Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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Authorship Credit: <a href="http://www.bakerlaw.com/EllenJShadur">Ellen J. Shadur</a>
The advent of social media and the prevalence of mobile communications devices challenge employers seeking to prevent unlawful conduct in the workplace.&nbsp; Employees are no longer constrained by the need for physical proximity, or lack of access to a bulletin board, a telephone landline, or a fax machine.&nbsp; Bullying and harassment, misappropriation of an employer&rsquo;s trade secret or proprietary information, or&nbsp; disclosures that run afoul of securities or consumer protection laws, all may take place &ldquo;away&rdquo; from the workplace, and without the need for or use of workplace computers or equipment controlled by the employer.
Legitimate concerns about the power of these new media may drive some employers to monitor employee postings or comments via Facebook or Twitter.&nbsp; In so doing, employers may unwittingly run afoul of the National Labor Relations Act (the "Act").
The Act protects the rights of employees to engage in concerted activities &ldquo;for the purpose of collective bargaining or other mutual aid or protection . . . ."&nbsp; The Act further protects the rights of employees to engage in protected concerted activity free from unlawful surveillance by their employers.&nbsp; This is true whether or not employees are represented by a union or seek to be.&nbsp; Employees communicating with each other to address a shared concern related to their employment, or trying to encourage concerted activity on a matter related to their employment, may be engaging in activity protected by the Act.
Recent decisions of the National Labor Relations Board (the &ldquo;Board&rdquo;) make clear that employers must tread carefully when it comes to monitoring or intercepting employees&rsquo; communications via the Internet or social media.&nbsp; Employers do not have unfettered rights to act upon everything they see.&nbsp; While the Board&rsquo;s positions are evolving, the cases do provide some guidance.
Friending &ndash; Employees sometimes &ldquo;friend&rdquo; their supervisors or otherwise include supervisors in their social network.&nbsp; Information obtained in this way is fair game for the employer; NLRB decisions have concluded that an employee who &ldquo;friends&rdquo; a supervisor is inviting observation by the employer.&nbsp; See Advice Memorandum dated July 28, 2011 regarding Buel, Inc., Case 11-CA-22936 (summarized in January 24, 2012 Report of the Acting General Counsel Concerning Social Media Cases).&nbsp; The same may not be true, however, where the supervisor is acting at the direction of the employer.&nbsp; Thus, employers should not encourage supervisors to seek out employees as social media contacts, such as Facebook friends.&nbsp;&nbsp; See Id., relying on Donaldson Bros. Ready Mix, Inc. and International Union of Operating Engineers, Local 400 AFL-CIO, 341 NLRB 958, 961 (2004).
Trolling&nbsp;&ndash; Employers should not encourage or suffer supervisors to troll employee sites on social media sites such as Facebook or to follow employee Tweets for the sole purpose of monitoring concerted activity by employees. This, too, could be viewed as unlawful surveillance.&nbsp; Id.
Use of proxies &ndash; Creation of an impression of surveillance is also unlawful interference with employees&rsquo; rights under the Act.&nbsp; An impression of surveillance is created where an employer makes a statement from which an employee would reasonably assume that his or her concerted activity was under surveillance. See Target Corporation and United Food &amp; Commercial Workers Local 1500 2012 WL 1830340 (NLRB Div. of Judges, May 18, 2012).&nbsp; Thus, by way of example, a supervisor may not use employee proxies to collect information and then fail to disclose where the information came from.&nbsp;&nbsp; Id.&nbsp; (Employer found to have violated the Act where supervisor told employee that employer was aware of protected activity but would not disclose how employer learned of the conduct).&nbsp; Employers should not, therefore, encourage non-supervisory employees to do by proxy what employers may not do themselves, nor should they encourage anonymous &ldquo;tipping&rdquo; about employee gripes or complaints.
What&rsquo;s an employer to do?
The bad news for employers is that decisions addressing surveillance have not yet begun to grapple with the power of the Internet and social media.&nbsp; The good news is that the rules for employers are not more complicated or different simply because employees have new means of communicating with each other.&nbsp; Thus, employers may use the same tools that have always worked to encourage good employee behavior without employers having to resort to unlawful surveillance.&nbsp; Following are two examples:
<ul>
<li>Policies that clearly proscribe communications or conduct in a way that does not run afoul of employee rights under the Act.&nbsp; The Acting General Counsel&rsquo;s reports on social media cases make clear that such policies must clearly define the context, or need, giving rise to the proscription, and the policy must be narrowly tailored for that context.&nbsp; By way of example, a policy against unlawful harassment that proscribes &ldquo;offensive&rdquo; conduct will pass muster even though a stand-alone policy with the same language would be overly broad and violate the Act.</li>
<li>Policies encouraging employees to bring complaints or concerns to their supervisors, and allowing employers to use these policies to evaluate employee behavior.&nbsp; In a recent decision of the Second Circuit Court of Appeals, the employer used such a practice to show that its decision to terminate a union activist employee did not constitute unlawful retaliation under Section 8(a)(3) of the Act.&nbsp; See N.L.R.B. v. Starbucks Corp, --- F.3d --- , 2012 WL 1624276 (C.A.2) (May 10, 2012) (employee termination lawful where based on noted deficiencies in &ldquo;communicating changes in partner attitude (concerns, compliments, complaints) to management&rdquo;).</li>
</ul>
In conclusion, employers should avoid the temptation to use social media to monitor employee communications in ways that would be proscribed for other, more traditional types of concerted activity.&nbsp; The tried and true &ndash; well-written, thoughtful policies and good management practices, are still the best means of preventing unlawful employee behavior.

The NLRA and Employee Surveillance: Avoiding the Temptations and Pitfalls of Social Media