November 15, 2012

Post-election Facebook faux pas shine light on need for workplace policy

Posted in Computer Use, Discrimination, Employee Handbooks, Facebook, Internet Policies, Race, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 4:19 pm by Tom Jacobson

It’s been barely a week since the 2012 presidential election, but already we are learning of the post-election Facebook faux pas of several employees. For some, their on-line reactions to the electoral outcome have jeopardized their campaigns for continued employment.

For example, one of my readers (thanks, Jay S!) shared with me a Huffington Post report about a  South Carolina teacher who has been suspended and a Ohio teacher who is being investigated — both for their alleged post-election Facebook posts. In the South Carolina case, the teacher is said to have posted, “Congrats Obama. As one of my students sang down the hallway, ‘We get to keep our fooood stamps’…which I pay for because they can’t budget their money…and really, neither can you.” And in the Ohio case, the teacher supposedly posted, “Congrats to those dependent on government, homosexuals, potheads, JAY-Z fans, non Christians, non taxpayers, illegals, communists, Muslims, planned murder clinics, enemies of America, Satan You WON!”

The Los Angeles Times also reports that in Turlock, CA a Cold Stone Creamery employee jumped on Facebook after President Obama’s re-election and posted a racial slur about him, adding, “maybe he will get assassinated.” According to theTimes report, Cold Stone fired her and then tweeted, “The employee is no longer w/the company. We were as shocked as you were by her outrageous & completely unacceptable comments.”

Lastly, WXIA-TV of Atlanta, GA reports that a Georgia clinic worker was recently fired after supposedly posting on Facebook a post-election racial slur about President Obama .

Cases like this do not, however, mean that employers have unbridled discretion to fire employees who they believe have engaged in harmful or offensive social media behavior. There are numerous cases where employees and/or government agencies have successfully challenged employers who have taken such action. Indeed, I wouldn’t be surprised if any of the employees noted above were to challenge their employer’s actions.

What you need to know: If you are an employer, then before disciplining or discharging an employee because of his/her on-line behavior, you must understand and carefully consider the risks. To be proactive, implement and enforce legally sound social media policies. If you are an employee, think twice (or maybe three or four times!) before posting a comment that could cost you your job.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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October 5, 2012

NLRB Rules in Favor of Employer in its First Facebook Firing Case, Strikes down “Courtesy” Policy

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , , , at 8:58 am by Tom Jacobson

In its first decision in a case involving allegations of a firing over Facebook postings, the National Labor Relations Board (NLRB) has ruled in favor of the employer. In the same decision, the Board struck down the employer’s “Courtesy” policy.

The dispute centered mainly around two Facebook postings by a salesman for Knauz BMW in Lake Bluff, IL. In one, he posted sarcastic comments and photos of a Land Rover after it was driven by a customer’s 13-year old child over a wall and into a pond at an adjacent dealership. In the other post, he criticized Knauz for serving hot dogs and water at a luxury car sales event. He was fired a week later. The primary issue in the case became whether he was fired because of the Land Rover photos or because of his criticism of the dealership.

According to the NLRB, being fired for criticizing the dealership may have violated the National Labor Relations Act (NLRA). The NLRA protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. It also protects individual employees if they are acting on behalf of the group. Here, the NLRB said that because the Facebook criticism “involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions,” being fired for those comments may have violated the NLRA.

However, the NRLB also noted that posting the Land Rover photos was not protected by the NLRA. This is because they were “[P]osted solely by [the employee], apparently as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment.”

The administrative law judge who tried the case, Joel P. Biblowitz, found that the salesman was fired because of the Land Rover photos and not because of the Facebook criticism. The NLRB agreed with Judge Biblowitz and, therefore, affirmed that the dealership did not violate the NLRA when it fired the salesman.

Another issue in the case was the following “Courtesy” policy at Knauz:

Courtesy: Courtesy is the responsibility of every
employee. Everyone is expected to be courteous, polite
and friendly to our customers, vendors and suppliers, as
well as to their fellow employees. No one should be
disrespectful or use profanity or any other language
which injures the image or reputation of the Dealership.

The three-member panel split 2-1 on whether this policy violated the NLRA. The majority ruled that it did. Their reasoning was that employees may have reasonably believed that the policy prohibited any protests or criticisms, even those protected by the NLRA. The dissenting judge interpreted the rule as “nothing more than a common-sense behavioral guideline for employees” and was not “a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

What you need to know: Because the NLRB ruled that the salesman was fired for a non-protected reason (posting the sarcastic Land Rover photos), the Board did not rule on whether the criticism posted on Facebook was actually protected by the NLRA. The NLRB is likely to rule on that issue in future cases. In the meantime, the boundaries of what kinds of social media commentary are protected by the NLRA remain unclear. Therefore, employees should use care when posting work-related commentary on Facebook, and employers should use care when considering whether to take action based on such postings. In addition, employers should re-evaluate any “courtesy” rules to make sure they do not violate their employees’ rights under the NLRA.

For more information about this article or how to address social media issues in the workplace, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

October 12, 2011

What does your tech policy say?

Posted in Employee Handbooks, Facebook, Internet Policies, Misconduct, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , at 8:27 am by Tom Jacobson

Facebook.  LinkedIn.  E-mail.  The web.  Smart phones.  We all know that the latest and greatest technology advances have become indispensable tools for business and personal use, but when personal use interferes with business, the troubles at work start to brew.   Employers with well-drafted technology use policies can keep those troubles to a minimum.

Washington County (MN) recently benefited from its own “acceptable use” policy in case decided by the Minnesota Court of Appeals (Misenor v. County of Washington). The case involved Lori Misenor, who was fired after the county discovered that over 25 workdays, Misenor sent 342 personal e-mails from her county e-mail account during business hours.  Moreover, her personal e-mails often contained information about her husband, children, finances, extramarital affair or affairs, critiques of her job and coworkers, her search for a new job, and racially insensitive material.  The Court of Appeals concluded that this was misconduct which disqualified Misenor from unemployment benefits.

Key to the Court’s decision was the fact that Washington County had an “acceptable use” policy regarding its information technology resources. Regarding this policy, the Court noted:

In this case, the county has a policy that limits the amount of personal use of the county’s e-mail system and also prohibits e-mail messages with material that is ‘obscene, pornographic, [or] racially or sexually harassing or explicit.’  This is a reasonable policy that establishes a standard of behavior that the county has the right to reasonably expect of its employees…. Despite this policy, Misenor sent 342 personal e-mails over a 25-workday period. Many of the e-mails are lengthy, indicating that Misenor took considerable time away from her duties to engage in e-mail correspondence. In addition, some of her e-mails contained racially insensitive and sexually explicit material. Misenor’s repeated violations of the county’s policy display a serious violation of the standards of behavior that the county has the right to reasonably expect of her.

Information technology policies are important for many other reasons.  Well-drafted policies set the standards of behavior that employers can expect, so they can provide the basis for disciplinary action and a defense to many legal claims. However, poorly drafted use polices have been held to violate the National Labor Relations Act (see NLRB challenges Facebook firingFacebook firings revisited – NLRB extends its reachFacebook firing case settled).

For more information about how to craft an effective technology use policy, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 22, 2011

Firing over Facebook photo — a violation of Minnesota law?

Posted in Employee Privacy, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , , , , at 9:34 am by Tom Jacobson

In several previous articles, I’ve commented on situations where employers have disciplined employees because of their Facebook posts.   CBS News is now reporting another such case which, if it had occurred in Minnesota, would have likely led to a courtroom victory for the employee (see Did the Internet Kill Privacy?, http://bit.ly/fKX0vW).

The story relates to Ashley Payne, a 24-year old school teacher from Georgia.  After Payne vacationed in Ireland, she posted on Facebook a picture of herself holding a glass of beer and a glass of wine.  The picture also contained some “profanity.”  Payne mistakenly assumed the photo would remain private, but of course it did not.  A parent of one of her students saw it and complained to the principal who then gave Payne the option of resigning or being suspended.  Payne chose to resign.

Forcing a Minnesota employee to make such a choice over photos of herself holding glasses of alcohol would likely have violated state law.  Minnesota has enacted the Lawful Consumable Products Act (see Minnesota Statutes, Section 181.938, http://bit.ly/fyiKcT).  This statute prohibits an employer from disciplining or discharging an employee who engages in the lawful consumption of alcohol or tobacco, provided that the consumption takes place off the employer’s premises and during non-work hours.  Consequently, no matter how opposed an employer may be to drinking and smoking, disciplining an employee or rejecting an applicant for engaging in these off-duty activities would be unlawful.

As the CBS story about Payne shows, it is nearly impossible to maintain true “privacy” on Facebook.  And, while it makes sense for employers to check Facebook and other sources for information about employees and applicants, extreme caution needs to be taken when deciding how to use the information gained — especially if it relates to lawful off-duty conduct.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

February 10, 2011

Facebook firing case settled

Posted in Collective Bargaining, Employee Handbooks, Internet Policies, National Labor Relations Act, Social Media in the Workplace, Social Networking tagged , , , , , , at 3:41 pm by Tom Jacobson

Last November I noted that the National Labor Relations Board had filed a complaint against American Medical Response of Connecticut, Inc., after AMR fired Dawnmarie Souza for posting negative comments about AMR on Facebook (see NLRB challenges Facebook firing,  http://bit.ly/ebpxp7).

The problems started when Souza posted negative comments about her supervisor on Facebook and then responded to comments her co-workers had also posted.  Souza was fired because of her commentary, and the NLRB took the position that firing her violated the National Labor Relations Act because it interfered with her right to discuss with her co-workers the terms and conditions of their employment.

The case has now been settled (see Settlement reached in case involving discharge for Facebook comments,  http://bit.ly/gAfETD.  According to the NLRB, the settlement requires AMR to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”  A private and undisclosed settlement was also reached between Souza and AMR.

Although the National Labor Relations Act was enacted long before anyone ever posted anything on Facebook,  the Souza case shows that the right of employees to discuss the terms and conditions of employment is being extended into the realm of social medial.  Therefore, the case should cause employers to take a close look at their social media policies to make sure they are not overbroad.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

November 23, 2010

Facebook firings and the First Amendment

Posted in Discrimination, Employee Handbooks, Employee Privacy, First Amendment, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , at 10:10 am by Tom Jacobson

It’s a free country.  Sort of.

The recent firing of Alisha Arnold by Eagan, MN-based TempWorks Software adds yet another layer to the complex world of work and social media.  According to KSTP-TV, Arnold was fired after she and her husband created a controversial website  that asked the public to vote for or against the abortion of their unborn child (see Apple Valley Woman Who Launched Abortion Voting Site Is Fired, http://kstp.com/article/stories/S1851233.shtml?cat=0).  According to a memo KSTP obtained, TempWorks reasoned that Arnold’s postings posed a “grave risk to the reputation of the company…”.

But isn’t it a free country?  Doesn’t the First Amendment prohibit an employer from firing an employee who speaks her mind?  Not necessarily.  Although public (that is, governmental) employers must be cautious about First Amendment issues, the First Amendment does not apply to  private employers such as TempWorks.  So, Arnold will not be protected by the First Amendment even though TempWorks apparently fired her because of what she said and how her comments/actions somehow damaged the company’s reputation.

Even though private sector employers really do not have to worry about the First Amendment, there are plenty of other reasons why they should be cautious about firing employees over their Facebook posts or other on-line activities.  For example, Minnesota law prohibits employers from discharging employees because they engage in the use or enjoyment of lawful consumable products (such as alcohol or tobacco), if the use or enjoyment takes place off the premises of the employer during nonworking hours (consider a Facebook post of an employee at a party).  And, other laws prohibit employers from disciplining or discharging employees because of many other legally protected characteristics (consider an employee’s own website advocating civil rights of some kind).

So, even if a private sector employee’s on-line activities pose a “grave risk to the reputation of the company,” those activities may be protected by something other than the First Amendment, and that should cause employers to proceed with caution before taking action.  Well-written Internet and social media policies can help define everyone’s respective rights and responsibilities.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

November 12, 2010

NLRB challenges Facebook firing

Posted in Collective Bargaining, Employee Handbooks, Internet Policies, National Labor Relations Act, Social Media in the Workplace, Social Networking tagged , , , , at 1:17 am by Tom Jacobson

In a case to be watched, the National Labor Relations Board claims that an employer illegally fired an employee who criticized her supervisor on Facebook.  The case involves Dawnmarie Souza who was a paramedic for  American Medical Response.  Souza posted her negative commentary from her home computer, and this prompted her co-worker Facebook friends to respond with their own comments supporting Souza.  That, in turn, lead Souza to post more criticism of her supervisor.  American Medical Response then fired Souza because her posts violated the company’s Internet policies.

The NLRB has now stepped into this Facebook firing fray.  The NLRB is a federal agency charged with safeguarding employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

According to the NLRB, Souza’s firing violated the National Labor Relations Act.  The NLRA is a federal law that gives employees the right to form unions, and it prohibits employers, whether unionized or not, from interfering with their employees’ right to discuss working conditions or unionization.  In Souza’s case, the NLRB claims that American Medical Response’s Facebook rules are overbroad and improperly limit the employees’ right to discuss working conditions.

This is the first case where the NLRB has made the argument that employees engage in protected activity when they use social networking sites to criticize their employers or supervisors.  The outcome of the case could have a significant impact on how employers implement and enforce their Internet and social networking policies.  A hearing on the case is scheduled to begin on January 25, 2011.

For more detail on the story, see NLRB: Workers’ rights extend to Facebook, http://bit.ly/cl9BbX.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

October 22, 2010

Facebook follies continue to confound

Posted in Cyber Bullying, Social Media in the Workplace, Social Networking tagged , , , , at 3:17 pm by Tom Jacobson

Sometimes you just have to ask  yourself, “What were they thinking?” 

In a story today in the Red Tape Chronicles, MSNBC reports on the growing number of cases where Facebook interactions between teachers and students have crossed multiple boundaries (Teachers, Students and Facebook, a Toxic Mix, http://redtape.msnbc.com/2010/10/).   According to the story, three teachers were fired after posting comments like “This is sexy” under girls’ pictures.  Some of them even used Facebook to initiate real-life relationships with students.

A Pennsylvania school suspended a teacher after photos of her with a stripper showed up on Facebook.  A Florida teacher was suspended after posting a comment about how he “hated” his students and school.  In Washington, D.C. a special education teacher posted “You’re a retard, but I love you.”

On the flip-side the MSNBC story also notes that fake profiles attacking teachers and school administrators also abound on Facebook.  And, with the help of the American Civil Liberties Union, at least one student has been successful in gaining First Amendment protection under the United States Constitution for her Facebook criticism of her English teacher.

As Facebook and other social networking sites continue to evolve, so will the body of law surrounding it.  In the meantime, employers and employees would be wise to realize that while social networking sites can be a great business tool, they can also be a tremendous liability if not handled properly.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney. 

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