Media Policies Can't Impede Protected Activity

An administrative law judge (ALJ) found the Chipotle restaurant chain violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it asked an employee, James Kennedy, to delete his Twitter comments and stop circulating a petition complaining employees were not being given their mandated breaks. (Chipotle Services LLC dba Chipotle Mexican Grill (March 14, 2016) Cases 04-CA-147314,04-CA-149551.)

In response to a customer who had tweeted “Free chipotle is the best thanks,” Kennedy said, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl worth really?” Chipotle’s national social media strategist saw the tweet and emailed the regional manager of the Haverford, Pennsylvania location. The manager asked Kennedy to take the tweets down because they violated Chipotle’s “social media policy.”  Kennedy complied. The ALJ found the social media policy’s bans on spreading "incomplete, confidential, or inaccurate information" and "making disparaging, false, or misleading statements" were unlawful.  Likewise, asking Kennedy to delete the tweets was unlawful interference with protected activity.

When Kennedy began circulating the petition, his manager, Jennifer Cruz, asked him to speak with her in the office. According to Cruz, another employee expressed concern that she would be in trouble for not taking her breaks. Cruz told Kennedy to stop circulating the petition. Kennedy refused, saying Cruz would have to fire him to get him to stop. Cruz told him, “Okay, just leave.” According to Cruz, she did not decide to fire Kennedy until the next day because she was “fearful that he might hurt her” because Kennedy had PTSD, punched boxes when breaking them down for the garbage, and he declined to help Cruz replace a lightbulb while he was on break. The ALJ stated Cruz’s justifications “would be laughable” “if it weren’t such blatant disability discrimination.” The ALJ determined Chipotle fired Kennedy due to his refusal to cease engaging in protected concerted activity. 

Kennedy’s tweets and petition addressed matters of concern for all Chipotle employees, not just himself. Under the NLRA, an employee is not limited to only seeking support from other employees, but can also seek assistance and sympathy from the public at large. 

PERB: Employers Must Meet and Confer Over On-The-Job Cameras

In Rio Honda Community College Dist. (March 21, 2013) PERB Dec. No. 2313, PERB decided employers must meet and confer with labor associations over the impacts of video cameras, including whether they might create new kinds of evidence in discipline cases.  PERB's reasoning should apply equally to in-car cameras and GPS devices.

The Board held the union had a legitimate concern the new cameras could be used to monitor employees' compliance with workplace rules, and would create previously unavailable evidence to support discipline or evaluations.  How video recordings might be used in discipline and evaluation is therefore a negotiable effect of the decision to install the cameras.

PERB's decision expands an earlier ruling about use of technology to monitor employees.  In Trustees of the California State University (2003) PERB Decision No. 1507-H, PERB held rules about internet use were negotiable.  Here, PERB said the impacts of using video cameras presents "the same concerns" as "monitoring employee internet usage."  As a result, under this ruling, unions likely can demand to meet and confer about the impacts of other types of electronic surveillance, such as in-car cameras and GPS devices.

Court Rules NLRB Appointments Unlawful, Calls Into Question 200 Decisions

In Noel Canning v. National Labor Relations Board (D.C. Cir., Jan. 25, 2013, 12-1115) 2013 WL 276024, the Court of Appeals for the D.C. Circuit ruled President Obama's January 4, 2012 recess appointments to the National Labor Relations Board were unconstitutional.   As a result, the NLRB's decisions since that time are now being called into question and may be unenforceable.  

The Recess Appointments Clause is part of the federal Constitution.  It says, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."  This case was about what counts as "the Recess of the Senate" and what does not, with the President arguing the Senate was in recess on January 4, 2012 and the petitioner arguing it was not.  Ultimately, the Court decided the Senate was not recess, reasoning that "The Recess" means only breaks between official sessions of Congress and not other breaks during a session.  As a result, the Court found the Senate was not in recess on January 4, 2012 and the President's appointments to NLRB are therefore invalid.

The affects of the decision on unclear.  The NLRB's official position is that the ruling only applies in one case.  However, others believe it calls into question most of the NLRB's 2012 decisions, including several involving social media.

New State Law Would Extend Social Media Password Rules to Public Sector

In September, Governor Brown signed a law making it illegal for employers to ask for employees social media passwords.  At the time, it was unclear whether the law would apply to the public sector. The new law, AB 25, would make it clear these protections apply to public sector employees too.
Assembly Bill 25

Supreme Court Leaves Controversial Eavesdropping Ruling In Place

In American Civil Liberties Union of Illinois v. Alvarez (7th Cir. 2012) 679 F.3d 583, the Court of Appeal decided Illinois’ eavesdropping statute is unconstitutional.  The law makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent.  Defendants can be sentenced to up to fifteen years if they record a peace officer. The statute does not prohibit taking silent videos of police officers performing their duties in public; turning on the microphone, however, is prohibited.

The American Civil Liberties Union (ACLU) challenged this statute as applied to the organization’s Chicago-area “police accountability program,” which included a plan to record police officers performing their duties in public places. The local police union defended the law because it prevents people from recording officers to release snippets out of context.  The Court, however, found that the statute “restricts far more speech than necessary to protect legitimate privacy interests” and “it likely violates the First Amendment’s free-speech and free-press guarantees” as applied to the alleged facts.

The Court of Appeals argued the statute “interferes with the gathering and dissemination of information about government officials performing their duties in public.” The Court was quick to point out, however, that their decision would not immunize “behavior that obstructs or interferes with effective law enforcement or the protection of public safety.”  On Monday, November 26, 2012, the United States Supreme Court declined to hear the State’s appeal and thus, the Seventh Circuit’s ruling was left in place.

Governor Brown Signs Password Protection Law

On September 27, 2012, Governor Brown signed AB 1844 to will protect employees’ social media usernames and passwords. This law will make California the third state in the country, after Maryland and Illinois, to protect employees in this way. Once the law goes into effect, it will be illegal for an employer to request an employee’s online account information, be it email, Facebook, or otherwise.

For the employers who decide to ignore the law and still ask for passwords, the new bill will make it illegal for the employer to take any action against an employee who refuses to give access to social networking accounts. The California law does include some special rules for when an employer may legally demand social media information. The first is for investigations. If an employee is accused of a crime or other misconduct, the employer can demand access to email or social media content if it is relevant to the investigation. The second is for electronic devices the employer provides.

If an employer gives you a computer or phone for work use, they can demand your passwords for access to those devices. This appears to be sparking a wave of workers’ rights legislation. The New Jersey legislature has already passed a similar law, and it waits for Governor Christie’s approval. A bill currently called the Password Protection Act of 2012 is also gaining traction in Congress, so we may soon have a national standard for internet privacy rights in the workplace.

NLRB Issues New Report on Social Media Cases

The National Labor Relations Board issued a new report yesterday on its cases involving employees' use of social media and corresponding employer policies and practices.  The report notes many employer policies about social media use by employees are unlawful because they punish employees for engaging in protected concerted activity.  The report follows up on an August 18, 2011 report surveying similar cases.  The NLRB oversees most private-sector labor relations in the United States.  While public-sector labor relations in California are administered by the the Public Employment Relations Board, an independent state agency, PERB often looks to NLRB precedent in making decisions.

NLRB: Facebook Post Was Protected Activity

In Hispanics United of Buffalo, Inc. (September 2, 2011) NLRB Case No. 3-CA-27872, an administrative law judge of the National Labor Relations Board ruled a New York nonprofit violated federal law by firing five employees who posted comments on Facebook about working conditions, including workload and staffing.

An employee of the nonprofit brought the case after he was fired for comments he posted on Facebook. The employee claimed some employees did not do enough to help their clients, drawing responses from other employees about job performance, working conditions and staffing levels. Some of the comments supported the initial post and some disagreed. The nonprofit later fired five employees involved, claiming their posts harassed another employee.

The judge determined firing employees for these comments violated the National Labor Relations Act. The relevant part of the NLRA gives employees “…form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The judge noted “[e]mployees 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…” The judge went on to hold that protected applies equally to Facebook posts as it would to a workplace conversation around the water cooler.

The judge found there was no evidence the employees harassed anyone with their posts and noted “[the employer] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

Ultimately, the judge ordered the nonprofit to reinstate the employees and pay them back pay plus compound interest.