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EMPLOYEE FACEBOOK COMPLAINTS AND SOCIAL MEDIA POLICIES— WHAT DOES LABOR LAW HAVE TO DO WITH IT? Nov. 8, 2011 Sumter Human Resources Management Association David Dubberly Certified Specialist in Employment and Labor Law
“ Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ….”
Flexsteel Indus., Inc. , 311 NLRB 257 (1993): employer violates Sec. 8(a)(1) when it engages in surveillance of protected concerted activity or creates impression of surveillance
Communication Systems Construction , Inc., 209 NLRB 652 (1974): supervisor asking other employees to listen in on conversations to determine union sentiments equals unlawful surveillance
Magna Int’l Inc. , Case No. 7-CA-43093 (ALJ, Mar. 9, 2001): supervisor visiting union website OK but comment to employee about seeing picture on website conveyed “impression that he was keeping track of her union activities and thus was creating the impression of surveillance”
American Medical Response of Connecticut, Inc. Case No. 34-CA-12576
Many differences between talking at water cooler and posting on open Facebook page
Per NRLB press released, in settlement AMR agreed to revise policies to ensure it doesn’t restrict employees from discussing wages, hours, and working conditions with co-workers and others outside of work
Hispanics United of Buffalo Inc. Case No. 3-CA-27872
NLRB complaint May 9, 2011; ALJ decision Sept. 6, 2011
Lydia Cruz-Moore critical of co-workers at non-union social services agency, threatened to complain about them to Executive Director
Co-worker posted on personal FB page on weekend: “[LCM], a coworker feels that we don’t help our clients enough at HUB. I about had it! My fellow coworkers how do u feel?”
Second co-worker responded: “What the f … Try doing my job I have 5 programs.”
Later same day: salesperson posted pictures of Land Rover accident to his Facebook page with sarcastic comments like:
This is your car: This is your car on drugs.
This is what happened when a salesperson sitting in the front passenger seat (Former Salesperson actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father's foot and into the pond in all about 4 seconds and destroys a $50,000 truck.
Later same day same salesperson posted several pictures of BMW event with comments like:
The small 8 oz bag of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch…but to top it all off…the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bunn [sic]…
No, that's not champagne or wine, it's 8 oz. water. Pop or soda would be out of the question. In this photo, [a coworker] is seen coveting the rare vintages of water that were available for our guests.
Posting of BMW event pictures and related comments protected by Sec. 7 because two or more sales people shared belief food and beverages served were inappropriate and could have negative effect on brand, sales, and commissions
Posting of Land Rover accident pictures and related comments not protected by Sec. 7 because sales person had not discussed them with co-workers and unrelated to wages, hours, or working conditions
Salesperson terminated for Land Rover posting, not BMW posting, so no violation of Sec. 8(a)(1) in terminating him
“ Unauthorized interviews” and “Outside Inquiries Concerning Employees” policies (prohibiting employees from participating in interviews with, or answering inquiries concerning employees from, persons outside the company) struck down as could be interpreted to prohibit protected concerted activity
Employer must post notice and inform employees electronically that illegal policies rescinded