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Managing employee online behavior presentation 111715


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What do you do if an employee posts negative comments online?

In today’s world of social media, it is virtually impossible to monitor all employee online communications.

Knowing how to perform social media triage – just in case – is vital to managing your restaurant’s online presence. Are you prepared for what to do before - to prevent it, during - to control it, and after - possible employee disciplinary actions? You won’t want to miss the important information in the second of our winter webinar series and the opportunity to ask the expert.

Managing Online Employee Behavior is our free, Restaurant Education Series (RES) webinar with subject matter expert Jaime Umerley Kolligan, J.D., of Kastner, Westman & Wilkins LLC, ORA Purveyor member.

You’ll learn …

• The NLRB stance on employer hiring / firing / discipline decisions based on social media posts
• Social media policies – do you need a policy?
• Cyber-harassment
• When conduct outside of the workplace is actionable
• Examples / Case studies of restaurant employee discipline and firing due to social media postings

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Managing employee online behavior presentation 111715

  1. 1. Managing Employee Online Behavior Jaime U. Kolligian, Esq. Kastner Westman & Wilkins, LLC November 17, 2015 Heartland Payment Systems is the lead sponsor of all RES events. UnitedHealthcare is the co-sponsor of all RES events.
  2. 2. How to Participate in RES webinars • Open and close your panel • View, select, and test your audio • Submit text questions • Q&A addressed at the end of today’s session • Everyone will receive an email with a link to view a recorded version of today’s session • Your feedback is important! You will receive a prompt to complete a survey at the end of the session
  3. 3. Jaime U. Kolligian, Esq. Kastner Westman & Wilkins, LLC 3550 W. Market St.,Ste. 100 Akron, OH 44333 Meet Your Speaker Jaime is involved in all aspects of employment defense practice, including employment litigation, workers’ compensation and traditional labor. In this role, Jaime advises private and public sector employers on employee relations matters, including issues concerning ADA and FMLA compliance. Jaime also regularly assists employers in responding to administrative charges before the EEOC, NLRB, OSHA and other state administrative agencies and often represents employers at administrative hearings and in arbitrations. In addition, Jaime works with employers to update existing workplace policies and procedures and conducts on-site employee and supervisor training, including sexual harassment training. With the rapid growth of social media use beginning in 2007, Jaime closely follows all legal developments in this area and speaks regularly on this subject. Jaime strives to keep employers apprised of key developments in federal and state labor and employment laws.
  4. 4. Hiring, Firing & Other Risks Cyber Harassment/Bullying Privacy Issues Employer Social Media Policies Social Media in the Workplace
  5. 5. 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 Social Media in the Hiring Process
  6. 6. PROCEED WITH CAUTION:  Reliability of information  Unintentional exposure to protected class factors  Understand the generational differences Social Media in the Hiring Process
  7. 7. RECOMMENDATIONS:  Include acknowledgment and waiver language  Non-decision maker to screen applicants via social networking sites  Document  Consider only job-related criteria  Be consistent Social Media in the Hiring Process
  8. 8.  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 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 or taking adverse employment actions against employees based on what they say or do on social media. Social Media-Based Firings
  9. 9.  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 NLRB Stance on Social Media-Based Firings
  10. 10.  “‘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 NLRB Stance on Social Media-Based Firings
  11. 11.  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. NLRB Stance on Social Media-Based Firings
  12. 12.  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).” NLRB Stance on Social Media-Based Firings
  13. 13.  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. NLRB Stance on Social Media-Based Firings
  14. 14.  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. NLRB Stance on Social Media-Based Firings
  15. 15.  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 6,000 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!” NLRB Stance on Social Media-Based Firings
  16. 16.  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 revenues 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 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 an overcooked wiener and a stale bun…” NLRB Stance on Social Media-Based Firings
  17. 17.  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.” NLRB Stance on Social Media-Based Firings
  18. 18.  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 step sister 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 co-workers 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? Facebook Firing Hypothetical
  19. 19.  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. Social Media “Cyber” Harassment
  20. 20.  Bullying is defined to include deliberate, repeated, unreasonable behavior directed toward a person or group of persons in the workplace that has the effect of humiliating the targeted employee or interfering with the employee’s ability to be productive and successful at work.  Similar – but broader – concept than harassment.  Workplace bullying is not currently illegal under federal or state law. Workplace Bullying
  21. 21. Workplace Bullying Statistics: 35% of workers said they have felt bullied at work. 16% of these workers reported suffering health- related problems because of bullying. 17% of workers decided to quit their jobs because of the situation. Workplace Bullying
  22. 22. According to the American Psychological Association: Severe bullying can lead to depression, anxiety and a variety of other health issues. Not only does it force out a perfectly good employee who is your victim, but it kills your bottom line because other people see it and it destroys their motivation. They don’t want to work in a place where they treat each other like that. Workplace Bullying
  23. 23. Preventing/Responding to Bullying: When confronted with a bully, Gary Namie of the Workplace Bullying Institute said “the most effective action an employee can take is to make an unemotional pitch to the highest level supervisor he or she can.” “Most important,” Namie said, “is that someone who feels he or she has been bullied doesn’t leave the job without saying something.” Workplace Bullying
  24. 24. Bullying Experiences at Work can include: Doing a new job without training or time to learn new skills, and sensing that your work is never good enough for the boss. Surprise meetings with your boss that lead to further humiliation. Workplace Bullying
  25. 25.  Others at work have been told to stop working, talking or socializing with you.  Constant feelings of agitation, anxiety or a sense of doom.  You are rarely left alone to do your job without interference.  When confronting the person, you are accused of harassment. Workplace Bullying
  26. 26.  Zero tolerance policy  Appropriate disciplinary action  Complaints promptly reported to and investigated by Manager or HR  Non-retaliation Employer Response to Workplace Bullying
  27. 27. A gruff supervisor yells obscenities at everyone, regardless of their race. Some of the obscenities are very racially graphic and one of the employees being yelled at is African American. Is this unlawful harassment? Is this workplace bullying? Quiz / Hypotheticals
  28. 28. Employees play practical jokes on a coworker with an artificial leg while sitting around the bar at the end of their shift. They do things such as removing his chair, hiding his walking cane, and calling him names like “Peg-leg” and “Gimpy.” These jokes carry over into the workplace the following week.  Is this unlawful harassment?  Is this workplace bullying? Quiz / Hypotheticals
  29. 29. Male GM often yells at a smaller male server using derogatory language implying that he is a homosexual because he is not as physically strong as other male employees. Is this unlawful harassment? Is this workplace bullying? Quiz / Hypotheticals
  30. 30. Female employee confesses to coworkers on Facebook that she used to be a stripper. Male coworkers later tease her about it at work and begin posting related jokes about the employee’s past on Facebook, printing images of her from online and taping them up around the server station. Other servers and bartenders comment on the Facebook post, some joining in on the fun and others admonishing the posts.  Is this unlawful harassment?  Is this workplace bullying? Quiz / Hypotheticals
  31. 31.  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. Privacy Issues Balancing an Employer’s Right to Know vs. Employee’s Privacy
  32. 32.  Federal Wiretap Act – Employers may lawfully intercept and use a communication under limited circumstances: ― When the interception is of a communication that is on the electronic communications system provided by the employer, and when the interception is necessary to protect the rights or property of the employer (18 U.S.C. § 2511(2)(d)); ― When the interception is consented to by at least one party to the communication (18 U.S.C. § 2511(2)(d)); ― When the interception is provided to a person authorized to intercept it, as defined by federal law; or ― By way of an electronic communication system that is readily accessible to the public (18 U.S.C. § 2511(2)(g)).  Employers who wrongfully intercept electronic communications could face both injunctive and monetary penalties. Privacy Issues Balancing an Employer’s Right to Know vs. Employee’s Privacy
  33. 33.  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. Privacy Issues Balancing an Employer’s Right to Know vs. Employee’s Privacy
  34. 34. 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). Privacy Issues
  35. 35. 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. Privacy Issues
  36. 36.  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. Privacy Issues State Laws Governing Social Media Privacy
  37. 37.  Similar password protection laws have already been enacted in Arkansas, California, Colorado, Illinois, Louisiana, Maine, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin.  Similar password protection laws are pending in Delaware, Georgia, Hawaii, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Texas, and Vermont.  Some of the states have carved out exemptions for workplace investigations, including trade secret misappropriation, threats of violence or other workplace misconduct. Privacy Issues State Laws Governing Social Media Privacy
  38. 38. Purple Communications, Inc. (NLRB Dec. 2014) The Board abandoned its longstanding 2007 Register Guard holding and found that employees have the right, during “non- working time,” to use company email systems for union organizing and other activity protected under the National Labor Relations Act. Although employers may lawfully prohibit non-work-related emails during working time, this decision presents obvious practical difficulties with monitoring the timing aspect of the transmission of these emails. Privacy Issues State Laws Governing Social Media Privacy
  39. 39.  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.” NLRB Scrutiny of Social Media Policies
  40. 40.  Costco’s social media 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. NLRB Scrutiny of Social Media Policies
  41. 41.  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. NLRB Scrutiny of Social Media Policies
  42. 42.  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.” NLRB Scrutiny of Social Media Policies
  43. 43.  Include disclaimer language that “the policy is not intended to interfere with protected concerted activity or infringe upon employees’ rights under the NLRA.” Social Media Policy Recommendations
  44. 44. 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. Employer Social Media Policies Recommendations/Best Practices
  45. 45. Jaime U. Kolligian, Esq. KASTNER WESTMAN & WILKINS, LLC 3550 West Market Street Suite 100 Akron, OH 44333 330.867.9998 330.867.3786
  46. 46. • ASK ORA offers you a complete resource solution; is the only Ohio foodservice-specific source for information you need to run your business; and is a team that is exclusively focused on the success of your foodservice business. Period. ASKORA - The trusted source for information. Have a question? We’ll help you find the answer.
  47. 47. Heartland Payment Systems is the lead sponsor of all RES events. UnitedHealthcare is the co-sponsor of all RES events. Upcoming ORA eventsNovember 20th 3:00 – 4:00 pm NRA Webinar: Build a High Functioning Team December 10th 2:00 - 3:00 pm Webinar: Responsible Service of Alcohol January 24th & 25th North American Pizza & Ice Cream Show (NAPICS), downtown Columbus January 25th 9:30 am - 12:00 pm Ohio Restaurant Association Safety Seminar Check for future free ORA RES events as well as recordings from past RES events!