Archive for the 'Social Media' Category

Be Careful What you Wish for!

Ladies and Gentlemen:  (drum roll please)  The NLRB has finally issued a social media decision.  No more relying on General Counsel memos or worrying about whether or not the sample policy that Acting GC Laffe Solomon said was valid is still worth looking at. (You may recall that the NLRBB Inspector General alleged Solomon may have violated ethical rules by participating in the Wal-Mart social media case while he held a substantial financial interest in the company.)  No more trying to parse through pages and pages of nonsense.

Finally, some clarity.  Yes, on September 7, in Costco Wholesale Corporation and UFCW Local 371, 358 NLRB No. 106 (2012) we finally got some clear and well-reasoned direction from the Board (can you hear the sarcasm as I type this?).

At least that was what I hoping for. But turns out that  the decision is unclear and not what we were looking for at all.

In fact, the decision is, well, it’s just ridiculous.  That’s right, I said it: Ridiculous.

The decision deals with a bunch of Costco’s policies.  The one we are interested in, the electronic communication policy, says the following:

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.

Seems okay to me.  In fact, it seemed okay to the administrative law judge that initially decided the case, too.  He said this policy was valid because “employees would not reasonably construe this rule as regulating and thereby inhibiting, Section 7 conduct.”  Well, that should take care of that, right?

Oh, wrong, so very wrong. The Board said the ALJ was wrong. The Board said he relied on the wrong cases. The Board said the cases he relied on were distinguishable because, “most involved rules addressing conduct that is reasonably associated with actions that fall outside the Act’s protection, such as conduct that is malicious, abusive, or unlawful.”  But not this policy apparently.

Here is what the Board said:  “Contrary to the judge, we find employees would reasonably construe this rule as one that prohibits Section 7 activity.”  Really, which employees are those?  But let’s not jump to conclusions. Let’s see why the Board thinks this.  Here is why “by its terms, the broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” clearly encompasses concerted communications protesting the Respondent’s treatment of its employees.”

What????.  Did the NLRB really just say that Section 7 protects defamation?  Defaming someone is a tort. You can get sued for it. You can be required to pay damages for it. It is malicious. It is abusive. And it is unlawful.  See the problem here?

But that is not the end of this little fairy tale, nightmare, whatever.

The Board then had the . . . nerve (that’s not what I started to say but we will go with that so my editor does not fall out of her chair) to say, “In contrast, the Respondent’s rule does not present accompanying language that would tend to restrict its application.  It therefore allows employees to reasonably assume that it pertains to — among other things — certain protected concerted actives such as communications that are critical of the Respondent’s treatment of its employees.”

Did I miss something here or is the Board suggesting that all of this may have been okay if only Costco had included a savings clause.  You know what a savings clause is right, some simple like “we won’t enforce this in a way that interferes with your Section 7 rights.”  Simple enough, except.  I’m sure I saw something in one or two of those GC Memos that said savings clauses were not enough.  Oh yea, that’s right.  Didn’t the GC say it is not enough to include a “savings clause” in the social media policy that attempts to cure ambiguities and ensure employees understand that the policy does not apply to Section 7 activity?

Instead, he found in several instances that employees will not understand the savings clause to mean that protected Section 7 activities are permitted.  In fact, take a look at  page 8 of the Jan. 24 GC Memo and pages 9,12 and 14 of the  May 30 GC Memo. On second thought, don’t look. It might make your head explode.

Can you tell I’m a bit upset?  Let’s hope Costco appeals this thing and a Court finally steps in to rein this agency back in.

Finally, Facebook Can be an Employer’s Friend, too

or Don’t invite people to play ‘naked Twister’

It has been a long while since I have posted anything.  Mostly that is because I just hadn’t found anything out there that interested me or that I thought might interest you. But that has changed.  I just found a case from Tennessee where Facebook posts by an employee might actually help an employer avoid liability for sexual harassment.

Before I start, I want you to know that this might get a bit racy, so don’t let your young kids read it. On the other hand, I promise not to say anything that the court didn’t put in its opinion. So really, how bad can it be?

The case , Tarnongski v. City of Oak Ridge (No. 3:11-CV-269) is out of the Eastern District of Tennessee and the court’s memorandum opinion comes from the defendant’s motion for summary judgment. The plaintiff in the case, a former police officer, brought a 12-count complaint against the city claiming, among other things, that she was subjected to a sexually hostile work environment.

She claimed that “she told her supervisor…  that she suspected [an officer] was spreading sexual rumors about her. Plaintiff claims that [the officer] also directly told her that her ‘husband [was] trying to get him [the officer] to have an orgy’” involving a female acquaintance and that “he felt like I was a lesbian and I wanted to be part of it.’  Plaintiff further testified, ‘After that, of course, that’s when people started saying, we know what [the officer] is saying about you. That’s when the rumors start[ed] coming to me.’” (In case you are wondering, all those words in brackets are where I changed the names to protect the innocent.)

So far, nothing special right?  Your run-of-the-mill hostile work environment case with rumors of sexual misbehavior, suggestions of orgies and rumors about sexual preference. And no big surprise that the plaintiff was upset.  In fact, according to the court, the plaintiff stated in her deposition:  “I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.” Plaintiff further testified that she would never “go out and talk to people about such things, even in a joking manner.” Again, no big surprise.

But that is sort of where this case goes off the tracks.  The plaintiff had a Facebook page – and a penchant for posting. Want to guess what she posted?  Well, we will just let the court tell you. In his opinion, the judge said “Curiously, [That’s the judge’s word, not mine] however, on February 23, 2010, plaintiff was herself discussing on Facebook her desire for a female friend to join her ‘naked in the hot tub.’ The previous day on her Facebook page, plaintiff was discussing ‘naked Twister.’ May 22, 2010 postings on plaintiff’s Facebook page by her Facebook ‘friends’ talked about female orgies involving plaintiff, [], and others, to be filmed by plaintiff’s husband.”

With this Facebook evidence in hand, the city argued in a motion for summary judgment that there was no way that the plaintiff could have been offended by the comments made by the officer and, thus, there was no hostile work environment. The plaintiff, on the other hand, testified that “the Facebook postings were ‘obviously’ jokes” and that the “‘jokes’ were not embarrassing or humiliating to her because they were ‘between friends.’”

With all of this in mind, the court granted the city’s motion for summary judgment on all but the hostile work environment count and it seemed like the court wanted to get rid of that count too.  But the court noted: “Defendant presents a very enticing argument but — again — at summary judgment the non-movant’s evidence is to be believed, . . . ”  About the Facebook evidence the court noted:  “the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter.”

So what is the lesson of this little story?  For employees, it is the same lesson I have been trying to hammer into the heads of my kids since they got on Facebook:  INVITE PEOPLE TO PLAY NAKED TWISTER ON FACEBOOK AND IT MAY JUST COME BACK TO BITE YOU.  Well, that’s not really it but you get my drift.  The lesson for employers:  If you get sued, Facebook can be your friend, too.