V.33 SYMPOSIUM (TECHNOLOGY IN THE WORKPLACE) – RECAP OF PANEL NO. 2

By: Nicholas M. Graziano

The Hofstra Labor & Employment Law Journal’s Spring 2016 Symposium focused on developing law practices and labor rights involving the use of technology in the workplace. A key area of this developing law is social media in concerted activity; to what extent to an employee’s Section 7 rights extend to social media platforms? Speakers for the Social Media & Concerted Activity panel were Michael D. Bosso, non-equity partner of Colleran, O’Hara & Mills LLP, a union-side labor law firm and 2006 Hofstra University School of Law alumnus, Jessica Drangel Ochs, associate general counsel of SEIU Local 32BJ, and Kimberly Malerba, partner of Ruskin Moscou Faltischek, P.C., in the Employment Law Division.  Karen Fernbach, regional director of the Region 2 office of the N.L.R.B., acted as the neutral mediator for the panel.

Karen Fernbach began the discussion by explaining how many cases have begun to come before the N.L.R.B. involving aspects of social media and nearly each social media platform, including Facebook, Twitter, Instagram and similar sites.  As a general matter, employer policies that “reasonably tend to chill employees in exercise of Section 7 rights,” or concerted activity, will be found unlawful.  Fernbach pointed out that in recent years, more and more cases of this nature have come before the Board, and the Board has wrestled with applying tests used for physical on the job-site conduct in social media activity.

Michael Bosso and Jessica Drangel Ochs lead a discussion of these most recent cases.  The first case to try and develop a new standard to protect concerted activity on social media was Triple Play. There, employees expressed dissatisfaction on Facebook with their employer’s effectiveness when the employer miscalculated the employee’s state tax liability.[1]  After the employer saw the post, the employees were discharged.[2]  The Board attempted to apply the Atlantic Steel framework to determine whether this was a legal termination, but had difficulty applying the standard as it was used for workplace confrontations.[3]  The Board instead decided to apply the Jefferson and Linn standards, where in order to terminate an employee for criticizing the employer, statements must be demonstrated to have been made “with knowledge of falsity, or with reckless disregard of whether it was true or false.”[4]  Because the employees’ posts were related to their employment and were not knowingly false, the employer had terminated the employees for protected concerted activity.[5]

The next landmark case in developing a standard to protect concerted activity on social media is Pier Sixty.[6]  There, the Board found the employee had engaged in protected activity even after the employee expressed profanity on Facebook toward not only his employer but his employer’s mother.[7]  After his employer learned of the posting, the employee was terminated. However, the employee also instructed his co-workers to “vote yes for the Union[]” at the end of his post, and this was in fact protected activity.[8]  The Board developed for the first time a new test that looked at the totality of the circumstances involved in the social media posting, rather than the standards considered in Triple Play.[9]  The board again applied this “totality test” in Dalton Schools, solidifying it as the standard in social media cases.[10]

Kimberly Malerba discussed the considerations of employers when drafting social media policies in the wake of these cases. In general, social media policies must not on their face prevent employees from partaking in Section 7 protected activity.[11]  So long as a policy prohibits plainly egregious conduct, such as sexual harassment, violence, or discriminatory behavior, the policy will be found to be a “good rule.”[12]  Other social media rules that require the employee to maintain their employer’s trade secrets or other private and confidential information will be upheld.[13]  Social Media and its use in the workplace in regards to employee rights is one of the most quickly developing areas of law.  Though the Board has begun to develop new standards to analyze these types of cases, such as in Pier 60 and Triple Play, this area of law will continue to develop, and practitioners responsible for advising employees and employers alike should do their best to remain informed on the developing and growing law.[14]

[1]              See Triple Play Bar & Sports Grille, 361 N.L.R.B. No. 31 (8/22/14) aff’d 2015 WL 6161477 (2d. Cir. 2015).

[2]              See id.

[3]              Atlantic Steel Co., 245 N.L.R.B. 814 (1979).

[4]              See NLRB v. Iron Workers Local 1229, 346 U.S. 464 (1953); Linn v. Plant Guards Local No. 114, 383 U.S. 53 (1966).

[5]              Triple Play Bar & Sports Grille, 361 N.L.R.B. No. 31.

[6]              Pier Sixty, LLC, 362 N.L.R.B. No. 59 (Mar. 31, 2015).

[7]              Id.

[8]              Id.

[9]              Id. Standards include: (1) whether record contains evidence of employer’s anti-union hostility; (2) whether employer provoked employee’s conduct; (3) whether employee acted impulsively or deliberately; (4) the location of the Facebook post; (5) subject matter of the post; (6) nature of the post; (7) whether employer considered language similar to that used by the employee to be offensive; (8) whether employer maintained a specific rule prohibiting the language at issue; and (9) whether the discipline imposed was typical of that imposed for similar violations.

[10]           Dalton School, Inc., JD-31-15, Case 2 – CA – 138611 (June 1, 2015).

[11]           Tradesmen Int’l, 338 N.L.R.B. 460, 460-462 (2002).

[12]           Id.

[13]           See id.

[14]           See Triple Play Bar & Sports Grille, 361 N.L.R.B. No. 31; Pier Sixty, LLC, 362 N.L.R.B. No. 59 (Mar. 31, 2015).

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