Labor & Employment Newsletter - September 2010
Social Media in the Workplace
Part 2
by Eileen Morgan Johnson
This is the second of two articles on the potential legal issues that can arise from the use and misuse of social media in the workplace. Part 1 covered the use of social media in the pre-employment setting. Part 2 covers the use of social media in employment and post-employment situations.
Social media is changing communications between employers and employees and among co-workers.
Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.
The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.
Social media usage policies
Just as employers adopted internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.
Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments. Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.
Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).
Monitoring
An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"
Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.
However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.
Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.
Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?
The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."
Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.
Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:
- Email - 43%
- Blog or message board - 18%
- Video - 18%
- Facebook and LinkedIn - 17%
- Twitter or SMS texts - 13%
The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:
- Email - 31% terminated
- Blog or message board - 17% disciplined, 9% terminated
- Video - 15% disciplined, 8% terminated
- Social networks - 8% terminated
- Twitter/SMS texts - no reported actions
- Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.
Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.
Employer social media policies should prohibit:
- Disclosure of confidential employer information
- Discrimination against or harassment of co-workers
- Using the employer's trademarks
- Infringing the intellectual property rights of others
- Making statements adverse to the employer's business interests or reputation
- Criticism of customers or business partners
- Statements supporting competitors
- Obscenity
- Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.
Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.
Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.
Post-employment
Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.
Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.
Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company. What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete. They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.
Conclusion
The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.
Attention Employers with DC Employees: Final Regulations for Accrued Sick and Safe Leave Act Issued
by Tiffany M. Releford
In November 2008, the District of Columbia enacted the Accrued Sick and Safe Leave Act of 2008 ("ASSLA" or the "Act"). In doing so, the District became the second of only two jurisdictions in the country to mandate paid sick and "safety" leave. Unfortunately, the new law resulted in more questions than answers. The District recently issued final regulations in an attempt to clarify the ASSLA.
What is required under ASSLA?
Under ASSLA, employers must provide paid sick leave to eligible employees for absences related to physical or mental illness, preventative medical care, caring for a family member, domestic violence, sexual abuse, or stalking. ASSLA also prohibits retaliation against an employee who opposes any practice made unlawful by the Act, files or attempts to file a complaint for violation of the Act, facilitates initiation of a proceeding under the Act, provides information or testimony in connection with an inquiry related to the Act, or uses leave in accordance with ASSLA.
Who is covered?
The final regulations define "employer" to include for-profit or not-for-profit firms, partnerships, proprietorships, limited liability companies, associations, corporations, the District of Columbia or the any receiver or trustee of such entity or individual, including the legal representative of a deceived [deceased?] individual, who employs an employee.. Before the final regulations were enacted, there was some confusion as to who was an employee under ASSLA. The term "employee" is defined as "an individual who has been employed by the same employer for at least one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and who has worked at least one thousand (1,000) hours of service with such employer during the previous 12-month period." The final regulations provided clarification regarding employees employed in more than one location. To be covered under ASSLA, an "employee" who is employed by an employer in more than one location must spend more than fifty (50) percent of his or her working time for the employer in the District. However, independent contractors, students, certain health care workers, and restaurant wait staff and bartenders who work for wages and tips are not considered "employees" under ASSLA.
How are sick and safe leave determined?
Under ASSLA, the amount of sick leave to be provided by an employer depends on the number of employees. An employer with one hundred or more employees in D.C. shall provide each employee not less than one hour of paid leave for each thirty-seven hours worked, not to exceed seven days of paid leave per calendar year. An employer with 25 to 99 employees in D.C. must provide each employee with not less than one hour paid leave for every 43 hours worked, not to exceed five days of paid leave per calendar year. Lastly, an employer with 24 or fewer employees in D.C. shall provide not less than one hour of paid leave for every 87 hours worked, not to exceed three days of paid leave per calendar year. An employee begins to accrue paid leave on the date the employee meets the definition of an "employee" under ASSLA.
Can employees carry over unused leave accrued under ASSLA?
Under ASSLA, an employee may carry over unused paid leave accrued in one calendar year. However, the employee is not permitted to use more paid leave in one year than the maximum amount of sick leave the employee accrues in a year under ASSLA, unless the employer has a policy that provides otherwise. In addition, an employer is not required to reimburse an employee for unused accumulated sick leave upon the employee's discharge or resignation.
What is required of employers and employees under ASSLA?
ASSLA imposes notice requirements on employers and employees. For example, an employer is required to post notices regarding ASSLA in conspicuous places. Moreover, employers must maintain records of the accrual, granting and denial of ASSLA leave for a period of three years.
Similarly, an employee is expected to give at least ten days written notice of the employee's intent to use sick or safe leave. ASSLA includes alternative methods for employees to provide their employers notice, such as an oral request, when an employee may not be able to provide ten days' notice of the employee's intent to use sick or safe leave. An employer may require "reasonable certification" to support an employee's request for paid leave for three or more consecutive days. Such certification may include a signed document from a health care provider affirming the illness, or a police report or court order indicating that the employee or the employee's family member was a victim of stalking, domestic violence, or sexual abuse. If the employer requires the certification, it shall be provided upon the employee's return to work or within one business day thereafter.
What if an employer already has a leave policy in place?
Although ASSLA applies to all employers, an employer that already has a paid leave policy or universal leave policy that allows the accrual and usage of leave equivalent to the paid leave described in ASSLA, is not required to modify its policy. In addition, ASSLA does not change or alter the obligation of an employer to comply with any collective bargaining agreement or employment benefit or plan that provides paid leave rights greater than those under ASSLA.
Are there any penalties for violation of ASSLA?
Employers who willfully violate the requirements of ASSLA will be assessed a civil penalty depending upon the violation; thus, D.C. employers should check their policies to make sure they are in compliance with ASSLA.
IN BRIEF: NLRB Upholds Union's Right To "Banner"
by Kevin C. McCormick
On August 27, 2010, the National Labor Relations Board (NLRB) ruled that a union practice of displaying large stationary banners at a secondary employer's business is not coercive and therefore does not violate the National Labor Relations Act (NLRA).
The NLRB decision affects three Arizona cases, in which union carpenters held 16-foot-long banners near two medical centers and a restaurant, to protest work being performed for the owners of the establishments by construction contractors that the union claimed paid substandard wages and benefits. Two of the banners declared "SHAME," while the third urged customers not to eat at the restaurant.
Under the NLRA, conduct that threatens, coerces or restrains a secondary employer not directly involved in a primary labor dispute is prohibited if the object of that conduct is to cause the secondary employer to cease doing business with the primary employer.
Under existing NLRB precedent, picketing that seeks a consumer boycott of a secondary employer is coercive and, therefore, unlawful. Stationary handbilling, where union representatives hand out written materials describing their dispute with the primary employer, with that same objection, is not. The issue the NLRB had to decide was whether stationary bannering was more like picketing or handbilling.
The NLRB majority, Chairman Liebman and Members Becker and Pearce (recent Obama appointees) found that the bannering was not coercive or in violation of the NLRA. Members Schaumber and Hayes (both Republican appointees) dissented from that decision. Member Schaumber's term has since expired, leaving one vacancy at the NLRB. (United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason and Knuth of Arizona, Inc., United Brotherhood of Carpenters and Joiners of American, Local Union No. 1506 and Northwest Medical Center, and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and RA Tempe Corporation, Case Nos. 28-CC-955, 28-CC-956 and 28-CC-957, decided August 27, 2010.)
NLRB Finds Union's Annual Renewal Requirement for Dues Objectors Unlawful
On August 27, 2010, the NLRB found that a union violated its duty of fair representation by requiring non-member dues objectors to restate their position every year despite their express desire to have the objection continue from year-to-year.
Under federal labor law, unions and employers may enter into agreements requiring employees represented by a union to pay dues or fees as a condition of employment. In 1988, the U.S. Supreme Court held in Communication Workers of America v. Beck that unions may charge members and non-members fees related to the union's collective bargaining and contract administration activities, but cannot require non-members to pay fees unrelated to collective bargaining (fees related to the union's political or other non-representational activities).
Non-members may object to paying any portion of dues that is not used for collective bargaining purposes. Unions must provide notice of this option and calculate the share of dues money used for collective bargaining purposes only.
In this case, an employee of a Florida-based company, represented by the International Association of Machinists and Aerospace Workers, objected to paying full dues. In 2003, he informed the union in writing that he wished his objection to continue indefinitely. The union responded that all dues objections had to be restated annually. When the employee failed to do so, he was charged the full monthly dues for 2004.
The issue presented to the Board was whether the union's requirement that the members' objections had to be restated each year was a breach of the union's duty of fair representation because it was "arbitrary, discriminatory or in bad faith." Chairman Liebman and Member Becker (both Democratic appointees) found that the annual renewal requirement was arbitrary, but not discriminatory or in bad faith. In a separate opinion, Members Schaumber and Hayes (Republican appointees) agreed that the rule was arbitrary, but they would also find it discriminatory. In dissent, Member Pearce found that the union had presented reasonable justifications for its requirement, making the practice valid. (International Association of Mechanists and Aerospace Workers, AFL-CIO; and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 2777 [L-3 Communications Vertex Aerospace LLC, Case 15-CB-5169, Decided August 27, 2010].)
EEOC Files Trio of New Cases Under Amended Americans With Disabilities Act
On September 9, 2010, the EEOC announced the filing of three separate lawsuits charging employers in Maryland, Georgia and Michigan with violations of the recently-amended Americans With Disabilities Act (ADA). All three cases were filed under the broader and simplified definition of a disability as contained in the ADA Amendments Act, which were signed into law by President Obama on September 25, 2008, and became effective January 1, 2009.
In Baltimore, the EEOC sued an Ellicott City, Maryland, surveying company, Fisher, Collins and Carter, for allegedly violating the ADA when it fired two employees who had diabetes and hypertension because of their illnesses. In its suit, the EEOC alleged that the Howard County firm discriminated against two employees when it discharged them shortly after requesting that they and all other employees respond to a questionnaire regarding their health conditions, medical issues and medications.
One employee had worked for the company for 15 years, starting as a rodman, and was a party chief at his termination. The other employee had been employed since 2000 as a rodman. The EEOC alleges that despite their successful performance throughout their careers, the company unlawfully fired the two employees on January 21, 2009.
In the suit, the EEOC is seeking a permanent injunction enjoining the company from engaging in any future employment practices that discriminate on the basis of a disability, the implementation of written policies to provide equal employment opportunities for qualified individuals with disabilities, monetary and injunctive relief, including back wages, compensatory and punitive damages for both employees, and changes in employment policies to provide equal employment opportunities for qualified individuals with disabilities. (EEOC v. Fisher, Collins and Carter, Case No. 10-CV-2453.).
In Georgia the EEOC sued the Eckerd Corporation, d/b/a Rite Aid, when a long-term employee with severe degenerative arthritis was denied the use of a stool she had used as a reasonable accommodation for six years. (EEOC v. Eckerd Corporation, d/b/a Rite Aid, Civil Action No. 1:10-CV-2816-JEC.)
In Michigan, the EEOC sued IPC Print Services, Inc., alleging that the employer discharged an employee with cancer who requested a temporary part-time schedule as an accommodation of his disability. According to the EEOC, the employee had been employed by IPC as a machinist for over ten years. The employee went on medical leave in 2008 in order to undergo chemotherapy.
The EEOC alleged that in January 2009, when the employee sought to continue working part-time while he completed his treatment, the company discharged him for exceeding the maximum hours of leave allowed under company policy. That decision, the EEOC contended, violated the company's obligation to reasonably accommodate the employee's disability. (EEOC v. IPC Print Services, Inc., Case No. 10-CV-886.)