SOCIAL MEDIA IN THE WORKPLACE: The New Water Cooler for Discrimination & Employee Privacy Issues Cory A. Kuhlenschm

1. SOCIAL MEDIA IN THE WORKPLACE: The New Water Cooler for Discrimination & Employee Privacy Issues Cory A. Kuhlenschmidt, Esq. Partner Bamberger, Foreman, Oswald & Hahn, LLP 20 NW Fourth Street P.O. Box 657 Evansville, IN  47704 ckuhlenschmidt@bamberger.com

2. It’s an Employee-Social Media World • Social media such as Facebook, Twitter and Linked In are part of an employee’s everyday life. • A “legal perspective”: given the dynamics of social media, many legal headaches await employers regardless of whether or not their employees are using social media at home or at work. • A “practical perspective”: social media has inundated the workplace, and thanks to the smart-phone, the ubiquity of social media means employees are using these internet applications at work, everyday, and they will continue to do so for the foreseeable future.

3. It’s an Employee-Social Media World • According to a recent internet survey: • 35% of those responding admitted to spending up to 30 minutes per week using social media during work time • 32% of the respondents said they do not spend anytime during work hours using social media • 68% acknowledged that they use anywhere from 30 minutes to more than 10 hours per week using social media.13 13http://manpowerblogs.com/both/2012/02/02/quaterly-socail-media-index/

4. Employers Strike Back (sort of) • Unofficial Facebook “Background Checks”-Many employers are using the practice of viewing social networking sites and blogs and using internet search engines to obtain information about job applicants and to monitor current employees. • A 2009 Careerbuilder.com survey revealed that 45% of employers reported that they use social networking sites for such purposes.14 • Another survey conducted by Microsoft revealed that 79% of U.S. human resource professional respondents used online information to evaluate candidates as part of their formal hiring process; and 84% of those surveyed believed it is appropriate to consider an applicant’s online reputation when evaluating the person for the job.15 14Forty-Five Percent of Employers Use Social Networking Sites to Research Job Candidates, Career Builder Survey Finds (Aug. 18, 2009), available at www.careerbuilder.com/Share/AboutUs/PressReleases.aspx?archiveyear=2009 15Data Privacy Day: Perceptions Study (Jan. 2010), available at www.microsoft.com/privacy/dpd/research.aspx

5. Didn’t We Almost Have It All? • State Laws Prohibiting Employers from Asking for Facebook Passwords • Illinois’ Right to Privacy in the Workplace Act (820 ILCS 55/10) • Other states: California, Delaware, Maryland, Michigan and New Jersey  • Federal Privacy Laws • The Federal Wiretap Act and the Electronic Communications Privacy Act (ECPA) of 1986 (amending the Federal Wiretap Act of 1968) imposes criminal and civil penalties against any person who intentionally intercepts an electronic communication with specific exceptions, including the “ordinary course of business” exception. 18 U.S.C. § 2511(2)(a)(1) (2006)

6. Didn’t We Almost Have it All? • Federal Privacy Laws – continued • As part of the ECPA, the Stored Communications Act (SCA) addressed stored electronic communications. • Under the SCA, a federal court judge in New Jersey denied an employer’s attempt to throw out a jury verdict against managers of the employer who intentionally accessed a private, invitation-only chat group on My Space without authorization. Brian Pietrylo, et al. v. Hillstone Restaurant Group d/b/a Houston’s, No. 06-5754 (FSH) (D. N.J. Sept. 25, 2009)

7. Why Employer Computer Use & Social Media Policies Matter • A New Jersey Court Decision: Stengart v. Loving Care Agency, Inc. • On March 30, 2010, the New Jersey Supreme Court ruled in favor of a former employee of Loving Care Agency, Inc on the employee’s claim the state’s common privacy law protected specific emails of the employee from review by her employer. Stengartv. Loving Care Agency, Inc., 990 A.2d 650(N.J. 2010)

8. Why Employer Computer Use & Social Media Policies Matter • Facts of the Case • The New Jersey Supreme Court considered whether the former employee, Ms. Stengart, had a reasonable expectation of privacy with regard to specific emails she sent and received with her attorney. • Although the exchange of emails occurred using Stengart’s personal, web-base email account, Stengart used the company’s computer for these communications. • As part of a litigation dispute against Stengart in a separate legal proceeding concerning Stengart’s claim of gender discrimination, Loving Care retrieved Stengart’s emails with her attorney from the company computer system to use the emails in the litigation. • Stengartargued that the employer could not review the emails and could not use them in the litigation because of reasonable expectation of privacy in the communications. Ultimately, the New Jersey court agreed.

9. Why Employer Computer Use & Social Media Policies Matter • Facts continued and Court’s ruling • The court ruled that the employer’s electronic communication was ambiguous and, and such, interpreted the policy against the company. • The policy provided that the company could review any matters on the company’s media systems at any time, and that all emails and communications were not to be considered personal or private to employees. • The court also found the policy’s disclosure of employee monitoring was inadequate as it did not put employees on notice that the company stored and could retrieve copies of employee’s private web-based emails. The policy failed to expressly state that company would monitor the content of emails made from an employee’s personal email account when they are viewed on company-issued computers. • As such, the court held that Stengart had a subjective expectation of privacy to these emails, and the company’s policy did not remove a reasonable expectation on the part of Stengart to privacy in the emails.

10. Why Employer Computer Systems & Social Media Policies Matter • The “Take Away”: • Although this case concerns an employee’s use of web-based email, it is instructive as it demonstrations that courts may draw a line between work place related communications and personal communications over the internet. • A narrow reading of the case supports the argument that this case is not a complete “win” for plaintiff employees as the e-mails at issue were attorney-client communications and courts are very protective of the confidentiality of such communication • ­­If an employer does not have a electronic communications/social media policy that is specific enough to address employee’s personal use of company computer systems, employers may very well violate an employee’s right to privacy in reviewing emails, Facebook pages, and other web based information without authorization.

11. Employer Discrimination Issues • Although it is obvious to employers today that legitimate, unbiased decisions should support any hiring decision or adverse employment action, the world of social media is exposing employers to more personal information about individuals than 5-6 years ago. Such information may relate to the individual’s race, color, gender, disability, age, national origin, religion or other protected categories. • An employer may be well intended when learning personal information via social media about candidates or its employees, but social media has exposed employers to a broad scope of personal information which can lay the foundation for an unlawful discrimination claim against the company.

12. Discrimination & Social Media • Consider this: • An employer may have an extremely capable and talented female employee who applies for a promotion within the company. • This promotion requires greater supervisory responsibility and travel to numerous satellite locations for the company across the country. • The decision maker in management is a “friend” with the female employee on Facebook. • The manager learns that the female employee is pregnant from one of her Facebook posts.

13. Discrimination & Social Media • The knowledge foundation: • If the employer decides not to promote the female candidate and instead promotes a male candidate for the position, the employer must be prepared to establish a legitimate, nondiscriminatory reason for this decision. • Further, because of the Facebook friendship, the female employee can lay a foundation that the decision maker in management knew she was pregnant and that information was part of the decision maker’s process which resulted in denying her the promotion.

14. Discrimination & Social Media • The growth of social media has expanded the opportunity for employees to share information with their coworkers and has added another world in which the lines of professional, working relationships can be blurred through electronic posts on Facebook, Twitter or other mediums. • As such, companies should give serious consideration as to what rule, if any they would like to enforce with regard to management interaction with employees in the social media world.

15. Hostile Work Environments & Social Media • Having a comprehensive social media and electronic computer system usage policy is a preventative step for employers to stay ahead of the expanding world of virtual workplace harassment in the context of employees interacting with one another via social media. • For example, it is common for coworkers to establish some level of friendship and eventually coworkers will become Facebook “friend” As can often happen between coworkers, either inside the office walls or outside the office setting, one employee, typically a male, will make inappropriate comments, gestures or engage in some inappropriate conduct that makes the female coworker uncomfortable. As a practical matter, this occurs outside of the office because the formalities of the office setting have been removed.

16. Hostile Work Environments& Social Media • In the world of social media, the formal boundaries of the office walls and the ability to “speak your mind” are all the more tempting. • Is this a hostile work environment? • Emily is an Office Manager and Gary is a truck driver who work out of the same company office. Although Gary and Emily do not hang out together outside of work, they spend a few minutes throughout the week talking about their weekends or activities. • Because they have worked together for several months, Gary “friends” Emily on Facebook and Emily accepts the request. Although too embarrassed to express his feelings in person, Gary posts personal compliments about Emily’s appearance and her outfits that she wears to work several times a week • Emily complains to Human Resources about the wall posts stating that Gary’s posts make her feel uncomfortable at work

17. Hostile Work Environments& Social Media • Do the following facts change your mind? • Gary’s posts become more personal and flirtatious, and Gary sends Emily personal pictures of himself in his swimsuit from his most recent beach vacation in Florida. • Gary posts his desires about drinking pinacolodas and getting caught in the rain with his co-worker Emily. • When Human Resources asks Emily about the details of her complaint, she explains that the harassment is strictly occurring on-line in the “virtual world.” • In addition to Emily, Gary has fifteen other Facebook friends who are co-workers at the company.

18. Hostile Work Environments & Social Media • What is an employer do? • Employers should develop a comprehensive social media and computer system usage policy to address these varies situations. Employers need to make it clear to employees that their comments or conduct via social media should be respectful to one another, and to the company’s customers. • Any employee who raises a complaint of harassment occurring via social media should be treated seriously, and the company should act immediately to investigate the employee’s complaint under the company’s established harassment procedures. • Further, the employer should give serious consideration to adopting a work rule that either prohibits supervisors from being friends with co-workers and subordinates on Facebook, or, at the very least, addresses the serious consequences that social media” friendships” can cause within the workplace.

19. Employee Off-Duty Social Media Use: Employers Breathe a Sigh of Relief??? • An employer may not have a duty to monitor an employee’s off-duty social media use - Mayparkv. Securitas Sec. Servs. USA, Inc. (Wisc. App. 2009) • A security guard worked for the employer took photo badges of female employees from a work site, pleasured himself on the badges, and posted the photos of his activity on an adult website from his home. • The employer terminated the security guard. • The female employees sued the company for negligently training and supervising the security guard; however, the appeals court found in favor of the company stating that “employers have no duty to supervise employees’ private conduct or to persistently scan the world wide web to ferret out potential employee misconduct.”

20. Oh, NO…What Is “Off-Duty” Conduct??? • Blakely v. Continental Airlines, Inc. (NJ 2000) • A female pilot brought claims of harassment/discrimination and retaliation against the airline. • During the case, airline employees used an on-line computer bulletin board to post negative comments about the plaintiff. The plaintiff argued the posts were false and defaming and insisted the employer should be held responsible for the posts because it was aware of the posts. • The lower court was instructed to determine whether the relationship between the electronic bulletin board and the airline established a connection to the workplace to impose liability on the airline.

21. The National Labor Relations Board • Employees under the National Labor Relations Act have the right to engage in concerted activities for the purpose of their mutual aid and protection. • This protection of concerted activity applies to both union and nonunion employees. • Concerted activities: • Includes discussing wages, hours and other terms and conditions of their employment with their co-workers. • Because “terms and conditions of employment” is interpreted broadly, it also includes issues such as safety, unfair or biased supervisors, as well as other issues pertaining to employee working conditions.

22. The National Labor Relations Board • Concerted Activities: • the NLRB has also defined “concerted” to include employee activity that is “engaged with or on the behalf of other employees”; a single employee bringing a workplace issue on behalf of a group of employees; and a single employee taking action that attempts to initiate group action or further group goals. • Employers are prohibited from taking an adverse employment action against an employee who engages concerted and protected activity. • If an employer takes adverse employment action against an employee who has engaged in concerted and protected activity, such employer action could constitute an “unfair labor practice.” • The NLRB adjudicates unfair labor practice complaints against both union and non-union employers. Remedies include reinstatement with back pay for discharged workers, invalidation of policies, and orders to post notices.

23. Hold On to Your Hats:The NLRB & Social Media Over the several years, the NLRB has emphasized that Section 7 protections will extend to an employee who uses social media to raise workplace issues which concern more than just the individual employee. The world of social media is the newest version of the workplace water cooler or employee break room. Below are numerous unfair labor practice charges that were either tried before an Administrative Law Judge or cases which in which the General Counsel did not purse the charge, all of which address Section 7 rights of employees in the context of social media.

24. Hispanics United of Buffalo, Inc. • Case Overview • An NLRB administrative law judge ruled that the employer, Hispanics United of Buffalo, unlawfully terminated five employees for complaining about working conditions on their Facebook pages. • The employees’ comments/complaints were in response to another employee who posted a co-worker’s allegation that employees do not do enough to help their clients. • The post resulted in employees responding on Facebook by defending their work performance and criticizing their working conditions.

25. Hispanics United of Buffalo, Inc. • Facts of the Case - the first employee posted the following comment about the co-workers: • On Saturday, October 9, 2010 at 10:14 a.m., Mariana Cole-Rivera posted the following message on her Facebook page from her home: 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? • The following employees responded by posting comments on Cole-Rivera's Facebook page: • At 10:19, Damicela Rodriguez posted the following response: What the f. .. Try doing my job I have 5 programs • At 10:26, Ludimar Rodriguez posted: What the Hell, we don't have a life as is, What else can we do??? • At 11: 11, Yaritza Campos posted: Tell her to come do mt [my] fucking job n c if I don't do enough, this is just dum

26. Hispanics United of Buffalo, Inc. • Facts Continued • At 11:41, Carlos Ortiz de Jesus posted: I think we should give our paychecks to our clients so they can "pay" the rent, also we can take them to their Dr'sappts, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries ... (insert sarcasm here now) • Mariana Cole-Rivera posted again at 11:45: Lol. I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don't provide, like washer, dryers stove and refrigerators, I'm proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human :) love ya guys • Nannette Dorrios, a member of the Board of Directors at HUB posted at 12:10: Who is Lydia Cruz?

27. Hispanics United of Buffalo, Inc. • Facts Continued • YaritzaCampos posted a second time at 12:11: Luv ya too boo • Mariana Cole-Rivera at 12:12 responded to Dorrios by the following post: She's from the dv program works at the FJC [Family Justice Center] at hub once a week. • Jessica Rivera, the Secretary to HUD Director Iglesias, posted at 1: 10 p.m.: Is it not overwhelming enough over there? • At 2:27 Lydia Cruz-Moore posted: Marianna stop with ur lies about me. I'll b at HUB Tuesday. • Cole-Rivera responded at 2:56: Lies? Ok. In any case Lydia, Magalie [Lomax, HUB'S Business Manager] is inviting us over to her house today after 6:00 pm and wanted to invite you but does not have your number i'll inbox you her phone number if you wish. • Carlos Ortiz posted at 10:30 p.m.: Bueno el martesllevo el pop corn [Good, Tuesday, I'll bring the popcorn]. • Saturday, October 9, was not a work day for any of HUB's employees. None of the20 discriminatees used HUB’s computers in making these Facebook posts.

28. Hispanics United of Buffalo, Inc. The ALJ’s analysis: The ALJ noted that the activities of a single employee in enlisting the support of fellow employees in mutual aid and protection is as much concerted activity as is ordinary group activity. Individual action is concerted so long as it is engaged in with the object of initiating or inducing group action, Whittaker Corp., 289 NLRB 933 (1988); Mushroom TransportationCo., 330 F.2d 683,685 (3d Cir. 1964). The object of inducing group action need not be express. Additionally, the ALJ noted that in order to present a prima facie case that an employer has discharged an employee in violation of Section 8(a)(1), the General Counsel must establish that the employer knew of the concerted nature of the activity.

29. Hispanics United of Buffalo, Inc. • The ALJ’s analysis: • The ALJ concluded that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, was protected. • It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to the employees. A leading case in this regard is Aroostook County Regional Ophthalmology Center, 317 NLRB 218, 220 (1995) enf. denied on other grounds 81 F. 3d 209 (D.C. Cir. 1996), in which the Board held that employee complaints to each other concerning schedule changes constituted protected activity. • By analogy, the ALJ found that the discriminatees’ discussions about criticisms of their job performance were also protected.

30. Hispanics United of Buffalo, Inc. • ALJ’s analysis: • Likewise in Parexel International, LLC, 356 NLRB No. 82 (January 28, 2011) at slip opinion page 3 and n. 3, the Board found protected, employees’ discussions of possible discrimination in setting the terms or conditions of employment. • Moreover, concerted activity for employees’ mutual aid and protection that is motivated by a desire to maintain the status quo may be protected by Section 7 to the same extent as such activity seeking changes in wages, hours or working conditions, Five Star Transportation, Inc., 349 NLRB 42, 47 (2007). Other cases similar to the instant matter are Jhirmack Enterprises, 283 NLRB 609, 615 (1987) and Akal Security, Inc., 355 NLRB No. 106 (2010).

31. Hispanics United of Buffalo, Inc. ALJ’s conclusion: Ultimately, the ALJ concluded that the discriminatees were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging the discriminates, the employer prevented them from taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that the employer lumped the discriminatees together in terminating them, established that the employer viewed the five as a group and that their activity was concerted, Whittaker Corp.,supra.

32. Hispanics United of Buffalo, Inc. ALJ’s conclusion continued: The protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing, it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions. Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true in this case, where at least some of the discriminatees had an expectation that Lydia Cruz-Moore might take her criticisms to management. By terminating the five discriminatees for discussing Ms. Cruz-Moore's criticisms of HUB employees' work, Respondent violated Section 8(a)(1).

33. Hispanics United of Buffalo, Inc. • ALJ’s conclusion continued: • It should also be noted that the five discriminatees did not engage in conduct which forfeited the protection of the Act. • The Board looks to the factors set forth in Atlantic Steel Co., 245 NLRB 814 (1979), to aid in determining whether the employee's conduct became so opprobrious as to lose protection under the Act. • The Atlantic Steel factors are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice. Applying these factors, there was no basis for denying any of the five discriminatees the protection of the Act.

34. Hispanics United of Buffalo, Inc. • ALJ’s conclusion continued: • As to factor 1, the "discussion," the Facebook posts were not made at work and not made during working hours. • As to factor 2, the subject matter, the Facebook posts were related to a coworker’s criticisms of employee job performance, a matter the discriminatees had a protected right to discuss. • As to factor 3, there were no "outbursts." Indeed, several of the discriminates did not even mention Cruz-Moore; none criticized HUB. • Regarding Atlantic Steel factor 4, while the Facebook comments were not provoked by the employer, this factor is irrelevant to the instant case.

35. Karl Knauz Motors, Inc., d/b/a Knauz BMW • Case Overview • In another ALJ decision, the judge ruled that a Chicago area car dealership did not violate Section 7 by terminating a car salesman because he posted information on Facebook that his employer deemed harmful to its reputation. • On June 14, 2010, the salesman posted comments and pictures to his Facebook account about two separate incidents that occurred at the dealership on June 9 and June 14.

36. Karl Knauz Motors, Inc., d/b/a Knauz BMW • Facts continued • On June 14, he posted comments and pictures of the Ultimate Driving Event of June 9, as well as a Land Rover accident of June 14 on his Facebook page. The Event pages are entitled: “BMW 2011 5 Series Soiree.” • On the first page, Becker wrote: “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years…the new 5 series. A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch…but to top it all off…the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bunn…”

37. Karl Knauz Motors, Inc., d/b/a Knauz BMW • Facts continued • Underneath were comments by relatives and friends of Becker, followed by Becker’s responses. • On the following page there is a picture of Holland with his arm around the woman serving the hot dogs, and the following page has a picture of Holland with a hot dog. Page four shows the snack table with cookies and fruit and page 5 shows Charnidski holding bottles of water, with a comment posted by Becker:“No, that’s not champagne or wine, it’s 8 oz. water. Pop or soda would be out of thequestion. In this photo, Fadwa is seen coveting the rare vintages of water that wereavailable for our guests.” • Page 6 shows the sign depicting the new BWW 5 Series car with Becker’s comment below:“This is not a food event. What ever made you realize that?” • The final two pages again show the food table and Holland holding a hot dog.

38. Karl Knauz Motors, Inc., d/b/a Knauz BMW • Facts continued: • On June 14, Becker also posted the pictures of the Land Rover accident, as well as comments, on his Facebook page. The caption is “This is your car: This is your car on drugs.” The first picture shows the car, the front part of which was in the pond, with the salesperson with a blanket around her sitting next to a woman, and a young boy holding his head. • Becker wrote:“This is what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!”

39. Karl Knauz Motors, Inc., d/b/a Knauz BMW • Facts continued: • There are a number of comments on the first page, one of which was from an employee of the Respondent in the warranty department, stating: “How did I miss all the fun stuff?” • On the second page, under the photo of the car in the pond, Becker wrote: “I love this one…The kid’s pulling his hair out…Du, what did I do? Oh no, is Mom gonna give me a time out?” • Below, there were comments from two of Respondent’s employees. • Counsel for the General Counsel also introduced in evidence a Facebook page of Casey Felling, a service advisor employed by the Respondent, containing Becker’s picture of the car in the pond with Felling’s comment: “Finally, some action at our Land Rover store.”

40. Karl Knauz Motors, Inc., d/b/a Knauz BMW • ALJ’s analysis: • In analyzing the facts if the case and rendering a decision, the ALJ noted that concerted activities does not require that two or more individuals act in unison to protest, or protect, their working conditions. In Meyers II, 281 NLRB 882, 887 (1986), the Board stated that concerted activities included individual activity where, “individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” • In Owens-Corning Fiberglass Corp. v.NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969), the Court stated that the “activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.”

41. Karl Knauz Motors, Inc., d/b/a Knauz BMW • ALJ’s analysis continued: • In NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995), the Court stated: “The fact that there was no express discussion of a group protest or ‘common cause’ is not dispositive…their individual actions were concerted to the extent they involved a ‘logical outgrowth’ of prior concerted activity. The lone act of a single employee is concerted if it ‘stems from’ or ‘logically grew’ out of prior concerted activity.” • Becker, and another employee spoke up at the meeting commenting on what they considered to be the inadequacies of the food being offered at the event, and the subject was further discussed by the salespersons after the meeting. • Even though only Becker complained further about it on his Facebook pages without any further input from any other salesperson, the ALJ found that it was concerted activities, and found that it was protected concerted activities as it could have had an effect upon Becker’s compensation.

42. Karl Knauz Motors, Inc., d/b/a Knauz BMW • ALJ’s analysis continued: • The ALJ noted that, while it is not as obvious a situation as if he had objected to the employees reducing their wages or other benefits, there may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it, or gave the salesperson a lowering rating in the Customer Satisfaction Rating because of it. • The employer argued that it was not protected concerted activities because neither Becker nor any other employee made the employer aware that their complaints about the food being served was really about their commissions. However, the ALJ noted that this is not a requirement of protected concerted activities. • The final issue was whether the tone of the Facebook account of the Event rose “to the level of disparagement necessary to deprive otherwise protected activities of the protection of the Act.” Allied Aviation Service Company of New Jersey, Inc., 248 NLRB 229, 231 (1980).

43. Karl Knauz Motors, Inc., d/b/a Knauz BMW • ALJ’s analysis continued: • The ALJ found that it did not. Although Becker’s Facebook account of the Event clearly had a mocking and sarcastic tone that, in itself, does not deprive the activity of the protection of the Act. • In Timekeeping Systems, Inc., 323 NLRB 244, 249 (1997), the administrative law judge stated: “Unpleasantries uttered in the course of otherwise protected concerted activity does not strip away the Act’s protection.” • Further, referring to supervisors as “a-holes” in U.S. Postal Service, 241 NLRB 389 (1979) and calling the company’s chief executive officer a “cheap son of a bitch” in Groves Truck & Trailer, 281 NLRB 1194, 1195 (1986) did not lose the Act’s protection, and neither did Becker in his Facebook comments on the Event.

44. Karl Knauz Motors, Inc., d/b/a Knauz BMW • ALJ’s conclusion: • HoweverBecker’s posting of the Land Rover accident on his Facebook account was neither protected nor concerted activities. • It was posted solely by Becker, without any discussion with any other employee of the employer, and had no connection to any of the employees’ terms and conditions of employment. • As such the ALJ found it so obviously unprotected that it was unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting. • Ultimately, the ALJ found that Becker was fired because of his Facebook posting of the Land Rover accident, and as a result, his termination did not violate his Section 7 rights.

45. American Medical Response, Inc. • Case overview: • In this case, the company fired an employee for posting critical comments about her supervisor and she continued her negative comments about the supervisor in response to message posts from her coworkers. The employee also referred to her supervisor using a crude term in one of her posts. • The NLRB maintained that the employee’s posts constituted protected concerted activity and that American Medical Response violated Section 7 by terminating the employee. • Although the matter was settled prior to the hearing, the NLRB’s Acting General Counsel provided the basis as to why the NLRB considered the employer’s internet and blogging standards were unlawful under the act.

46. American Medical Response, Inc. • General Counsel’s analysis: • The General Counsel considered the lawfulness of the Employer’s blogging and internet posting policy. • The first challenged portion of the policy prohibited employees from posting pictures of themselves in any media, including the internet, which depict the company in any way, including a company uniform, corporate logo, or an ambulance. • The General Counsel concluded that this language violated Section 8(a)(1) because it would prohibit an employee from engaging in protected activity; for example, an employee could not post a picture of employees carrying a picket sign depicting the company’s name, or wear a t-shirt portraying the company’s logo in connection with a protest involving terms and conditions of employment. • The General Counsel also concluded that the portion of the policy prohibiting employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors was unlawful.

47. American Medical Response, Inc. • In University Medical Center, 335 NLRB 1318, 1320-1322 (2001), enf. denied in pertinent part 335 F.3d 1079 (D.C. Cir. 2003), the Board found that a similar rule prohibiting “disrespectful conduct” towards others violated Section 8(a)(1). • Like the rule in University Medical Center, the rule here contained no limiting language to inform employees that it did not apply to Section 7 activity. • Also under challenge was the Employer’s standards-of conduct policy. This policy prohibited the use of language or action that was inappropriate or of a general offensive nature, and rude or discourteous behavior to a client or coworker. • The General Counsel concluded that the prohibition here of “offensive conduct” and “rude or discourteous behavior” proscribed a broad spectrum of conduct and contained no limiting language to remove the rule’s ambiguity in prohibiting Section 7 activity.

48. Lee Enterprises, Inc. • d/b/a Arizona Daily Star • Facts of the case: • In the spring of 2009, the Daily Star began encouraging its reporters to open Twitter accounts and to attend a “webinar” about how Twitter and other social network tools could be used to disseminate information to the public. The Daily Star wanted reporters to use social media to get news stories out to people who might not read the newspaper and to drive readers to the Daily Star’s website. • The Charging Party attended the webinar, and subsequently opened a Twitter account. The Charging Party then started seeking out coworkers and others who had Twitter accounts, started following them on Twitter, and accumulated a group of his own followers, including coworkers and some of his supervisors.

49. Lee Enterprises, Inc. • d/b/a Arizona Daily Star • Although the Employer encouraged reporters to use social media, the Charging Party opened the account, decided his own screen name and password, and controlled the content of his tweets. • In the biography section of his Twitter account, the Charging Party stated that he was a reporter for the Daily Star and included a link to the Daily Star’s website. In his tweets, he at times referred followers to the Daily Star’s website for stories. • The Charging Party tweeted using his work computer, his company provided cell-phone, and his home computer. At various times the Charging Party’s Twitter account was open to everyone, and at other times he restricted access to his followers. • The Charging Party had linked his Twitter account to his Facebook and MySpace pages. Therefore, whenever he tweeted something, the same message would be posted on Facebook and MySpace.

50. Lee Enterprises, Inc. • d/b/a Arizona Daily Star • The Charging Party’s Twitter account was not linked to the Daily Star’s Twitter feed; none of his tweets were posted automatically to the Daily Star’s feed. • Sometime in late January or early February of 2010, the Charging Party posted a tweet saying “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.” • The tweet was in response to a series of sports headlines, using play on words, such as “Shuck and Awe,” describing the University of Arizona’s loss to the University of Nebraska. • Before the tweet, the Charging Party had raised his concerns about the sport department’s headlines with the Executive Editor. However, there is no evidence that the Charging Party had discussed his concerns about the sports department headlines with any of his coworkers.