By Brian A. Wadsworth

Seyfarth Synopsis: In her appeal to the Fifth Circuit, Plaintiff Bonnie O’Daniel argues that the trial court wrongly concluded that it was unreasonable for O’Daniel to believe that a complaint about discrimination based on sexual orientation constituted a protected activity. The EEOC recently joined the fray by filing an amicus curiae brief, which argues that it was reasonable for O’Daniel to believe that opposition to sexual orientation discrimination constituted protected activity.

The EEOC argues that O’Daniel need only “reasonably believe[]” the opposed conduct was unlawful and that O’Daniel’s belief was reasonable when viewed in the context of recent decisions reached by the Southern District of Texas, Second Circuit, Seventh Circuit, and the EEOC. The EEOC also cites the ongoing national debate regarding sexual orientation issues as another reason O’Daniel’s belief was reasonable.

Plaintiff Bonnie O’Daniel filed suit against her employer, Plant-N-Power, and its parent company (Defendants) in the Middle District of Louisiana alleging, amongst other things, retaliation on the basis of her sexual orientation—heterosexual. O’Daniel alleged that Defendants terminated her employment because of one of her Facebook posts. In the post, she included a photograph of a man wearing a dress at a Target store and expressed discontent with his ability to use the women’s restroom and/or dressing rooms. O’Daniel alleged that this offended the President of Plant-N-Power, a member of the LGBT community, and that the president subsequently suggested O’Daniel’s termination.

Defendants responded to the lawsuit with a motion to dismiss and argued that O’Daniel’s retaliation claim failed in part because she did not “plead any protected activity … under Title VII.” By consent of the parties, a magistrate judge heard Defendants’ motion to dismiss. The magistrate judge ultimately agreed with Defendants and dismissed O’Daniel’s retaliation claim because it was “unreasonable for [O’Daniel] to believe that discrimination based on sexual orientation constitutes protected activity” and cited the Fifth Circuit’s 1979 holding in Blum v. Gulf Oil Corp. to support its holding. The trial court noted that while Title VII may protect gender-non-conformity, O’Daniel did not allege discrimination on this basis. O’Daniel appealed the magistrate judge’s decision to the Fifth Circuit.

On May 2, 2018, the Equal Employment Opportunity Commission filed an amicus curiae brief with the court, taking issue with the trial court’s finding that it was “unreasonable” for O’Daniel to believe that opposition to discrimination based on sexual orientation was a protected activity. In arguing this, the EEOC pointed out that the employee need only “reasonably believe[] the opposed conduct was unlawful.” The EEOC maintains that, “given recent appellate decisions …, the EEOC’s view that Title VII prohibits sexual orientation discrimination, and the rapidly changing legal landscape,” O’Daniel had a reasonable belief that discrimination based on sexual orientation was impermissible.

The EEOC pointed to a number of decisions in the Southern District of Texas, the Second and Seventh Circuits, as well as holdings from the commission itself, to demonstrate that the “law on sexual orientation discrimination” had evolved and that at least some courts prohibit sexual orientation discrimination in employment. In addition, the EEOC noted the ongoing national debate regarding sexual orientation issues and the Supreme Court’s landmark decisions endorsing the right of gay and lesbian individuals to be free from discrimination in Obergefell v. Hodges and United States v. Windsor. Given this context, O’Daniel—“a layperson without legal expertise”—could “reasonably conclude that Title VII’s prohibition against sex discrimination encompasses discriminatory conduct based on sexual orientation.” This would extend, in the EEOC’s view, to discrimination on the basis that an employee is heterosexual.

The EEOC similarly noted that Fifth Circuit precedent did not preclude an individual from harboring a reasonable belief that sexual orientation is unlawful. To argue this, the EEOC distinguished Blum, in which the Court held that “[d]ischarge for homosexuality is not prohibited by Title VII.” The EEOC argued that Blum was decided on the issue of pretext and not on whether Title VII protected against discrimination on the basis of sexual orientation. Moreover, according to the EEOC, there were post-Blum decisions that recognize that Title VII prohibits discrimination based on sex stereotyping, to include Price Waterhouse v. Hopkins and EEOC v. Boh Brothers Construction, Co. Thus, O’Daniel could have relied on these post-Blum holdings to arrive at a reasonable conclusion that Title VII protected against discrimination on the basis of sexual orientation.

Defendants have not yet filed their appellate brief.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Kristen Peters

Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.

People are used to sharing everything about their lives—from what they ate for breakfast to the funny name on their Starbucks Frappuccino. But this behavior can be scary for employers when current and former employees take to social media to complain about their jobs—or even defame their boss. Of particular interest are online platforms such as Glassdoor, which purport to provide “inside” information about working conditions, salaries, and company culture.

So what can an employer do when an employee posts a negative comment on Glassdoor about the company? The answer is … not much. The law often protects an employee’s off-duty speech. But the law does not protect defamatory speech, and it does not protect the disclosure of confidential, protected information. So proactive employers can take steps to make sure they are not unfairly smeared online and that their trade secrets are protected. We have a few suggestions in that regard.

What Are You Tryin’ To Prove: Don’t Get In The Ring

Websites such as Glassdoor, which has about 30 million monthly users, allow current and former employees to criticize or praise a company, typically through anonymous posts. Though many such sites screen critiques to prevent the posting of offensive comments and those that would disclose private information, they nonetheless present a conundrum for employers: Do you ignore criticism—even if it’s false—or do you respond to it? The former tactic can permit damage to an employer brand to go unchecked; the latter can make an employer look defensive.

In this new age of information, job applicants search employer review sites for information about companies. Responding to a negative review can help your brand if you do so in a way that shows the organization is genuinely committed to improving. But a response could also provide more fodder for further negativity, so it’s best to try to get ahead of the problem by making changes in-house, if necessary.

If your employees are posting on social media outside of working hours, California’s constitutional right to privacy can protect them from retaliation. Labor Code section 96(k) protects employees where they have engaged in lawful conduct asserting “recognized constitutional rights,” such as free speech postings on social media, occurring during nonworking hours away from the employer’s premises. A better avenue is to get ahead of the problem and educate employees about what they can and can’t post online about the company.

Put Your Robe On—And Implement a Social Media Policy

You can restrict free speech online for current employees with a social media policy (but only up to a point!). Employers should have a social media policy that prohibits posting confidential information about the company (and perhaps about posting anything about the company at all) without permission from the company’s public relations group. Every employee is required to follow the company’s legally compliant policies even if they are stricter than what the law would otherwise allow. If an employee violates your policies, that employee could be subject to employment discipline up to and including termination.

That said, there are limits to the restrictions employers can place on what employees can say about them online. The National Labor Relations Act protects the rights of workers to discuss wages and working conditions with other workers. These protections apply to posts on social media, so your social media policy cannot prevent employees from communicating with other employees online about the company’s pay or working conditions, such as might be the case with a Glassdoor review.

For example, in analyzing one company’s social media policy that forbade employees from making anonymous posts about the company online, the NLRB’s general counsel found that “requiring employees to publicly self-identify in order to participate in protected activity imposes an unwarranted burden on Section 7 rights [of the National Labor Relations Act]. Thus, we found this rule banning anonymous comments unlawfully overbroad.”

You Never Got Me Down—Employers’ One-Two Punch Combo for Dealing with Social Media

  • It is prudent for employers to prepare and implement a social media in the workplace policy in order to avoid risks of disclosure of confidential and proprietary information and claims of cyberbullying, harassment, and discrimination.
  • Social media policies should clearly articulate the legitimate business interests the employer seeks to protect, as well as provide clear definitions of prohibited behavior and private and confidential information, and spell out the consequences for violations of the policy.
  • Employers should use caution when disciplining employees based on social networking activities, as certain union and nonunion employee rights need to be considered.
  • An employer may discipline an employee for posting negative comments on a social networking site if the employee’s comments are offensive or inappropriate, and not related to employment issues, and should do so on a consistent basis.

Workplace Solutions: Employers should open up a dialogue with employees about social media and encourage them to bring grievances to Human Resources, instead of airing their grievances online. Employers should also avoid retaliating against employees for posting on social media outside of work hours, and implement social media policies that clearly articulate the penalties for posting confidential information, and any defamatory statements.

By Julia Gorham

Seyfarth Synopsis: The global market for wearable devices continues to grow and has been embraced not only by consumers but organizations as well. Wearables use in the workplace is here to stay, but employers should consider the risks at the outset.

Wearables — where to start? With the smartwatch languishing in my junk drawer, the step tracker, heart rate monitor, security pass, two smartphones (private and business), smart clothing or the Santa list with a virtual reality headset?

It is hardly surprising that ABI Research predicts 500 million wearable devices will have been sold by 2021. Not counting the apps. If our personal time is tracked by wearables, what happens on the job? Organizations are embracing wearable technology to engage with their employees, monitor movements and productivity, to assess wellbeing, and even to market/cross-sell new products.

Using technology in this way is not without risk, but it is here to stay. Data privacy risks, ethical considerations (such as the right to a private life), and continued liability for employers all need to be considered at the outset of implementing programs using wearables for work. One of the biggest considerations is what is the data used for? One obvious use of such data is how long staff spend working are their designated site, but do they know and understand the extent to which that data is monitored, what type of analytics are applied to it and even what other decisions are being made using that data that the employees do not see? In operating wearables for work (and collecting, using and storing data from them), organizations need to comply with relevant legislation/guidelines, including being mindful of the duty of care to their staff, be transparent with their employees, and consider wider ethical issues.

In the health and wellbeing space: Workplace schemes encouraging staff movement and activity, via apps or subsidized sports bands for example, are not new and are an established part of corporate culture for big businesses. Good for health, wellbeing and engagement in the employee population, insurance companies also recognize these benefits and adjust premiums accordingly. But do employees know what the data is used for? Some of this data may be used to look at employee attendance by employers and could form the basis of disciplinary action for example — is that made clear at the outset? If an individual were to suffer an accident or over-exert themselves during a fitness drive it is not a stretch to assume that, even if waivers have been signed by staff, liability (including vicarious liability) will still be placed firmly at the employer’s door.

For senior executives, often an organization’s biggest asset, wearable technology can monitor sleep patterns, stress levels and other more invasive biometrics that will help an organization manage its people risks. Even with consent to such a program, would that remove liability where a senior employee suffers a heart attack or stress-related illness as a result of their role? Unlikely, the normal legal tests would still apply. For staff in ‘high risk’ roles, for example pilots, wouldn’t a heart rate monitor or other device that can track and monitor extreme or abnormal changes in biometrics be important — could it help predict or stop human-error disasters?

In terms of movement and productivity assessment — wearable technology can be a huge asset to organizations with thousands of staff — keeping track of where people are. For example, you can monitor ‘hot spots’ for office infrastructure and plan effective working spaces. However, many countries have significant privacy laws and a legal right to a private life. If these technologies continue monitoring and tracking out of hours (including breaks) can the benefits of safety justify the impact to privacy/private life? In terms of productivity, the world’s biggest e-commerce companies now track their employees’ productivity and efficiency via wrist bands embedded with microchips against metrics which are often determined relative to the speed at which robots can operate. To what extent do employers have a responsibility to maintain human oversight of their staff even when such wearables are being used and to what extent are they reviewing potentially high rates of fatigue or burnout?

Much has already been made about potential inherent discrimination that may be written into algorithms. To what extent will employees in the future have the ability to challenge material decision making made by or data collected by devices, programs, technology on the basis of underlying discrimination. For example, selection for poor performance discussions, selection for redundancy or other serious impact to an employee’s career. If the underlying data or collection methodology is allegedly compromised, then it potentially follows that an organization could be held to account for relying upon it. Human oversight should always be included as part of any decision making process.

In terms of identifying fraud, the ability to track staff movements is extremely useful. Local laws usually provide that employers can process and use data to identify crimes or serious misconduct/dishonesty offences — but it is always going to be important to have made staff aware of this type of monitoring before implementation and ensure compliance with local law/codes of practice.

Finally, let’s look at France and the decision to give employees the right to time off from technology — to discourage emails out of hours, over the weekend or on annual — leave unless business critical. In a connected world where staff often have smartphones issued by their employer or ‘bring your own device’ programmes pushing native work emails onto their personal phones and now smart watches sending instant messages — what obligation do companies have not to overburden their staff? Many employees do not want colleagues whatsapping them on a Saturday when it could wait until Monday.

For many multi-national employers and particularly those working across time zones, the French approach goes too far; it also depends on sectors, cultural norms in jurisdiction and expectations on workers in terms of productivity. For most of us, the view is that legislation is not needed in this area but good corporate culture and management leadership is. Unions and collective labour organizations are taking up this mantle in some jurisdictions and negotiating with companies for workers’ rights in this area.

However your organization chooses to adapt and adopt new technologies, be clear about the drivers for change, the expectations on your staff and be balanced about business needs. It is increasingly important to carry out risk assessments on a rolling basis to check if your technology programs continue to meet the aims they were introduced to address and remain fit for purpose or need to be adapted to reflect changing laws or social and cultural norms.

Julia Gorham is a partner in our Hong Kong office and works closely with leading employers assisting them with their cross border matters, particularly in the Asia Pacific region.

By Marjorie Clara Soto, Kay J. Hazelwood, and Mary Kay Klimesh

Seyfarth Synopsis: The U.S. Court of Appeals for the Tenth Circuit’s recent opinion in Yeasin v. Durham, No. 16-3367, 2018 WL 300553 (10th Cir. Jan. 5, 2018), addresses the “tension between some students’ free-speech rights and other students’ Title IX rights to receive an education absent sex discrimination in the form of sexual harassment.” The Court of Appeals did not specify a test to be applied when a student’s alleged First Amendment right to free speech intersects another student’s alleged right to be free from harassment in a university community, but did affirm the district court’s decision that a KU administrator did not violate clearly established law when she expelled Yeasin for misconduct related to an off-campus incident and tweets.

The court specifically refrained from deciding “whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.” The Court’s analysis in this case is of particular interest to public colleges, universities and schools who grapple with managing and balancing student First Amendment rights and the responsibility to maintain an educational environment free from harassment.

Background and Procedural History

In November, 2013, Dr. Tammara Durham, Vice Provost for Student Affairs, made a decision to expel Navid Yeasin from the University of Kansas (“KU”) after her review of a hearing panel’s findings of fact based on a preponderance of the evidence that Yeasin had violated KU’s sexual harassment policy by engaging in conduct which included posting off-campus social media tweets making derogatory statements about his ex-girlfriend’s body, but not naming her.

Yeasin proceeded to contest the expulsion in Kansas state court which concluded that the findings, adopted by Dr. Durham, “were not supported by substantial evidence” and that “KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.” KU appealed, arguing that its interpretation of KU’s Code of Conduct was “consistent with the obligations imposed on it under Title IX” and allowed for the University to expel Yeasin since its student code allowed for students to be punished for off-campus conduct that violates federal, state, or local law. In September 2015, that court affirmed the lower state court’s findings and Yeasin subsequently re-enrolled at KU.

Thereafter, Yeasin brought suit in federal court against Dr. Durham under 42 U.S.C. Section 1983 alleging her action to expel him from KU for the content of his on-line, off campus speech violated his First Amendment right to free speech and his Fourteenth Amendment right to substantive due process. He sought monetary damages claiming that KU’s wrongful expulsion delayed completion of his education, cost him lost employment and wages, and caused him emotional distress and mental anguish. Dr. Durham moved to dismiss both of Yeasin’s claims on qualified-immunity grounds. The federal district court granted Dr. Durham’s motion to dismiss, concluding that she did not violate Yeasin’s clearly established rights under the First and Fourteenth Amendments. On January 5, 2018, the Tenth Circuit Court of Appeals affirmed.

The Tenth Circuit Court of Appeals Analysis and Findings

Qualified immunity protects government officials from liability for civil damages if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In order to overcome this defense, a plaintiff must show (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established. The Court of Appeals here found that Yeasin’s claim failed the second prong of this analysis.

In reaching its conclusion, the Court analyzed free speech cases in secondary school and college/university settings including consideration of Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (finding that, while secondary-school students retained free-speech rights, schools can still prohibit actions that “would materially and substantially disrupt the work and discipline of the school…”); Morse v. Frederick, 551 U.S. 393 (2007) (allowing a K-12 school to discipline a student for flying a banner reading “BONG HiTs 4 JESUS” at an off-campus, school-approved activity because the banner could reasonably be viewed as promoting drug use); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (K-12 schools can restrict lewd, vulgar, or indecent speech even without a forecast of disruption); and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (allowing public officials to restrict K-12 school-sponsored speech).

Yeasin argued that First Amendment cases which allow for the restriction of student speech in the secondary school context cannot be applied in the university context in the same way. Rather, Yeasin argued that cases including Papish v. Bd. of Curators of the Univ. of Missouri, 410 U.S. 667 (1973) (addressing distribution of newspaper in the university setting “containing forms of indecent speech”); Widmar v. Vincent, 454 U.S. 263 (1981) (addressing a university’s refusal to allow a registered religious student group to meet in university buildings); and Healy v. James, 408 U.S. 169 (1972) (addressing a state college’s refusal to officially recognize a student group known because of its potential affiliation with a national organization known for campus disruption) should be applied. The Tenth Circuit Court of Appeals distinguished the cases advanced by Yeasin noting that the cases didn’t concern “university-student conduct that interferes with the rights of other students or risks disrupting campus order.” The Court also countered with language from Widmar, quoting Healy, which “suggests that the Supreme Court believes that the material-and-substantial-disruption test applies in the university setting.” Ultimately, the Tenth Circuit Court of Appeals concluded that Yeasin could not establish that Dr. Durham had violated clearly established law when she took action to expel him, in part, for his off-campus social media tweets.

The Court considered Yeasin’s substantive due process argument, and found that it was flawed. The Court reasoned that Yeasin needed to show that the school’s decision to expel him was arbitrary, lacked a rational basis, or shocked the conscience. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003). The court declined to resolve the question of whether Dr. Durham’s decision to expel Yeasin violated his right to substantive due process, and limited its opinion to a finding that she violated no clearly established law in doing so.

The need for college and university administrators and school officials to navigate their legal obligations when addressing decisions to discipline a student for off-campus speech on social media will no doubt remain a prevailing issue, especially when such conduct implicates the rights of another student to be educated in a harassment-free learning environment. Not surprisingly, KU modified its student code of conduct after this incident to explicitly extend its disciplinary jurisdiction to off-campus incidents.

Seyfarth Shaw continues to monitor the developments in the battle between the First Amendment right to freedom of speech and rights under Title IX to an educational environment free of sexual harassment. We will keep our readers apprised.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

Seyfarth Synopsis: Wishing you a wonderful holiday season. 

As we begin the traditional start of the holiday season and before the crush of the end of the year is upon us, we wanted to take a moment to thank you – the readers of the Employment Law Lookout Blog – for your loyal readership and feedback.  We strive to make our reports entertaining and helpful and hope that you find them so.

We are also pleased to announce that the Firm’s Social Media Privacy Legislation Desktop Reference has been updated and is now available for your review and use.  Please see below for how to register to receive both an on-line as well as hard copy of this publication.

On behalf of the entire Seyfarth blog team, thank you.  Have a safe, happy and peaceful Holiday Weekend.

Now Available! Seyfarth Shaw’s 2017-2018 Edition  of the Social Media Privacy Legislation Desktop Reference

There is no denying that social media continues to transform the way companies conduct business. In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.

Seyfarth Shaw is pleased to provide you with the 2017–2018 edition of our easy-to-use guide to social media privacy legislation and what employers need to know. The Social Media Privacy Legislation Desktop Reference:

  • Describes the content and purpose of the various states’ new social media privacy laws.
  • Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each statute.
  • Provides an easy-to-use chart listing on one axis the states that have enacted social media privacy legislation, and on the other, whether each state’s law contains one or more key features.
  • Offers our thoughts on the implications of this legislation in other areas, including trade secret misappropriation, bring your own device issues and concerns, social media discovery and evidence considerations, and use of social media in internal investigations.
  • Concludes with some best practices to assist companies in navigating this challenging area.

How To Get Your Desktop Reference

To request the 2017–2018 Edition of the Social Media Privacy Legislation Desktop Reference as a pdf or hard copy, please click here.

 

 

By Rachel Bernasconi and Amanda Cavanough

LinkedIn is the biggest online network of professionals in the world.  Many employers encourage staff to use LinkedIn to promote their organisation.

While employees may share content relating to their organisation, they tend to think of their profile as personal to them, like a resume, which is available to recruiters, colleagues and clients.

Yes, the LinkedIn account belongs to the individual, but that doesn’t mean that ‘anything goes’.

On signing up, you agree with LinkedIn to provide truthful information and to not misrepresent your current or previous positions or qualifications.  Even so, we have all noticed information on LinkedIn that isn’t 100% accurate.

You may have had a similar experience where you look up a contact on LinkedIn, and their profile shows them at a job they left months ago.

Perhaps they are on gardening leave, or they have been exited against their will and don’t want to say they are unemployed.  There is the potential that their account was connected to a work email address that they can no longer access, and signing back in has become too problematic.

But in more concerning circumstances, some people use their LinkedIn profile to paper over gaps in a resume – this is an age-old issue, but with LinkedIn and online platforms, it is increasingly visible.

Other than getting frustrated, what can employers do when an employee fails to update their LinkedIn profile?

There are options to manage this risk as an employer:

  • Writing to the employee and asking them to correct the details
  • Using the LinkedIn feature to ‘disconnect’ that contact from your organisation, removing them from search results and the list of employees
  • Reminding departing employees of expectations in exit interviews
  • Including a term of a release agreement or deed which can be specifically enforced if necessary.

Is it worth the trouble from a commercial perspective?  The answer may well depend on the individual involved. It is always a balancing act, but when rights and obligations are clearly defined, resources like LinkedIn are proven to work in everyone’s interest.

 

By Karla E. Sanchez and Craig B. Simonsen

Seyfarth Synopsis: Employer must reinstate four employees after it terminated the employees for agreeing with a former coworker’s email that complained about their terms and conditions of employment.

Recently, a National Labor Relations Board Administrative Law Judge ruled that a restaurant unlawfully reprimanded and discharged several employees in violation of Section 8(a)(1) of the National Labor Relations ActMexican Radio Corp., Case No. 02-CA-168989 (April 26, 2017).

A series of disagreements between a new manager and several of the restaurant’s employees led to several employees reaching out to management to complain about the new manager and to one employee quitting her employment. After resigning, the employee sent management and several of her former coworkers a lengthy email that management described as “hurtful and mean spirited.”  The email went through the reasons why she had worked at the restaurant, why she had loved working with her coworkers, and how the new manager had changed that.  She complained about how the new manager treated them, how several coworkers had complained to other managers, who according to her, did nothing, and she alleged that the new manager was engaging in unlawful conduct. Four employees replied to the email in agreement with the sender and thanked her for sending the email.

Management, who also received the coworkers’ replies, viewed the replies as “deeply insubordinate.” As a result, management decided to meet with the four coworkers to ask them on an individual basis why they had supported their former coworker and agreed with the contents of the email. All four were discharged for, among other things, allegedly engaging in insubordination and agreeing with an email that contained “false accusations of management” and had used “inappropriate language,” including profanity.

The ALJ found that the restaurant unlawfully discharged the four employees for replying to the former coworkers’ email. The ALJ found that the employees’ conduct had been protected, concerted activity. The ALJ noted that these four employees had complained to management about the new manager and about their working conditions and that their replies to the email was an extension of this protected, concerted activity. The email itself also addressed their working conditions, and thus, responding to it was also protected, concerted activity.

The restaurant tried to argue that the email was “opprobrious conduct,” and therefore, lost the protections of the Act. The ALJ disagreed, finding:

  • The four employees did not add anything negative to the original email;
  • The email was a part of an ongoing dialogue between the restaurant and the workers;
  • The email contained little profanity and did not constitute insubordination, but rather, was “a critique of the management style” of the restaurant;
  • The email was distributed internally and did not cause a loss of reputation or business for the restaurant; and
  • The email did not cause a disruption of the business.

The ALJ ordered the restaurant to reinstate the four employees to their former positions, to make them whole for their lost earnings, to pay them for their job-search and interim employment expenses, to remove any reprimands from their files, and to post at the restaurant a standard NLRB notice.

The takeaway for employers:  Employers must be careful when confronted by employees’ criticisms, complaints, and allegations, whether in person, by email, or by posting on social media platforms.  While some “complaints” might not be protected by law and/or might constitute insubordination, an employer should discuss the particulars with an attorney before determining whether the conduct warrants discipline or termination.  Some “complaints,” even when profanity is used and even when they are hurtful to the reader, are protected under the NLRA or other laws, and adverse conduct taken against the employees will be found to be unlawful.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Social Media Team or the Workplace Policies and Handbooks Team.

Seyfarth Synopsis: The Second Circuit agrees with the Board that the use of profanity in a Facebook post was not “opprobrious enough” to lose the NLRA’s protections and justify the employer’s termination of the employee.

A server whose “conduct [sat] at the outer bounds of protected, union-related comments” when he posted that his manager is a “nasty mother f***er” and “f*** his mother and his entire f***ing family,” was not “opprobrious enough” to lose the protection of the NLRA, a three-judge panel for the Second Circuit Court of Appeals ruled in NLRB v. Pier Sixty, LLC, No. 15-1841 (2nd Cir. Apr. 21, 2017).

Pier Sixty operates a catering company in New York, NY. In early 2011, many of its service employees began seeking union representation.  Following a very contentious union organizing campaign, Pier Sixty employees voted to unionize on October 27, 2011.

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was publicly accessible and Perez knew that his post would be visible to his coworkers. Perez removed the post three days later. Management, however, had already become aware of the post, and after an investigation, the employer terminated Perez on November 9, 2011.

Perez filed an NLRB charge alleging retaliation for engaging in protected concerted activities. On April 18, 2013, the ALJ issued a decision finding that Pier Sixty had violated sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Perez in retaliation for his protected activity. Pier Sixty filed exceptions, and a three-member panel of the NLRB affirmed the ALJ’s decision on March 31, 2015.  The NLRB filed an application for enforcement, and Pier Sixty filed a cross-petition for review.

The Second Circuit affirmed the NLRB’s determination based on the deference afforded to the ALJ’s factual findings. The Court explained that in light of the General Counsel’s guidance for evaluating employees’ use of social media to post public criticisms of their employers and workplaces, a nine-factor “totality of the circumstances” test in social media cases had emerged.  The Court acknowledged that while the test the ALJ applied may not have “adequately balance[d] the employer’s interests, Pier Sixty did not object to the ALJ’s use of the test in evaluating Perez’s statements before the Board.”   Accordingly, the Court did not address the validity of the applied test.

Rather, Pier Sixty argued that the Board’s decision that the comments were not so egregious as to exceed the Act’s protection was not supported by “substantial evidence” in the record. The 2nd Circuit disagreed and found:

  • Although the post contained vulgar attacks, the subject matter of the message included workplace concerns.
  • Pier Sixty consistently tolerated widespread profanity amongst its workers, including supervisors, and had never before terminated any employees for such behavior until two days before the union election.
  • The location of the comments was an online mode of communication among coworkers and was not in the immediate presence of coworkers.

Accordingly, the Court found that the Board did not err in ruling that the post, while “vulgar and inappropriate,” was not so egregious as to exceed the NLRA’s protection.

Takeaways for Employers:

  • The Board will not apply the Atlantic Steel test to cases involving social media, even if the posts are public in nature, in light of the fact that the place of discussion is the internet and not face-to-face in the workplace.
  • Companies should ensure policies and handbooks comply with the NLRB’s current guidance on social media and do not interfere with employees engaging in protected concerted activity when off duty. However, while policies prohibiting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, employers should not hesitate to enforce those policies in appropriate circumstances.
  • Employee discipline should not be selectively enforced to prohibit behaviors that relate to union-related activities; discipline should be applied uniformly to all employees.

By Karla Grossenbacher

Men typing in Whatsapp on IphoneSeyfarth Synopsis: Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.

Texting is becoming more common in the workplace. Most employees use company-owned or personal phones to communicate in the workplace to some degree, and with phones, comes texting.  Even if email is the sanctioned form of communication in the workplace, employees will text.  Some employers may not even be aware their employees are texting with each other or to what extent.  Other employers may be aware and actually permit texting in the workplace or simply tolerate it because they feel they cannot prevent it from happening.

Yet, if employers allow employees to text in the workplace, they will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails. Plaintiff-side lawyers in employment cases are beginning to demand that text messages be produced along with emails during discovery.  If the texts are made from company phones, the basis for such a request would seem to be well-founded assuming the substance of the texts is relevant to the claims and defenses in the case.  However, when the texts are sent or received on personal devices used by employees in the workplace, the issue becomes more complicated.  In such cases, employers typically argue that they are not required to produce texts from their employees’ personal devices because such devices are not within the employer’s custody or control.  But if employees are using personal devices at work pursuant to a Bring Your Own Device program, the argument that such devices are not under the employers’ custody or control is undercut.  Often BYOD policies allow for the employers to take custody of the employee’s personal device for various legitimate business purposes, which would include responding to discovery requests in litigation.

Thus, employers must grapple with how they will fulfill their legal obligations with respect to workplace texts by ensuring they have the same ability to access, view and preserve employees texts that they do with employee emails. And this need will only grow more pressing as time goes on.  Some commentators say that, given the strong preferences of Generation Y for texting, texting will replace email as the primary mode of communication in the workplace of the future.  Thus, prudent employers will start thinking about this issue is now.

The difficulty with texting in the workplace is that — from the employer’s perspective — texting is offline. In workplaces in which email is the primary method of communication, employee emails are usually sent, received and stored on an email server that is maintained by the employer.  With the right policies in place, employers have free reign to access, review and preserve employee emails stored on these servers.  There are many legitimate reasons for which employers need to access and view employee communications.  For example, the employer may be conducting a workplace investigation or responding to a subpoena or discovery requests in litigation.  Employers may also have an affirmative obligation to preserve employee communications when they are in litigation or in connection with a governmental inquiry or as required by law.

However, employers do not have ready access to employee texts and are not in a position to preserve them. Unlike emails, texts typically reside on the phones on which they are sent and received.  These phones may or may not belong to the employer, but in order to access and review workplace texts, the employer must first take possession of the phone on which the text resides.  Not only is this a cumbersome process if several employees’ texts must be retrieved, but it may not be possible if the owner/custodian of the phone is not in the office or works remotely.  Moreover, having to take physical custody of an employee’s phone rules out any kind of surreptitious review of texts, which could be important in an investigation of suspected wrongdoing.

Also, where texts reside only on the phones on which they are sent and received, it is much more difficult for the employer to ensure such texts are being preserved in those situations in which an employer has an affirmative duty to preserve such communications. Setting aside the fact that phones can be lost or damaged or suffer a malfunction that makes it impossible to retrieve the texts stored on them, in order for an employer to ensure texts are being preserved, the texts need to be backed up in some way.  If employees are texting on company-owned phones, it is conceivable that the employer could implement a system for automatically backing up the texts.  However, with the proliferation of Bring Your Own Device programs, employees are often using their own phones at work.  Where employees are using their own personal devices in the workplace, the employer would have to require employees to back up their texts to a company-owned computer or server.  Even with a protocol in place for backing up texts, an employer could never be sure all texts were being captured as it is possible for employees to delete texts from a phone before the backup occurs.

There will also certainly be privacy issues raised for employers when they access and view employee texts. Personal and work-related texts will inevitably be commingled, especially if the phone is a personal device.  The good news for employers on this front is that texts appear to garner less privacy protection under applicable law than emails in the workplace.  For example, under the federal Stored Communications Act, which prohibits unauthorized accessing of communications in electronic storage through a facility that provides an electronic communication service, courts have held that a cell phone is not “facility” and that texts are not in “electronic storage” for purposes of the statute, and therefore, the SCA’s prohibitions do not apply to accessing texts on a cell phone.

Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.  No one knows exactly what the workplace of the future will look like and how employees will communicate in it, but employers should look into that future now and start taking steps to prepare for it.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Social Media Team or the Workplace Policies and Handbooks Team.