Personnel policies are designed to inform employees of the types of conduct that are acceptable or unacceptable. They, obviously, can only give a general overview and are subject to interpretation and application by the employer on a case-by-case basis. A recent decision arising out of a Tweet by a Vice President of Human Resources shows that such policies will be strictly construed against employers in Pennsylvania.
Without a doubt sexual harassment has always been a serious issue for employers. Given the recent headlines relating to celebrities such as Harvey Weinstein, Kevin Spacey, Bill O’Reilly, and others, sexual harassment is now front and center in the consciousness of the American public in ways that it was not just a short time ago. After the Harvey Weinstein scandal hit the news, Actress Alyssa Milano took to Twitter and posted the following tweet: “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status we might give people a sense of the magnitude of the problem.” Her tweet caught fire and “#metoo” peppers all vehicles of social media. In fact, CBS News reported that more than 45% of U.S. Facebook users had friends who posted #metoo.
The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.
“For, although common Snarks do no manner of harm, Yet, I feel it my duty to say, Some are Boojums –.” So goes the warning in Lewis Carroll’s 1876 poem The Hunting of the Snark. In the poem, a hunting party pursues the harmless Snark but is warned along the way that some Snarks are actually highly dangerous Boojums. If one meets a Boojum, he will “never be met with again!” At the conclusion of the story, one member of the crew believes he has found a Snark and calls out to his friends – but when they arrive, they find that he has vanished without a trace, “For the Snark was a Boojum, you see.”
Regular readers of the Employment Essentials blog know that we frequently post articles about the interplay between the workplace and social media. Most of our social media posts relate to the National Labor Relations Board’s (“NLRB”) frequent examination of the topic. In fact, two years ago this month, I posted an article about a decision from an Administrative Law Judge with the NLRB Division of Judges who found that Facebook postings constituted protected activity under the National Labor Relations Act (“NLRA”).
About 16 months ago, the National Labor Relations Board (“NLRB”) made quite a stir when one of its Administrative Law Judges ruled that it was unlawful for a non-profit to fire 5 workers for violating the agency’s anti-harassment policy when the harassment – done on Facebook – was determined to constitute protected concerted activity over working conditions. We’ll give you one guess as to how the appeal to the full Board turned out.
We recently discussed here the National Labor Relations Board’s (the Board) first-ever ruling on employees’ social media postings. Now, three weeks after its initial decision, which found that Costco’s policies regarding social media were overbroad and could restrict employee activities protected by the National Labor Relations Act, the Board has issued another decision on social media. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, the NLRB gave employers a modest win.
The far reaching impacts of social media on the workplace have garnered significant attention from this blog – and rightly so. The constant appearance of employee use of Facebook and Twitter on the newswire demands that attention. And we’re not just talking about employees in low profile, private-sector positions here either, folks.