Showing posts with label social media. Show all posts
Showing posts with label social media. Show all posts

Monday, September 12, 2016

UNION LEARNS “DON’T MESS WITH TEXAS” (AND RELATED NLRB FUN)

 
           A Texas janitorial service cleaned up last week when a Texas jury awarded it $5.3 million in damages in the company’s defamation/disparagement/harassment lawsuit against the Service Employees International Union (“SEIU”).  The victory in this groundbreaking case may encourage more employers to go on the offensive and sue over hardball tactics used by unions in union campaigns and contract disputes.
            The facts of the case, which go back more than a decade, read like a John Grisham novel.  In 2005, SEIU sought to unionize janitorial workers in Houston with a “Justice for Janitors” campaign.  All but one of the janitorial companies agreed to accept SEIU as the bargaining representative for their employees.  However, Professional Janitorial Services (“PJS”) declined to do so, insisting, as allowed under the National Labor Relations Act (“NLRA”), that representation be decided by a secret ballot vote of their employees.
            According to the testimony and evidence presented during the four weeks of trial, this kicked off years of dirty tactics by the SEIU.  This included efforts to destroy PJS with an organized campaign of misinformation, specifically designed to cause PJS to lose money and customers.  The evidence, including internal SEIU e-mails, showed that the union intentionally and knowingly made false allegations that PJS was illegally withholding employee’s pay, forcing them to work off the clock, or firing them for engaging in union activity.  The union filed “unfair labor practice” complaints against PJS with the National Labor Relations Board (“NLRB”) and then would withdraw them, causing the company to needlessly incur legal costs.  The evidence also showed that SEIU would send letters to PJS’s customers, making false accusations, and would stage disruptive demonstrations designed to intimidate customers into dropping PJS.  Every time PJS lost a client, someone from the union would send an e-mail claiming credit.
            In an interview with the Houston Chronicle, PJS’s chief executive Brent Southwell stated "The jury found what PJS and its employees have known for more than a decade . . The SEIU is a corrupt organization that is rotten to its core." Obviously worried about the precedent set by PJS’s legal victory, SEIU has announced its plans to appeal the jury verdict.

           In other NLRB news, it appears unions also are learning that the Board’s position on social media applies to them as well.  In recent years, the NLRB has taken the position that employees’ social media postings qualify as protected concerted activity under Section 7 of the NLRA.  Since then, the NLRB has brought action against numerous companies for terminating employees who post disparaging comments about their employer, or in some cases, simply for having overbroad social media policies that might “chill” an employee’s right to engage in concerted activity.
            Despite a very pro-union NLRB, the Board has now ruled against a local union in New York State for retaliating against a member because of his Facebook postings critical of the union and raising accusations of union corruption, including improperly giving a union journeyman’s book to a local candidate for mayor.  According to the Administrative Law Judge Opinion, the union then retaliated against Frank Mantell by finding him guilty of disrupting the operation of the union, fining him $5,000, and suspending his membership for two years.
            Mantell filed an unfair labor practice complaint against the union with the NLRB.  The ALJ in the case ruled against the union, and found that Mantell’s Facebook postings were protected concerted activity:

One could argue that Mantell did not engage in protected activity because the issuance of a journeyman’s book to Mr. Choolokian did not affect him, or even if it did, his Facebook posts only complained about the effect on apprentices.
 
Nevertheless, I find that Mantell’s Facebook posts were protected. First of all, issuing a journeyman’s book to someone allegedly ineligible to receive one, affected Mantell in that one more journeyman would arguably impact his opportunities for employment. Moreover, as Judge Learned Hand pointed out, employees making common cause with fellow employees are engaged in protected activity. Even though the immediate quarrel may not concern them they may be assured that if their “turn ever comes,” they will have the support of those they are then helping.
 
I also reject Respondent Union’s assertion that Mantell forfeited the protection of the Act by maliciously defaming the Union and Business Manager Palladino. Nothing Mantell said in his Facebook posts was maliciously and knowingly untrue. The Union takes issue with the fact that Mantell characterized the Union’s action as giving Choolokian “a gift.” I find that has not been proven to be false despite the fact that Choolokian may have paid for the journeyman’s book. Mantell’s use of the term “gift” can reasonably be interpreted as arguing that Choolokian was not entitled to a journeyman’s book—an assertion that may or may not be true. (citations omitted)

            The ruling may provide some small comfort (or amusement or schadenfreude) to the many companies trying to draft social media policies that will pass NLRB muster.  It seems the NLRB is inclined to take just as expansive an interpretation of Section 7 against the unions as it does against private business.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 
 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com

Thanks! 
 
 
 
 
 
 


Friday, October 4, 2013

Employers who Solicit Facebook Friend “Snooping” Could Face Liability Under Federal Stored Communications Act


Facebook postings by employees have increasingly become a factor in employment discrimination lawsuits.  In some of my recent cases, employers were made aware of an employee’s threats of violence, workplace misconduct or other inappropriate actions when a co-worker, who also was a Facebook “friend”, brought the Facebook post to the employer’s attention.  Such posts can be powerful evidence in defending against a discrimination lawsuit and proving that any adverse employment action was for a legitimate non-discriminatory reason.
However, a recent ruling by a federal District Court in New Jersey strongly suggests that employers who actively solicit Facebook friends to disclose the postings of an employee could be in violation of the Federal Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-11.
The SCA provides that whoever "(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system" shall be liable for damages. The statute further provides that "[i]t shall not be unlawful . . . [to] access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public." In other words, the SCA covers: (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public.
In Ehling v. Monmouth-Ocean Hospital Service Corp. , the plaintiff was a nurse who maintained a Facebook account and had approximately 300 Facebook friends. Plaintiff selected privacy settings for her account that limited access to her Facebook wall to only her Facebook friends. Plaintiff did not add any hospital managers as Facebook friends. However, Plaintiff added many of her coworkers as friends. Unbeknownst to Plaintiff, a hospital paramedic who was one of her Facebook friends was taking screenshots of Plaintiff's Facebook wall and printing them or emailing them to Plaintiff’s manager.
The evidence in the case showed that the paramedic independently came up with the idea to provide Plaintiff's Facebook posts to the manager, who had never asked the paramedic for any information about Plaintiff and had never requested to be apprised of Plaintiff's Facebook activity.
Plaintiff was subsequently temporarily suspended when the hospital learned of her Facebook post where she criticized paramedics in Washington, D.C. for saving the life of a gunman involved in a fatal shooting.  The post read as follows:

 An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.

The plaintiff received a memo from the hospital explaining the reason for the suspension was the hospital’s concern that her Facebook comment reflected a "deliberate disregard for patient safety." In response, Plaintiff filed a complaint with the National Labor Relations Board ("NLRB"). After reviewing the evidence, the NLRB found that the hospital did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to hospital management.  The plaintiff subsequently filed suit in federal court, alleging the hospital violated her rights under the SCA.
In its ruling, the District Court held that that non-public Facebook wall posts are covered by the SCA, because: (1) Facebook wall posts are electronic communication, (2) they are transmitted via an electronic communication service, the Facebook wall posts are in electronic storage, and (4) Facebook wall posts that are configured to be private are, by definition, not accessible to the general public, and that the touchstone of the SCA is that it protects private information.
However, the District Court ruled that the hospital was not liable because one of the SCA’s exceptions applied, which exempted conduct authorized (1) by the person or entity providing a wire or electronic communications service; [or] (2) by a user of that service with respect to a communication of or intended for that user." 18 U.S.C. §2701(c).
The Court held that exception applied because the plaintiff had authorized the paramedic to have access to her Facebook wall by making him a “friend” and that the information the paramedic supplied to hospital management was completely unsolicited.
The District Court implicitly held that if the hospital had directed the paramedic or any other of the plaintiff’s Facebook friends to monitor and keep them appraised on Plaintiff’s Facebook activity, it would have constituted a violation of the SCA due to the hospital seeking unauthorized access.  The SCA provides for civil liability under the statute and an employer would be subject to monetary damages.
While it may be tempting for employers to utilize the Internet to monitor employees’ conduct, the lesson from this case is that employers should never request that co-workers or any other individuals access an employee’s private social media.  As related in previous articles, employers also need to be aware that overly broad social media policies could expose them to potential liability under the National Labor Relations Act.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here.  He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com.