California Apparel News

As social media becomes more commonplace, a blurry line has formed between employees’ permissible use of sites such as Instagram, Facebook and Twitter to discuss work-related issues and employers’ policies regarding discussing company matters in online public forums.

Federal law protects employees’ right to talk publicly about work issues. However, employers often mandate that discussing employer information, salary or benefits or making disgruntled remarks about the company can result in disciplinary action or termination.

The National Labor Relations Board (NLRB)has been focusing on social media in particular. The organization has issued rulings in response to several complaints that were filed alleging that employers have retaliated against employees who have used social media to engage in activity that is protected under the National Labor Relations Act (NLRA) of 1935.

The NLRA states it is in violation of the act for private employers to make such broad social-media rules and place legal limits on employee activity in the office or outside.

Attorney Ami Silverman outlined some recent court rulings on the subject at an American Apparel & Footwear Association meeting held in February at the Vans headquarters in Cypress, Calif.

Silverman referenced a recent New York Times article in which NLRB board chairman Mark G. Pearce described social media as the “new water cooler”—the proverbial place where employees meet to discuss company issues.

“The Internet has become a modern water cooler characterized by social media like Twitter, except it can be amplified where employees can communicate and complain about terms and conditions and elicit responses,” Silverman said.

At the event, Silverman advised employers to assess situations individually and develop detailed and specific labor media rules, particularly outlining small group activity in the workplace.

For example, the Adidas Group’ssocial-media guidelines advise employees to consult managers before writing material that could potentially harm the reputation of the company, also stating that if the phrase “for internal use only” is included in an email, it is not to be shared.

Examples of the Adidas Group’s guidelines include “messages from our CEO to all employees are not meant for the media” and clients’ names should only be used with their approval.

According to attorney Laura Worsinger of the Los Angeles office ofDykema,“The NLRA makes it illegal to interfere with, restrain or coerce employees in the exercise of their rights under Section 7 of the NLRA. This section specifically grants employees ‘the right to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection.’”

NLRB officials are adapting existing rulings under federal labor laws to modern digital activities. Under the NLRB guidelines, employees are allowed to engage in discussion in a physical break room—or a virtual one.

Still, confusion over the issue has led to several recent lawsuits.

In a case involving Hispanics United of Buffalo Inc. (HUB), the NLRB held that employees’ Facebook posts about another employee’s comments of their job performance are protected concerted activity under NLRA.

“Hispanic United of Buffalo Inc., a nonprofit that provides services to the economically disadvantaged, was accused of discharging employees in retaliation for their participation in concerted activity under the NLRA,” Worsinger said.

A domestic-violence advocate who worked out of HUB one day a week was known to critique social workers about their job performance.

The Facebook posting, which was made from an employee’s home computer, discussed the advocate’s comments, asking her coworkers their opinion on the matter. All of the postings were made outside of the workplace, and some included profanity.

The domestic-violence advocate complained to HUB’s executive director, and the five employees involved in the Facebook posting were then terminated.

The executive director informed the employees that the domestic-violence advocate suffered a heart attack as a result of the postings and that their comments constituted “harassment” and “bullying” in violation of the companies’ policies.

The NLRB administrative-law judge concluded that the conduct of concerted activity is protected by the employees.

Worsinger explained, “Applying previous decisions, he found that activity does not need to have the goal of changing working conditions to be protected. Rather, as was the case here, discussions about criticisms of employees’ job performance are protected. In addition, the ALJ [administrative-law judge] found that the employees were taking the first step toward taking group action to respond against the domestic-violence advocate’s accusations, which they thought she may take to management. Further, the fact that the five employees were terminated at the same time showed that HUB viewed them as a group and that their activity was concerted.”

The ALJ ordered that the employees be reinstated with back pay.

In another ruling, the NLRB ruled that a police reporter at The Arizona Daily Star was rightfully fired.

On a slow news day, the reporter posted a few Twitter comments expressing his frustration. One post said, “What?!?!?! No overnight homicide. ... You’re slacking, Tucson.”

The NLRB found the termination legal, stating the reporter’s comments did not fall under the concerted-activity category, the tweets were “offensive,” and they were not aimed at discussing working conditions to illicit support from other co-workers.