Not all employee complaints on Twitter are concerted activity

Earlier this year, we discussed that a National Labor Relations Board (NLRB) administrative law judge found that an employee’s tweets could be considered protected “concerted activity” in Chipotle Services LLC d/b/a Chipotle Mexican Grill.  As a reminder, the administrative law judge determined that portions of Chipotle’s outdated Social Media Code of Conduct policy violated the U.S. National Labor Relations Act (NRLA).  The judge also found that Chipotle’s request that the employee remove his Twitter posts (i.e. “tweets”) also violated the NLRA. On August 18, 2016, a three-member panel of the National Labor Relations Board (NLRB) affirmed that Chipotle’s Social Media Code of Conduct violated the NLRA, but the NLRB reversed the administrative law judge’s finding related to the Twitter posts.

As we discussed in previous posts, Section 7 of the NLRA guarantees employees to right to engage in collective bargaining and other concerted activities for the purpose of mutual aid or protection. Section 8 prohibits employers from interfering with or restraining employees’ right to engage in concerted activities protected under Section 7.  If an employee’s social media posts are determined to be concerted activities under Section 7, then the NLRB has decided that an employer violates the NLRA by asking the employee to remove the posts.

Chipotle had provided the employee with an outdated Social Media Code of Conduct that prohibited employees from posting “incomplete, confidential, or inaccurate information” and from making “disparaging, false, misleading, harassing or discriminatory statements” on social media platforms. The NLRB panel confirmed that this sort of broad social media policy language runs afoul of the NLRA because it interferes with workers’ right to discuss the terms and conditions of their employment.

The Board, however, reversed the administrative law judge’s finding that the employee’s tweets constituted concerted activity. One of the tweets in question responded to a tweet by a customer’s post, “Free chipotle is the best thanks,” with “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”  The NLRB determined that this tweet was not concerted activity because it appeared “unrelated to employees’ terms and conditions of employment, and thus was not for the purpose of mutual aid or protection.”  Although this and other Twitter posts referenced wages and other working conditions—such as the lack of snow days for some hourly employees—two members of the NLRB who heard the appeal did not consider the tweets to be concerted activity.

Chipotle Services confirms that the NLRB is critical of broad social media policies that may conflict with workers’ right to discuss the terms and conditions of their employment on social media.  This decision also leaves open the possibility that it is unlawful for employers to ask their employees to delete certain social media posts.  The decision may slightly restrict the scope of complaints on social media that will be construed as concerted activity.

Although companies should not enact social media policies that broadly prohibit all employees from making any disparaging remarks on social media, the NLRB does not construe all tweets as concerted activity. To be prudent, employers should carefully craft their social media policies and to train managers not to restrict employees from discussing the terms and conditions of their employment on social media.

If you would like more information about drafting a social media policy, see our previous blog posts:

Are your social media followers/fans/members authentic?

We have previously written on social media account verification for businesses, in order to help customers deal only with the authentic brand.  But what about authenticating your social media followers/users/fans/members?

Unfortunately, there are currently “no methodologies available that would provide us with an exact number of non-actual member types of accounts,” according to LinkedIn’s 10-K filing for 2015.  (10-K at 18.)  LinkedIn goes on to state that some of its “non-actual member types of accounts” are:  Continue reading

Twitter Update: Go get your business account verified (…if you haven’t already)

In an earlier blog post this year, we covered Authentication on Social Media Platforms and the need for businesses to authenticate their social media accounts to protect their brand, credibility, reputation and accountability while advertising or otherwise engaging with their customers in the online space.

Various social media platforms offer the blue “verified” badge in order to help users more easily find public figures and brands, and protect these profiles from the high likelihood of impersonation. The blue badge verifies or authenticates the account as belonging to public figures, celebrities, government, businesses or their brands. While Facebook allows users to submit an application for authentication, other social media platforms like Instagram and Snapchat verify accounts on their own accord and do not let users request a verified badge (or special emoji in the case of SnapChat).

Recently, Twitter announced that it had created an online application process for authentication. Continue reading

Willful act and business activity exclusions in defamation claim

Although we have covered many social media cases involving defamation claims (just click on the “Defamation” category to see them), here is a link to a post from one of our sister blogs (Financial Institutions Legal Snapshot) that relates to an issue we thought would be of interest to our readers:  insurance coverage for fake social media posts alleged to be defamatory:

Wilful act and business activity exclusions applied to defamation claim

That’s My Mark! Enforcing Trademark Rights on Social Media

It is no doubt surprising and frustrating for brand owners when they find that someone has appropriated their trademarks on social media. A few of the common scenarios include:

  • small competitors modifying logos and passing them off as their own;
  • unauthorized distributors using logos and trademarks on their social media advertising; and
  • social media users registering account names that incorporate trademarks.

Pursuing the usual enforcement techniques can be difficult on social media, particularly when the identity of the infringer is unclear or unknown. The good news for brand owners is that most social media websites prohibit the infringement of another’s intellectual property rights in their terms of service. Continue reading

Did Twitter violate Anti-Terrorism Act by providing ISIS accounts?

On August 10, 2016, the United States District Court for the Northern District of California, in Fields v. Twitter, Inc., dismissed the plaintiffs’ complaint against Twitter with leave to amend. The plaintiffs’ complaint arose out of the deaths of Lloyd Fields, Jr. and James Damon Creach, two United States government contractors who were working at a law enforcement training center in Amman, Jordan. Fields and Creach were murdered at the hands of Anwar Abu Zaid, a Jordanian police captain who was inspired to commit the act after watching the ISIS execution of the Jordanian pilot Maaz al-Kassasbeh via a video that ISIS distributed through a Twitter account.

The plaintiffs’ claim alleged that Twitter violated parts of the Anti-Terrorism Act by knowingly provided material support to ISIS by permitting ISIS to use its social network as a tool for spreading extremist propaganda. Twitter’s primary argument for the dismissal of the plaintiffs’ claim was the application of Section 230(c)(1) of the Communications Decency Act (the “CDA”), which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Twitter argued that since Twitter’s actions constituted publishing activity, the plaintiffs’ claim is barred by the CDA. Continue reading

What’s In Your Terms of Service?

Social media platforms often require users to agree to Terms of Service or Terms of Use (“TOS”) to use the platform. These contracts can be lengthy and many social media users may not read them in their entirety before agreeing and proceeding to use the platform. This can raise particular issues in contract law, especially about the legal enforceability of the provisions.

The legal enforceability of TOS provisions is relevant to both social media users and app developers. Individuals or businesses who use social media should consider how the TOS affect their legal rights and obligations, especially regarding privacy and dispute resolution. On the other hand, if you’re developing an app for your business, you need to consider what provisions you should include in your TOS and how they should be drafted to ensure legal enforceability.

In particular, “choice of forum” provisions in TOS may be contentious in Canadian courts. Such provisions purport to set out where dispute resolution must take place. Continue reading

Germany: Can you be sued for tweeting #Rio2016?

The answer depends on who you are: For consumers there is little risk involved. Companies, however, did receive letters by the German Olympic Committee in recent weeks warning them about stealing intellectual property, similar to the letters send by the United States Olympic Committee. In particular Twitter accounts should not reference any Olympic results, share or re-tweet anything from the official Olympic account, or use official hashtags including #Rio2016 or #Team. Continue reading

Don’t congratulate #TeamCanada at #Rio2016: Olympic social media rules in Canada

With the Rio Olympics well underway, Canadian brands need to be aware of the “do’s and don’ts” of advertising and social media content involving the Olympics and Olympic athletes.

The International Olympic Committee (IOC) and the Canadian Olympic Committee (COC) have long been aggressive in enforcing illicit use of the term “Olympics”, the five rings and the other associated Olympic Marks. See Olympic and Paralympic Marks Schedule 1. Olympic and Paralympic Marks Act. S.C. 2007, c. 25. To this end, Canada, along with all other countries who have ever hosted an Olympic game, have created special legislation prohibiting the use of those marks.

Please read the entire post on The Brand Protection Blog: http://www.thebrandprotectionblog.com/dont-congratulate-teamcanada-at-rio2016-olympic-social-media-rules-in-canada/

In case you missed it – ICYMI

The digital world moves fast. To get you up to speed, we have compiled a quarterly recap of our five most popular social media blog posts from the Social Media Law Bulletin and the post that is currently trending. From questions ranging from “Is my SnapChat really deleted?” to “Can I tell my employee to stop Tweeting?,” we’ve got you covered ICYMI.

Top posts

 

Facebook “like” button violates privacy laws

Nerushka Bowan and Tatum Govender | April 21, 2016

On 9 March 2016 the Düsseldorf Regional Court in Germany ruled that an online shopping site, Peek & Cloppenburg, which integrated Facebook’s “like” button into its website had violated users’ privacy rights. The button allows website users who click on it to share instantly the pages and content from the website on their Facebook profiles. Read more

Liability for friends’ defamatory statements

Brian Chau | May 5, 2016

Liability for third-party defamatory comments on one’s personal account, whether on Facebook or another internet-based platform, is an emerging legal issue in Canadian law. If a social media “friend” posts defamatory statements about another person on your profile, or other site, can you be personally liable to the defamed person? Read more

Is my SnapChat really deleted?

Nerushka Bowan | May 16, 2016

Yes and no. SnapChat automatically deletes most messages after they have been opened or expired. However, it warns users that the recipient may take a screenshot or use some other screen capture technology (or simply take a photo of their screen with another camera). Read more

Asking employee to delete Twitter posts can be unlawful

Heather Sherrod | April 22, 2016

On March 14, 2016, the popular chain, Chipotle Mexican Grill, was found to have violated the National Labor Relations Act (NLRA) when it asked an employee to delete posts on his Twitter account about the company. Read more

Social media users responsible for comments

Edward Odendaal and Kerri Crawford | April 4, 2016

The High Court of South Africa ruled in Isparta v Richter that a Facebook user was guilty of defamation because a defamatory post appeared on his Facebook wall and was not removed by him, even though he was not the author of the post. The court ruled that because he knew of the post and “allowed his name to be coupled” with the author, he was as liable as the author. Read more

Currently trending

 

Social media risks during the Rio Games

Saul Perloff | August 1, 2016

Individuals, news outlets, and official Olympic sponsors are generally free to post and tweet about the games and athletes during the roughly month-long blackout period which began last week and ends on August 24. However, non-sponsor brand owners in the United States could face potential legal action if they are not careful. Read more

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