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2011 Summer Employment Update

Employees’ Facebook Communications Defended by the NLRB

The National Labor Relations Board (NLRB) has focused its sights on Facebook, filing two complaints in May (Illinois and New York), alleging that employees have been wrongfully fired based on their posts to Facebook.  On May 9, the NLRB filed a complaint against the nonprofit organization Hispanics United of Buffalo Inc. for allegedly terminating five employees who criticized workload and staffing conditions on Facebook.  The NLRB’s complaint alleges that the employer claims that the on-line comments amounted to harassment of a co-worker, thereby justifying its decision to terminate the employees.  On May 20, the NLRB issued a complaint against a Chicago-area luxury car dealership alleging the company violated federal labor laws by firing a sales employee over a message he posted on Facebook.  The employee had posted a message on his personal Facebook page that involved employees’ concerns about the dealership’s handling of a sales event that could impact their earnings.

According to the NLRB office, the Facebook discussion at issue in Hispanics United was protected concerted activity under Section 7 of the NLRA because it involved discussions between employees about working conditions.  The NLRB alleges that the actions taken by employers in response to employees’ online postings, in these and other similar cases, would illegally chill worker communications.  Overly broad social media policies that prohibit employees from making disparaging, discriminatory or defamatory comments when discussing the Company may go too far and not hold up in court.  Employers should carefully analyze their social media policies to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that the employer will not discipline or discharge employees for engaging in protected concerted activity.

B. Newspaper’s Firing Over Twitter Posts is Lawful, Says NLRB

The NLRB recently found that a reporter’s rights were not violated when he was fired by the Arizona Daily Star for unprofessional tweets.  The newspaper generally encouraged its reporters to use Twitter, but did not have a written policy regulating use of the social networking tool.  The reporter had been warned about his tweets’ inappropriate content many times.  When the reporter criticized one of the paper’s headlines in 2010, human resources encouraged him to field concerns internally, such as with colleagues, instead of broadcasting them to his Twitter audience.  The reporter’s managing editor told him to refrain from making comments on social media that could damage the newspaper’s reputation.  However, the reporter continued to tweet, and his Twitter screen name and biography referenced his employment at the Daily Star and linked to the newspaper’s website.

The NLRB memorandum, dated April 21, stated “The [reporter’s] conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.” Based on this assessment, the NLRB determined that the employee’s termination was not unlawful.  The NLRB also found that the managing editor’s statements to the reporter did not constitute orally-promulgated overbroad “rules.”  The NLRB concluded that “the statements were made solely to the [reporter] in the context of discipline, and in response to specific inappropriate conduct, and were not communicated to any other employees or proclaimed as new ‘rules.’”

C. Employers, Don’t Let Employees Text and Drive: OSHA’s New Safety Initiative

In a committed effort to curb the dangers of texting while driving, the Occupational Safety and Health Administration has followed the lead of over 30 states, many cities, and even President Obama, by launching a multipronged “distractive” driving initiative that should be considered by employers when implementing policies banning cellular activities while driving.  Recent studies have shown that texting while driving resulted in approximately 16,000 road fatalities nationally from 2001 to 2007 (2010 study published by American Journal of Public Health), and that such activity is potentially more dangerous than driving under the influence of alcohol (2009 Car and Driver study).  Passed in 2010, Michigan’s texting while driving ban prohibits individuals from reading, manually typing, or sending a text while operating a motor vehicle, subject to a fine.

OSHA’s initiative includes an education campaign encouraging employers to prevent occupationally-related distracted driving, a website containing a model employer policy to prevent texting while driving, alliances with the National Safety Council to reach out to employers, and a pledge to investigate and remedy whenever OSHA receives a credible complaint that an employer requires texting while driving or organizes work so that doing so is a necessity.

If employers fail to satisfy the OSHA-mandated steps, they could incur OSHA fines and penalties and potentially be liable for injuries suffered by third parties in accidents with texting employees.  To satisfy the initiative, employers should implement a clear written policy banning cellular activities, such as texting, while driving.  The policy should subject employees in violation to disciplinary action. Employers should provide actual notice to employees of the policy, should require employees to sign written acknowledgements that they understand the policy, and follow up with training.

D. Loose Lips Sink Lawsuits: The Attorney-Client Privilege at Risk

In the high-speed age of digital communication and social media, communications are not always given the solemnity they deserve.  In Lenz v. Universal Music Corp., 2010 WL 4789099 (N.D. Cal. Nov. 17, 2010), for example, Plaintiff Stephanie Lenz discussed her conversations with counsel in emails, electronic chats, blog posts, and media interviews.  Lenz had posted a video of her toddler dancing to Prince’s “Let’s Go Crazy” on YouTube.  Universal Music Corp., the copyright owner of the song, sent YouTube a take-down notice, with which YouTube complied. Lenz, who is represented by Electronic Frontier Foundation (EFF), sued Universal, alleging that Universal knowingly and materially misrepresented in its takedown notice that the video infringed on its copyright, a violation of the Digital Millennium Copyright Act.

Based on Lenz’s candid communications related to her conversations with counsel, the court found that Universal was entitled to discovery of attorney-client communications related to her and EFF’s motivations for pursuing litigation, the legal strategy, and certain factual issues.  This case highlights the significance of instructing clients not to discuss legal matters in a social media or electronic communication setting, including via email, Facebook, Twitter, or blogs.  A careless client can hand the opposing party a wealth of otherwise privileged information.

II. No Monkeying Around: U.S. Supreme Court Approves Cat’s Paw Doctrine

The U.S. Supreme Court finally weighed in on the “cat’s paw” theory of liability, under which an employee may establish unlawful employment discrimination when a biased non-decisionmaker influences an unbiased decisionmaker to take action he otherwise would not; and the doctrine stands.  The cat’s paw theory derives from a 1679 fable about a monkey who persuades an unsuspecting cat to extract chestnuts from a fire, and who then absconds with the nuts and leaves the cat nursing its burnt paw.  On March 2, 2011, the Supreme Court announced its decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), recognizing the cat’s paw theory (also known as the singular influence theory) for the first time.

In light of the Supreme Court’s opinion, employers should ensure that they have, and enforce, clear and effective anti-discrimination policies and train all employees, including those with supervisory responsibility, on the policies’ scope. Given the Court’s requirement that employers must be able to show that their challenged employment decisions were “entirely justified,” it is important that employers establish clear procedures to ensure that decisionmakers do not merely rubber stamp the recommendations of the manager or supervisor.  Toward this goal, employers should provide procedures for independent investigations; ensure complete and accurate information; critically examine information supporting the recommended decision; and investigate any complaint of supervisor bias made by affected employee.

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