More Social Media Angst for Retailers

By Toby Dykes
Birmingham Office

Courts, state legislatures, and the National Labor Relations Board continue to limit employers' control over social media accounts and postings.

Under a law in New Hampshire that was signed by the governor on August 1 and became effective September 30, employers are barred in most instances from requiring employees or job applicants to provide log-in information for personal social media accounts. The law makes exceptions for employers who are investigating whether the social media account was involved in the unauthorized transfer of confidential, financial, or proprietary information, as well as investigations necessary to ensure compliance with laws, regulations, or workplace conduct rules.

Employers are prohibited from requiring that employees or applicants "friend" them or add them to lists that have access to the social media accounts. Additionally, the law prohibits employers from disciplining employees who refuse to provide access to the log-in information for personal and social media accounts.

At press time, not only New Hampshire, but also Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin had enacted laws limiting employers' access to the social media accounts of employees and applicants.

Meanwhile, over at the NLRB, the Board ordered that two employees of a non-union bar and restaurant be reinstated and made whole after they were terminated for a Facebook discussion lambasting their employer. In Three D, LLC, several employees learned that that they would owe more in Connecticut state income taxes than they had anticipated, and they blamed the company for failing to do proper withholding. After a spirited group discussion on Facebook, in which "F bombs" were flying, one of the two terminated employees called "Ralph" (apparently the employee who had payroll responsibilities) an "a**hole." The other terminated employee merely "liked" a comment from someone else who said she was going to complain to the labor board. The two terminated employees filed unfair labor practice charges, alleging that they were discharged for engaging in protected concerted activity. An NLRB administrative law judge agreed with them in 2012, and last month, the NLRB issued its decision, agreeing with the ALJ and the two employees.

Three D argued the two employees lost the protection of the National Labor Relations Act because they had adopted defamatory and disparaging comments. But the Board determined that the use of a single expletive (in the case of the one employee) and a "like" (in the case of the other) was not enough to result in a loss of NLRA protection. The Board also found that the comments were not "disloyal" to the company because the employees did not even mention its products or services, much less disparage them.

The two Democrat members who decided the case – Kurt Hirozawa and Nancy Schiffer – also determined that Triple D's Internet/Blogging policy violated the Act because employees would have reasonably interpreted the policy to prohibit the type of protected Facebook activity that led to the unlawful discharges. The policy that Hirozawa and Schiffer found to violate the Act prohibited "engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment." Republican Member Phil Miscimarra dissented from this part of the decision.

Three D has now petitioned for review by the U.S. Court of Appeals for the Second Circuit, which hears appeals from federal courts in Connecticut, New York, and Vermont.

Retail employers, beware: (1) protected concerted activity claims apply to non-union, as well as unionized, employers; and (2) employers should carefully review their social media policies to make sure that they are in compliance with the law as it currently stands. Needless to say, all employers should be extremely cautious before taking action against an employee based on his or her social media activity.

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