Topic: Employment and labor

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NLRB to reconsider legality of employer email use policies

The National Labor Relations Board (“NLRB”) is reconsidering whether companies may lawfully maintain policies that prohibit employees from using company e-mail and electronic communications systems for personal use.

In 2007, the NLRB ruled that employees have no statutory right to use their employer’s e-mail system for Section 7 purposes. Section 7 protects an employee’s right to form, join, or help a labor union and the right to engage in other group activities intended to improve working conditions, such as pay, hours, safety, or workload. These protections apply in unionized and non-unionized workplaces.

The NLRB’s General Counsel has urged the Board … Continue Reading

Facebook posts may not be sufficient notice of sexual harassment complaints

Contrary to the normal argument that employees have a right to privacy in their social media posts, the United States Court of Appeals for the Tenth Circuit recently dealt with the novel issue:  can a Facebook post serve as a public notice to an employer of an employee’s sexual harassment complaint?

In Debord v. Mercy Health System of Kansas, Inc., the plaintiff argued, among other things, that she was terminated in retaliation for reporting sexual harassment by her direct supervisor. She alleged that her Facebook posts constituted a sexual harassment complaint.

By way of background, the plaintiff, a … Continue Reading

Shared Social Media Accounts

A court in the Eastern District of Texas recently held that two companies were “integrated employers” under the Family Medical Leave Act, in part, because the two companies shared a Facebook page. Dooling v. Bank of the West, No. 4:11-cv-00576 (E.D. Tex. July 17, 2013) (Bush, Mag. J.).

This conclusion allowed the plaintiff to establish her status as an eligible employee under the FMLA because both companies combined had more than 50 employees.

Our readers may be aware that the concepts of joint employer, integrated employer, co-employer or dual employer can arise in other areas. In the workers’ compensation … Continue Reading

Policies banning photos, videos and confidential information unlawful

On July 15, 2013, the National Labor Relations Board (“NLRB”) released a memorandum providing further guidance on whether a company’s social media policy could be construed to stifle protected, concerted activity.  Over the last two years, the NLRB Office of the General Counsel has issued several memoranda discussing the validity of employer social media policies in light of existing principles under the National Labor Relations Act (“NLRA”).

Section 7 of the NLRA grants employees in unionized and non-unionized workplaces the right to engage in concerted activities for the purpose of mutual aid or protection.  Employers are prohibited under Section 8 … Continue Reading

Gripes and rants on Facebook: Not protected concerted activity

On May 8, 2013, the National Labor Relations Board (“NLRB”) released a memorandum providing guidance on whether an employee’s Facebook comments with current and former co-workers constituted protected, concerted activity. The memorandum was prepared in response to an employer’s request for advice about whether it violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by discharging the employee for comments made in a private social media forum.  The NLRB found that the employer’s discharge of the employee was justified since her comments expressed non-protected “mere griping” and not  “concerted activity,” which is protected activity under the NLRA.

The employee … Continue Reading

The NLRB and employer social media policies

The highly respected Pew Center recently released its demographic data on social media usage. The data shows that regardless of age, race, sex, education, or income, well over half of the adults in the United States who use the internet, use social media.  It is therefore reasonable that employers would formally address their expectations of employees’ social media use through a social media policy.  Unfortunately, employer regulation of that use may chill the exercise of employees’ Section 7 rights in violation of the National Labor Relations Act (“NLRA”).  Indeed, the National Labor Relations Board (“NLRB”) has approved few employer social … Continue Reading

NLRB Still Scrutinizing Social Media Policies

On November 15, 2012, the National Labor Relations Board again rejected an employer’s social media policy because it could be construed to chill employees’ rights to join together for mutual aid and protection.

Dish Network’s employee handbook banned employees from making “disparaging or defamatory comments” about the company.

Relying on the NLRB’s  recent decision invalidating Costco Wholesale Corp.’s electronic posting policy , the Administrative Law Judge found that the limitation on negative commentary was analogous to the provision struck down in the Costco decision. See Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, Case 34–CA–012421/… Continue Reading

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