Here is our outline for a presentation to the DuPage County Bar Association in November 2017 on Social Media and Employment Law
Employment Law and Social Media
Presentation to DCBA
David J. Fish, Fish Potter Bolaños, P.C., P.C.
I. The Right To Complain & Improve Workplace Conditions
a. The National Labor Relations Act (NLRA) protects the rights of employees to act together to address conditions at work, with or without a union. This includes conducting these activities on social medial.
b. Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7″ of the Act
c. Examples of Facebook postings:
i. Catering company employee’s posting: “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
ii. Teen center posting: “Im gOin to be a activity leader im not doin the [teen center] let them figure it out and when they start loosn kids i aint helpn HAHA”
1. Response: “hahaha. Sweet, now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like bein their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money. …. Let’s fuck it up. I would hate to be the person takin your old job.”
i. Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
ii. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
iii. Chipotle Case:
1. In response to a customer who tweeted “Free chipotle is the best thanks,” Employee tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”
a. “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
i. NLRB: “An employer may not prohibit employee postings that are merely false or misleading. Rather, in order to lose the Act’s protection, more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive. …This analysis applies to the policy prohibitions against false, misleading, inaccurate, and incomplete statements. Therefore, those prohibitions are unlawful.”
b. “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
i. NLRB Ruling: “An employer may not prohibit employee postings that are merely false or misleading. Rather, in order to lose the Act’s protection, more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive. …This analysis applies to the policy prohibitions against false, misleading, inaccurate, and incomplete statements. Therefore, those prohibitions are unlawful.”
ii. “The prohibition against disclosing confidential information is also problematic. The policy does not define confidential, even when it is discussed two paragraphs down. While the Respondent certainly has a valid interest in protecting private company information, and it is inappropriate to engage in speculation or presumptions of interference with employees’ rights, the undefined word “confidential” is vague and subject to interpretation, which could easily lead employees to construe it as restricting their Section 7 rights…..The prohibition against disparaging statements could easily encompass statements protected by Section 7, and the Board has found rules prohibiting derogatory statements to be unlawful.”
II. Social Media Privacy Rights
a. Right to Privacy In the Workplace Act (820 ILCS 55/1)
i. Employers cannot:
1. Request or coerce an employee/applicant to provide a username or password to gain access to employees’ personal “online account”.
a. “Online account” was expanded last year to mean one used by a person primarily for personal purposes.
2. Request or coerce the employee/applicant to authenticate or access a personal online account in the presence of the employer.
3. Require or coerce the employee/applicant to invite the employer to join any personal employee’s online group.
4. Require or coerce the employee/applicant to join an online group that would allow the employer to gain access to their friends.
ii. For violations, employee commence an action in court for actual damages. Plus, for “willful and knowing” violations between $200 and $500 in damages plus attorney fees.