NLRB Issues New Guidance on Social Media Policies

Eric Paltell
Eric Paltell
08/28/2019
The Office of the General Counsel to the NLRB recently released an Advice Memorandum shedding new light on the types of social media rules that are permissible in the wake of the Board’s December 2017 ruling in The Boeing Co, 365 NLRB No. 154 (12/17/17).  In that case, the Board set a new standard for evaluating the lawfulness of workplace rules under Section 7 of the NLRA. The Boeing standard weighs the importance of the employee’s exercise of...
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Third Circuit Rules Offensive Facebook Posts Did Not Create Hostile Work Environment

Kollman & Saucier
Kollman & Saucier
07/26/2019
Social media is a huge part of our lives these days, and many businesses use various social media platforms to their benefit.  However, a recent case out of the Third Circuit Court of Appeals demonstrates just how social media can become a medium for employees to harass one another and implicate liability for an employer.  Chinery v. American Airlines, No. 18-3118 (3d Cir. 7/25/19). Chinery worked as a flight attendant for American...
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Court Orders Employee to Turn Over Social Media Posts

Eric Paltell
Eric Paltell
01/22/2019
When an employee files a lawsuit against their employer, the employer often asks for discovery into the employee’s personal life.  While many of these discovery disputes have focused on subjects such as medical and financial records, recent battles have focused on social media accounts.  A recent decision from the United States District Court for the Eastern District of Michigan found that an employer does have the right to delve into Facebook...
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Employee Had No Privacy Expectation In Work Emails

Garrett Wozniak
Garrett Wozniak
09/26/2018
In a decision last week, the Third Circuit Court of Appeals held that a Penn State University employee did not have a reasonable expectation of privacy in her work emails because the University owned and operated the email account at issue. In 2015, the Pennsylvania Office of the Attorney General (OAG) filed criminal charges -- including counts of forgery and computer-related offenses -- against a Penn State employee.  The prosecutor and OAG...
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Yet Another Example of Oversharing Gone Wrong

Brief Quiz here:   What personal medical information you learn from a subordinate employee should you share with others on social media?  If your answer is “none, under any circumstances,” congratulations – you need read no further.  If your answer is “well, maybe it depends, because people might need to know…” then I have a story for you. A recent lawsuit filed in New Jersey state court is a good reminder of why being an over-sharer...
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Social Media Strikes Again

Randi Klein Hyatt
Randi Klein Hyatt
03/24/2017
Here is another tale of social media posts and “likes” getting an employee into hot water.  Again, the culprit is Facebook.  In Grutzmacher, et al. v. Howard County, et al., No. 15-2066, (4th Cir. March 20, 2017), the plaintiffs were a former Howard County, Maryland, Battalion Chief with the Maryland Department of Fire and Rescue Services (“Department”), and a County volunteer paramedic.  While the Court’s opinion sets forth the...
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Social Media Policy Violates NLRA, But Hold the Guacamole

Darrell VanDeusen
Darrell VanDeusen
08/22/2016
Company restrictions of employee commentary on social media continue to be a problem in the eyes of the National Labor Relations Board.  In Chipotle Services, LLC, 362 N.L.R.B. No. 72 (August 18, 2016) the Board held that the company’s policy telling employees to be careful not to post “incomplete, confidential or inaccurate information” was an unfair labor practice.  This result should not surprise anyone who has been paying attention to...
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More Woes for Chipotle: NLRB Judge Rules Employee Tweets Are Protected Activity

Randi Klein Hyatt
Randi Klein Hyatt
03/17/2016
Continuing a trend that started several years ago, an NLRB Administrative Law Judge found that an employer violated the National Labor Relations Act by disciplining an employee for social media posts.  This time the guilty party was a Chipotle restaurant.  In Chipotle Services LLC, a disgruntled employee took to Twitter to vent his frustrations over working conditions.  Two of his tweets concerned “snow days” and crew members’ hourly...
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Appellate Court Rules That Excessive Internet Use is Legitimate Reason for Discharge

Kollman & Saucier
Kollman & Saucier
02/05/2016
Though employers no doubt hope that everyone in their workforce is focused on their tasks at hand at all times, the reality in this era of social media is that that is not always the case. In the same vein, employers often have policies discouraging personal Internet usage, but those policies are nearly impossible to enforce. When may an employer draw the line on personal Internet use? The Tenth Circuit recently explored the issue in Montoya v....
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NLRB Strikes Down Employer's "No-Button" Rule

Randi Klein Hyatt
Randi Klein Hyatt
05/11/2015
Another day, another employer policy that violates employees’ Section 7 rights. In this case, Boch Imports, Inc. and International Association of Machinists & Aerospace Workers, case 01-CA-083551, the Board was asked to review an employer’s social media policy and prohibition against certain clothing and pins. Not surprisingly, the Board found these actions impermissibly restrained employees’ rights to discuss the terms and conditions of...
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