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Jonathan A. Segal
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Those of you who know me know that my passion is animal rescue.  I wrote an article for the Philadelphia Inquirer about 36 cats who were rescued from abuse and one little soul who captured my soul. In memory of Jeffrey, here is his story:

http://www.philly.com/philly/opinion/inquirer/20120923_Emotional_ties_with_an_ill_cat__saved_from_a_hoarder.html

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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Jonathan A. Segal
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A manager gives an employee a final warning.  The employee is upset and tweets that her manager is a drug dealer. The employee knows her tweet is patently false but tweets anyway with malice.

Two employees compete for a job. The employee who does not get the job wants revenge. He posts on his Facebook page that his co-worker is a pedophile. The employee knows his Facebook posting is patently false; he maliciously posts it anyway.

Both employees have engaged in defamation and probably should be fired for their malicious conduct.  Moreover, the victims of the defamation could sue these malicious employees and potentially recover not only compensatory but also punitive damages.

What if the employer addresses the issue proactively?  Isn’t that what we all try to do? Avoid problems in the first instance. That’s what Costco did.

Costco  prohibited employees from using social media “to defame any individual or damage any person’s reputation.” Indeed, such a rule could not only avoid damages to the victims of venom but also save an employee’s job to the extent it serves as a deterrent to wrongful conduct.

So there is nothing wrong with the rule, unless you are on the NLRB. In its first decision on social media, the NLRB held the Costco rule violated section 7 of the National Labor Relations Act (“NLRA”).

The Board acknowledged that the rule did not directly prohibit employees from carping about the terms and conditions of their employment. Instead, the NLRB held the rule reasonably would be constued by employees to prohibit the exercise of section 7 rights, and therefore, was unlawful.

Really? No!  But that is, sadly, the way the NLRB views the world.  So what do we do now (until the NLRB opinion, hopefully, is appealed and reversed)?

In finding the Costco rule unlawful, the NLRB impliedly suggested two ways an employer could avoid the same result.

First, the Board emphasized that Costco did not expressly exclude protected activity under section 7. The Board stated: “there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.”

So, contrary to some prior guidance from the Board’s general counsel, “carve outs” may save a rule the NLRB otherwise might strike down. But how robust must the carve out be?

Also, if there is a carve out for protected activity under section 7, the employer does not want to suggest all concerted activity is protected. So does the employer attempt to draw a line between protected and unprotected concerted activity?

And, should not the carve out, if there were one, carve out from the carve out supervisors and managers? Afterall, they are not employees under the NLRA.

But they are covered by Title VII. So shouldn’t we have a carve out for communications protected by Title VII? And what about other employment or whistleblower laws? More carve outs?

I guess it’s no secret:  I am not wild about carve outs.

Second, the Board says that the rule is narrow and does not address other wrongs,  such as postings which are  abusive, harassing, malicious or unlawful. The opinion suggests that, if the Costco prohibition on defamatory and disparaging postings had been a part of a broader list of horribles, the prohibition, seen in context,  may not have led a reasonable employee to believe it precludes concerted activity protected by section 7.

So before you gut your social media policy’s prohibitions in this area, consider including a contextual framework for your rules on disparagement and defamation.  Include them among other “egregious conduct” so that you have “accompanying language” to serve as the potential  basis for a contextual defense.   This should minimize (not eliminate) your risk.

The Board’s decision is, I believe, not just wrong. It is sad.  It underestimates the intelligence of American workers and puts their reputations and potential livelihoods at risk in doing so.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

About Jonathan A. Segal
507
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .