Author Archives: Lori Higuera

Lori Higuera

About Lori Higuera

Lori Higuera is a director in Fennemore Craig’s litigation section, regularly providing counsel to employers on personnel policies, restrictive covenants, employee disability issues, drug/alcohol testing, and wage and hour issues. She has significant experience defending employers against allegations of unfair labor practices, employment discrimination, breach of contract, wrongful discharge and employment-related torts. Higuera can be reached at lhiguera@fclaw.com.

Social Media rights

Social Media Series: Employers Have To Be Diligent About Not Violating Employees’ Rights When It Comes To Social Media


This article is part of an ongoing series about social media in the workplace. We’re interested in your feedback/questions, so please comment and the authors may address your issue in their next article.


Tweet from Uncle Sam: Let your employees talk about their working conditions through social media — or else!

Social media can get employers in trouble. Without a narrowly tailored policy guiding how the company will manage its employees’ use of sites such as LinkedIn, Facebook and Twitter while the employee is on the job, the employer may very well run afoul of the National Labor Relations Act, which is enforced by the National Labor Relations Board (NLRB).

The NLRB’s avid interest in social media stems from its charge to ensure that both union and non-union employees’ federal right to discuss the terms and conditions of employment, including wages, hours and other working conditions, is protected.

The increased interest by the NLRB in matters affecting employees’ use of social media began late last year. At that time, the federal agency filed a complaint against a Connecticut employer for terminating an employee who had posted negative comments about a supervisor on Facebook. The NLRB tweeted this past winter that the case had settled. The employer agreed to: (1) revise its social media policies to ensure that the employees are guaranteed the right to discuss the terms and conditions of employment and (2) never discipline or fire employees for engaging in such activity in the future.

In Arizona, an Arizona Daily Star reporter was terminated for inappropriate and unprofessional tweets. The termination resulted in the employee filing an unfair labor practice charge with the NLRB against the Star. After investigation, the NLRB dismissed the charge, concluding that the termination was lawful because the tweets at issue did not relate to the terms and conditions of employment.

Just last month, the NLRB announced its intention to file a civil complaint against Thomson Reuters for firing a reporter for one of her tweets. The tweet read: “One way to make this the best place to work is to deal honestly with Guild members.”  According to the NLRB, Thomson Reuters violated the reporter’s federal right to comment on the terms and conditions of her employment.

The NLRB’s growing interest in social media as it relates to employees demonstrates that there is a line to be drawn between protected and non-protected activity taking place in cyberspace. Determining where to draw that line is challenging. Even the NLRB recognizes the fast-moving nature of emerging social media issues in the context of employee-protected activity.

On April 12, the NLRB’s Office of the General Counsel issued a memorandum requiring regional offices to submit social media cases to the NLRB’s Division of Advice for review prior to issuing an administrative complaint.  The memorandum states that the Division of Advice must handle prosecution of social media cases, because there is a dearth of case law currently available and the NLRB considers the issue a policy priority.

Co-author: Carrie Pixler

[stextbox id="grey"]More than ever, employers need guidance about social media in and around their workplaces. We’d like to hear from you about your issues and questions related to social media and your business. Please post a comment below this story and we may address your issue in the next edition of our Social Media Series.[/stextbox]

 

Banning Social Media

Social Media Series: Prohibiting Employees’ Use Of Social Media At Work

This article is part of an on-going, social media series.


Because the law still is evolving, many employers are fearful of disciplining and terminating their employees for conduct on social networking sites. While this apprehension is understandable, it need not paralyze employers from protecting their legitimate business interests with an appropriate social networking policy.

Recently, the National Labor Relations Board (NLRB) filed an unfair labor practice charge against American Medical Response of Connecticut for terminating an employee who posted insulting personal remarks about her supervisor on her Facebook page.  Although the parties settled the charge before the hearing, the NLRB has made it clear that it intends to aggressively prosecute employers that discipline employees for this type of behavior. Because the NLRB’s authority reaches both unionized and non-unionized employers, the potential ramifications to employers is widespread.

While there is still plenty of gray area regarding what type of online behavior an employer can prohibit, there is certain employee conduct that employers can forbid in order to protect themselves against unscrupulous employee activity on social networking sites. There are common circumstances of an employee’s online activity that generally remain lawful grounds for discipline.

The clearest circumstance is an employee’s use of social media while on the clock. An employee who engages in online activity for personal reasons at work likely is failing to be productive for the employer, and such conduct may lead to discipline up to and including termination. If the employer intends to prohibit personal use of social media while an employee is on the job, the employer should: (1) implement and distribute a written policy that prohibits personal social networking while at work or while working; (2) ensure that it enforces this policy consistently with all employees so as to avoid claims of discrimination; and (3) have documentation to support the employer’s belief that the employee engaged in such misbehavior at work. If an employee’s job responsibilities require him to be online, the employer should consider appropriate measures, such as whether to block access to social media sites.

Another clear circumstance where an employer can discipline employees for their use of social media is when the employer’s confidential and proprietary information is disclosed through the employee’s social network, regardless of whether such online activity takes place outside of the office and outside of work hours.

So that the employee is clear about how he may, if at all, discuss work through social media, the employer should take some basic precautions: (1) have the employee execute an enforceable contract that prohibits the employee’s use of or disclosure of confidential and proprietary information; (2) require all similarly situated employees to execute the same contract; (3) enforce the breaches of such a contract consistently with all employees who have executed it so as to avoid claims of discrimination; and (4) have evidence to support the employer’s belief that the employee engaged in such misbehavior at work.

While there are clearly social networking activities that an employer can prohibit, it must be careful not to cross the line. Under the National Labor Relations Act, employees are entitled to engage in “protected concerted activities,” which include discussing the terms and conditions of their work between two or more employees. An overly broad social networking policy may violate the act if it interferes with employees’ right to engage in such protected activity.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Friending Co-Workers

Social Media Series: Is “Friending” Your Work Colleagues A Good Idea?

This article is part of an on-going, social media series.


Any good comedian knows you must tailor the joke for the crowd. The same approach is true in the work environment. A supervisor might comment on a football team cheerleading squad in different ways to his bar buddies than he would to a subordinate at work. Unfortunately, to a large extent, Facebook and other social media outlets do not provide the tools by which to discriminate which joke gets told to what audience. This can lead to many pitfalls for employers.

If a supervisor’s sexually inappropriate jokes told around the water cooler at work could result in legal liability for the employer, then it is likely a bad idea for the supervisor to send Facebook messages to subordinates with the same inappropriate jokes. In fact, according to one recent survey, nearly 50 percent of employees felt uncomfortable when “friended” by subordinates, co-worker peers, and/or their supervisors. It’s easy to understand why.

Suppose A posts pictures of herself at the beach in a bikini. What if B, A’s supervisor, is Facebook friends with A and comments to A in a work email about how great A looks in her swimsuit? This use of social media could create a hostile work environment and lead to a discrimination action.

Supervisors and employees should be reminded that federal and state non-discrimination statutes can apply to communications between an employee and his or her coworker or supervisor done during non-work hours and online, not just in person at the office.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Social Media Employment

Social Media Series: Using Social Media In Hiring And Firing Employees

This article is part of an on-going, social media series.


With an estimated 34,000 Google searches every second, the Internet is most assuredly a source of information for employers when making hiring and firing decisions. Given the inevitable use of the Internet to make these decisions, there are a number of questions that employers should consider:

  • Should an employer use the Internet to investigate prospective employees?
  • What liability could there be if an employer uses the Internet in this manner?
  • Should an employer affirmatively address, in its practices or procedures, the use of the Internet to investigate prospective employees?
  • May an employer terminate an employee for online content posted during non-work hours?
  • Does it matter whether the employee’s online content is or is not about work-related topics?
  • What recourse, if any, does an employer have in disciplining an employee for inappropriate conduct on social media?

 

Prospective employees generally know that they should scrutinize their online presence so as not to have their resume hit the trashcan due to one weekend of debauchery posted on a Facebook photo album. Employers, on the other hand, too often fail to scrutinize their use of social media in hiring. Whether there is an official policy to run an online search of a prospective employee or informal protocol of the hiring manager, an employer’s practices and procedures should address the use of social media to investigate prospective employees.

Businesses should be aware of the potential liability in searching the online content of prospective employees. For example, a human resources representative decides to look up a prospective employee on Facebook and discovers that the individual is two months pregnant. She decides not to hire that candidate. Now, the business is vulnerable to an employment discrimination lawsuit if the candidate finds out about the human resources representative’s online activity and links the decision not to hire to the candidate’s pregnancy.

If a business wants to affirmatively use social media in evaluating the candidate and in hiring decisions, then it should express this practice in a social media policy and remind interviewers of the pertinent laws prohibiting discrimination in employment decisions.

Firing

In a survey conducted by the Health Care Compliance Association and the Society of Corporate Compliance and Ethics, almost 25 percent of respondents reported that the employer had disciplined an employee for conduct on Facebook, Twitter or LinkedIn. In November 2010, the National Labor Relations Board (NLRB) initiated an unfair labor practice action on an employer for terminating an employee who posted personal negative comments about her supervisor on Facebook. The NLRB argued that the employer’s termination was unlawful under the National Labor Relations Act (NLRA) in that it was based on a policy that prohibited employees from engaging in “protected concerted activities” — discussing the terms and conditions of their workplace with each other.

In an effort to avoid common traps in cyberspace, employers should seek legal counsel when developing a policy that outlines the accepted use of social media in hiring decisions, as well as firing decisions. For instance, while there may be certain circumstances where an employer can terminate an employee for his personal online communication performed off the clock and outside the office, there are other circumstances where an employer cannot take such adverse action. A public employer generally cannot prohibit its employees from engaging in private communication that is protected by their First Amendment right to free speech. Similarly, an employer generally cannot fire employees for online discussions with co-workers about the terms and conditions of work, such as how much pay each employee at the office earns.

Such a social media policy has two important benefits: it helps employees to align their conduct with the company’s expectations and it helps the company to support a decision to reprimand an employee as appropriate under the expressed standard. Employees left to question the cause of their termination are often the ones who also decide to visit the Equal Employment Opportunity Commission to explore filing a discrimination charge and/or the NLRB to file an unfair labor practice charge against their employer.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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