PowerPoint slides from general session of the Grow Revenue: Get Online and Boost Sales Restaurant Education Series event hosted by the Ohio Restaurant Association for their members. Speakers included Jarrod Clabaugh of the Ohio Restaurant Association and Jaime Kolligian of Kastner Westman and Wilkins.

1. Jaime U. Kolligian, Esq.
jkolligian@kwwlaborlaw.com
Kastner Westman & Wilkins, LLC
3480 West Market Street, Suite 300
Akron, OH 44333

2. Introduction to Social Media
in the Workplace
 Hiring
 Privacy
 Other
Issues
Risks
 Employer
 Firing
Social Media Policies

3. Social Media
in the Hiring Process
ADVANTAGES FOR EMPLOYERS:

Applicant Screening
 Free search tool
 Information available at your fingertips
 Information that wouldn‟t otherwise be revealed
 Human Resource professionals report regularly
using social networking sites in hiring

4. Social Media
in the Hiring Process
PROCEED WITH CAUTION:
 Reliability
of information
 Unintentional
 Understand
exposure to protected class factors
the generational differences

5. Social Media
in the Hiring Process
RECOMMENDATIONS:
Include acknowledgment and waiver language
 Non-decision maker to screen applicants via social
networking sites
 Document
 Consider only job-related criteria
 Be consistent
 What about an information search on current employees?


6. Privacy Issues
Balancing an Employer’s Right to Know
vs. Employee’s Privacy

Many employers elect to monitor employee use of:
 Company e-mail
 Internet or other electronic communication systems

Why? Because they aim to guard against:
 Internal systems tampering
 Wrongful disclosure of confidential information and trade secrets and
 Employee inefficiency

Employers must recognize that despite these legitimate interests,
employees enjoy various privacy protections under Federal and state laws:
 Federal Wiretap Act
 Stored Communications Act
 Discrimination laws and
 The NLRA

7. Privacy Issues
Social Media and Wireless Devices –
Privacy Violations
 The
Stored Communications Act (“SCA”) governs
stored communications, including an employee‟s
website search history or e-mails that are stored
on a company server.
 This law prohibits unauthorized access to stored
wire and electronic communications and records
that are intended to be private.

8. Privacy Issues
Pietrylo v. Hillstone Restaurant Group, 2009 U.S. Dist.
LEXIS 88702 (D. N.J. Sept. 2009)
The employer impermissibly obtained an employee‟s
password to gain access to a secured online discussion
group, critical of the employer, on which many current and
former employees posted their comments.
 The court held that this constituted a violation of the SCA
and upheld punitive and compensatory damages against
the restaurant because managers viewed the site several
times without authorization from other users – (i.e. coerced
access to password).


9. Privacy Issues
Stengart v. Loving Care Agency, Inc. (N.J. 2010), 201
N.J. 300

The court held that an employer‟s policy did not
sufficiently preserve its ability to monitor an employee‟s
personal e-mail account accessed through a work
computer where it failed to expressly notify the employee
of this possibility.

Note: be explicit in your company policies.

10. Privacy Issues
State Laws Governing Social Media Privacy

Senate Bill 45 has been introduced, but not passed by
the 130th Ohio General Assembly, which would make it
unlawful for any employer to require disclosure of or ask
for access to an employee or job applicant‟s log-in and
password to a private e-mail account, social media site or
other personal electronic device.

Under this bill, employers would face monetary fines.

11. Privacy Issues
State Laws Governing Social Media Privacy

Note: Similar password protection laws have already been
enacted in Arkansas, California, Colorado, Illinois,
Maryland, Michigan, Nevada, New Jersey, New Mexico,
Oregon, Utah and Washington.

Note: Similar password protection laws are pending in
Delaware, Georgia, Hawaii, Louisiana, Maine, New
Hampshire, Ohio, Pennsylvania, Rhode Island, Texas,
Vermont and Wisconsin.

Some of the states have carved out exemptions for
workplace investigations, including trade secret
misappropriation, threats of violence or other workplace
misconduct.

12. Privacy Issues
Federal Laws Governing Social Media Privacy

On February 2, 2013, Congress reintroduced federal
legislation that would limit employer access to log-in user
names and passwords for personal social media accounts
of both employees and job applicants. See H.R. 537
(Social Networking Online Protection Act).

This Bill would allow the Secretary of Labor to impose
fines of up to $10,000 against employers for unlawfully
requesting social media log-in credentials. Fines may also
be imposed against employers who retaliate against
employees or applicants for refusing to provide said
information.

13. Use of Social Media
The Risks
Risks and Liabilities for Employers:

Diminished employee productivity!

Harassment, sexual or otherwise, via social media.

Harm to a company‟s reputation.

Wage/Hour issues (employees accessing electronic media
from home, which may be work-related).

14. Use of Social Media
The Risks

The National Labor Relations Act (NLRA) prohibits
employers from monitoring or conducting surveillance of
employee union activities or protected concerted
activities.

The National Labor Relations Board (NLRB) and several
courts have recognized social media as a new forum by
which employees may organize or engage in concerted
activity.

Employers, therefore, must exercise caution when
monitoring employee social media exchange.

15. Employer Social Media Policies
Recommendations/Best Practices
Employer Policies

Do not attempt to access private (non-public) social media accounts;

Clearly define the company‟s expectations;

Make sure the company‟s expectations are reflected in its written
social media policy;

Educate users about the company‟s expectations; and

Work with internal/external IT department.

16. NLRB Stance on Social Media
Employer Policies
AGC Solomon May 30, 2012 Memo


An employer violates Section 8(a)(1) if it maintains a work rule that
employees would reasonably understand to prohibit NLRA-protected
activity.
7 of the NLRA, which applies to both unionized and non-unionized
workplaces, gives employees the right to engage in protected
concerted activities for the purpose of collective bargaining or other
mutual aid or protection. 29 U.S.C. 151-169.
 Employees have the right to form, join or assist a labor
organization.
 Employees have the right to discuss the terms and conditions of
their employment with co-workers without fear of reprisal.
 Wages
 Hours
 Working conditions

17. NLRB Stance on Social Media
Employer Policies
AGC Solomon May 30, 2012 Memo

“„Concerted‟ means that an employee‟s statements about
working conditions are engaged in with or on the authority
of other employees and not solely by and on behalf of the
employee himself.” Myers Industries (Myers II) 281 NLRB
882 (1986).
No personal griping
 No personal attacks
 Concerns must be shared by other co-workers


18. NLRB Stance on Social Media
Employer Policies
AGC Solomon May 30, 2012 Memo
Recent Examples of Unlawful Policy Language:


Employees are required to report to management any
“unsolicited or inappropriate electronic communications”
they receive.
Unlawful because employees would reasonably
understand the rule to restrain their exercise of a right to
communicate with their fellow employees and third parties,
such as a union, regarding terms and conditions of
employment.

19. NLRB Stance on Social Media
Employer Policies
AGC Solomon May 30, 2012 Memo
Recent Examples of Unlawful Policy Language:


Rule prohibiting employees from making “disparaging or
defamatory” comments, as well as a lengthy policy that
restricted employees from speaking to the press or media
representatives without prior authorization.
Unlawful because “while an employer has a legitimate need to
control the release of certain information regarding its
business, this rule goes too far.” “Employees have a protected
right to seek help from third parties regarding their working
conditions,” including, “going to the press, blogging, speaking
at a union rally, etc.”

20. NLRB Stance on Social Media
Employer Policies
AGC Solomon May 30, 2012 Memo

Professional misconduct policy stating: “Don’t pick fights” and
reminding employees to communicate in a “professional tone”
without making “objectionable or inflammatory comments.”

Unlawful because these types of provisions could include
“discussions about working conditions or unionism, [which]
have the potential to become just as heated or controversial as
discussions about politics and religion.”

Solomon also found that “employees would reasonably
construe this rule to prohibit robust but protected discussions
about working conditions and unionism.”

21. NLRB Stance on Social Media
Employer Policies
AGC Solomon May 30, 2012 Memo




Social Media Policy told employees that any online posting by
employees should be “completely accurate and not misleading” and
should not reveal “non-public company information” on any “public
site.”
Non-public information we defined as “related to” the company‟s
financial performance, as well as personal information about
employees.
The policy also advised employees that if they were in doubt about
posting information, they should not take action. Instead, employees
were advised to check with corporate or legal representatives “to see
if it‟s a good idea.”
Unlawful because the NLRA prohibits employers from requiring
employees to secure permission before exercising Section 7 rights.

22. NLRB Stance
on Social Media

In a first-ever Board decision scrutinizing employer social
media policies, in Costco Wholesale Corporation, 2012
NLRB LEXIS 534 (Sep. 7, 2012), the Board held that the
employer violated Section 8(a)(1) of the NLRA by
maintaining a rule that prohibited employees from
electronically posting statements that could “damage the
Company…or damage any person‟s reputation.”

23. NLRB Stance
on Social Media
Costco‟s policy stated as follows:

Any communication transmitted, stored or displayed
electronically must comply with the policies outlined in
the Costco Employee Agreement. Employees should
be aware that statements posted electronically (such
as to online message boards or discussion groups)
that damage the Company, defame any individual or
damage any person‟s reputation, or violate the policies
outlined in the Costco Employee Agreement, may be
subject to discipline, up to and including termination of
employment.

24. Social Media
Policy Recommendations

Consider the context of prohibited conduct/statement.
 For example, adding an explicit statement “prohibiting social
media activity that…includes disparaging remarks that are
not related to a dispute over working conditions…and
statements that are defamatory and maliciously false.”

Language banning certain conduct should be read as a whole
(not in isolation).
 For example, “statements which are slanderous or
detrimental to the company” appearing on the same list
as “statements that constitute unlawful racial or sexual
harassment.”

25. Social Media
Policy Recommendations
 Include
disclaimer language that “the policy is
not intended to interfere with protected
concerted activity or infringe upon
employees’ rights under the NLRA.”

26. Social Media:
Employee Firings

Some states prohibit employers from taking adverse
employment actions against employees for lawful “offduty” conduct (Ohio is not one of them).

NLRB authority supports an employer‟s right to prohibit
bullying and discrimination, but employers must exercise
caution in doing so.

27. Social Media
Harassment

What should employers do when they receive reports of
online harassment, especially when this conduct occurs
outside of the workplace? PROCEED WITH CAUTION!

Treat it the same as any other report of harassment –
addressing all reported complaints.

Recognize that the information obtained may not be
reliable.

28. NLRB Stance on Social Media
Firings – NLRA Provisions

Employers who restrict employees through interference,
restraint, or coercion in the exercise of their 7 activities may be
charged with an unfair labor practice under 8(a)(1) of the
NLRA.

It is generally unlawful for employers to discipline employees for
making negative comments about their working conditions, the
terms of their employment or their supervisors.

It is also unlawful for employers to promulgate policies that
broadly restrict such discussions among coworkers and outside
union representatives.

29. NLRB Stance on Social Media
Firings – NLRA Provisions

In one of the first post-hearing NLRB social media rulings,
Hispanics United of Buffalo Inc., 2012 NLRB LEXIS 852 (Dec.
14, 2012), the Board upheld the ALJ‟s 2011 ruling that the
employer, an upstate New York nonprofit organization, violated
the NLRA when it fired five employees for posting their
reactions to a co-worker‟s criticism of their performance on
Facebook and ordered a reinstatement with back pay.

The employer maintained the position that the posts
constituted bullying and harassment and violated its policy on
harassment.

30. NLRB Stance on Social Media
Firings – NLRA Provisions

Facebook posts employer cited as the basis for its termination
decision:
 (Employee 1) “a coworker feels that we don‟t help our client
enough at HUB I about had it! My fellow coworkers how do u
feel?”
 (Employee 2) “What the f*** Try doing my job I have 5
programs.”
 (Employee 3) “What the Hell, we don‟t have a life as is, What
else can we do???”
 (Employee 4) “Tell her to come do [my f***ing] job n c if I don‟t do
enough, this is just dum[b].”
 (Employee 5) “I think we should give our paychecks to our
clients so they can “pay” the rent…(insert sarcasm here now).”

31. NLRB Stance on
Social Media Firings

Why did the Board and the ALJ find these terminations were
unlawful?

The employees‟ Facebook posts were angry and defensive
responses to the co-worker‟s criticism of their work, which
constituted “concerted activity that was protected” under the
NLRA. Even “[e]xplicit or implicit criticism by a coworker of the
manner in which they are performing their jobs is a subject
about which employee discussion is protected by” the NLRA.

The fact that 5 employees posted on Facebook also supported
the finding that it was “concerted” group activity.

32. NLRB Stance on
Social Media Firings

The Board and the ALJ rejected the employer‟s argument
that these posts constituted bullying or harassing
behavior because there was no evidence that the
comments ran afoul of the employer‟s policy against
discrimination and harassment.

The fact that the individual who was the subject of the
Facebook comments later suffered a heart attack was
irrelevant because there was no proven causal nexus
between the two events.

33. NLRB Stance on
Social Media Firings

In Karl Knauz Motors Inc., 2012 NLRB LEXIS 679, (Sep. 28, 2012),
the Board upheld and affirmed the ALJ‟s 2011 ruling that the employer
did not violate the NLRA when it fired a car salesman for the following
comments he posted on Facebook in response to an accident at the
Land Rover dealership next door:

(Event Caption) “This is your car: This is your car on drugs,”
featuring pictures he took of a Land Rover in a pond.

“This is what happens when a salesperson…allows a 13 year old
boy to get behind the wheel of a 6000 lb. truck…the kid drives
over his father‟s foot and into the pond in all about 4 seconds and
destroys a $50,000 truck. OOPS!”

34. NLRB Stance on
Social Media Firings

Although not asserted by the employer as the basis for his termination,
the salesman also posted the following comments on Facebook in the
same week following a Customer Appreciation event hosted by his
employer:

BMW 2011 5 Series Soiree…”

“I was happy to see that Knauz went „All Out‟ for the most
important launch of a new BMW in years…the new 5 series. A
car that will generate tens in millions of dollars in revenue for
Knauz over the next few years. The small 8 oz. bag of chips,
and the $2.00 cookie plate from Sam‟s Club, and the semifresh apples and oranges were such a nice touch…but to top it
all off…the Hot Dog Cart, where our clients could attain an
over-cooked wiener and a stale bun…”

35. NLRB Stance on
Social Media Firings

The Board upheld the ALJ‟s conclusion that the Facebook depiction of the
potentially dangerous Land Rover accident did not constitute protected
concerted activity.

Why?
 Posted without any discussion with other employees.


No connection to any of the salesman‟s terms and conditions of
employment.
Significantly, the ALJ found that the portion of the Facebook comments
relating to the marketing campaign were protected because they concern his
sales commissions. The Board did not address this issue.

Although these comments had a “sarcastic and mocking tone, that, in
and of itself, does not deprive the activity of the protection of the Act.”

36. Closer Look at Recent
Facebook Firings

37. Facebook Firing Advice
Memo No. 1

Bartender Facebook posts about employer‟s tipping policy –


Facts: A bartender verbally complained to his co-workers that the
employer‟s tipping policy “sucked.” The co-worker agreed, but
neither shared this concern with management. Approximately six
months later, the bartender engaged in a discussion with his stepsister on Facebook complaining that he was underpaid. He also
called his customers “rednecks” and stated that he hoped they
choked on glass as they drove home drunk. None of his coworkers responded to this post. The next day, the bartender
received a Facebook message from the owner notifying him of his
termination.
Is this an unlawful discharge under the NLRA?

38. Facebook Firing Advice
Memo No. 2

Employee Facebook posts about her mentally disabled clients –



Facts: During her shift, the employee engaged in a Facebook
conversation on her FB wall with two non co-worker friends, stating:
 “Spooky is overnight, third floor, alone in a mental institution, btw I‟m
not a client, not yet anyway.”
 “My dear client ms 1 is cracking up at my post, I don‟t know if she‟s
laughing at me, with me or at her voices...”
 “I don‟t need to restrain anyone, we have a great rapport, I‟m
beginning to detect when people start to decompensate.”
Employee was fired after one of her other FB friends, who was also a
former client, saw these posts and reported them to the employer.
Is this an unlawful discharge under the NLRA?

39. Recent Examples of Facebook
and other Social Media Firings
Famous Dave‟s –
waitress Facebook posting
referencing Native
American customers.


40. Recent Examples of Facebook
and other Social Media Firings
 There was also an Applebee‟s
waitress fired for the posting of a
credit card receipt allegedly from a
pastor with a party of 20 who left no
tip. The image wasn‟t even posted
by the waitress who served the
table, but by someone else at the
restaurant.
This is a prime example of
unreliable information.

41. Recent Examples of Facebook
and other Social Media Firings
Two employees at a ThaiJapanese restaurant in
Delaware lost their jobs for
posting photos of credit card
receipts and racial slurs on
Instagram.


42. Recent Examples of Facebook
and other Social Media Firings
A New York City
food truck worker
lost his job over
shaming non-tippers
on Twitter.


43. Recent Examples of Facebook
and other Social Media Firings
 A Texas bar fired an employee
after he posted a sign outside of
the establishment about domestic
violence.
 The bar removed the sign,
made a public apology and
donated $1 of every domestic beer
sold in the month of October to the
National Coalition Against
Domestic Violence.

44. Q&A

45. Additional Questions?
Bren Cueni
bcueni@ohiorestaurant.org
(614) 246-0222
Jaime U. Kolligian, Esq.
jkolligian@kwwlaborlaw.com
KASTNER WESTMAN &
WILKINS, LLC
3480 West Market Street
Suite 300
Akron, OH 44333
330.867.9998
330.867.3786

46. Jarrod Clabaugh
Communications Director, Ohio Restaurant Association
jclabaugh@ohiorestaurant.org

47. 
“Like” us on Facebook and “follow” us on Twitter
and we‟ll “like”/”follow” you to provide crosspromotions
◦ Facebook: www.facebook.com/OhioRestaurantAssociation
◦ Twitter: @OhioRestaurant

Submit your restaurant‟s press release or special
event information directly to the ORA:
◦ communications@ohiorestaurant.org

48. Foodservice Safety Training:
Preventing Costly Workplace Injuries
• Monday, Nov. 4 from 9:00 a.m. – 11:30 a.m.
@ CareWorks Consultants in Dublin
Webinar on Unemployment
• Jan. 23, 2014 at 9:30 a.m.

49.  Speed
Coaching
 Optional Facebook and Fishbowl
workshops
 Survey – please complete and leave
with ORA staff member
Thank you for your membership & for
attending today’s workshop!