Tag: social media

NLRB “Pushing the Envelope” to Protect Employees’ Rights to Communicate Online

July 11th, 2012

David Cahn

Section 7 of the U.S. National Labor Relations Act (“NLRA”) states,

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .

U.S. Code, Title 29, Section 157.

This provision and the balance of the NLRA, which was enacted during the Great Depression of the 1930’s, are primarily focused on the right to join a union and collectively bargain. As the percentage of U.S. private sector employees represented by unions has dropped substantially over recent decades, the NLRA has become a much less prominent part of the discussion of employment-related legal matters. However, through its recent activities the current National Labor Relations Board (“NLRB”) has indicated its determination to make the NLRA relevant to all U.S. employees (and employers), by focusing on the last part of the quoted portion of Section 7, “Employees shall have the right . . . to engage in other concerted activities for the purpose of . . . mutual aid or protection.”

Among the areas where this emphasis is being shown is the ability of employers to limit employees’ use of social media networks such as Facebook. The “social media policies” area is particularly interesting because many (if not most) of employees’ online posts relating to their employers cannot be construed as “concerted activities for the purpose of mutual aid or protection.” Nevertheless, the NLRB has authority to stop an employer from maintaining a “work rule” that if that rule “would reasonably tend to” discourage employees from communicating with other employees “for the purpose of mutual aid or protection.” If the “social media policy” does not clearly restrict protected activities, such as by forbidding employees to “friend” each other on Facebook or to write posts about wages, hours or working conditions, then the policy only violates the NLRA if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

In several cases, the NLRB has found that an employer’s social media policy has in fact been applied to restrict the exercise of Section 7 rights, and required the employer to reinstate employees terminated due to their Facebook postings and subsequent responses by Facebook friends. For example, after an employee of a collections agency was transferred to a different position that would substantially limit her earning capacity, she posted on her Facebook page that her employer had “messed up” (using expletives) and that she was “done with being a good employee.” The employee was Facebook friends with approximately 10 current and former coworkers, including her direct supervisor. An extensive exchange ensued among the coworkers regarding the employer’s management methods and preference for cheap labor, culminating with one of the former employees calling for a class action among the disaffected workers.

The employee who had prompted the exchange was fired the next work day explicitly because of her Facebook posts and the responses they triggered. The NLRB found the discharge to be a violation of the NLRA because (a) the employer had an unlawfully broad “non-disparagement policy,” the violation of which was the basis for the termination, and (b) the employee had been fired for “engaging in conduct that implicates the concerns underlying Section 7 of the Act.”

In other recent cases brought before it, the NLRB has concluded that, while the complaining former employee was not unlawfully discharged due to his or her online postings, the employer’s policy itself violated the NLRA and needed to be modified. In response to this, the NLRB recently issued a report summarizing its decisions specifically on acceptable social media policies, and perhaps most importantly, has in essence provided a sample policy that it has deemed to be lawful. The policy, as amended by Wal-Mart after the initiation of an NLRB complaint regarding its prior policy, focuses fairly narrowly on refraining from posts that “include discriminatory remarks, harassment and threats of violence” or are “meant to intentionally harm someone’s reputation.” While the policy forbids dissemination of the company’s confidential information, it provides a sufficient specific definition of “trade secrets” to put employees on notice that the policy (probably) does not include internal reports or procedures specifically touching on conditions of employment. Perhaps most importantly, the policy expressly acknowledges that employees may post work-related complaints and criticism, even while discounting the possibility that such posts are likely to result in changes that the employee seeks.

If your company has a social media policy, we can review it for purposes of conforming it to the NLRB’s latest guidance on acceptable policies and help you avoid future problems that could result from overly broad restrictions on employee’s online conduct. Of course, as specific situations arise we are available to counsel you as to legally appropriate measures to take in response to employee’s online conduct.

Using Online Social Media to Promote and Protect your Business

December 2nd, 2009

by David Cahn

With the recent boom in popularity of social networking websites, more and more companies are looking to these forums for ways to promote their business. Sites like LinkedIn, Twitter, Facebook and Yelp! are rapidly becoming the go-to resources for establishing and maintaining relationships, finding referrals, and conducting competitive recognizance. Blogs and consumer forums also are becoming more and more popular for sharing customer experiences – both good and bad – with a virtually unlimited audience.

I recently attended an International Franchise Association regional program near Washington, D.C., during which Paula Valentine, Senior Director of E-Commerce for Choice Hotels, presented an interesting summary of the uses of social networking by Choice Hotels and other businesses with a national presence. Ms. Valentine emphasized that expanding your Internet presence beyond the traditional website and online business listings can serve to: (i) reach current and potential customers on a more personal level; (ii) better enable you to track customer reviews and complaints; and (iii) help you to monitor the actions of your competitors.

Personal Connections

                When used in a professional manner, social networking sites can be valuable tools for reaching potential customers, and maintaining relationships with existing customers. Ms. Valentine noted the following examples of legitimate and professional uses of social networking forums:

  • Posting business profiles on LinkedIn, Facebook, Yelp! and other true social networks to create a personality for your company and to promote your brand identity;
  • “Tweeting” about innovations, developments and accolades;
  • Offering discounts or specials to Facebook “fans” and Twitter “followers”;
  • Searching social media websites for posts about your company;
  • Posting courteous responses to posts about your company; and
  • Maintaining a blog to post information relevant to your potential customer base.

Ms. Valentine stated that franchisors can also use Facebook as a cheaper alternative to the traditional franchisee intranet, and to promote interaction and feedback between and among franchisees and the franchisor’s support team. Likewise, franchisees can use social networking profiles to promote their businesses and give local updates, subject of course the limits imposed by their franchisors on online advertising and use of the franchisors’ trademarks.

                Of course, all franchisees’ and employees’ use of social networking media should be carefully monitored to ensure the quality, accuracy and legality of each public statement. Remember, you are using the Internet because it allows information to spread quickly in a recorded audiovisual format—you do not want this to be used against you. Also, if you use Facebook to facilitate franchisee interaction, be sure to place limits on the types of topics discussed to avoid unintended disclosure of your confidential information.

Tracking Customer Opinions

                Ms. Valentine also discussed how social networking websites can provide an easy and non-confrontational means for customers to share their opinions about a company’s product or service. By tracking relevant consumer websites and searching social media for references to its brand, products or services, a company can gain valuable insight into its public perception. In addition, Ms. Valentine stated that direct responses to posts – and even to the posters themselves – can go a long way toward building consumer confidence and lasting customer relationships.

Competitive Recognizance

                Finally, Ms. Valentine noted how social media can also be used to conduct competitive recognizance on a variety of levels. Businesses can track their competitors’ uses of social media to make sure they are not falling behind the curve. They can also track customer complaints against competitors to look for trends and preferences among the body of relevant consumers.

                Tracking competitors’ use of social media can also be used to make sure that your trademarks and copyrights are not being misappropriated or infringed. While there are certain competitive rights of “fair use”, enjoining unlawful misuse of your intellectual property is important – and can be essential – to protecting your legal rights. False and damaging posts may also be actionable under the law of defamation or as false advertising, and taking legal action to have such content deleted or rectified can also be essential to protecting the image and value of your brand.

                A calculated and concerted social media campaign can be an invaluable tool for your business. Social media provide virtually limitless possibilities for promoting and protecting the interests of your company. By effectively using online social networking tools, you can take steps to ensure that your company maintains a reputation of quality and remains prominently on the front lines in the bid for your customers’ business.