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“Smile, you’re on Candid Camera.” Originally coined on the eponymous TV show, that catchphrase is becoming more of common refrain in the workplace. Any employee with a smartphone can easily record an office conversation in secret. But are such covert recordings legal? And what control, if any, does management have over the making of such recordings?
The Law of Recording Face-to-Face Conversations
A majority of states (approximately 37) follow the one-person consent rule for recording face-to-face conversations. This rule authorizes the recording of a conversation so as long as one person in the conversation consents. The consenting party can also be the person recording the conversation. Practically speaking, this means it is legal to record a conversation with another person without his or her knowledge.
Most other states require the consent of all participants in the conversation. Covert recording of face-to-face conversations would not be permitted in states that follow the all-party consent rule.
Workplace Bans on Covert Recordings
Even if covert recordings are legal, management may regulate the practice if done so consistently with the right of employees to engage in concerted activity, which is protected under Section 7 of the National Labor Relations Act (NLRA). A recent National Labor Relations Board decision illustrates this. Whole Foods Market, Inc., Case No. 01-CA-096965 (Oct. 30, 2013). The case involved a challenge to a company policy that banned employees from recording conversations without prior management approval. The company’s stated purpose for the policy was “to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”
The administrative law judge (ALJ) in the case upheld the policy. The ALJ noted that there is no protected right to record conversations in the workplace, but even if there were such a right, management may regulate the exercise of that right. It was not adopted in response to union activity, and it was clearly tied to the company’s core value of fostering open and honest dialogue about company matters. The ALJ disagreed that the policy could reasonably be interpreted as a restriction on using social media to communicate and share information about work conditions through video recordings made at the workplace. The policy regulated a means of communication as opposed to the protected activity itself. It also did not prohibit employees from making recordings during non-work time. The policy therefore did not violate Section 7 rights.
The Whole Foods Market decision suggests questions that management should consider when drafting a work rule against covert recordings to ensure that the rule does not violate the NLRA:
- Is the rule clearly linked to a purpose besides preventing employees from engaging in Section 7 activity?
- Does the rule leave open alternative channels for employees to communicate about Section 7 activity?
- Does the rule allow employees to make recordings during non-work hours?
A ban on covert recordings is more likely to withstand a legal challenge if management can answer “yes” to each of these questions.
Facebook comments about condition of company vehicles are protected under the NLRA; a Facebook rant about fake problems with the company car, not so much – Butler Medical Transport, LLC, 2013 WL 4761153 (N.L.R.B. Div. of Judges)
A recent decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) gives employers insight on when they can and cannot fire an employee for their social media conduct outside of work. Particularly interesting is the fact that this decision involved two separate terminations, one of which the ALJ found illegal, and the other not.
The Norvell Termination
William Norvell worked as an emergency medical technician for an ambulance company, Butler Medical Transport (Butler). While on his personal computer at home, Norvell read a post by a co-worker (Zalewski) on her Facebook page stating that she had been fired. Zalewski attributed the firing to a patient report to management that she complained about the condition of Butler’s ambulances. Several people, including another Butler employee, posted comments inquiring into the incident, to which Zalewski responded with more posts about the patient’s report. Norvell responded to Zalewski with this comment:
“Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
Another person posted a comment suggesting that Zalewski find a job with another ambulance company. After Zalewski asked where the company was located, Norvell posted the location and added, “You could contact the labor board too.”
Butler’s HR director obtained hard copies of these posts, and in consultation with the COO, decided to terminate Norvell. The HR director told Norvell that he was being terminated for violating Butler’s bullet point list of work rules, one of which prohibited employees from using social networking sites that could discredit Butler or damage its image.
The ALJ determined that Norvell’s Facebook posts were protected concerted activity. By advising Zalewski to see a lawyer or contact the labor board, Norvell was “making common cause” with a co-worker about a matter of mutual concern to the employees, i.e., the condition of Butler’s ambulances. Norvell’s posts had protected status even though they were accessible to people outside of the company because Section 7 of the National Labor Relations Act (NLRA) extends to employee efforts to improve the terms and conditions of employment through channels outside of the employer-employee relationship. The ALJ did not find posts to be so disloyal, reckless, or maliciously untrue as to lose their protected status. The termination of Norvell based on his Facebook posts therefore violated Section 8(a)(1) of the NLRA.
The Rice Termination
Another Butler employee, Michael Rice, posted this comment on Facebook:
“Hey everybody!!!!! Im fuckin broke down in the same shit I was broke in last week because they don’t wantna buy new shit!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store,”
Butler terminated Rice for making this post. At the trial hearing before the ALJ, Butler produced maintenance records showing that Rice’s vehicle was not in disrepair when he made the post. Rice had also testified at his unemployment insurance hearing that his post referred to a private vehicle rather than a Butler ambulance. There being no evidence to the contrary, the ALJ determined that Rice’s post was not protected by Section 7 because it was maliciously untrue and made with the knowledge of its falsity. As a result, Rice’s termination was not illegal.
Legality of Work Rules
Also under scrutiny was the legality of two of Butler’s work rules, one prohibiting the “unauthorized posting or distribution of papers,” and the other requiring employees to acknowledge that they “will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages its image.” Butler argued that the rules were not official company policy because they were stated in a bullet point list. The ALJ rejected the argument as making a distinction without a difference. Butler relied on the bullet point rules in terminating Norvell and Zalewski, and new employees were required to acknowledge receipt of the list. As such, employees could reasonably understand that they would be disciplined for failing to follow the rules on the list. The ALJ found that the rules violated Section 7 activity because they prohibited employees from communicating to others about their work conditions.
LegalTXTS Lesson: This case doesn’t break new ground, but it does contain a few important reminders for employers grappling with how far they can go in regulating the social media activity of employees.
1. A policy by any other name … is still a policy. Butler’s failure to convince the ALJ that the bullet point list was not company policy should serve as a reminder that if a company communicates a rule to its employees in writing, expects them to follow the rule, and disciplines them if they don’t, the rule is effectively a policy. It doesn’t matter that the rule appears in a document whose title doesn’t include the word “policy,” or that the wording of the rule is informal.
2. Write it right. Given how easily a supposedly informal rule could qualify as a policy, a company should take care in articulating its work rules in the form of an official written policy. Consult with counsel to make sure the wording doesn’t inadvertently violate the law.
3. Don’t go overboard. The NLRB has consistently frowned upon work rules that flat out prohibit employees from posting content on social media that damages the reputation of their employer, or worse yet, bars them completely from speaking to others about work-related issues, whether on social networking sites or other media. (For examples, see the related posts below). Reject categorical bans on employee speech in favor of rules that focus on creating or avoiding specific results.
4. Context matters. Before disciplining an employee for a social media post, understand the context in which the post was made. Is the post about a work-related issue that other employees have discussed before? Does the post call for co-workers to take action? Asking such questions helps management determine if the post is protected under the NLRA.
NLRB dishes out confusion on social media policies
NLRB sanctions employees who fire employees for online “protected concerted activity”
DirectTV’s work rules invalidated by NLRB
NLRB Strikes Down Restrictions on Employee Communications on Social Media and Elsewhere — DirectTV U.S. DirecTV Holdings, LLC, 359 NLRB 54 (Jan. 25, 2013)
On the same day that the D.C. Circuit Court of Appeals ruled that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional, the NLRB struck down several of DirectTV’s work rules, including one relating to social media use. The ruling comes as little surprise, as it mirrors the positions and rationale stated in previous Guidance Memoranda issued by the NLRB’s Office of General Counsel. Of course, this decision carries more weight because it’s issued by the Board itself (but query the ruling’s validity in light of the D.C. Circuit decision).
Restrictions on employee communication with the media
The first two rules instructed employees to “not contact the media,” and “not contact or comment to any media about the company unless pre-authorized by Public Relations.” Section 7 of the National Labor Relations Act (NLRA) protects employee communications with the media concerning labor disputes. The broad and unequivocal language of the rules could lead an employee to believe that such protected activity is not permitted under the rules, which is unlawful, the NLRB. The rules did not distinguish between protected and unprotected communications (e.g., maliciously false statements).
Restrictions on employee communication with NRLB agents
The next rule in question stated: “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the security department . . . who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” The NLRB found that this rule would make employees think that they must go through their employer before cooperating with an NLRB investigation, as NLRB agents could reasonably be considered “law enforcement” as far as labor matters are concerned. This violates Section 8(a)(4) of the NLRA, which protects employees who file unfair labor practice charges or who provide information in the course of an NLRB investigation. While an employer could have a legitimate interest in knowing about attempts by law enforcement agents to interview employees, the rule failed to separate out those situations from those in which the Section 8(a)(4) protections apply.
DirecTV instructed employees to “[n]ever discuss details about your job, company business or work projects with anyone outside the company” and to “[n]ever give out information about customers or DIRECTV employees.” The rule identified “employee records” as one of the categories of “company information” that must be kept confidential. The NLRB struck down these rules because employees could reasonably understand them to restrict discussion of their wages and other terms of conditions of employment. The rule was also deficient in not exempting protected communications with third parties such as union representatives, NLRB agents, or other governmental agencies concerned with workplace matters.
Online Disclosures of “Company Information”
DirecTV posted a corporate policy on its intranet stating: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” In addition to the policies on the intranet, DirecTV issued a handbook with overlapping sets of rules governing employee conduct and effectively directed employees to read them as one. The handbook contains a confidentiality rule that defines “company information” as including “employee records.” Reading the two policies together, an employee could understand the intranet policy to prohibit online disclosure of information concerning wages, discipline, and performance ratings.
LegalTXT Notes: This ruling isn’t groundbreaking, but it confirms that the Board agrees with the positions taken in the previous OGC Guidance Memoranda on social media policies. The D.C. Circuit does cast a pall over the validity of this ruling, although the NLRB supported the ruling with multiple Board decisions that were issued well before the recess appointments were made.
The steady flow of memos and decisions on social media from the NLRB in the last two years regarding social media has left many employers bewildered about the do’s and don’ts of social media policies. The NLRB has been rather active in striking down social media policies for unlawfully restricting activity protected by Section 7 of the National Labor Relations Act (NLRA). In the midst of this confusion, allow me to direct your attention to a little feature with a heroic name – the Savings Clause. A Savings Clause is a statement that sets boundaries around a social media policy. It’s basically a disclaimer. It says something along the lines of, “this policy should not be interpreted to prohibit X,” and theoretically, that clarification should “save” a rule from being illegal. Pretty nifty, eh?
Now, before you think popping a Savings Clause into a social media policy will magically shield you from legal trouble, it’s a bit more complicated than that. The NLRB has spoken on Savings Clauses in social media policies since its Office of the General Counsel (OGC) issued the third memo on social media on May 30, 2012. The NLRB also weighed in on Savings Clauses in its September 18, 2012 decision striking down Costco’s social media policy (the first NRLB decision addressing social media issues); its September 25, 2012 decision striking down Echostar Technologies’ social media policy; and the OGC’s Advice Memorandum issued on October 19, 2012. The fact that the NLRB has issued all this “guidance” should give employers pause about thinking that Savings Clauses are simple to write. They’re not. But NLRB guidance suggests that Savings Clauses can be effective if written well.
Here are some tips on using Savings Clauses drawn from NLRB decisions and memos.
1. Having a Savings Clause is a good idea.
This might seem obvious, but it’s generally a good idea to include a Savings Clause in your social media policy. The NLRB was critical of Costco’s social media policy for not including any type of disclaimer stating that the policy was not intended to interfere with the employees’ rights to engage in activity protected by the NLRA. The NLRB did not go as far as to say that the policy’s other defects would have been cured by a Savings Clause, but the fact that it criticized a social media policy for not having any Savings Clause strongly suggests that having one could only help.
2. Savings clauses don’t save rules that explicitly prohibit concerted, protected activity.
There are some policies even a Savings Clause can’t make better. For example, the OGC’s May 30, 2012 Memo examined a policy that prohibited employees from posting information about employer shutdowns and work stoppages, and from speaking publicly about the workplace, work satisfaction or dissatisfaction, wages, hours, or work conditions. The Savings Clause in the policy stated:
This policy will not be interpreted in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.
The NLRB said that an employee reading the policy would reasonably conclude that the policy prohibited protected activities despite what the Savings Clause said. The lesson here is that a policy can’t forbid activity protected by the NLRA and then expect a Savings Clause to rescue the policy from being unlawful.
3. Use terms your employees can understand.
The Savings Clause in the policy we looked at in the last bullet point suffered from the additional problem of using the term “concerted activities.” The NLRB criticized the clause for not explaining to a layperson what the right to engage in “concerted activity” entails. Lawyers might understand what “concerted activity” or “protected activity” refer to, but employees without legal training might not. Avoid using legal terminology in the Savings Clause. Use plain English instead.
4. Don’t be vague.
A Savings Clause can’t be too vague, or it won’t end up “saving” anything. So what’s considered vague?
A Savings Clause stating that if the policy conflicts with law, “the appropriate law shall be applied and interpreted so as to make the policy lawful” is too vague, according to the NLRB’s Echostar decision. A good Savings Clause must be specific enough to give employees an idea of how the social media policy will be interpreted. A generic statement that the policy is intended to comply with the law means little unless the employer provides some context for the statement.
What if the Savings Clause made the policy subject to a specific law, like the NLRA? That’s better, but still not good enough. The OGC’s May 30, 2012 Memo disapproved of two Savings Clauses, one stating that the policy “will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act),” and another stating that the policy “will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.” The NLRB found both Savings Clauses too vague to cure the policies from being overbroad.
So just how specific should a Savings Clause be? That leads us to–
5. Identify the kind of activity being “saved.”
The OGC’s October 19, 2012 Advice Memo emphasized the importance of drafting rules that provide employees with context. “[R]ules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, so that they would not be reasonably construed to cover protected activity, are not unlawful,” the Advice Memo explained. A Savings Clause can help provide the needed context. The Advice Memo approved of Cox Communications, Inc.’s social media policy, which contained the following Savings Clause:
Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities.
This Savings Clause specifically identified the kind of activity that is permitted—employee communications regarding wages, hours, or other terms and conditions of employment—so as to eliminate any doubt that other rules in the policy might prohibit activity that is protected by the NLRA.
In sum, I hope these tips will help you get the most out of Savings Clauses.
An NLRB administrative law judge ruled on November 28 that a union did not engage in unlawful labor practices by failing to disavow threatening comments posted on its Facebook page. In addition to finding that the Facebook page was not an extension of the picket line, the judge concluded that, under Section 230 of the Communications Decency Act (CDA), the union was not responsible for the comments posted on the page. The case is Amalgamated Transit Union, Local Union No. 1433 v. Weigand, 28-CB-78377 (NLRB Nov. 28, 2012). (Read the decision here)
A union representing public bus drivers went on strike. Several months earlier, the union set up a Facebook page, which the union’s vice-president administered. The union accepted “friend requests” only from union members in good standing. Friends of the union Facebook page could see messages posted on the union’s “wall” and “like” such posts.
Shortly before and during the strike, union members posted comments on the union’s Facebook page threatening retaliation against workers who crossed the picket line. The comments threatened less favorable union representation for those crossing the line, more aggressive reporting of workplace violations against line-crossers, and even violence. Several comments suggested that line-crossers would be physically beaten. Another comment announced the location where employer’s replacement drivers were allegedly being housed, to which a rank-and-file member commented: “Can we bring the Molotov Cocktails this time?” At least one other union member “liked” this comment.
The NLRB Acting General Counsel issued a complaint alleging that the union violated Section 8(b)(1) of the Act by failing to disavow the threatening comments. Rather than alleging that the members posting comments acted as the union’s agents, the Acting General Counsel relied on the theory that a union is responsible for the coercive acts of its pickets on a picket line when the union fails to take corrective action or disavow the actions. The Acting General Counsel argued that the union’s Facebook page is an “electronic extension” of the picket line.
The judge rejected the “electronic extension” theory, noting initially that the Facebook page existed well before the picket line. Moreover, unlike a picket line, a Facebook page does not force union members to make a public and immediate decision to cross the picket line. The Facebook page did not serve to communicate a message to the public, as it is private in nature.
In a somewhat surprising twist, the judge further ruled that the CDA immunized the union from liability for the comments on its Facebook page–an argument neither side had raised. Often invoked in online defamation cases, Section 230(c)(1) of the CDA states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided.” The judge regarded the union as merely the “provider” of the Facebook page, not the “publisher or speaker” of the comments posted on the page by its rank-and-file members. Thus, the union itself could not be held liable for the comments posted on the page.