Private Colleges and Universities Should, in the Age of Social Media, Devote Increasing Attention to the “Labor” Portion of Labor and Employment Law

By:  Betty S. W. Graumlich & Pakapon Phinyowattanchip
Reed Smith LLP
Richmond, Virginia

Can private colleges and universities discipline employees for social media posts that violate the institution’s policies?  The answer may surprise you.  While public colleges and universities are not subject to the National Labor Relations Act (the “Act”) or the jurisdiction of the National Labor Relations Board (the “NLRB”), private colleges and universities with “gross annual revenue from all sources … of not less than $1 million” are.  29 C.F.R. § 103.1.  Given the Board’s recent expansion of the definition of “concerted activity” to include many activities not previously thought to be subject to the NLRB’s jurisdiction—like an employee’s comments on Facebook—private colleges and universities need to understand how labor law may apply to them.

It is an unfair labor practice for any covered employer—whether unionized or not—to “interfere with, restrain, or coerce employees in the exercise of their right … to engage in concerted activities for the purpose of … mutual aid or protection.”  See 29 U.S.C. §§ 158(a)(1) and 157 (emphasis added).  That means an employer may not lawfully discipline or discharge an employee when: (1) the employee engaged in concerted activity; (2) the employer knew of the concerted nature of the activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.  Meyers Indus., Inc., 268 N.L.R.B. 493 (1983) (“Meyers I”).  “Concerted activity” includes actions by individuals attempting to initiate or plan for group action, and actions by “individuals bringing truly group complaints to the attention of management.”  Meyers Indus., Inc., 281 N.L.R.B. 882 (1986) (“Meyers II”).

The NLRB’s recent rulings in the area of social media highlight the danger for private colleges and universities when they do not consider the potential reach of the Act.  For example, in Hispanics United of Buffalo, Inc., Case 03-CA-027872, 2012 WL 6800769 (N.L.R.B. Dec. 14, 2012), the NRLB ruled that posting Facebook comments about a coworker was a “concerted activity” on those facts.  In that case, a caseworker for a nonprofit social services provider threatened to complain to her boss that other employees were not performing their duties.  In response, Cole-Rivera, another caseworker, posted the following Facebook message from her home computer:   “[A] coworker feels that we don’t help our clients enough at [Hispanics United]. …  My fellow coworkers how do u feel?”  Several of her colleagues posted expletive-laden responses, objecting to the assertion that their work performance was substandard.  After determining that their Facebook comments constituted “bullying and harassment” under the company’s “zero tolerance” policy, the employer fired Cole-Rivera and several of her colleagues that responded to her Facebook post.

The NLRB concluded that Cole-Rivera and the other employees engaged in concerted activity when they posted Facebook comments concerning another employee’s remark about their job performance.  Accordingly, the NLRB held that it was unlawful for the employer to terminate those employees, even though the comments violated the company’s policy on bullying and harassment.  Id. at *4.

Hispanics United teaches that private institutions must consider the labor law implications when making disciplinary decisions.  In the social media context, some factors to consider in determining whether an employee’s conduct constitutes “concerted activity” include (1) the intent of the employee who posted the comment; and (2) whether the posting invites and receives group responses about the terms and conditions of employment.  As Hispanics United establishes, offensive comments on Facebook about employment matters that violate an employer’s policies may nevertheless be subject to the protection of the Act.  In today’s environment, social media is the new “water cooler” where employees gather to discuss terms and conditions of their employment.

For discussions and copies of previous NLRB General Counsel’s reports on social media cases, please visit these sites:

http://www.employmentlawwatch.com/2012/02/articles/employment-us/social-media/nlrb-general-counsel-issues-second-report-on-social-media-cases

and

http://www.employmentlawwatch.com/2012/05/articles/employment-us/nlrb-general-counsel-issues-third-report-on-social-media-cases/

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Stay Out of My Face(Book)!

Bryan Beauman
Sturgill Turner
Lexington, KY

May employers require applicants to provide access to Facebook pages?  Can an HR investigation rely upon social media photos obtained through such access to discipline an employee?  A small but growing number of states now say “no” after Congress recently attempted to enter the field

Screening employee applicants and monitoring or investigating employees on social media platforms pose a host of legal complications for institutions.  While public agencies face a myriad of First Amendment implications, even private institutions can just as easily be caught in these legal snares. 

A strong case can be made that conduct offered for all to see on the internet is fair game to consider in making employment decisions.  Employers are concerned about exercising due diligence in their hiring and certainly may screen to gather available job-related information, discover negative behavior reflecting immaturity or lack of professionalism (or even criminal conduct) and examine for misrepresentations (experience, credentials, etc.).  Driving this concern is potential exposure for negligent hiring claims. The employer’s social media “snoop” may also discover that employees are discussing the institution’s proprietary information or otherwise confidential information protected by FERPA or other statutes.  Certainly, proper corrective action is needed in those circumstances.

Yet, requiring or accessing employee social media pages may create unintended liability.  The search may yield information that the employee or applicant is a member of a protected class, which was previously unknown, ultimately exposing the institution to discrimination claims.  A number of other issues arise in the consistency of the search among candidates.  Adding to this disarray are legislative responses, accompanied by private causes of action, designed to thwart an employer’s demand for access. 

Most recently, Michigan’s internet privacy protection act prohibits employers and educational institutions from asking for access to private internet or email accounts including social networks.  The statute mandates that an employer shall not discipline any employee or fail to hire any applicant who fails to grant such access.  Important exceptions apply including whether the accounts or equipment are owned by the employer.  The statute’s proscriptions are inapplicable if the investigation concerns the employee’s activity in compliance with other controlling law or the propriety or confidential information of the employer or institution.  Further, employers are not restricted from viewing or utilizing information available in the public domain.

Michigan joins California, Delaware, Maryland, New Jersey and Illinois who offer somewhat similar protections.  Several other states have pre-filed legislation for 2013.

Even though this trend takes direct aim at those employers or educational institutions requiring social media access, there is already some historical basis for avoiding this practice.  The Stored Communication Act prohibits, among other things, unauthorized access to password-protected e-mail accounts or social networking groups.  Of course, courts have some disagreement about the scope of the Act holding some snooping permissible while at other times snooping is not.   Other federal and state statutes may also provide protection for the employee.

With the proliferation (and perhaps dependency) on social media outlets in daily life, consider reviewing and updating your internet usage and social media policy.  A sound policy clearly addresses terms, conditions and expectations for use of school technology.  The policy should set guidelines and parameters for searches on applicants and employees which clearly informs employees of potential searches, the reasons why and the potential consequences if inappropriate material is discovered.  Be aware, though, of the legal warning about the limits of such policies that have been issued by governmental bodies like the NLRB. 

When screening applicants, do not violate a website’s user controls or terms of use or look into things that are not publicly accessible.  Likewise, when monitoring or investigating employees, conduct searches in-house by someone who is not the decision-maker, verify any information that may become a substantial basis for an employment decision and access only information that is publicly available.  Do not punish for the exercise of free speech, create fake profiles or pry into privileged communications.  If disciplining an employee, give notice of discipline for inappropriate social networking conduct and ensure there is a “nexus” between the conduct and the job.  A number of other sound controls should be implemented in your policy and contact your attorney to conduct a thoughtful review of your specific needs and concerns.

Otherwise, invading My-Space may lead to trouble.