NLRB and Courts Continue to Issue Interesting Social Media Decisions - Articles

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Posted by: Christy Gibson on Oct 7, 2013

By Bruce E. Buchanan*

As I have reported in several past newsletters, the National Labor Relations Board continues to decide Social Media cases.  Additionally, the courts are issuing more and more decisions involving Social Media. In this article, I will discuss a NLRB decision and two court decisions involving Social Media.

Before I analyze the NLRB case, let’s briefly review how the NLRB gets involved in Social Media matters.  Under Section 7 of the National Labor Relations Act (NLRA), the NLRB covers not only union activities but also protected concerted activities – meaning employees engaging in concerted activities concerning their wages, hours or working conditions.  With the advent of Social Media, employees have been using Facebook, blogs, LinkedIn and similar media to concertedly complain about these matters.  Inevitably, the employer views the posting and sometimes decides to take disciplinary action against the employees. This causes the employee(s) to file a charge alleging a violation of Section 8(a)(1) of the NLRA.

In Bettie Page Clothing, 359 NLRB No. 96 (2013), the store manager and an employee were out partying when the manager tore her dress.  Incredibly, the manager told the employee to fix it and if she didn’t her work hours would be cut.  Thereafter, the employee, on behalf of herself and other employees, contacted upper management on this matter as well as other store and personnel matters.  Upper management visited the San Francisco store to investigate the complaints. 

Later, a dispute arose over the closing time of the store with employees seeking an earlier closing time for their safety when leaving the store.  Several employees requested this change to the store manager, who said she would talk to upper management.  However, nothing changed so an employee called upper management, who agreed to close the store an hour earlier.

When the manager found out about the call and the earlier closing time, she countermanded upper management and said the closing time would remain at the later hour.  Later that night, the employees posted several messages on Facebook complaining about the store manager.  One employee said she would bring a worker’s rights book to work so all employees would know their rights.  The employee brought the book to work and placed it in the break room.

The store manager found out about the Facebook postings from an employee, who accessed the employee’s Facebook page and viewed the postings.  She sent this information to upper management.

Several days later, two of the three employees involved in the Facebook postings were discharged because “things were not working out.” According to the employer, the employees were happy to be fired.  Later, the employer fired the final employee involved in the postings.

The Board found the employees’ Facebook postings were protected concerted activities, because it involved conduct of their supervisor related to employees’ terms and conditions of employment – the closing time related to employees’ safety and hours.  The Board rejected the employer’s defense that the employees “schemed to entrap their employer into firing them” causing their conduct to be unprotected.  Therefore, the Board ordered the three employees reinstated with back pay.

In Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 17, 2013), the 4th Circuit Court of Appeals found in favor of a former deputy sheriff in Hampton, Virginia, who said he was terminated for “liking” the Facebook page of a candidate running against his boss for sheriff. “Liking” the campaign page, the court said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” The court also stated, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.” Thus, the 4th Circuit reversed the District Court and remanded the case for further litigation.

The 5th Circuit Court of Appeals ruled in Rodriquez v. Wal-Mart Stores, Inc., No. 13-10154 (Sept. 19, 2013), a former manager, Virginia Rodriquez, failed to prove that Wal-Mart's legitimate reason for terminating her, namely, a violation of its social media policy, was a pretext for discrimination.

Wal-Mart's (the parent of Sam’s Club) social media policy prohibits any conduct that adversely affects job performance or other associates. It allows employees to post complaints online, but the comments cannot appear "unprofessional, insulting, embarrassing, untrue [or] harmful."

The company determined the manager posted a policy-violating comment on a photograph a co-worker shared on Facebook. The photograph depicted a party that the co-worker had hosted, with two cashiers from the Sam's Club location where the manager worked, who had called in sick to attend. Rodriquez posted this comment, “I hear that Caleb didn’t show up for work on this day what’s up with that?? He is partying with you guys?? WOW and Carrie tried to call in for him and knew about this. . . .”

Although Rodriquez promptly deleted the post, the co-worker, who hosted the party, complained to Sam's Club, and the company determined that the post violated the policy; thus, it discharged Rodriquez. The court also rejected Rodriquez's argument that discrimination had taken place because she had not actually violated the social media policy. It stated she had admitted to the facts that formed the basis of her social media policy violation.

With the rise in popularity of Social Media, the number of Social Media decisions by the NLRB and the courts will continue to grow. Employers would be wise to seek counsel and training on their policies and actions related to Social Media.

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*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C., where he represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law.  Mr. Buchanan blogs on employer immigration compliance issues for LawLogix (http://www.lawlogix.com/electronic-i9) and ILW.com (http://blogs.ilw.com/immigrationcompliance/). Mr. Buchanan graduated from Vanderbilt School of Law. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.