Tag Archives: nlrb

Can Employers Ever Monitor Employees' Personal Social Media?

Yes, but be careful! There is no denying that the use of social media sites such as Facebook, Twitter and LinkedIn has exploded. The explosion includes both personal and business use of social media. It also includes use that is beneficial to employers and use that can be very damaging. Unfortunately, the influx of employment lawsuits that have followed the explosion have had limited practical value in guiding employees and employers on the permissible use and oversight of social media in the workplace. While many questions remain, the California State Legislature's recent enactment regulating employer use of social media does provide some guidance.

California Labor Code section 980 was enacted to prevent employers from (1) requesting an employee disclose usernames or passwords for personal social media accounts; (2) requiring an employee to access his or her personal social media in the presence of the employer; or (3) requiring an employee to divulge any personal social media to the employer. Applicants are protected in the same way as employees. The new statute, coupled with existing privacy laws, limits what employers may monitor when it comes to the personal social media of employees and applicants.

Definition Of Social Media
In what appears to be an effort to account for the ever increasing development of new social media, the new statute broadly defines social media as an “electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online services or accounts, or internet web site profiles or locations.”

Prohibitions On Employers Monitoring Social Media
Employers may not require, or even request, that an employee or applicant:

  • Disclose a username or password for the purpose of gaining access to the employee or applicant's personal social media;
  • Access their personal social media in the employer's presence; or
  • Divulge any personal social media.

Employers are also prohibited from retaliating or threatening to retaliate against an employee or applicant who refuses to comply with a request or demand that violates the statute.

Despite the statute's broad definition of social media and its restrictive prohibitions on employers, it does provide some exceptions under which employers may request and gain access to employees' personal social media. For each exception, however, pitfalls exist. Employers need to know them in order to avoid costly mistakes.

Accessing Social Media As Part Of An Investigation
The statute does not affect an employer's existing rights to obtain personal social media “reasonably believed to be relevant” to an investigation of employee misconduct. Under this exception, the employer may only access the employee's personal social media under the condition that it is used strictly for purposes of the investigation or a related proceeding. While the statute does not define what “reasonably believed to be relevant” means, California Courts evaluate employee privacy concerns utilizing a balancing test, weighing the employee's reasonable expectation of privacy against the employer's legitimate business needs for accessing the information. It is wise for employers to evaluate each instance carefully before requesting an employee to divulge his or her personal social media under this exception.

Employer-Issued Electronic Devices
The statute does not preclude an employer from requiring an employee to disclose a username and password for the purpose of accessing an employer-issued electronic device such as a computer, smartphone or e-mail account. Employers should exercise caution, however, before digging through an employee's use of personal social media on the employer-issued device.

It is a violation of the federal Stored Communications Act to access a restricted or password protected site without the owner's consent. So, while it is permissible for an employer to require an employee to provide his or her password for access to the employer-issued device, an employer may be violating the law by accessing social media information on the device. For instance, having the IT department look up the employee's Facebook password stored on the employer-issued device in order to gain access the employee's personal Facebook page.

Adverse Action Against Employees
The statute does not prohibit an employer from terminating or taking adverse action against an employee or applicant if otherwise permitted by law. For instance, an employer may discipline an employee for violating company policy and using personal social media during work time. Nor does the statute specifically prohibit employers from accessing publicly available social media. This means that employers may view the personal social media of its employees that is available to the general public on the internet, such as blogs and other websites that do not restrict user access.

But, before taking any adverse action against an employee based upon the content of his or her personal social media, employers must keep in mind that California law prohibits employers from discriminating against an employee based upon the employee's lawful conduct occurring away from the employer's premises during non-work hours. Moreover, the National Labor Relations Board has held that employees may use social media to voice concerns over working conditions. While an employee complaining about working conditions or an issue with a manager on his or her Facebook page may reflect negatively upon the organization, the employee's use of social media to criticize working conditions may qualify as protected speech for which an employee cannot be lawfully disciplined.

What Is An Employer To Do?
First, be patient. The law develops at a snail's pace compared to the development of new technology and cultural trends. More guidance will come. In the meantime, employers should approach social media issues with careful consideration and planning. This should start with the development of a written social media policy, and not a sample or template policy. The policy needs to be specifically tailored to the employer and should discusses the importance of social media, the impact that social media has on the workplace, and how employee's use of social media reflects upon the organization. The policy should also define the permitted use of technology owned by the organization and employee's expectations of privacy or lack thereof.

If an employer elects to have a policy restricting personal social media use during work hours, it should ensure that the policy is applied even-handedly to avoid claims of discrimination. Employers should also consider the pros, cons and legal issues that relate to restrictions on supervisors' social media interaction with subordinates. For most organizations, it would be advisable to inform employees that they are not required to interact with supervisors on personal social media and will not be retaliated against for refusing to interact with supervisors.

A carefully planned and well written social media policy that outlines the organization's goals and expectations of employees' use of personal social media can help ensure compliance with the new rules and prevent costly disputes with employees.

$1.25M Backpay Highlights Risks of Mismanaging Union Risks In Merger & Acquisition Deals

September’s National Labor Relations Board (NLRB) order requiring the buyer of a California nursing home to pay approximately $1.25 million in backpay and interest, rehire 50 employees and recognize the seller’s union reminds buyers of union-organized businesses of some of the significant risks of mishandling union-related obligations in merger and acquisition, bankruptcy and other corporate transactions under the National Labor Relations Act (NLRA) and other federal labor laws.

Buyer’s Obligations To Honor Seller’s Collective Bargaining Obligations
Under the National Labor Relations Act, new owners of a union facility that are “successors” of the seller generally must recognize and bargain with the existing union if “the bargaining unit remains unchanged and a majority of employees hired by the new employer were represented by a recently certified bargaining agent.” See National Labor Relations Board v. Burns Sec. Servs., 406 U.S. 272, 281 (1972).

In assembling its workforce, a successor employer also generally “may not refuse to hire the predecessor’s employees solely because they were represented by a union or to avoid having to recognize a union.” U.S. Marine Corp., 293 National Labor Relations Board 669, 670 (1989), enfd., 944 F.2d 1305 (7th Cir. 1991).

Nasaky, Inc. National Labor Relations Board Order
September’s National Labor Relations Board Order requires Nasaky, Inc., the buyer of the Yuba Skilled Nursing Center in Yuba City, California, to recognize and honor collective bargaining obligations that the seller Nazareth Enterprises owed before the sale and rehire and pay backpay and interest to make whole 50 of the seller’s former employees who the National Labor Relations Board determined Nasaky, Inc. wrongfully refused to hire when it took over the facility from the prior owner, Nazareth Enterprises.

Before Nasaky, Inc. bought the nursing home, many of the employees at the nursing home were represented by the Service Employees International Union, United Healthcare Workers West (Union). After Nasaky, Inc. agreed to buy the facility but before it took control of its operations, Nasaky, Inc. advertised in the media for new workers to staff the facility and told existing employees at the facility that they must reapply to have a chance of keeping their jobs under the new ownership.

When Nasaky, Inc. took operating control of the facility, facility operations continued as before with the same patients receiving the same services. The main difference was the workforce. The new staff included 90 employees in erstwhile bargaining unit positions, of which forty were former employees of the predecessor employer and fifty were newcomers. Nasaky, Inc. then took the position that the change in the workforce excused it from responsibility for recognizing or bargaining with the union or honoring the collective bargaining agreement between the union and seller Nazareth Enterprises.

When the union demanded that Nasaky, Inc. recognize the union and honor the union’s collective bargaining agreement with Nazareth Enterprises, Nasaky, Inc. refused. Instead, Nasaky, Inc. notified the union that it would not allow the union on its premises, would not honor the union’s collective bargaining agreement with the seller, and did not accept any of the predecessor’s terms and conditions of employment. The union then filed charges with the National Labor Relations Board, charging that Nazareth Enterprises had breached its obligations as a successor under the National Labor Relations Act.

After National Labor Relations Board Regional Director Joseph F. Frankl agreed and issued a complaint, California Administrative Law Judge Gerald Etchingham found all the allegations true based on a two-day hearing. He rejected all of Nasaky’s explanations for why it declined to hire most of those who had worked for the previous employer. See the Administrative Law Judge Decision. Since Nasaky, Inc did not file exceptions, the National Labor Relations Board ordered Nasaky, Inc. immediately to recognize and bargain with the union, hire the former employees and make them whole. The amount of backpay and interest is expected to approximate $1.25 million.

Managing Labor Exposures In Business Transactions
The National Labor Relations Board’s order against Nasaky, Inc. highlights some of the business and operational risks that buyers and sellers can face if labor-management relations are misperceived or mismanaged in connection with business transactions. Because the existence of collective bargaining agreements or other labor obligations can substantially affect the operational flexibility of a buyer, buyers need to investigate and carefully evaluate the potential existence and nature of their obligations as part of their due diligence strategy before the transaction. A well-considered understanding of whether the structure of the transaction is likely to result in the buyer being considered a successor for purposes of union organizing and collective bargaining obligations also is very important so that the buyer and seller can properly appreciate and deal with any resulting responsibilities.

Beyond the potential duty to recognize a seller’s collective bargaining obligations, buyers and sellers also should consider the potential consequences of the proposed transaction on severance, pension, health, layoff and recall and other rights and obligations that may arise. At minimum, the existence of these responsibilities and their attendant costs are likely to impact the course of the negotiations.

When a worksite is union-organized, for instance, additional obligations may arise in the handling of reductions in force or other transactions as a result of the union presence. For example, in addition to otherwise applicable responsibilities applicable to non-union affected transaction, the Worker Adjustment Retraining Act (WARN) and other plant-closing laws and/or collective bargaining agreements may impose special notification or other requirements before a reduction in force or other transaction related activities.

Similarly, the existence of collective bargaining agreements also may trigger obligations for one or both parties to engage in collective bargaining over contemplated changes in terms and conditions of employment, to provide severance, to accelerate or fund severance, benefits or other obligations, to provide continued health or other coverage, to honor seniority, recall or other rights or deal with a host of other special contractual obligations.

Where the collective bargaining arrangements of the seller currently or in the past have included obligations to contribute to a multiemployer, collectively-bargained pension or welfare plan, the buyer and seller also need to consider both the potential for withdrawal liability or other obligations and any opportunities to minimize these exposures in structuring the allocation of the arrangement. In this case, both parties need to recognize that differences exist between the federals for determining when successor liability results under the withdrawal liability rules than typically apply to other labor and employment law purposes.

While buyers and sellers often presume that the stock versus assets sale distinction that typically applies for many other legal purposes will apply, this can be an expensive mistake in the case of determining a buyer’s obligation to honor the seller’s collective bargaining obligations post deal. Likewise, buyers can be exposed to multiemployer successor liability from asset transactions, although it may be possible to mitigate or avoid such liabilities by incorporating appropriate representations in the sale documents or through other steps. Since these multiemployer withdrawal and contribution liabilities generally attach on a controlled group basis, both parties need to properly appreciate and address these concerns early in the transaction to mitigate their risks and properly value the transaction.

In light of these and other potential labor-related risks that may affect corporate and other business transactions, parties contemplating or participating in these transactions are urged to engage and consult with competent legal counsel with specific experience in such labor-management relations and multiemployer benefit plan matters early in the process.

Social Media And The Insurance Implications

Most marketing and communication departments know all too well that social media and social networking sites are a treasure trove of opportunity for elevating your personal or corporate brand. Employees use social media for personal use, but also use it as a forum to talk about their boss, their company, their products, their problems and whatever else is on their mind. There are 200 plus social media sites in English alone, Facebook recently reached one billion users, and Twitter puts out more than 170 million tweets per day. That is a lot of free advertising!

However, what many businesses fail to remember is that, despite all of the positive aspects social media brings to a firm's marketing, communication, and sales efforts, it's also ripe with opportunity to damage their brand and cause a financial loss. While it's free marketing, it's also a lot of unedited content being published online that could be about your business, about your products, or attributed to you. Could a competitor feel that your employees are slandering their people or products? Could a competitor gain inside information about your organization? Could an employee divulge information that could get them fired? Could you or your employees inadvertently offend prospects and clients? In short, yes. As social media use continues to evolve and grow, it's important to consider this exposure to your organization.

Using Social Media To Generate Business Leads
All of this can be scary, but you can't ignore the great opportunities created by social media. Any organization not taking advantage of social media sites is signaling that it is not evolving with the times, and there is nothing close to matching the immediacy of broadcasting your news through social networking sites. A well-crafted social media strategy can generate a lot of interest in your product or services and drive traffic to your website where more specific information can be provided.

“In time, the proper execution of a focused social media strategy is an efficient means of staying in front of prospects. When the prospect has a business problem, your positioning as a credible, knowledgeable resource can help you get in the door and, hopefully, close the deal,” says Randy Stoloff, Director of Marketing and Social Media at AmWINS Group Benefits in Warwick, Rhode Island.

It is critical to have all content reviewed by someone within your organization that can be responsible for stopping improper content from being released. It's also important to review applicable insurance policies such as a website media policy or cyberliability policy to be sure social media activities are covered.

Using Social Media For Crisis Response
Imagine a time down the road when your best customers follow your social media feed and you need to get news out in a hurry about something that could cause your most prized customers harm. Assuming you have or hire qualified public relations professionals that can help you craft the proper way to phrase the announcement, you can get important news out immediately to show your concern for your customers and for transparency. Social media provides the most immediate way to communicate to your target audience. There are many insurance products currently available that assist with handling the public relations aspect of a crisis response. Having your social media presence established prior to a crisis will help you deal with the crisis in a targeted fashion.

Can Social Media Sites Be A Network Security Risk?
Besides the potential for hackers to use employee information on social media sites to figure out passwords, the sites can also be used to transmit computer viruses and other dangerous malware. As a result, many corporations block employee access to social networking sites. If the corporation has a cyberliability insurance policy in place, be sure it addresses security issues emanating from social media. The coverage may be limited to networks owned or controlled by the corporation.

Should I Address Social Media In My Employee Handbook?
This is a topic that requires legal counsel with experience in employment law as well as social media. It makes sense as a business owner to establish a guideline on what social media activities are permissible for employees, but it must be carefully worded. The National Labor Relations Board has published guidelines that may help. Most companies work very hard to establish a professional image and reputation. Employees often mistakenly think that commenting in social networking sites is somehow exempt from personal responsibility. The press is full of examples of disgruntled employees commenting on working conditions, complaining about their managers or coworkers, or commenting on confidential internal activities. Employees have been terminated for their conduct and they've sued for wrongful termination. You are likely to find coverage for the wrongful termination claims on your employment practices liability (EPL) insurance policy. Working with a professional is critical for navigating this minefield. You may not be able to avoid the litigation, but you can lay the groundwork for an effective defense.

Do I Need A Social Media Component In My Employment Contracts For My Executives?
Your top executives can also make mistakes using social media. Sensitive information can be leaked out accidentally by people who see the most sensitive information. Similar to non-executive employees, managers who have been terminated due to their social media activities have sued their employers for wrongful termination. Again, look to an EPL policy for coverage for that type of claim.

Should I Review The Social Media Content Posted By Job Applicants?
Many states have enacted laws barring employers from requesting full access to an applicant's social media profile. We have all heard stories about a prospective employer seeing improper pictures or comments by the applicant which influence the decision to hire or not hire them. Some employers have taken it one step further and requested login credentials from job applicants in order to see all the content they have posted. It seems like an obvious invasion of privacy, so laws are being written to protect the rights of job seekers. The claims that can arise from this scenario could have coverage apply under the “wrongful failure to hire” coverage on an employment practices policy, as well as an “invasion of privacy” policy as part of a cyberliability policy.

Scared Yet?
There are reasons to be concerned, but the opportunities need to be investigated with a proper foundation of preparation. It is also important to remember that there are insurance products available to help protect you after missteps. If you have an employment practices liability policy, you likely have some protection from wrongful termination claims and invasion of privacy claims brought by your employees. If you have an internet media or cyberliability policy, you could have remedies for allegations of libel, slander, defamation and invasion of privacy claims brought by other parties. A strong cyberliability policy will have protection from breach of security claims if hackers use social media to access your computer network for malicious purposes. It's possible that other insurance products can offer assistance as well. AmWINS represents multiple insurers with all of these insurance products and can help you select the proper coverage for you and your clients.