Introduction

1. NLRB COMMENTS ON THE USE AND REGULATION OF SOCIAL MEDIA IN THE WORKPLACESUSAN M. BERNAUKATHERINE A. BEENKENAHLERS & COONEY, P.C.100 COURT AVENUE, SUITE 600DES MOINES, IOWA 50309sbernau@ahlerslaw.comkbeenken@ahlerslaw.comFebruary 7, 2013

2. Introduction • There are over 1.7 billion usernames registered to the top four social networking sites (SNS) (Facebook, Twitter, Google+, and LinkedIn). Facebook alone receives over 100 billion hits per day. • In Quarter 1 of 2012, Apple sold more iPhones than there were babies born in the world. In late 2011, a study indicated that the average cell phone user between the ages of 18 and 24 sends or receives 110 text messages per day.

3. Memorandum OM 11-74 • Issued August 18, 2011 • Discusses several decisions of the NLRB involving employees’ use of Facebook and Twitter, a union’s use of YouTube, and a review of employer policies regulating social media.

4. Memorandum OM 11-74 – Case Summaries • Non-profit social services organization violated Section 7 of the NLRA when it discharged five employees who engaged in protected concerted activityusing Facebook as a discussion forum. • Swearing and sarcasm in several of the posts did not cause the activity to lose its protected status. • Negative comments about supervisor equals protected activity by exercising her Weingarten rights and by discussing supervisory conduct with her coworkers. • Company’s internet policy and found the following provisions violated the Act: prohibition against posting any picture of the employees that depict the company in any way, a prohibition against making disparaging comments about supervisors or coworkers, and a broadly worded standards of conduct provision barring “offensive conduct”.

5. Memorandum OM 11-74 – Case Summaries (Cont'd) • 2. Complaints on cheap food and poor driving • Photos and comments, although personal, vocalized the sentiments of the coworkers and were, therefore, concerted and that they were protected because they pertained to working conditions. • 3. “Inappropriate Discussions” Prohibition Likely Unlawful Internet Policy. • Employees were advised that they owed additional state income taxes due to employer withholding errors, exchanged posts on Facebook, and made derogatory comments about the employer. • The Board found the Facebook postings to be both concerted (multiple postings and comments) and protected (administration of tax withholding was a term or condition of employment).

6. Memorandum OM 11-74 – Case Summaries 4. Offensive tweets was not engaged in protected concerted activity. a. No evidence that he discussed his concerns with his coworkers. b. Prohibited from airing his grievances or commenting about the newspaper in any public forum. He continued to tweet but not about the company. c. Posting was protected because it pertained to working conditions, it was not concerted since no coworkers responded to the post or otherwise engaged in conversation about the matter. 5. Bartender upset with the tip-sharing policy took to Facebook to vent and posted cruel comments about the customers Again, posting was protected (pertaining to work conditions) but not concerted because no co-workers engaged

7. Memorandum OM 11-74 – Case Summaries An employee who posted comments of the Facebook wall of her U.S. Senator, including disparaging remarks about how her company failed to assist the situation, was not engaged in concerted activity. An employee at a shelter was terminated after complaining about her interaction with the clients in mental health facility, but the only persons who commented on the post were Facebook “friends” who were not coworkers. In one case, clothing store employee took to Facebook to complain about mispriced or misplaced items. Several coworkers responded to the post, but the Board saw no indication in responses that coworkers thought that this employee was initiating group activity on their behalf. (The post was, essentially, a personal grip and therefore not “concerted”).

8. Memorandum OM 11-74 – Case Summaries (Cont’d) 9. When a Union representatives appeared at non-unio jobsite and questioned employees about their immigration status, the Board found conduct of the rep to be coercive and, by extension, found documentation of the conduct which was uploaded to YouTube and posted on Facebook to be coercive.

9. Memorandum OM 11-74 – Case Summaries • Social media policy prohibiting communication that might embarrass, harass or defame hospital or its employees, and rule prohibiting untruthful statements that might damage the reputation of the hospital was unlawful because it was overbroad and prohibited communication by employees on wages and other terms and conditions of employment. • Another company prohibited employees from microbloggingabout company business on their personal accounts about the company that could be inappropriate and from identifying themselves as company employees. • Other unlawful guidelines according to the Board include a policy that precluded employees from revealing personal information and one precluded employees from using company logos, photographs of the store, brand and products without written authorization. • a. Finally, a policy prohibiting employees from speaking to reporters was unlawful

10. Memorandum OM 11-74 – Case Summaries • January 24, 2012 • Board found social media policies adopted by the companies in several cases violated the Act because they prohibited communication or conduct that was protected by Section 7. • “An employer violates Section 8(a)(1) through the maintenance of a work rule if that rule ‘would reasonably tend to chill employees in the exercise of their Section 7 rights. • Clearly unlawful if it explicitly restricts Section 7 protected activities. • Employees would reasonably construe the language to prohibit Section 7 activity. • The rule was promulgated in response to union activity. • Applied to restrict the exercise of Section 7 rights.”

11. Examples of Unlawful Policy • These policies were found unlawful because they prohibit: • Making disparaging comments about the company through media. • Employees identifying themselves as the employer’s employees, unless there was a legitimate need to do so. • Engaging in insubordinate, disrespectful conduct or participating in inappropriate conversations. • Using social media to engage in unprofessional communication that could negatively impact employer’s reputation. • Disclosing confidential or sensitive, non-public information. • Using company’s name or service marks outside of business.

12. Examples of Unlawful Facebook Firing • Manufacturing plant employee posted comments on Facebook regarding sexist statements made by supervisor, which coworker Facebook friends read. Fired because of involvement of coworkers’ in discussing job-related problems. • Three employees of popcorn packaging facility exchanged comments on Facebook regarding negative attitude and supervisory style of manager. Charging party fired for post regarding the employer and one of its managers. • Veterinary hospital employee passed over for promotion posted on Facebook comments about the employee who was chosen for the position, as well as management. Coworkers who were Facebook friends agreed in their own posts. All were disciplined because of the posts.

13. Lawful Discipline • Comments posted on Facebook by respiratory therapist at a hospital regarding coworker who sucked his teeth, who was driving her nuts and who said she was about ready to beat with a ventilator were personal and not protected and concerted. • Truck driver posted Facebook comments regarding his frustration with employer’s response to work-related issues during a snow storm. Since no coworkers joined in his Facebook conversation and he was not seeking to induce or prepare coworkers for action, his communications were not concerted. • Warehouse worker posted comments about employer’s treatment of him while he was feeling ill at work, and, although six coworkers were Facebook friends, none responded to posts and, thus, his activity was not concerted.

14. Traditional Standards for Regulating Media Use • Jefferson Standard test was established by Supreme Court to analyze handbills that were part of intentional appeal to the general public. Board has applied this test to employee communications intended to appeal directly to third parties, with eye toward whether communications reference a legitimate and accurate labor dispute or are so disparaging that it loses the protection of the Act. • Atlantic Steel generally used to analyze communications between employees and supervisors, specifically focusing on whether communications would disrupt or undermine shop discipline or whether the comments were provoked by unfair labor practices • The modern approach is to borrow from both standards.

15. Memorandum OM 12-59 • Issued May 30, 2012 • Discusses seven recent decisions of the NLRB involving employees’ use of social media. • Board found that one or more provisions of the social media policies adopted by the companies in six of these cases violated the Act because they prohibited communication or conduct that was protected by Section 7.

16. “7 Tips for Drafting Social Media Policy” • Avoid language that would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves, including prohibiting employee from talking to press, blogging or reporting to government agencies. • Avoid overbroad requirements like “completely accurate and not misleading” - it could reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees that would be protected by the Act so long as they are not maliciously false.

17. “7 Tips for Drafting Social Media Policy” (Cont’d) • Avoid prohibiting posts solely on justification of TM use. • Suggestions to ‘play nice’ can be overly broad. Executive Board found unlawful the instruction that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” • Don’t restrict employee from “friending” or engaging other employees. • Don’t ask employee to spy on each other or even to “[r]eport any unusual or inappropriate internal social media activity.” • Don’t reply on a “Savings Clause”.

18. “Acceptable Restrictions” • Board did not find unlawful the prohibition on representing “any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer].” • Employees would not reasonably construe this rule to prohibit them from speaking about their terms and conditions of employment. • Requirement that employees must expressly state that their postings are “my own and do not represent [Employer’s] positions, strategies or opinions” is not unlawful. • OK to prohibit employees from accessing personal social media accounts on company time or on company property – just enforce the policy consistently

19. Questions? Susan M. Bernau Katherine A. Beenken AHLERS & COONEY, P.C.100 COURT AVENUE, SUITE 600DES MOINES, IOWA 50309 Tel: 515-243-7611 sbernau@ahlerslaw.comkbeenken@ahlerslaw.com