A recent National Labor Relations Board Shore Point Advisory Letter gives a bit of good news to employers who want to use modern monitoring technology to monitor employees that they suspect are breaking work rules. On November 2, 2015, the NLRB concluded that an alcoholic beverage distributor (Shore Point), did not violate labor laws by failing to negotiate with its employees’ union before installing a GPS tracking device on an employee’s company truck. Shore Point suspected that the employee was stealing time while on his work routes. Shore Point’s collective bargaining agreement contains rules against stealing time.
Shore Point hired a private investigator to follow the employee to collect evidence for disciplinary purposes, an established practice the union had not objected to in the past. The investigator placed a GPS tracking device on the employee’s truck to maintain and regain visual contact. The GPS was only installed on the employee’s vehicle on the days when the investigator was following the employee, and was used as a backup method in case the investigator lost visual sight of the employee and his truck. Based on the investigator’s observations of the employee engaging in misconduct, Shore Point terminated the employee. The union filed a charge alleging that the employer unilaterally engaged in electronic surveillance without bargaining in violation of the National Labor Relations Act.
The NLRB determined that Shore Point did not have an obligation to bargain over the installation and use of the GPS device. Although the use of the device was a mandatory subject of bargaining, it did not amount to a material, substantial, and significant change in the terms and conditions of employment. Shore Point had an existing practice of using a personal investigator to monitor employees suspected of misconduct. Using a GPS tracking device was just “a mechanical method to assist in the enforcement of an established policy,” and therefore was not a material, substantial, or significant change in policy. The NLRB also noted that the GPS device only added to information that the private investigator had collected through personal observation, did not increase the likelihood of employee discipline, and did not provide an independent basis for termination.
At least two lessons can be learned from this case. First, when crafting employee work rules subject to bargaining, build in flexibility to allow for use of technological advances in enforcement methods. Second, disciplinary action against an employee should be supported with various types of evidence if possible. Just relying on evidence collected with a controversial or untested method is risky because if the use of the method is determined unlawful, the basis for the disciplinary action disappears.
Birth announcements. Girl Scout cookies fundraisers. Leftovers in the company lounge. We’ve all probably received an email at work on these or similar subjects. It’s uncommon for an employee be disciplined for sending an email of such nature. But would that limit a company’s ability to act when employees circulate emails on more controversial topics?
This question was raised in a recent National Labor Relations Board (NLRB) decision involving the Jet Propulsion Laboratory (JPL) affiliated with NASA. In re California Inst. of Tech. Jet Propulsion Lab, 360 NLRB 63 (Mar. 12, 2014). Based on a Homeland Security directive, NASA began requiring JPL employees to submit to federal background checks as a condition of continued employment. Twenty-eight JPL employees who believed that the background check process violated their privacy rights filed a federal class action. The case led to a U.S. Supreme Court decision holding that mandatory compliance with the background check process did not violate the right to informational privacy. See NASA v. Nelson, 131 S. Ct. 746 (2011).
Several of the plaintiffs felt that management did not adequately inform employees about the actual impact of the Supreme Court decision, so they expressed their view of the decision in emails to their colleagues. The emails were sent to several thousand JPL employees using NASA-owned computers and JPL email addresses. After allegedly receiving complaints about the emails, management issued written warnings to the authors of the emails. The warnings alleged that the authors had violated several work policies prohibiting, among other things, “spamming” co-workers; sending unauthorized, non-work-related emails; and implying JPL endorsement of a position on political, social, or legal issues. The authors filed charges with the NLRB claiming that JPL violated their right to engage in concerted protected activity under Section 7 of the National Labor Relations Act.
The NLRB found that JPL employees frequently circulated emails on topics like charity fundraisers and social causes. Such emails technically violated work policies, but there was no evidence of enforcement in those instances. The discipline in this case was thus suspect. Although employees have no legally protected right to use their employer’s computers to engage in protected concerted or union activity, and may be lawfully disciplined for doing so, management may not choose to enforce only work policies involving concerted protected activity.
The decision is not a prompt to start disciplining employees who offer home-baked cookies to co-workers using email. Email can be a convenient tool for building company morale. But the decision does warn against using work policies pretextually to control discussion of work matters. JPL selectively enforced its work policies to silence certain viewpoints on a work-related issue, as highlighted by the fact that JPL supervisors commented on the Supreme Court decision using their work email accounts without being subjected to discipline. Work rules commonly included in an employee manual but inconsistently enforced– like an email use policy – shouldn’t be used as a basis for silencing employees who criticize management or express dissatisfaction with work conditions.
(Photo credit: Wikipedia)
“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.
Employers who discipline employees for their social media activity could unwittingly violate protections under the National Labor Relations Act (NLRA) for employees who engage in “protected concerted activity.” An employee engages in protected concerted activity when acting together with other employees, or acting alone with the authority of other employees, for the mutual aid or protection of co-workers regarding terms and conditions of employment. Since social networks by nature connect people, online gripes about work—which could be read by co-workers of the author within the same social network—could constitute protected concerted activity. Three recent National Labor Relations Board (NLRB) decisions highlight this risk.
In Hispanics United of Buffalo, Inc., 359 NRLB No. 37 (Dec. 14, 2012), an employee at a domestic violence relief organization posted on Facebook about a co-worker (Cruz-Moore) who threatened to complain about the work habits of other employees to the executive director of the organization. The employee wrote: “Lydia Cruz, a coworker feels that we don’t help our clients enough . . . . I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post with disagreement over Cruz-Moore’s alleged criticisms. Cruz-Moore saw these posts, responded to them, and brought them to the attention of the executive director. The employee who authored the original post and the employees who responded were fired. Two NLRB members of a three-person panel found the termination to be a violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB found the posts to be “concerted” because they had the “clear ‘mutual aid’ objective for preparing coworkers for a group defense to [Cruz-Moore’s] complaints.” The NLRB also considered the posts “protected” because they related to job performance matters.
In Pier Sixty, LLC, 2013 WL 1702462 (NLRB Div. of Judges Apr. 18, 2013), the service staff of a catering company were in the process of taking a vote on union representation when a staff member (Perez) got upset by what he perceived as harassment by his manager. During a break, Perez went to the bathroom and posted on Facebook: “Bob is such a NASTY M***** F****R don’t know how to talk to people!!!!! F**k his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION.” Various co-workers responded to the post. The company fired Perez after learning about the post. An administrative law judge of the NLRB held that the employer violated Section 8(a)(1) of the NLRA. The judge found the post to constitute “protected activity” because it was part of an ongoing sequence of events involving employee attempts to protest and remedy what they saw as rude and demeaning treatment by their managers. The post was also “concerted” because it was activity undertaken on behalf of a union.
In Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013), employees of a clothing store repeatedly but unsuccessfully attempted to persuade their employer to close the store earlier so that they wouldn’t have to walk through an unsafe neighborhood at night. The employees posted Facebook messages lamenting the denial of their request and criticizing their manager. In one message, an employee said she would bring in a book on workers’ rights to shed light on their employer’s labor law violations. Another employee saw the messages and sent them to the HR director, who in turn forwarded them to the store owner. The owner fired the employees who posted the messages, allegedly for insubordination. A NLRB administrative law judge found the terminations unlawful because the messages were a continuation of an effort to address concerns about work safety (i.e., leaving work late at night in an unsafe neighborhood) and thus constituted protected concerted activity.
LegalTXTS Lesson: What should employers learn from these decisions? To avoid violating Section 8(a)(1) of the NLRA, employers might consider the following before disciplining employees based on their social media activity:
- Check whether the employee’s post attracted or solicited a response from co-workers. The interactive nature of social networking means that communications via social media are often “concerted.”
- Calls for co-workers to take action likely constitute “protected” activity.
- Complaints about work or co-workers—even if vulgar—can be considered “protected” activity.
- Messages posted outside of the workplace or work hours can still be considered protected concerted activity.
- Be especially sensitive to messages that reference collective bargaining activity or labor requirements. Those are red flags indicating the need to exercise caution.
- Often, social media is not the initial venue for airing work-related complaints. Investigate whether the complaints voiced online were previously brought to the attention of the employer. If they were, the online messages are more likely to be found to be part of a series of protected activity.
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.