50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions

Number 50: What Happens When a Boss “Likes” An Employee a Little Too Much?

As we conclude this 50 For 50 series, we look to the future of employment law.  As we see it, the biggest change in the workplace has been the emergence of social media.  According to recent surveys, nearly three-quarters of American adults use social media at work and one-third of those surveyed would refuse a job offer if they knew social media sites would be blocked at work.     Continue reading

Can An Employer Force Out An Employee For Unpopular Political Views: The Brendan Eich Story

Brendan Eich resigned his post as CEO of Mozilla, a California-based company, in early April after just 14 days on the job.  The reason for his sudden departure and short tenure?  It became public that in 2008, Eich contributed $1,000 in support of the Proposition 8 campaign, the California voter referendum that sought to ban same-sex marriages (Proposition 8 was later overturned by the U.S. Supreme Court).  There were no allegations that Eich had discriminated against anyone on the basis of sexual orientation.  There were no claims that his personal beliefs about gay marriage had spilled into the workplace impacting Mozilla employees, vendors or workplace policies.  There was, however, a firestorm of tweets from Mozilla employees demanding Eich step down.  One employee placed herself on unpaid leave in protest.  OkCupid posted a statement that Mozilla Firefox browser users should protest Eich’s elevation by switching to a different Internet browser.  The reaction on social media opposing Eich as the next CEO was swift and vocal.  Mozilla has since stated that less than 10 of its 1,000 employees insisted upon Eich’s resignation, while many others supported his leadership and only expressed disappointment of Eich’s support of Proposition 8.   Continue reading

Federal Court Enforces NLRB’s Decision To Strike Down Overbroad Confidentiality Policy

Eighteen months ago, we reported on a slate of decisions from the National Labor Relations Board (NLRB) which struck down social media, confidentiality and other similar policies from non-union employee handbooks.  In a surprising turn, the Fifth Circuit Court of Appeals recently enforced one of those decisions in Flex Frac Logistics LLC v. NLRB.   Continue reading

Accessing Employees’ Private Facebook Posts Can Get Employers Into Hot Water

A U.S. District Court Judge in New Jersey has just found that private Facebook postings by an employee about her employer are subject to the Stored Communications Act, 18 U.S.C. §§2701-11 (SCA).  The ruling raises significant potential hurdles for employers who act on private information posted by their employees on social media sites.

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Social Media Policies: It’s All About Respect

Would you believe that 1.1 billion people use Facebook and one-third of Americans use social media for at least an hour a work.  Considering how prevalent social media is, you are behind the curve if you do not already have a social media policy.  But what should it say?

HK Partner Dan Handman answered that question and many others in an article he recently wrote for Bloomberg News.  You can access the article here.

- Dan Handman

Senate Confirms 5 Members Of NLRB, Leaving It With A Quorum

For the first time since January 2012, the National Labor Relations Board (NLRB) unquestionably has a quorum to issue rulings.  This comes on the heels of the U.S. Senate’s votes yesterday to confirm a 5 members of the Board, three of whom are labor-friendly and two of whom have a management background.  They are: Mark Gaston Pearce, the current Board Chairman whose term was set to expire in August; Kent Hirozawa, Pearce’s chief counsel; Nancy Schiffer, a retired associate general counsel at the AFL-CIO; and Philip A. Miscimarra and Harry I. Johnson III, both partners at large law firms.  The votes for the Democratic nominees were along party lines.

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NLRB Turns Its Focus To Employer E-Mail Policies

According to the National Labor Relations Board, employers are free to have policies limiting e-mail usage for business purposes only.  They are just not free to enforce it.

At a Weyerhauser plant in Washington state, e-mail use is limited for all employees to “business purposes only,” with limited exceptions with managerial consent.  The National Labor Relations Board ruled that Weyerhauser’s policy was “facially neutral,” meaning that it was lawful because it did not single out e-mails based on union content.

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NLRB Issues More Social Media Decisions

Just when you thought it was safe to go back in the water, the NLRB issued two new decisions in social media cases, one ordering the reinstatement of a tour bus driver who complained about his employer on a facebook page and the other striking down a hospital’s social media policy.  This continues the Board’s frontal assault on social media in the workplace, which we blogged about just a few days ago (click on our social media tab for more decisions in this area).

In the first case, the Board found that Fred Pflantzer, a tour bus driver, engaged in protected activity when he complained about the lack of health care insurance, minimal sick and vacation days, unsafe buses, and payroll practices with On Board Tours, his former employer.  In particular, he applauded City Sights, another tour operator where he worked before On Board, calling it a “worker’s paradise” compared to On Board.  Pflantzer applauded the work of a labor union in creating a positive workplace at City Lights and informed the readers of the benefits of having a labor union.  On Board  admitted that this post — which it considered libelous — was a motivating factor in its decision to terminate Pflantzer and the Board found that such activity was protected under Section 7 of the National Labor Relations Act, even though there was no evidence that any other On Board employees had access to the facebook page, which was private.

In the second case, an administrative law judge for the NLRB found that the University of Pittsburgh Medical Center had an overly broad social media policy and ordered parts of it to be removed.  In particular, UPMC’s policy prohibited employees from:

  • soliciting employees “to support any group or organization”
  • using e-mail “in a way that may be disruptive, offensive to others, or harmful to morale”
  • limiting use of e-mail and social media to “authorized activities.”

The ALJ found that while those policies were not necessarily targeted at prohibiting protected activities, they were ambiguous enough so that they would “chill” employees from engaging in protected, concerted activities.  For that reason, they were overbroad and must be removed.

While it remains very possible that a court will reverse these decisions, it remains of paramount importance for employers to: (1) review their social media policies to ensure that they are not overbroad; and (2) consult with counsel any time they are disciplining or terminating an employee based on his online activities.  We expect many more social media decisions to follow in the coming months and we will keep you posted on them.

- Dan Handman


Beware of Using Stale Policies and Seemingly Derogatory Employee Facebook Posts To Support Terminations

As we have blogged before (see our Social Media tab for more posts), the NLRB continues its storm of decisions on social media cases.   The NLRB recently awarded  reinstatement and back pay to several terminated employees who had posted derogatory statements about their supervisor on Facebook. The employer in the case, Design Technology Group, LLC (which makes Bettie Page clothing) is a wholesale and retail clothing sales company that operates a store in San Francisco, where the action took place.  Several employees were unhappy with the way the store manager treated them (both at work and outside of work) and took to Facebook to complain about it.  While their supervisor was away from the store on a business trip, the employees posted statements about her on Facebook.  This included statements that she was “immature as a person” and that she made their lives “miserable….”  One of the employees also stated that she intended to bring a book into work concerning rights of workers in California.  Another employee noticed these posts and alerted the supervisor, who returned from her business trip early to terminate the employment of the employees who had made the posts.

The NLRB held that these terminations violated Section 8(a)(1) of the National Labor Relations Act because the employer terminated the employees for engaging in protected concerted activity.  According to the NLRB, the Facebook postings constituted “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment…” and that their conversations were “for [their] mutual aid and protection….”  The NLRB therefore confirmed the administrative law judge’s order to reinstate the employees, with back pay.  For good measure, the NLRB also confirmed the ALJ’s order that the employer remove a rule in its employee handbook that prohibited employees from discussing or disclosing their wages and compensation to each other – although there was no discussion of this rule forming the basis for the employees’ terminations.

The take-away from this case is that employers should carefully consider the reasons for terminating an employee who has posted offensive statements online.  If the postings discuss working conditions, a manager’s behavior, or other issues that could be construed as matters employees could focus on for their mutual aid and protection, the employer should consult with counsel before terminating the employee(s).  Employers should also continue to review their employee handbooks to ensure compliance with the National Labor Relations Act – and California law, as the provision at issue in this case also violated the California Labor Code.

Robert R. Flemer



Earlier this month, the Securities and Exchange Commission issued report that provides guidance to public companies that want to use social media to disclose important information about their business activities. The report grew out of an investigation of Netflix’s CEO, who used his own Facebook page to announce information about Netflix that had not been previously disclosed and could be viewed as material.

The SEC did not bring any enforcement action against Netflix or its CEO, but it did make clear that an SEC Rule–Regulation FD–applies to a company’s use of social media. Regulation FD provides that if a company or its representatives discloses material, non-public information to a select group of people who are likely to trade on the basis of that information, the company must also disclose that information in a non-exclusionary manner to the public. This is often done through a press release, SEC filing or the company’s website. Disclosure of such information on the personal social media site of a company officer, without advance notice that such site is used to disclose company information, likely runs afoul of Regulation FD.

Practices a public company may wish to consider if it intends to use social media:

Disclose in its SEC reports, web site and press releases links to the specific sites the company intends to use, which should be accessible without charge.

At the same time any material disclosures are made on the company’s social media site(s), such disclosure should be made via a press release or SEC filing.

Remind company officers, directors and other representatives that they are not permitted to disclose material, non-public information about the company on their personal social media sites.

William Ross