NLRB Releases Guidance on Social Media Policies

The introduction of Social Media as a form of communication used by employees to complain about  their jobs has caused organizations world-wide to re-think their internal policies and procedures with regard to the use of and access to sites such as Twitter, YouTube and FaceBook.   Restricting the use of business equipment to “for business only” purposes covers the mainstream of accessing these sites during the work day.  However, employees are more frequently equipped with personal computers, iPads, Smartphones and Kindles.    So how can you insure that your employees aren’t jeopardizing confidential information of your company in their day to day communications?   Easier said than done.   The NLRB released some guidance on May 30^th of this year but even reading their specific analysis of employer policies doesn’t guarantee that your policy is lawful with regard to violations of the National Labor Relations Act (NLRA).    Don’t stop reading here if you are currently a non-union facility.    Protected concerted activity sometimes includes employee conduct that has nothing to do with unions directly, as when employees act together to complain about their work places and their jobs. 

                The most recent release by the Acting General Counsel at the NLRB analyzes six cases where employers have implemented policies and procedures that are unlawful in some way.   The report, titled “Rules on Using Social Media Technology and on Communicating Confidential Information” is available on the NLRB website at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies.   So if you are looking for direction on making your policy compliant, it is a good place to start.   This article touches briefly on the most common mistakes employers make in drafting their Social Media Policies.

Avoid Ambiguous restrictions.  Rules that are ambiguous as to their application and contain no limiting language or context that would clarify to employees that the rule does not restrict their protected rights to engage in concerted activity, are unlawful.  The NLRB advises that examples of clearly illegal or unprotected conduct be included in any such policy so that it is clear to the employee that on-line communications regarding protected activities are not prohibited.  In one case the NLRB found that an employer’s policy stating “offensive, demeaning, abusive or inappropriate remarks are out of place on-line” proscribed a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees making it unlawful.

Avoid overbroad definitions of permissible contents of communications.  The easiest way to explain this topic is by providing you examples of language that was all found by the NLRB to be unlawful in that it specifically encompassed topics related to protected activity.   The following are unlawful excerpts from various employment policies:

“Employees must not reveal…personal information about another employee, such as performance, compensation or status in the company”

“Don’t pick fights and avoid topics that might be considered objectionable…remember to communicate in a friendly tone” – this rule was found to caution employees against becoming part of a heated or controversial discussion which is often the tone of conversations regarding working conditions.

“Employees are prohibited from posting information regarding Employer on any social networking site including but not limited to company performance, contracts, customers…” – this statement was found to prohibit discussion about Collective Bargaining Agreements and was therefore unlawful.

  
Avoid broad restriction on the location of communications.  Where an employer prohibited employees from sharing confidential information with coworkers in the break-room, at home or in open areas and public places, the NLRB found the rule prohibited employees from discussing terms and conditions of employment virtually everywhere such discussions are most likely to occur.

Do not require completeness and accuracy of communications.  Where the employers policy stated “If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public information” the NLRB found the use of the language “completely accurate and not misleading and that they do not reveal non-public information” to be overbroad.  It would be reasonably interpreted by employees to apply to discussions about, or criticisms of the Employer’s labor policies and its treatment of employees.   That activity would be protected by the NLRA so long as the statements are not maliciously false- they may be inaccurate or misleading.   Moreover the NLRB advises that this policy does not provide any guidance as to the meaning of these terms by specific example or in any way limit the term to exclude protected activity so it is also unlawful as being overly broad. 

Do not require employees to report inappropriate communications.   Where employers implemented policies requiring employees to report “unsolicited or inappropriate electronic communications” the NLRB found that the requirement was overly broad and that employees would reasonably interpret this to restrain the exercise of their protected rights to communicate with fellow employees and third parties (such as a union) regarding terms and conditions of employment.   Another employer’s policy requiring the reporting of “unusual or inappropriate internal social media activity” was found to be broad enough to encourage reporting of union activities and therefore unlawful.  Provisions that threaten employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information were found unlawful as the provisions could be construed as requiring employees to report a breach of the confidentiality rules, which had previously been found to be unlawful. 

Do not require employees to obtain prior authorization before posting.  One employer implemented a policy that “when in doubt about whether the information you are considering sharing falls into one of the prohibited categories, DO NOT POST.   Check with the employer’s legal counsel to see if it’s a good idea” was found unlawful.  The NLRB has long held that any rules that require employees to secure permission from an employer as a precondition to engaging in protected activity violates the NLRA.

Do prohibit violations of trademarks and copyrights.  An employer’s policy prohibiting employees from posting photos, music, videos, quotes and personal information was found unlawful where obtaining the owner’s permission was required.  Although the employer has a proprietary interest in its trademarks and logos, the NLRB found that an employee’s non-commercial use of the employer’s logo while engaging in protected activities would not infringe on that interest.  The NLRB allows employees to post pictures of concerted activity which may include photographs of picket signs containing the employer’s logo.   To the extent the employer advised employees to comply with trademark and copyright law, the policy was found to be lawful.

Do not make a general disclaimer to offset otherwise unlawful restrictions.  The NLRB found that the employer’s use of a general disclaimer did not cure the otherwise unlawful provisions of the Employer’s social media policy because employees would not understand from the disclaimer that protected activities are in fact permitted.  The employer’s policy stated “This policy will not be construed or applied in a manner that improperly interferes with employee’s rights under the National Relations Act.”   Another employer’s disclaimer stating:  “ this policy will not be interpreted or applied in a way to interfere with the rights of employees to engage in concerted activity” was found to be in a language that would not be understood by a layperson and therefore unlawful.

Do require employee disclosures.  The employer’s requirement that employees “expressly state that their postings are their own and do not represent the employers positions, strategies or opinions” is not unlawful.  An employer has a legitimate need for a disclaimer such as this to promote its product or service, and this requirement would not unduly burden employees in the exercise of their protected rights to discuss working conditions.

Be alert to these provisions when drafting your internal policies on Social networking but also consider the language included elsewhere in your employee policies and handbooks that relates to confidentiality of information, interaction with the media, solicitation and release of company information.    Polices such as these often contain language related to the communication of information in a manner other than through on line communications but which are also subject to the National Labor Relations Act and the rulings of the NLRB.  

EEOC Enforcement Guidance – Arrest and Conviction Records in Employment Decisions

April 25, 2012 marks the date of issuance of the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.   A Question and Answer document was also released. The EEOC met publicly in July 2011 to discuss revision of the existing Guidance.  Testimony was submitted in two public meetings and hundreds of written comments were submitted by diverse groups.   The Guidance builds on longstanding guidance documents that were issued by the EEOC over 20 years ago. Documents will soon be available at www.eeoc.gov.  Materials from the public meeting, including transcripts and testimony can be found at http://eeoc.gov/eeoc/meetings/index.cfm.

             

   The Guidance updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.  Some of the topics included in the Guidance are:

1.  How and employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII
2.  Federal Court decisions analyzing Title VII as applied to criminal record exclusions,
3.  The differences between the treatment of arrest records and conviction records,
4.  The applicability of disparate treatment and disparate impact analysis under Title VII,
5.  Compliance with the other federal laws and or regulations that restrict and /or prohibit the employment of individuals with certain criminal records, and
6.  Best practices for employers.

 

                Title VII prohibits employment discrimination based on race, color, religion, sex or national origin.  A violation may occur when an employer treats criminal history information differently for different applicants, based on race or national origin (known as disparate treatment liability).  An employer’s neutral policy may disproportionately impact some individuals protected under Title VII and may violate the law if not job related and consistent with business necessity (known as disparate impact liability).

Special attention should be paid to relevant sections of this Guidance which address common personnel policies within long term care and/or other healthcare facilities.  Such as the information below related to the Use of Criminal History Information:

                The Guidance found that one survey showed a total of 92% of responding employers subject their employees to criminal background checks in order to combat theft and fraud, as well as heighten concerns about work place violence.    Health care facilities utilize this function to prevent patient/resident abuse incidents in addition to those reasons mentioned above.  Of particular interest to health care facilities should be the Guidance provided under §VII.  (Page 24 of the Guidance) This section addresses Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct.
 

As an example,  Pa Code §15.141 under the Older Adult Protective Services Act  states that  facilities shall require applicants for employment to submit applications with a criminal history report, obtained within 1 year immediately preceding the date of application, and that a facility may not hire an applicant nor retain any employee required to submit a criminal history report if the criminal history report reveals a conviction under one or more of the provisions of 18 Pa.C.S. (Relating to the Crimes Code) The Guidance points out that States and local jurisdictions may have laws and / or regulations that restrict or prohibit the employment of individuals with records of certain conduct.   Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

               
             We recommend that you review your current policies related to the use of arrest and conviction records in employment decisions in light of this new Guidance and compare your organization to the examples and best practices contained within to insure that your facility is not unnecessarily exposed to Title VII claims and litigation.

United States Court of Appeals for the Third Circuit Rules in Favor of Nursing Home on Judicial Estoppel Argument in FMLA case

In an opinion filed March 29, 2012 the Third Circuit found that judicial estoppel was invoked where the Plaintiff indicated to the disability carrier that he was unable to perform the essential functions of his job in an effort to collect benefits while at the same time arguing to the employer and subsequently to the Court that he was fit to return from FMLA leave.   The Plaintiff filed for disability insurance while on FMLA leave, attempted to return from FMLA leave “with restrictions” but continued to collect disability benefits for two months following the expiration of his leave.   He subsequently claimed that he was denied reinstatement to the same or a comparable position when he showed up still not able to perform his job.

When the Plaintiff failed to return to work after the expiration of his leave, the Nursing Facility terminated him in accordance with their internal policies.   The Plaintiff showed up at work with a note indicating that he could not return to his job in a full time capacity until two months later.  When the employer indicated that he would not be reinstated, he contacted his physician for a release.   A new note was submitted indicating that he was able to return to his job “with restrictions”.     Based upon the type of position that the Plaintiff held, Maintenance Director, it was decided that he could not return to his position with restrictions as his responsibilities included lifting, pushing and pulling.  He was terminated that day.

The court used past precedent to require that the two conflicting positions of the Plaintiff be reconciled. The Plaintiff may not simply disavow a prior claim of total disability, perform an about face and assert that he is qualified.  He is required to proceed from a premise that his previous assertion of an inability to work was true.  

The Plaintiff argued that it was the Nursing Home that informed him that he was unable to do his job or return to work, yet the evidence showed that a statement was submitted by his physicians monthly on his behalf to the insurance carrier indicating that during the months after his FMLA, he was in fact not able to perform the material duties of his regular occupation. 

The Nursing Home was successful in defending itself against this claim under the Family Medical Leave Act.   Prepare your facility to defend itself against FMLA claims by implementing the necessary policies and procedures in accordance with the regulation, documenting all employee communications, tracking FMLA leave, following up with employees on leave and informing them of the consequences of not returning from leave.  

               

District Court Issues Opinion on NLRB Notice Posting Requirements

On March 2, 2012 the U.S. District Court for the District of Columbia issued a 46 page opinion responding to separate actions brought by the National Right to Work Legal Defense and Education Foundation and the National Association of Manufacturers.   You may recall from previous blog postings that the actions were brought in response to the National Labor Relations Board’s Final Rule on “Notification of Employee Rights under the National Labor Relations Act”.   This Rule was divided into three Subparts.   Subpart A contained notice posting provisions.  Subpart B contained enforcement provisions and Subpart C contained ancillary provisions. 

The Notice Posting Requirement required that employers post an eleven-by-seventeen inch poster alerting employees to their rights to organize under a union, form a union, join a union, assist in a union, bargain collectively as a union, discuss wages and benefits with co-workers or a union, strike, picket, or make the choice to “not” do any of these activities.  Employers would also be required to post a translated notice where 20% or more of the workforce is not proficient in English and to post the notice on internet sites currently used for employee communications.

The Enforcement Provisions stated that an employer’s failure to post the employee notice “may be found to interfere with, restrain or coerce employees” in the exercise of their rights guaranteed by the National Labor Relations Act.  Under the terms of the Proposed Rule, after an investigation and an attempt to persuade the employer to post the notice a formal complaint could be issued, triggering a hearing before an Administrative Law Judge.   Under the new rule, the employer would be ordered to cease and desist the unlawful conduct. The employer could also face additional remedies.   As part of this Subpart, the Board would be able to toll the statutory six month statute of interpretations for an employee who has filed a complaint and consider and employer’s knowing and willful refusal to comply as evidence of unlawful motive. 

The court held that the NLRB properly issued Subpart A of the rule requiring private sector employers to post the notice informing employees of their rights and can consider and employer’s knowing and willful failure to post the notice as evidence of unlawful notice.   However, the court also held that the NLRB cannot issue a rule automatically deeming an employer’s failure to post the notice as an unfair labor practice and cannot equitably toll the statute of limitations in unfair labor practice actions against employers who opt not to post.   Any case brought against an employer for not posting the notice must be decided on the individual facts and circumstances in each case. 

It is not known if either side will appeal the court’s ruling so as of now - Private sector employers are required to post the required notice in the workplace by April 30, 2012.   Posters can be ordered or downloaded from the NLRB website. The development of Employer Right’s Posters, countering the required NLRB posters, are a service offered by Capozzi & Associates.   Contact our firm for more information. 

Policy Honoring Racial Preferences of Residents Deemed Illegal by 7th Circuit (So what about gender related preferences?)

In a decision by Judge Williams dated July 20,2010 it was found that a work environment at a nursing home which included a written policy of not allowing a black nursing assistant to provide care for a resident who did not want care from black assistants was hostile and abusive.     This may be quite obvious to many readers, but this case decided in 2010 was based on facts that took place in 2006 – 42 years after the Civil Rights Act of 1964 was enacted!

I bring this case to your attention for two reasons.  First, to reinforce that state specific policies related to the privacy rights of residents to choose their health care providers do no “trump” federal regulations related to discrimination in employment, care and services.  Second, to address an issue that has plagued long term care facilities for many years – the issue of sex discrimination in the health care setting.    

This case compares the two by stating that privacy interests that are offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race.   Just as the law tolerates same sex restrooms or same sex dressing rooms, but not white-only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same-sex health providers, but not same race providers.

The employer in this case argued that under state law a resident had a right to choose a personal attending physician and other providers of services.  This created a conflict between state and federal law.  When two laws conflict, one state and one federal, the Supremacy Clause dictates that the federal law prevails.  The Court found that the employer should have taken reasonable efforts to inform residents, prior to admission, of their non-discrimination policies, secure the residents consent, attempt to reform the resident’s behavior and assign staff based on race-neutral criteria that minimize the risk of conflict.   And even if all of these measures do not fully guarantee racial harmony, they exemplify “reasonable” measures that the employer can take.

With regard to the difference between these measures and varying treatments of residents based on gender, the court found that the line of cases cited in this case taken together hold that gender may be a legitimate criterion- a bona fide occupational qualification for accommodating a patients’ privacy interest.   For more on Title VII cases permitting sex discrimination see Jennings v. NY State Office of Mental Health (786 F.Supp 376 (S.D.N.Y 1992), Fesel v Masonic Home of Del., Inc. (447 F.Supp 1346) and Backus v Baptist Med. Ctr. (510 Supp. 1191). 

White House Announces Recess-Appointments to Serve as Members of the National Labor Relations Board

The National Labor Relations Board website reported today that President Obama announced his intent to recess appoint the following three individuals to serve as Members of the National Labor Relations Board.

Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.

Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

The last day of Member Craig Becker’s service was Tuesday, Jan. 3. With the expiration of his appointment, the Board dropped to two members, Chairman Mark Gaston Pearce and Member Brian E. Hayes. The Board was last at its full five-member strength in August of 2010.