Firing of Employee For Posting Profanity-Laced Facebook Comments Ruled Illegal

Posted by on Jun 22, 2017 in Employment and Labor, Social Media

Social media seems to be a favorite forum for employees to complain about their workplace.  Firing employees for posting work-related social media messages can land an employer in trouble.  But is management absolutely forbidden from firing employees for making offensive comments on social media?  Is there a line employees may not cross?  The Second Circuit Court of Appeals took up this question recently in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017).

The Facebook Firing

In early 2011, New York catering company Pier Sixty was in the middle of a tense organizing campaign that included management threatening employees who might participate in union activities.  Two days before the unionization vote, Hernan Perez was working as a server at a Pier Sixty Venue.  His supervisor, Robert McSweeney, gave him directions in a harsh tone.  On his next work break, Perez posted this message on his Facebook page:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people! ! ! ! ! ! Fuck his mother and his entire fucking family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

Perez knew that his Facebook friends, including ten coworkers, could see the post, although he allegedly thought his Facebook page was private.  Perez removed the post three days later, but not before it came to management’s attention.  Perez was fired after an investigation.

The National Labor Relations Board (NLRB) decided that Pier Sixty unlawfully terminated Perez in retaliation for “protected, concerted activities.”  Pier Sixty appealed to the Second Circuit and the NLRB filed an application for enforcement of its decision.

Evolving Standards of Whether Obscene Comments Lose Protection

Employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA).  But if an employee’s actions lose NLRA protection if they are “so opprobrious and egregious as to render him or her ‘unfit for further service.’”  See Atlantic Steel Co., 245 NLRB 814 (1979).  Pier Sixty argued that Perez engaged in “opprobrious” conduct by posting obscenities on Facebook.

The Second Circuit noted that the test for opprobrious conduct was unsettled.  The NLRB traditionally used the Atlantic Steel four-factor test that considers the location and subject matter of the discussion, the nature of the employee’s outburst, and if the outburst was provoked by an employer’s unfair labor practice.  But in 2012, the NLRB began using a “totality of the circumstances” test in social media cases to address the unique context of social media and allay concerns that the Atlantic Steel test did not adequately consider employers’ interests.

Second Circuit Sidesteps Review of NLRB’s New Test

Without addressing the validity of the “totality of the circumstances” test, the Second Circuit found “substantial evidence” that Perez’s comments were not so egregious as to lose NLRA protection.  Perez’s message, though vulgar, included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before the representation election.”  Pier Sixty also did not previously discipline employees for widespread profanity in the workplace.  Finally, Perez’s comments were not made in the immediate presence of customers and did not disrupt the catering event.  Despite deciding that Perez’s conduct was not “opprobrious,” the court noted that the case sat “at the outer-bounds of protected, union-related comments” and reminded the NLRB to develop a test giving weight to employers’ legitimate disciplinary interests in preventing employee outbursts in the presence of customers.

Takeaways

Pier Sixty teaches that an employee may not be fired simply for making profanity-laced comments on social media if the comments are related to the workplace.  The fact that the comments are accessible to members of the public, including customers, is not determinative.  So at what point do an employees’ obscene comments lose protection?  That remains an open question after Pier Sixty, but the court’s comments inspire hope that the NLRB will craft a more employer-friendly standard in the future.

 

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Take Control of Negative Online Comments

Posted by on Apr 19, 2017 in Advertising and Marketing, Employment and Labor, Social Media

“Why did you fire my wife?”  Bradley Reid Byrd posted this question on the Facebook page of Cracker Barrel.  Byrd wanted to know why his wife was let go after working for the restaurant chain for 11 years.  The post remained largely unnoticed for about a month until a comedian uploaded a screenshot of it to his Facebook page and his 2.1 million followers.  The internet outrage machine then kicked into high gear.  Multiple hashtags were created (#JusticeForBradsWife, #BradsWifeMatters, #NotMyCountryStore).  Someone started a “Brad’s Wife” Facebook page.  A Change.org petition demanding answers from Cracker Barrel was launched.

Social media makes it easy to channel the furor of the masses against an organization.  The instigator could be anyone with some connection to the organization – a former or current employee, their relatives, or a customer.  What should an organization do if it finds itself at the center of an internet controversy?

Responding to negative online comments is a delicate exercise, and missteps early on can  damage an organization’s reputation tremendously.  From a human resources perspective, the first step is to control who, if anyone, should respond.  Employees should be prohibited from making “rogue” responses on behalf of the organization.  Employers should state this restriction clearly in their social media policy and train employees on the importance of compliance.

After deciding who will handle the response, the next step is figuring out what to say.  The knee-jerk reaction to inflammatory or untrue online comments might be to threaten a defamation suit against the posters, but that can backfire and damage the organization’s reputation even more.  Sometimes the best response is to say nothing and let the controversy pass.

If a response is warranted, consider who the audience will be and how they might respond to it.  Pointing out flaws in the negative comments could be perceived as overly defensive.  On the other hand, respectfully acknowledging the negative comments or posting positive content about to organization could defuse the controversy.

Whatever the response, it should be the product of careful consideration.  On the internet, it takes just a few clicks to set off a firestorm.

 

 

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NLRB Advice Memorandum Provides Guidance on How to Revise an Illegal Social Media Policy

Posted by on Mar 22, 2017 in Employment and Labor, Social Media

On January 1, 2017, the National Labor Relations Board (NLRB) Office of the General Counsel released an advice memorandum (dated September 22, 2016) reviewing the social media policy in Northwestern University’s revised Football Handbook.  The memorandum contains valuable guidance in an area full of uncertainty, as the NLRB has struck down seemingly common sense social media policies because of their potential to chill employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted protected activities.”  Section 8 of the NLRA prohibits employees from restraining employees from exercising their Section 7 rights.

According to the memorandum, Northwestern voluntarily revised its Football Handbook after receiving a charge alleging that the handbook violated the NLRA.  The advice memorandum reviewed the revised handbook for compliance with the NLRA.  Assuming for the purpose of the review that Northwestern’s football players are “employees” under the NLRA, the advice memorandum concluded that the revised social media policy passed muster.

The memorandum reprinted the original language of the policies along with the revisions in redline, as follows (deleted language in strikeout and new language in bold):

[W]e are concerned about… protecting the image and reputation of Northwestern University and its Department of Athletics and Recreation. . . .

Publicly posted information on social networking websites can be seen may be regularly monitored by any person with a smart phone or internet access, including individuals a number of sources within Northwestern University (e.g., Athletics Department, Student Affairs, University Police). . . .

Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassing harassing, unlawful or dangerous behaviors such as full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, unlawful activity or any content that violates Northwestern University, Athletics Department or student-athlete codes of conduct and/or state or federal laws.

….

Do not post any information, photos or other items online that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity could embarrass you, your family, your team, the Athletics Department or Northwestern University.

Although the advice memorandum did not elaborate on why the original policy could violate the NLRA while revised policy would not, it provides important clues on drafting lawful social media policies.  The modifications to the policy generally substituted vague terms like “inappropriate” and “embarrassing” with descriptions of the content that the policy prohibits.  For example, the revised policy specifically prohibits social media posts depicting “nudity,” “racial or sexual epithets,” and “underage drinking,” among other things.  The revised policy also eliminated protection of the employer’s “image and reputation” from the description of the policy’s purpose.  In previous guidance, the NLRB has determined that employers may not require employees to refrain from engaging in activity that generally damages the employer’s reputation because that could be construed to prohibit “concerted protected activity” such as criticism of work conditions or compensation policies.

The recent advice memorandum reinforces the need to be precise when drafting a social media policy.  Experienced counsel can assist in identifying the types of social media content that the NLRB has allowed employers to prohibit employees from posting.

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The Tax Scams Cometh

Posted by on Jan 25, 2017 in Data Security, Employment and Labor

Tax season is miserable for many because it means having to cut a check to the IRS.  But it’s not just Uncle Sam who’s interested in your money.  Scammers are also looking to get paid, and they’ll do it by stealing personal information.  Employees tasked with preparing tax forms, like human resources (HR) professionals, are prime targets of scams.  Using various forms of subterfuge, scammers convince HR to hand over private information about an employee, which they’ll then use to file false tax refund claims.  The surge in tax scams has prompted the IRS to issue multiple alerts and host National Tax Security Awareness Week last December to educate the public about tax-related cybercriminal activity.

What’s the scam?

Scammers impersonate people whom the victim is likely to trust, like a well-known service provider (e.g., FedEx) or a person with a legitimate need for access to sensitive information (e.g., an IRS agent).  This is known as “spoofing.”  Sometimes a “spoofed” email tries to get the recipient to open an attachment containing a virus or click on a link to a malicious site (which might look legitimate).  A specific type of spoofing attack known as “phishing” aims to convince the victim to divulge personal or financial information.  For example, a phisher posing as an employee might email the HR department for a copy of his W-2 form.  Even more targeted is a “spear phishing” attack aimed at a specific individual.  The IRS has warned of spear phishing schemes involving emails to an HR professional sent from the spoofed email address of a C-suite executive.  The email will ask the HR professional to send a tax form or to provide information about an employee supposedly for a tax filing. Once the scammer has the information, he or she will file a tax refund under the employee’s name.

Protective measures

The best way to avoid being a victim of a phishing attack is to raise awareness.  Employees should be regularly trained to practice the following defensive measures:

  • Be suspicious of all email requests for confidential information, even if they come from high-level personnel within the company. Tell-tale signs are spelling or grammatical errors or language that the sender doesn’t typically use.
  • Confirm requests for confidential information by calling the requester.
  • Avoid sending confidential information electronically. Hand deliver the information or send it by mail to a verified address.
  • If confidential information has to be transmitted electronically, encrypt it before sending.
  • Never send confidential information by hitting the “reply” button. If an email is spoofed, the reply email will go to the imposter.  Instead, compose a new email and manually type in the email addresses of the recipient.
  • Apply extreme caution when opening attachments. Never open an attachment with the .exe extension.  Note that an attachment might be altered to look like an ordinary word processing document, spreadsheet, or PDF.  When in doubt, send your IT department a screenshot of the email and consult with them on what to do next.

Responding to a security breach

In the unfortunate event that a company falls victim to a phishing attack, it should immediately gather facts about the incident including the number of employees involved, where the affected employees are located, what information was stolen, and whether the stolen information has been put to use.  Consult with a lawyer to determine next steps.  In Hawaii (as in many states), a business is legally obligated to provide notice to victims of a security breach.  Experienced counsel can navigate the company through data breach notification laws and advise on liability and remedial measures to take.

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Police officer suspended for controversial Facebook posts allowed to go to trial on First Amendment retaliation claim

Posted by on Oct 26, 2016 in Employment and Labor, First Amendment, Social Media

It’s generally a good practice to set standards of online employee conduct to prevent the social media activity of employees from disrupting the workplace or tarnishing your organization’s reputation.  But the mere fact that an employee comments on controversial subjects on social media doesn’t necessarily justify disciplinary action.  That’s especially true in the case of a public employer.  Disciplining a government employee for posting social media messages about a topic of public concern could violate the First Amendment, as illustrated by a recent Ohio decision.  Hamm v. Williams, Case No. 1:15CV273 (N.D. Ohio, Sept. 29, 2016).

Hamm centered around the controversy over the fatal police shooting of two unarmed African-Americans following a high-speed car chase.  The incident — sometimes known as the “137 shots” in reference to the number of bullets that were fired at the couple — was highly publicized and the target of protests by the Black Lives Matter movement.  Seven Cleveland police officers were indicted as a result.  While off-duty, a Cleveland police officer (Hamm) used his home computer to post Facebook comments criticizing the indictments and showing support for his colleagues.  Approximately one week later, Hamm wrote on Facebook that an unidentified individual found his original comments offensive and had reported the first post to his supervisors.

After conducting an investigation, the supervisors determined that Hamm had breached department rules against using social media to discuss a criminal investigation involving the department or posting material that would “tend to diminish” public esteem for the department.  The department suspended Hamm for 10 days.  Hamm sued the city for retaliating against him for exercising his First Amendment right to free expression.

Under U.S. Supreme Court precedent, government employees have a First Amendment right to speak as private citizens on matters of public concern.  However, an employee’s constitutionally protected right to free expression must be balanced against a public employer’s interest in efficient delivery of public services.

The court determined that Hamm was speaking as a private citizen, as he had posted the Facebook comments while he was off-duty using his home computer.  The subject of his comments – a highly publicized police shooting and the aftermath – was a matter of “political, social or other concern to the community” and not just a “quintessential employee beef.”

The city argued that a police department, as a paramilitary organization charged with maintaining public safety and order, had a greater interest in regulating the speech of its employees than an ordinary public employer.  The city contended that it was justified in ensuring that officers are not publicly criticizing an investigation or placing a stigma on the criminal justice system or internal police operations.

The court rejected the city’s arguments because it found no evidence that Hamm’s posts actually resulted in work stoppages or that any officers declined to fulfill his or her duties because of Hamm’s posts.  The court therefore allowed Hamm to proceed to trial on his First Amendment retaliation claim.

Hamm is a good reminder that discipline should not be a knee-jerk reaction to controversial social media posts of an employee.  Conduct an investigation and collect evidence of the actual or potential disruptive impact of the comments before taking disciplinary action.  If you’re a public employer, the First Amendment adds an extra layer of protection for employees.  Consult experienced counsel to help you analyze the impact of constitutional protections for online employee speech.

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