Social Media and the NLRB (Addendum): More Fuel for the Fire

By Cameron G. Shilling (originally published 10/17/2011)

A new decision has emerged prohibiting companies from adopting and enforcing policies that impact employees’ use of social media.  We recently posted a three part blog discussing the role the National Labor Relations Board (NLRB) has adopted with respect to scrutinizing and invalidating policies that expressly or impliedly apply to employees’ use of social media, and protecting employees from discipline or discharge based on content they post to social media sites.  Before our keyboard had cooled, however, an Administrative Law Judge (ALJ) issued another such decision in Karl Knauz Motors, Inc. d/b/a Knauz BMW.  The Karl Knauz case underscores the points made in our prior blogs, and will serve to further bolster the NLRB’s self-appointed role as protector of social media freedom. Continue reading

Social Media and the NLRB (Part 3): Discipline and Discharge – The Breadth of Concerted Activity

By Cameron G. Shilling (originally published 10/7/2011)

Activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  This includes individual action if the employee “seeks to initiate, induce or prepare for group action” or raises “group complaints to the attention of management.”  In fact, a mere “conversation may constitute concerted activity, even though it involves only a speaker and a listener,” as long as “it had some relation to group action in the interest of employees,” according to National Labor Relations Board (NLRB) in Meyers Industries, Inc.
The nature and breadth of this definition has significance to social media, which frequently involves on-line conversations about work between employees who are social media “friends.” Continue reading

Social Media and the NLRB (Part 2): Employment Policies – The Chilling of Concerted Activity

By Cameron G. Shilling (originally published 10/5/2011)

The “mere maintenance” of a policy or practice that tends to chill employees’ exercise of their right to engage in concerted activity violates the National Labor Relations Act (Act), according to the National Labor Relations Board (NLRB) in Lafayette Park Hotel.  Thus, if the policy or practice “explicitly restricts activities protected” by the Act, it is unlawful.  In addition, as the NLRB found in Lutheran Heritage, even if the policy or practice does not do so, it still is unlawful if any one of the following is true:

  1. Employees would reasonably construe the policy or practice to restrict or prohibit concerted activity.
  2. The policy or practice was promulgated in response to union activity.
  3. The policy or practice is applied to restrict protected concerted activity.

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Facebook Exonerated by Federal Court of EPCA and SCA Claims

By Cameron G. Shilling (originally published 5/20/2011)

A federal court has dismissed class action claims against Facebook under the Electronic Communications Privacy Act (ECPA) and Stored Communications Act (SCA).  The claims arose from Facebook’s practice in early 2010 of disclosing to advertisers the user names of Facebook users who clicked on advertisements, even though that practice was contrary to Facebook’s privacy policy.

The ECPA prohibits the interception of an electronic communication when it is in transit from sender to recipient.  The SCA prohibits the unauthorized access or disclosure of electronic communications stored on certain computer systems.

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