NLRB administrative law judge concludes discharge for Facebook posts was unlawful.

Hispanics United of Buffalo, (HUB) provides services to low-income clients.  One HUB employee posted the following message on her Facebook account about a coworker, Lydia Cruz-Moore, who had been complaining about coworkers via text messages and who had indicated she was going to take her complaint to management:

Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it!  My fellow coworkers how do u feel

Several coworkers joined the online conversation with posts such as:

What the f. .. Try doing my job I have 5 programs

What the Hell, we don’t have a life as is, What else can we do???

Tell her to come do mt [my] fucking job nc if I don’t do enough, this is jus dum

Cruz-Moore complained to management about the posts. HUB responded by firing five of the employees for bullying and violating the organization’s harassment policy. The employees filed a charge with the NLRB and the NLRB issued a complaint.

The NLRA prohibits discharging an employee for engaging in protected “concerted activity.” Because HUB conceded firing the employees for their Facebook posts, the issue in this case was whether those posts constituted protected “concerted activity.”   The ALJ concluded the Facebook postings constituted concerted activity.

The concept of concerted activity focuses on employees acting with or on behalf of other employees. It includes discussions about terms and conditions of employment such as wages. The ALJ reasoned that explicit or implicit criticism of how coworkers perform their jobs is protected concerted activity. That was especially true where, as in this case, some of the posters expected that Cruz-Moore might take her criticisms to management.

Even when conduct is concerted activity, the conduct can lose its protected status if, for example, the conduct was too egregious. Here, the ALJ concluded that the postings did not lose their protected status because the posting were not at work, not made during working hours, were related to the employees’ job performance, and were not “outbursts.”

The ALJ rejected the employer’s argument that the posters violated its “zero tolerance” anti-harassment policy. The ALJ concluded that the policy, which prohibited harassment because of various protected characteristics such as race, age, religion, etc. was not violated because there was no evidence Cruz-Moore was harassed because of any such characteristic. Also, the ALJ concluded there was no evidence the posts would have impacted Cruz-Moore’s job performance. The only rationale for this conclusion was that she “rarely interacted” with the posters.

The ALJ ordered reinstatement of each employee and an award of backpay with interest.

I think this case fails to answer more questions than it answers. For one thing, this decision is from one ALJ, which has different precedential value than does a decision by the Board. We will have to wait to see how the Board rules on the issue.

It is clear, though, from this case and other Board activity, that employees are entitled to job protection for certain social media posts regardless of whether the company is union or non-union.  Before disciplining employees for such posts, the employer must evaluate whether the conduct falls within the NLRB’s definition of “concerted activity.”  (Some employers fall outside the scope of the NLRA because of their size, dollar sales, and type of business activity, but it has nothing to do with whether a company is union or non-union.)

Also, online concerted activity is not going to lose its protection merely because the posters use some profanity or publicly criticize a co-worker.

The case, Hispanics United of Buffalo, Inc., is here.

Washington Employers Get Rare Break From Supreme Court

Washington employers got a rare break from the Washington State Supreme Court on Thursday in a 5/4 decision (Wiggins did not participate) holding that employees cannot rely on WISHA to state a claim for wrongful discharge in violation of public policy.

Matthew Cudney was discharged after complaining to management that his branch general manager was driving while intoxicated. Cudney sued his employer for wrongful discharge in violation of the policies embodied in WISHA. The reason Cudney relied on the public policy tort theory rather than a statutory WISHA violation is that he failed to comply with the statutory requirement that complaints be filed with the Director of Labor & Industries within 30 days of the discharge.

The Court concluded that the broad protections for workers and available remedies under WISHA were adequate to protect the policies of a safe workplace and whistleblower protection. As a result, the Court refused to extend the law to allow a discharge in violation of public policy tort claim based on WISHA.

This is a good case for employers. Not only does the decision limit employees to the remedies and procedure under WISHA, the Court’s reasoning will likely have broader application when defending against other types of public policy tort claims.   Cudney v. ALSCO, Inc.  The dissent is here.

NLRB Advice Memo Concludes Facebook Post Not Unlawful

In another in a series of advice memoranda from the NLRB regarding social media, the NLRB concluded the discharge of a crane operator because of his Facebook did not violate the NLRA because there was no protected concerted activity.  The Advice Memorandum, regarding Helser Industries, is here.

A co-worker of the crane operator informed a supervisor that the operator nearly struck an employee and knocked over a welding machine with a crane.  Angry at being reported and not allowed to go home to “cool off,”  the operator then knocked over two work horses with the crane.  The supervisor yelled at the operator and had to finished the crane work when the operator walked away.

The next day, a non-working day, the operator posted the following statements to his Facebook account:

yeah I got a fucking attitude about where I work today.  a coworker ran into the office when they witnessed me knocking over a welding machine accidentally.  people who pull this stuff irk me greatly.  they don’t have the capacity to mind their own buss

weekends work wonders

if i snap, helser industries will be making national headlines

A coworker posted the following:

Do you need an intervention?  Maybe you need to go see a DR. and get some relief.  You might need some time out.  The bottom line it is only work and all they can do is send you packing.  that won’t happen so take a chill pill.  There are more things to worry about than work.  There is life beyond that place.  Besides time heals all wounds.

Helsel discharged the operator when it learned of his posts.

Associate General Counsel Kearney concluded that the operator’s complaints were an expression of an individual gripe and not protected concerted activity because (a) the posts contained no language suggesting the operator sought to initiate or induce group action and (b) there was no evidence that coworkers interpreted the postings as a call for group action or that any coworkers shared his concerns.

This Memorandum is good news for employers.  As in Lee enterprises, Inc. d/b/a Arizona Daily Star, Rural Metro, and JT’s Porch Saloon & Eatery,  LTD, this case reflects what appears to be the Board’s recognition that social media posts that reference workplace matters do not necessarily constitute protected activity; there still must be evidence the the conduct is concerted.   At the same time, these cases are very fact-intensive and this case easily could have come out differently if the coworker’s post had been worded slightly differently.

All employers (the NLRA protection for concerted activity applies to non-union and union employees) confronted with inappropriate social media posts, tweets, or other activity need to carefully analyze the content and circumstances of the conduct to determine if the activity is concerted and, if it is protected, whether the protection was somehow lost.

The Key to Easier Terminations

Terminations are never easy.  But I learned as a manager that one thing, giving the employee advance warning and an opportunity to improve, was one key to making terminations easier for me and for the employee.  As an employment lawyer, I have learned that the advance warning, and specifically a final written warning, coupled with the opportunity to improve goes a long way toward reducing the risk of litigation.

As a manager, I found that when I had not made my expectations and the consequences for failing to meet my expectations crystal clear to an employee, that employee was certain to be angry and to argue with me about the decision during a termination meeting.  In contrast, when I had previously made both my expectations and the potential consequences clear long before the termination meeting, the meeting was less likely to be hostile.  Usually, the employee still did not agree with the decision and was still upset.  But having a mutual understanding of my expectations and the consequences of failure, it was easier for me to communicate the decision and easier for the employee to accept my decision.

How much advance warning you give depends on the circumstances.  But, generally, enough time for the employee  to turn things around.   For something like punctuality, that could be as short as one day; for performance issues, it generally will be longer.

There are probably several reasons why advance warning eases the pain for the employee and supervisor.  No one likes to be fired.  But what makes it worse is the feeling of not having been given the chance to “fix” things to avoid the discharge.  Giving the employee advance warning and the opportunity to improve empowers the employee.

Supervisors are willing to give the employee an opportunity to improve; in fact, I think they often give too much opportunity.  But supervisors often fail give an effective advance warning.  For maximum effectiveness, this warning should be in writing.

Supervisors often are not honest about the consequences of non-improvement and, even when they are honest, the employee often does not hear the message.  A written warning helps avoid this failure to communicate.  When you have reached a point that failure to immediately improve will result in discharge, the employee needs to get that message, not a watered-down version.  Thus, the written warning should say something like “Failure to make immediate and sustained improvement in [area needing improvement] will result in your discharge.”   No pulled punches:  improve or get fired.

Supervisors are often reluctant to give such a warning for fear it will undermine the employee’s motivation to improve.   This fear is well-founded, but the problem can be overcome.  I learned that employees got less upset with me about a straight-forward threat of discharge when they still had time to turn things around than when they thought they had been fired out-of-the blue because they misunderstood the seriousness of the situation.

Another reason for the warning to be in writing is that it helps avoid litigation.  In litigation, witnesses often forget or lie about what actually happened.  Having the written warning goes a long way toward proving the employee was informed about his or her deficiencies and the consequences of failure to improve before the discharge.  Also, in discrimination and retaliation cases, the written warning is strong evidence of the employer’s legitimate non-discriminatory reason for the discharge.  (It’s also a good idea to have a the employee sign a copy of the warning to acknowledge receipt.)  Having strong documentary evidence supporting your case makes it less likely a plaintiff’s lawyer will take on a case against you.

Certainly there are circumstances when giving a prior warning and opportunity to improve is not possible.  But when it is, I recommend that you give it.

Have you found giving a final written warning made a termination easier for you or your employee?

New Rule Requires Notice of Rights under the NLRA

Today the NLRB issued its final rule requiring that employers subject to the NLRA post a detailed notice regarding employees’ rights under the Act.  The notice sets out a detailed description of employee rights under the NLRA, consequences for violations of those rights, and how to contact the NLRB regarding questions or violations.  The final rule, which includes a copy of the required notice, can be found here.  The rule includes information from which employers can determine whether they subject to the posting requirements.

Member Hayes dissented over the new rule and the majority’s stated purpose for the rule:

Surely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 right to refrain from or to oppose organizational activities, collective bargaining, and union representation.  My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employees in the nonagricultural American workforce.

Member Hayes also believes the Board lacks authority to promulgate the rule and that the Board’s action is arbitrary and capricious and, therefore, invalid.  He predicts

. . . I am confident that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.

But for now, at least, employers subject to the new rule will have to post the notice beginning November 14, 2011.

Here are some highlights of the posting requirement:

  • The notice must be at least 11 inches by 17 inches (or two 8 1/2 x 11 sheets taped together).
  • The notice must be posted in conspicuous places where the notice will be readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.
  • If an employer customarily communicates with its employees about personnel rules or policies on an intranet or internet site, in addition to the requirement of putting up the actual poster, the employer must also post the notice on the site.  This can be done by downloading and posting the notice or linking to the Board’s website that contains the poster.  If linking, the link must read “Employee Rights under the National Labor Relations Act.”
  • Federal contractors that comply with the Department of Labor’s notice-posting rule regarding rights under the NLRA are deemed in compliance with the NRLB’s rule and do not have to post a second poster.
  • Special rules apply if 20 percent or more of an employer’s workforce are not proficient in English:
  1. If 20 percent or more of an employer’s workforce are not proficient in English but speak the same foreign language, the notice must be posted in that language.
  2. If the employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the notice must be either posted in those languages or posted in the language of the largest group and provide each employee of the other language groups a copy of the notice in the appropriate language.
  3. Employers can request from the Board a poster in a particular language.  If a poster is not available in that language, employers are not liable for non-compliance until the notice becomes available in that language.

Consequences for failing to comply with the rule include:

  • The Board construes failure to post the notice as a unlawful interference with Section 7 rights in violation of Section 8(a)(1).
  • The Board will customarily order the employer to post the notice and to post a remedial notice.
  • The the 6-month limitations period in which an unfair labor practice charge must be filed will be tolled (unless the employer proves the employee had actual or constructive knowledge of the conduct alleged to be unlawful and that such conduct violated the NLRA, yet failed timely to file a charge).
  • A knowing and willful failure to post is considered evidence of an unlawful motive in those unfair labor practice proceedings in which motive is an issue.

Avoid Common Pitfalls When Drafting Policies – Part One

One common mistake I encounter is an employer adopting an anti-harassment policy prohibiting “all harassment” rather than just “unlawful harassment” without an understanding of the distinction or potential consequences of the language choice.

Under federal law and the laws in the state of Washington, as in many states, an employer is not required to maintain a workplace free from all harassment.  Harassment is made unlawful only when it is because of race, age, sex, disability, or other status protected by applicable law and only when the conduct is sufficiently severe or pervasive.   (A general anti-bullying law, which has not passed in Washington, would be an exception to this rule.)  A policy prohibiting “unlawful harassment” simply agrees to comply with existing law.

A policy prohibiting “all harassment,” on the other hand, arguably goes beyond what the law requires.  Employees often claim that employers, by using such language, have undertaken a duty to maintain a workplace free from any and all harassment regardless of the reason for the conduct, its severity, or its pervasiveness.  Thus, the language creates legal risks for employers that otherwise would not exist.  And I have seen many claims that fail under the “unlawful harassment” language but survive under the “all harassment” language.

A good case can be made for adopting either type of language in the policy, but the decision should be made only after understanding and weighing the pros and cons of the different language to avoid creating unintended risks.

Signs That Employees Will Lose Their Discrimination Case

In my experience as a manager before going to law school and in my practice as an management-side employment lawyer, many discharged employees fail to accept any responsibility for the discharge.   How many times has a friend told you, “I was let go for poor performance, and, you know, they were right.”  Instead, the employees often jump to the conclusion that their age, race, age, sex, disability, or other protected status was the cause of the discharge.

Robin E. Shea has written an excellent post on her Employment & Labor Insider blog that outlines nine signs an employee will lose a age discrimination lawsuit.   Many of her signs, which apply to more than just age claims, go to the issue of why, despite the employee’s mistaken beliefs, the discharge was lawful.   These include such truisms as:

  • The actions of some employees actually warrant discharge;
  • Not all unfair treatment is unlawful; and
  • Discharged employees rarely have all the facts.

I read a lot of information from agencies such as the EEOC, DOL, and NLRB designed to educate employees about their rights under the law.   I applaud those efforts.   But I would like to see more information like that discussed by Robin Shea so that employees get more of a balanced view of the law.

How to Implement Your Social Media Policy

Maria Ogneva from Yammer, an internal social network product for companies, recently wrote an article highlighting several tips on getting employees to buy-into your social media policy.  I especially like her focus on educating, empowering, and teaching employees WIIFM (“What’s In It For Me”) rather than on disciplining them:

The best way to ensure buy-in to your social media policy is not through threat of disciplinary action.  Rather, it’s by providing education and resources, and building the right processes.

She also included in her article an outstanding video on the topic prepared by, of all things, the Department of Justice in Victoria, Australia.  Check it out!

Tips for Using Social-Networking Sites to Screen Applicants

Molly DiBianca recently wrote a helpful 3-part series on The Delaware Employment Law Blog regarding tips for employers to follow when using Facebook or other social-networking sites to screen applicants.  Here are a few of her key suggestions:

  • Do not try to gain access to an applicant’s profile directly through tactics such as asking a friend of the applicant to show you the applicant’s profile.
  • Develop a written checklist of key things to search for.  The list should include (a) key things about an applicant that would give you concern about the applicant, such as the the use of hate language or promoting the use of illegal drugs, and (b) key things that you would like about an applicant, such as authoring a well-written blog.
  • Have someone not involved in the hiring decision perform the actual search for items on the list.  This insulates the decision maker from learning things about the applicant’s protected status such as his or her race.  It makes it much easier to defend against a claim that a decision not to hire was because of an applicant’s protected status when the decision maker was unaware of that status!

Molly’s tips regarding having a checklist and having a non-decision maker perform the search apply equally to employers performing general internet searches about applicants.