when disciplining employees for their social media or online activities -- and should also ensure their social media policies or practices aren’t overbroad.

Check Out A Few of Erickson's Posts for IowaBiz on Technology, Internet, & Law

For those of you who may be interested, I thought I'd share a few posts I've written recently for IowaBiz, the official blog for the Des Moines Business Record, that touch upon technology, the internet, and the law:   

• May 31, 2011 post on a bill signed by Iowa's Governor that authorizes a study on online gaming.

• May 13, 2011 post discussing how employers may respond to the fairly common practice of employees including information about their workplace on Facebook or other social networking profiles. 

• April 13, 2011 post discussing the largely symbolic vote in the House to repeal the FCC's net neutrality rules (the measure isn't expected to pass the Senate).

• March 29, 2011 post discussing the importance of early planning stages in a company's creation of or updates to social media or social networking personnel policies.

Coming Up in NYC: ABA National Symposium on Technology in Labor and Employment Law

Attention attorneys!  The ABA National Symposium on Technology in Labor and Employment Law will be held April 27-29 at the New York University School of Law in New York, New York.  The event is presented by the Technology in the Practice and Workplace Committee and co-sponsored by the NYU Law School's Center for Labor and Employment Law.  The meeting kicks off with a welcome reception on Wednesday, April 27 from 6:30p-8:30p.  General sessions will be held Thursday, April 28 and Friday, April 29.

See the committee's announcement for more details.  And if you're a lawyer who plans to attend, leave a comment!

Update, Update, Update Your Document Retention Policies!

With the increased online activity in business, companies should take time to review and update document retention policies sooner rather than later. Many companies probably already have policies addressing email systems, but these may need refreshing. Because more and more companies have become active on social media sites like Facebook and Twitter, it’s also wise to review or update document retention polices to ensure the scope will cover such social media activity. To the extent you have different policies addressing different technologies or communications, businesses should ensure they’re consistent. (Companies may want to avoid multiple policies if it’s possible to draft one that’s broad and flexible enough to capture all electronic communications.)

Keep in mind any special obligations that might exist for your particular business or industry. Federal and/or state regulations may impose special recordkeeping obligations or considerations. For example, and as I’ve mentioned before, the U.S. securities regulator, FINRA, has regulatory guidance regarding certain record-keeping obligations brokerage firm’s business-related communications online (including on social media sites and blogs).

Companies may struggle with apparent tensions that arise between obligations to preserve relevant communications versus associated privacy concerns.  (For example, privacy issues may arise when a company attempts to collect or store communications by employees or customers.)  Businesses would be wise to seek legal counsel in navigating these waters.

Remember online communications may become relevant in litigation – and companies have an obligation to preserve all relevant communications, documents, and information if litigation is pending or reasonably anticipated. A company that fails to properly preserve relevant information can face hefty sanctions by the court.

Connecticut Employer Settles Facebook Firing Case With NLRB

Yikes. My apologies for the massive delay since my last couple posts. Speaking of my last couple posts . . . remember that time American Medical Response of Connecticut fired an employee after she complained about her boss on Facebook? Shortly after the termination, the NLRB’s Hartford regional office issued a complaint against AMR, alleging the firing violated federal labor law. According to the complaint, the employee’s online comments constituted protected activity.  The complaint also alleged that the company's policies addressing online communications were overly broad.  Yesterday, the NLRB announced the case has been settled.  (Fun fact:  not only did the NLRB issue a press release, it also tweeted the update!)

twitter.com/nlrb

To review a few considerations employers may want to take into account, you may want to revisit my blog post, "Social Media Policies for Employers:  A Few Notes on the NLRA."

Social Media Policies for Employers: A Few Notes on the NLRA

Yesterday’s post discussed recent action by the National Labor Relations Board, pointing out that your employee’s Facebook posts or other online communications may be protected under the National Labor Relations Act. Many private employers don’t realize Section 7 of the NLRA protects the rights of all employees, regardless of union status, to engage in protected “concerted activities,” such as discussing wages, work conditions, and other terms of employment. In light of yesterday’s discussion, when reviewing or updating social media policies, employers may want to think about:

• An employer may violate the NLRA simply by maintaining certain work rules or policies, even if they’re not enforced, if the rule would reasonably tend to chill employees in exercising their Section 7 rights.
• Obviously, an employer violates the law if a workplace rule explicitly restricts Section 7 protected activities (i.e., "You can't talk about your wages."). But a rule that doesn't expressly restrict protected activity may also be illegal 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. 
• Thus, an employer may violate the NLRA by implementing overly broad policies. For example, it may be unlawful to implement a policy broadly prohibiting online communications that disparage the employer or supervisors or prohibiting any depiction of the company without employer permission.
• Of course, prohibiting conduct that’s clearly not protected under the NLRA isn’t a violation – an employer may properly restrict communications such as (non-exhaustive list of examples cited by the NLRB): (1) conversations about the employer’s proprietary information, (2) explicit sexual references, (3) criticism of race or religion, (4) obscenity, profanity, or egregiously inappropriate language, (5) references to illegal drugs, and (6) online sharing of confidential intellectual property.
• Sometimes, an employer’s policy provision might be overly broad standing alone, but the surrounding context may give it a more limited – and legal – meaning. For example, prohibiting employees from having “negative conversations” about managers may be overly broad if it contained no further clarification or examples. However, an employer probably can prohibit employees from making “statements that are detrimental to the company” when the prohibition is listed alongside examples of egregious misconduct (such as “sexual or racial harassment” and “sabotage”) that clearly aren’t protected under Section 7. The inquiry remains: when read in context, would employees reasonably construe the rule as restricting Section 7 activity?
• Although the inclusion of limiting or clarifying language may protect an employer’s otherwise overbroad policy, it’s probably wiser to just more carefully articulate the prohibited activity itself. (If you can’t say “don’t do stuff that annoys us,” but you may say, “don’t do stuff that annoys us, like sexually harassing other employees or stealing our trade secrets,” why not just eliminate the risk by saying “don’t sexually harass other employees or steal our trade secrets”?!)*
• An employer may want to simply include language in a social media policy expressly clarifying the policy doesn't restrict protected communications.
• Consider how you might re-phrase policy language to capture what your company really wants to restrict. For example, “defamation” is generally unlawful, but “disparagement” is broader and might include some online complaining that’s actually protected activity. Perhaps it would be safer for an employer to prohibit “defamatory comments about company supervisors” rather than “disparaging comments about company supervisors.”
• Remember, an employee’s online communications may be protected under other laws, too!

* Um, I hope this doesn’t really need a disclaimer, but I’m not literally suggesting you phrase your policies like this.

NLRA May Protect Your Employees' Facebook Rants (Regardless of Union Status!)

The National Labor Relations Board's Hartford regional office recently accused an employer of engaging in unfair labor practices when the company fired an employee who complained about her supervisor on her personal Facebook page. The NLRB regional director (part of the NLRB's Office of General Counsel) filed the complaint against American Medical Response of Connecticut on October 27, 2010, and issued a press release last month announcing that an NLRB investigation concluded that the employee’s Facebook posts were protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions. Specifically, it took issue with the provision “that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.” The press release explained these kinds of provisions interfere with employees’ rights to engage in protected concerted activity. I found a copy of the complaint posted to JDSupra by Adrian Lurssen, which included the actual text of the two alleged “unlawful provisions,” which state:

• Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting;

• Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.

This has caused quite a ruckus among human resources and legal professionals, because – remember – the National Labor Relations Act protects union and non-union employees against discrimination based on union-related activity or group action (“protected concerted activity” such as discussing the terms and conditions of their employment). Although this complaint has received extensive coverage already, I thought it may be worthwhile to join in the discussion to point out that this NLRB complaint doesn’t sound the death knell on employer social media policies or internet policies. The NLRB isn’t saying blogging or internet policies violate the law, it just seems to be saying this employer’s internet policy was too broad. That being said, I think the complaint still might possibly inject a little confusion into the employer’s (and lawyer’s) evaluation of appropriate social media policy language.

Last December, the NLRB's Office of the General Counsel issued an Advice Memorandum in Sears Holdings (Roebucks), No. 18-CA-19081, which examined another employer’s social media policy and found the policy did not violate the NLRA. The challenged provision within the policy in that case prohibited “[d]isparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.”

On one hand, the specifically challenged disparagement provisions in the two cases are relatively similar. Consequently, the approval of the policy at issue in December 2009 seems inconsistent with the October 27, 2010 complaint – at least at first blush. Both seem to be broadly worded to restrict what could be considered protected under the NLRA.  But it seemed important to the December 2009 conclusion that the challenged provision within the Sears policy was only one of multiple other, relatively specific, prohibited social media activities such as prohibiting disclosure of confidential or proprietary company information, reference to illegal drugs, obscenity or profanity, and so on. The Sears policy also included prefatory language saying “…[t]he intent of this Policy is not to restrict the flow of useful and appropriate information, but to minimize the risk to the Company and its associates.”

The Sears Advice Memo pointed out that, standing alone, “the ban on “[d]isparagement of company’s . . . executive leadership, employees, [or] strategy . . .” could chill the exercise of protected concerted activity. But read in light of its longer list of prohibited activity that clearly fell outside NLRA protection, employee wouldn't reasonably construe the Sears social media policy to prohibit protected concerted activities. In contrast, the American Medical Response provisions at issue appear to constitute that employer’s entire “Blogging and Internet Posting Policy” (based on the way it reads in the complaint, anyway). The lack of the more limiting contextual language like that included in the Sears social media policy seems to distinguish it and suggests that may make the American Medical Response internet policy too broad. The American Medical Response complaint also indicates the employer fired the employee after denying her requested union representation. Sounds like that may be a game-changer, too.

American Medical Response's answer to the complaint was due last month, and on January 25, 2011, there will be a hearing before an NLRB administrative law judge on the American Medical Response complaint.  Keep your eye out for that.

Two important reminders: (1) the NLRB agency's complaint isn’t a final determination or decision -- it's just a charging document; there hasn’t even been a hearing yet, and (2) the Advice Memorandum isn’t binding, either. Although it’s fun (well, fun for nerdy lawyers like me) to think about the various implications these kinds of filings could suggest, keep those two caveats in mind!  Look for tomorrow's post that will expand on this one a bit. 

Thanks to Anders for pointing me to the NLRB press release last month!

Final GINA Regulations (Finally!) Published: Social Media & Employer Acquisition of Genetic Info

The Equal Employment Opportunity Commission today (finally!) issued final regulations implementing Title II (the employment provisions) of the Genetic Information Non-Discrimination Act of 2008 (GINA). As I mentioned in an earlier post, Title II took effect on November 21, 2009, the Commission published proposed regulations last year, but the final regulations were delayed. I also pointed out that employers would have to wait for the final regulations for the EEOC’s treatment of information obtained via social networking sites and employees’ social media profiles. 

The Issue: Acquiring Employee Genetic Information Via Social Media = Violation?
Recall that GINA makes the mere acquisition of genetic information illegal, and the Act broadly defines “genetic information” to include even medical conditions of family members. This left employers wondering if they’d be facing a GINA violation if, for example, a supervisor found an employee’s status update saying he was raising money for multiple sclerosis in honor of his father who is suffering for it. Employers wondered if just receiving that information might be a violation.

Some acquisitions of genetic information aren’t illegal; the law provides specific exceptions. The final regulations now clarify the scope of those exceptions regarding acquisition of genetic information through social networking or social media sites such as Facebook.

No Specific Intent Necessary for Violation
First, it seems worth mentioning that the EEOC pointed out that an employer may violate GINA without a specific intent to acquire genetic information, so the Commission changed the language of the regulations:  the Commission removed reference to “deliberate acquisition” of genetic information, and now indicates Title II of GINA restricts “requesting, requiring, or purchasing” genetic information.

“Inadvertent Acquisition” Exception
Turning to the exemptions, specifically, the Commission pointed out that the “inadvertent acquisition exception” applies not just to interactions in the workplace, but also to interactions that take place online. The regs provide a specific situation in which acquisition of genetic information would not result in a violation under the “inadvertent acquisition” exception:  when a manager or supervisor “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).”

In other words, drawing from the hypothetical I posed in my earlier post, an employer would not violate GINA if an employee sends a friend request to his supervisor, and weeks later, the employee’s status update appears in that supervisor’s Facebook news feed, unexpectedly disclosing genetic information. The inadvertent acquisition exception protects the employer from liability for this acquisition of genetic information.

“Commercially & Publicly Available” Exception
With respect to the exception for genetic information obtained via commercially and publicly available information, the regulations provide that media sources with “limited access” will not be considered commercially and publicly available. That is, this exception doesn’t apply to genetic information obtained through sources such as social networking sites (such as Facebook) that require permission to access from a specific individual or where access is conditioned on membership in a particular group (unless the employer can show access is routinely granted to all who request it). For example, if an employee’s Facebook profile contains genetic information, and that employee has taken advantage of Facebook privacy restrictions so that information is only accessible by the employee’s Facebook friends, the information isn’t considered commercially and publicly available. The Commission was careful to point out the determining factor is whether access requires permission of an individual or is limited to a particular group, and not how a particular web site might be “categorized” -- such as social media, personal web site, blog, or so on. (i.e., Although the converse is more often true, some social or professional networking profiles or portions thereof don’t require permission to access or routinely grant access, whereas some web sites and blogs do limit access.)

Further, even if an employer obtains genetic information through a source deemed commercially and publicly available, it’s not protected by the exemption if the employer sought access to that source with the intent of obtaining genetic information. The EEOC stated, “[f]or example, an employer who acquires genetic information by conducting an Internet search for the name of an employee and a particular genetic marker will not be protected by this exception, even if the information the employer ultimately obtained was from a source that is commercially and publicly available.” This may seem intuitive, but as commentators pointed out, this probably would have been technically possible under the proposed regulations, so it makes sense for the EEOC to include this specific clarification.

The regulations further explains that employers may not obtain genetic information through media sources – even if commercially and publicly available – if the employer is likely to acquire genetic information by accessing those sources. While some might argue an employer should assume an employee’s Facebook profile is likely to contain genetic information, the regulation suggests a higher “likely” standard, “such as Web site and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination.”

The text of the final regulations may be found at http://bit.ly/9LUP85 and the EEOC’s question-and-answer documents on the final GINA regulations may be found at http://www.eeoc.gov/laws/types/genetic.cfm.

FCC Proposes "Bill Shock" Rules to Help Wireless Users Avoid Unexpected Charges

The Federal Communications Commission today proposed new rules that would require mobile service providers to give alerts to customers to avoid unexpected overage charges on their bills.  The FCC says mobile "bill shock" (unexpected jump in the monthly bill) is an increasing problem for consumers; the Commission says it wants to help consumers better control their mobile costs.  One in six mobile users have experienced bill shock -- more than half of them experienced an increase of $50 and up. 

The FCC wants to prevent this so-called bill shock by requiring cell companies to give consumers simple alerts, in the form of voice or texts, before they incur overage charges.  The rules would also require providers to alert customers when they're about to incur international or other roaming charges that aren't covered by their plans and if they're going to be charged more than the normal rates.  Finally, the rules would also require clear disclosure of tools the provider offers to set usage limits or reviews of usage balances.  The proposed rulemaking also seeks comment on whether all carriers should be required to give consumers the option of setting their own usage caps -- and also seeks comment on whether small providers or prepaid services should get an exemption from these requirements or be given extra time to comply.

Mobile companies have long been criticized by consumer-protection groups for what's perceived to be deceptive billing, early termination fees, exclusivity deals, and the like.

For a creative description of the consumer-protection issues facing wireless carriers (and because I enjoy creative writers!), see Timothy Noah's write-up for Slate.

Article: Use of Social Media Evidence in Workers' Compensation Litigation

Professor Gregory M. Duhl and attorney Jaclyn Millner recently made available on SSRN a draft of their article that will be published in the Pace Law Review; it's focused on the use of social networking evidence in workers' compensation litigation.

From the paper's abstract:

. . . In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems.

What a timely topic!  I look forward to reading it, and hope you find it informative.  Thanks to Professor Duhl for bringing this to my attention!

Business Bloggers & Fair Use Questions

Check out my first IowaBiz blog post at the Business Record's blog, where I'll be blogging on internet law issues.  My first post discusses a few copyright issues facing individuals who blog for business purposes, with a focus on the fair use doctrine.

Hospital Workers Post Pics of Dying Man on Facebook: Highlights Need to Educate Employees on Proper Use of Social Media

So. Not. Cool.

Sixty-year-old William Wells arrived at St. Mary Medical Center's emergency room in Long Beach with more than a dozen stab wounds. According to the Los Angeles Times, his throat had been lacerated so severely, he was almost decapitated.

The first instinct of a handful of hospital workers there that day? Rather than rush to the aid of the dying man, they took pictures of him . . . and then, yes, they posted them on Facebook.

According to the Los Angeles Times news story, the hospital fired four staff members and disciplined three. At least two involved were nurses (but they apparently weren't fired).

This sad story highlights some of the challenges healthcare facilities face in today's social media frenzied culture. Hospitals and clinics struggle to balance their use of social media sites for marketing, recruiting, and advertising purposes against the need to protect patient privacy. But let me suggest that social media isn't really the problem -- the problem arises when employees make poor judgment calls when using these new online tools.  Of course, these employees should have known posting pictures of a dying man on Facebook was a bad idea.  But some privacy breaches and other workplace problems could be prevented if employers took a more concerted effort to identify their business needs and to educate employees about social media expectations.

Healthcare facilities often implement across-the-board bans of Facebook and other social networking sites at the workplace, assuming this kind of broad-brush approach will be the most effective. Managers may be forgetting that blocking workstation access to Facebook wouldn't have changed the St. Mary employees' access to their smartphone cameras and 3G mobile internet. Frankly, I don't think all-out bans of social media sites at the workplace are practical or effective.  Employers should take the time to create, communicate, and maintain a thoughtfully considered social media policy. Although some judgment calls seem intuitive, employers need to communicate their requirements and expectations to employees regarding employee use of social media.