Date post: | 13-Apr-2017 |
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Social Networking and the NLRA: The 21st Century Watercooler
Social Networking and the NLRA
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Winkfield F. Twyman, Jr. National Labor Relations [email protected]
Two issues arise from these cases:Discipline When may an employer discipline an employee based on the employees online activities?
Policies Do the employers social media policies prohibit thekinds of activities protected by federal labor law?
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Discipline Cases: Concerted Activity (2)
With or without authority of other employees
Personal gripes
Objective of initiating or inducing group action.
Anticipate group activity
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Discipline Cases: Concerted Activity (3) Do other employees have to accept invitation?
Do you need a listener?
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Discipline Cases: Concerted Activity (4) Wages
Hours
Terms and conditions of employment
Quality of Service
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General Principles in Discipline Cases: Protected vs. Unprotected ConductRight to engage in concerted activity balanced against employers right to maintain order and respect
Traditionally, two tests
Atlantic Steel, 245 NLRB 814 (1979): unfit for future employment because of opprobrious conduct.
NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953): disloyalty to the employer.6
General Principles in Discipline Cases: Atlantic Steel
Applies where conduct is directed towards co-workersInsubordination/refusing to follow directionsThreatsDisruptive conduct in the workplace7
Discipline Cases: Atlantic SteelWhere?
Subject Matter
Nature of Outburst
Provocation
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Work Rules
Explicitly restricts Section 7 activity
OR
Maintenance of overly broad rule9
Work Rules: Savings ClauseAmbiguous rules without limiting language
Examples are more likely to be found lawful.
Memorandum GC 15-04, Report of the General Counsel Concerning Employer Rules, March 18, 2015 10
Handbook Rules ConfidentialityEmployee Conduct towards Company/SupervisorsEmployee Conduct towards Fellow EmployeesEmployee Interaction with Third Parties
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Lawful Confidentiality RulesDo not reference information regarding employer Do not reference anything that would be reasonably be considered a term or condition of employmentContext is important
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Lawful or Unlawful[D] ont pick fights online.Making inappropriate gestures, including visual staring.Do not make insulting, embarrassing, hurtful, or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.
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Lawful or Unlawful?One person speaks for the company.
All inquiries concerning employees from outside sources should be directed
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Company Logos, Copyrights, and Trademarks Cant prohibit employees fair protected use of propertyEmployees have a right to use name and logo on picket signs, leaflets, and other protest material Simply require employees to respect fair use
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Photography and Recording Section 7 right to photograph and record (personnel devices)A total ban is unlawfully broadDoes Employer have a strong privacy interest?
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Lawful or Unlawful? Talking unauthorized pictures or videos on company property is prohibited A total ban on use of possession of personal electronic equipment on Employer property.A prohibition on personal computers or data storage devices on employer property No cameras are to be allowed in the store or parking lot without prior approval from the corporate office
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Leaving WorkRight to go on strike is fundamentalDoes rule mention strikes, walkouts, disruptions?Purple Communications, Inc. Sisters Food Group18
Lawful or Unlawful? Broad prohibitions on walking off the job
What about requiring employees to obtain permission before entering the property?19
Employer Conflict of Interest RulesCan go against employers interestDoes rule provide examples?Does rule clarify that it is limited to legitimate business interests? 20
Lawful or Unlawful? Is rule phrased broadly?Does rule provide examples?Does rule provide context?
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What are the Main Take Aways?Narrow is better than broadLegitimate interests should be narrowly defined Provide examples, if possible, of unprotected conductProvide a context for ruleClarify that rule not intended to apply to section 7 activity
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