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ARE YOUR AT-WILL AND SOCIAL MEDIA POLICIES COMPLIANT?: LATEST DEVELOPMENTS FROM THE NLRB

ARE YOUR AT-WILL AND SOCIAL MEDIA POLICIES COMPLIANT?: LATEST DEVELOPMENTS FROM THE NLRB. James H. Gilliam BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-242-2446 Facsimile: 515-323-8546 E-mail: gilliam@brownwinick.com .

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ARE YOUR AT-WILL AND SOCIAL MEDIA POLICIES COMPLIANT?: LATEST DEVELOPMENTS FROM THE NLRB

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  1. ARE YOUR AT-WILL AND SOCIAL MEDIA POLICIES COMPLIANT?: LATEST DEVELOPMENTS FROM THE NLRB James H. Gilliam BrownWinick666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510Telephone: 515-242-2446Facsimile: 515-323-8546E-mail: gilliam@brownwinick.com

  2. National Labor Relations Board (NLRB)

  3. NLRB Regulates employee rights to engage in collective activities in businesses in “interstate commerce”.

  4. Concerted activities for purposes of mutual aid and protection.

  5. Interstate Commerce Non-retail establishments -- $50,000 gross receipts Retail/Construction establishments - $500,000 gross receipts

  6. NLRB majority controlled by Obama-administration appointees

  7. Hyatt Corporation Policies “I understand my employment is ‘at will.’”

  8. Hyatt Corporation Policies (cont.) “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me” and Hyatt’s president or executive vice president/COO.”

  9. Hyatt Corporation Policies (cont.) “[T]he at-will status of my employment … can only be changed in writing” signed by the employee and one of the two Hyatt executives.

  10. NLRB General Counsel “… essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status.”

  11. NLRB General Counsel April 2012 Guidance on Social Media

  12. Concern: Overbroad Policies Chill Protected Activity

  13. Example of Overbroad Policy: Policy language prohibiting “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”

  14. Example of Acceptable Policy Policy language which prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, or other protected class, status or characteristic”

  15. Concern: Retaliation for Exercise of Protected Activity

  16. Examples of Protected Social Media Discussions Employee complaints and criticisms of a supervisor’s attitude and performance.

  17. Examples of Protected Social Media Discussions (cont.) Employee discussions regarding shared concerns about terms and conditions of employment

  18. Examples of Unprotected Social Media Discussions Expressions of individual gripes

  19. Banner Health System Confidentiality in workplace investigations

  20. NLRB Position Complaining employee has right to talk to coworkers about workplace concerns that outweighs general concerns about integrity of investigation.

  21. EEOC Position Employer cannot interfere with a complaining party’s ability to gather evidence or pursue a change.

  22. On Hold Poster “Quickie” Elections

  23. Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (641) 628-8494 DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.

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