Managing employee online behavior presentation 111715

Managing Employee Online
Behavior
Jaime U. Kolligian, Esq.
Kastner Westman & Wilkins, LLC
November 17, 2015
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jkolligian@kwwlaborlaw.com
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.

Hiring, Firing & Other Risks
Cyber Harassment/Bullying
Privacy Issues
Employer Social Media Policies
Social Media in the Workplace

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

PROCEED WITH CAUTION:
 Reliability of information
 Unintentional exposure to protected class
factors
 Understand the generational differences

RECOMMENDATIONS:
 Include acknowledgment and waiver language
 Non-decision maker to screen applicants via social
networking sites
 Document
 Consider only job-related criteria
 Be consistent

 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

 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

 “‘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

 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

 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

 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

 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

 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

 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

 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

 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

 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

 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

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

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

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

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

 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

 Zero tolerance policy
 Appropriate disciplinary action
 Complaints promptly reported to and investigated by
Manager or HR
 Non-retaliation
Employer Response to
Workplace Bullying

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

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?

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?

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?

 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

 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
Privacy

 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
Privacy

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

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

 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

 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

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

 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

 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 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

 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

 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

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

jkolligian@kwwlaborlaw.com
KASTNER WESTMAN & WILKINS, LLC
3550 West Market Street
Suite 100
Akron, OH 44333
330.867.9998
330.867.3786

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