Article 43


Friday, September 02, 2011

Blog Without Getting Fired

bloggers-rights.jpg Protect Free Speech

Blog Without Getting Fired

Electronic Frontier Foundation

A handful of BLOGGERS have recently discovered that their labors of love may lead to unemployment. By some estimates, dozens of people have been FIRED FOR BLOGGING, and the numbers are growing every day.

The bad news is that in many cases, there is no legal means of redress if you’ve been fired for blogging. While your right to free speech is protected by the FIRST AMENDMENT, this protection does not shield you from the consequences of what you say. The First Amendment protects speech from being censored by the government; it does not regulate what private parties (such as most employers) do. In states with “at will” employment laws like California, employers can fire you at any time, for any reason. And no state has laws that specifically protect bloggers from discrimination, on the job or otherwise.

One way to make sure your blog doesn’t earn you a pink slip is to make sure that you write about certain protected topics. Most states have laws designed to prevent employers from firing people who talk openly about their politics outside of work, for example. Be warned that laws like this do vary widely from state to state, and many are untested when it comes to blogging.

1. Political Opinions

Many states, including California, include sections in their Labor Code that prohibit employers from regulating their employees’ political activities and affiliations, or influencing employees’ political activities by threatening to fire them. If you blog about membership in the Libertarian Party and your boss fires you for it, you might very well have a case against him or her.

2. Unionizing

In many states, talking or writing about unionizing your workforce is strongly protected by the law, so in many cases blogging about your efforts to unionize will be safe. Also, if you are in a union, it’s possible that your contract may have been negotiated in a way that permits blogging. Some states protect “concerted” speech about the workplace, which means that if two or more people start a blog discussing the conditions in their workplace, this activity could be protected under local labor laws.

3. Whistleblowing

Often there are legal shields to protect whistleblowers--people who expose the harmful activities of their employers for the public good. However, many people have the misconception that if you report the regulatory violations (of, say, toxic emissions limits) or illegal activities of your employer in a blog, you’re protected. But that isn’t the case. You need to report the problems to the appropriate regulatory or law enforcement bodies first. You can also complain to a manager at your company. But notify somebody in authority about the sludge your company is dumping in the wetlands first, then blog about it.

4. Reporting on Your Work for the Government

If you work for the government, blogging about what’s happening at the office is protected speech under the First Amendment. It’s also in the public interest to know what’s happening in your workplace, because citizens are paying you with their tax dollars. Obviously, do not post classified or confidential information.

5. Legal Off-Duty Activities

Some states have laws that may protect an employee or applicant’s legal off-duty blogging, especially if the employer has no policy or an unreasonably restrictive policy with regard to off-duty speech activities. For example, California has a law protecting employees from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” These laws have not been tested in a blogging context. If you are terminated for blogging while off-duty, you should contact an employment attorney to see what rights you may have.



Section 7 Rights

By Doug Bonney
KC Labor

A while back a reporter from St. Joe called me. Somehow she had gotten wind of a meeting at which a group of hospital employees intended to discuss their work-related gripes so that they could approach their employer and air their grievances. The reporter told me that the employees did not have a union and that the meeting was going to be held away from the workplace. The reporter wanted to know whether the meeting was legal.

I told the reporter “of course the meeting would be legal.” But in thinking back on the conversation, I think the “of course” was out of place because the reporter’s question shows that workers in the United States know very little about the rights they enjoy under the labor laws.

The hospital employees’ meeting is an example of the most basic workers’ right: The right to engage in concerted activity for purposes of collective bargaining or other mutual aid or protection. That right is fundamental to all other workplace rights, andfor most private sector employees - it is guaranteed by SECTION 7 of the NATIONAL LABOR RELATIONS ACT Section 7 also guarantees the rights to self-organization, to form, join and assist labor organizations, and to bargain collectively through representatives of their own choosing.

You do not need a union to exercise your Section 7 rights. Any private sector employees outside the railroad and airline industries can exercise those rights with or without a union. Non-union employees can even strike if they have enough solidarity to make it work. And it would be an unfair labor practice for an employer to fire or retaliate against its employees for exercising their Section 7 rights. If an employer like the St. Joe hospital fired the leaders who organized the meeting, those employees could file charges with the National Labor Relations Board, which would investigate the charges, hold a hearing, andif an Administrative Law Judge upheld the charges - order the employer to put the employees back to work and to pay them their back wages.

Although the employees do not need a union in order to exercise their Section 7 rights, a union sanctioned by a majority of the employees in the workplace does give employees additional rights, including the right to demand that the employer bargain in good faith over a collective bargaining agreement. If an employer refuses to negotiate in good faith with a majority union, it would commit an unfair labor practice and would be subject to penalties imposed by the National Labor Relations Board. Without a majority union, however, the employees cannot force the employer to the bargaining table, and the employer can unilaterally change the terms and conditions of employment (things like working conditions, wages, and insurance benefits).

With the changes in the labor force we see in America today, many unions are considering new ways to advance worker rights. And Section 7 rights provide workers with a powerful tool even in non-union workplaces. But, in order to reap the benefits of a tool, you need to know it exists, and then you need to know how to use it. Thus, the first step is educating workers so that they know they have the protected right to engage in concerted activities. The second step is teaching workers how to use their rights. And this is where unions can help workers, even in non-union settings. At a conference of union lawyers I attended a few years ago in Chicago, for instance, a Steelworkers lawyer said his union, the USWA, will be experimenting with minority union representation, which means providing services for members in workplaces where there is not a union majority.

Employers benefit from an ignorant work force where people, like the St. Joe reporter, do not know that workers have the basic right to act together to improve their work life. So, spread the word: Section 7 is powerful medicine for the ailing American work force.



NLRB scrutinizes social media policies
The labor board is keeping an eye on corporate policies that might violate employees’ SECTION 7 rights.

By Mary Swanton
Inside Counsel
September 2011 Issue

The National Labor Relations Board (NLRB) sparked headlines when it issued a complaint against a Connecticut ambulance company that fired an employee who used her own Facebook page to complain about her supervisor and then responded to comments from co-workers. The case touched a nerve with employers grappling with writing policies governing employee use of social media.

As it turns out, American Medical Response (AMR) settled the NLRB complaint in February by agreeing to revamp its social media rules to ensure they don’t interfere with employee rights to discuss their wages, hours and working conditions with co-workers. The company reached a separate settlement with the fired employee.

But consternation continues over the role of the labor board in applying National Labor Relations Act (NLRA) SECTION 7 rules governing protected concerted activity to employees’ social media activities. Both nonunionized and unionized employers are vulnerable because the protected concerted activity provisions of the NLRA apply to both. In fact, some see the social media cases as a key element in the boards attempt to extend its influence into nonunion workplaces.

“The Facebook and Twitter cases show the boards agenda goes beyond just the union area,” says Ken Yerkes, a partner at Barnes & Thornburg. “They are trying to manage the nonunion workplace to build in the concept of protected concerted activity and limit employer rights.”

While the social media cases to date either have settled or are yet to be litigated, employers worry that the current labor-oriented NLRB will eventually rule on a case and establish a precedent that will curb employers ability to protect themselves against employees’ misuse of social media. In the meantime, the NLRB is keeping the issue in the media spotlight.

“The whole issue of social media is yet to be fully resolved,” says Stefan Marculewicz, a Littler Mendelson shareholder. “What we are seeing is the NLRB doing a lot of publicity around its issuance of complaints and settlement of cases. There are no published decisions yet on social media, but they are taking a very active role in driving policy on the way companies behave though their prosecution and publicity of that prosecution.”

Employer Dilemma

While the AMR case involved a unionized employee, the NLRB signaled that it will look just as closely at social media policies in nonunion workplaces when it filed suit in May against a nonprofit organization in Buffalo, N.Y., that fired five employees who complained about working conditions on their personal Facebook pages. The case illustrates that employers may face a dilemma when discipline of employees for harassment collides with the workers right to discuss working conditions.

The case, pending at press time, began when an employee of Hispanics United of Buffalo posted a co-worker’s allegation that employees did not do enough to help the organizations clients. The initial post generated responses from other employees, who defended their job performance and criticized their working conditions. Hispanics United fired the five employees who participated in the online dialog, claiming their comments in the posts, and other conduct, constituted harassment of the employee mentioned in the original post. The NLRB complaint alleges they were illegally fired for discussing working conditions

Handbook Hardball

The National Labor Relations Board’s (NLRB) focus on protecting employees Section 7 rights to engage in concerted activity is not limited to social media policies. It also includes employee handbook confidentiality policies that might be interpreted as restricting employees from discussing wages, hours and working conditions.

In a case involving Jurys Boston Hotel, the NLRB in March overturned a union decertification election after the union complained about three written policies it had never brought up before. Although the company withdrew the policies, the NLRB found they were overbroad and violated Section 7. It invalidated the election.

“Its a real stretch to say an overbroad policy should overturn decertification,” says Hal Coxson, a shareholder at Ogletree Deakins. “Now, every employer must see if there is any policy that anyone could interpret as interfering with employees’ right to engage in concerted activity.”

Another pending case illustrates that employers trying to protect their image from disparaging employee comments on social media may also be vulnerable. In May, the NLRB filed a complaint when a Chicago car dealership terminated a salesman who posted photos and comments critical of the food and beverages the dealership offered at a promotional event. When asked to remove the posts, the salesman did so, but was terminated anyway.

The NLRB said the salesman’s posting was protected concerted activity because it related to a discussion among employees about the terms and conditions of their employment. The dealership said the salesman was fired for other reasons.

“Just the mere fact they’re prosecuting these cases means a company has to incur risks of dealing with an NLRB claim,” says Marculewicz. “That is going to adjust behavior from a corporate standpoint.”

Tip of the Iceberg

The cases publicized to date may well be just the tip of the iceberg. The NLRB’s acting general counsel, Lafe Solomon, told his regional directors to submit any potential social media cases to the Advice Division, which investigates ways to implement the general counsels policies.

“He’s telling the regional directors, ‘You must check with me’ because he is looking for fact patterns to move the law to be more favorable to unions and employees,” says Yerkes.

Solomons team apparently has a wealth of cases from which to draw. In response to a recent Freedom of Information Act request from the U.S. Chamber of Commerce for all pending social media cases, the NLRB released information on 115 cases, some routine and others that will be closely watched.

“In the ho-hum category are cases that allege the employer did not bargain with the union over a new social media policy,” says Mike Eastman, the chamber’s director of labor policy. The most interesting area is to what extent is a Facebook conversation the same as a water cooler conversation “about working conditions,” which is protected concerted activity.

There is one important difference: A social media posting usually is disseminated to a much wider audience, including nonemployees, and has some degree of permanence.

“Will the board give the employer more leeway in regulating that conduct than they do in regulating the conduct of a couple of guys having an after-work conversation in the local pub? That will be interesting when they get down to these issues,” Eastman says.

Policy Considerations

In the absence of case law, employers have no choice but to try to define a policy that walks the fine line between protecting the company and preserving employees rights. Along with discrimination concerns, employers should consider Section 7 rights.

“Companies are really struggling with social media policy in general and how to deal with it from a whole host of areas within employment law,” says Marculewicz. “This is another aspect of “it.

While there is no formal guidance, in its settlement with AMR, the NLRB required management to promise they would not restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees from engaging in such discussions. Nonunion employers especially need to be reminded of their liability.

“This means general counsel have to take a very careful look at all company policies related to off-duty social media utilization and figure out a way to craft a policy so it is clear it is not intended to chill or limit discussion of working conditions,” Yerkes says.



Posted by Elvis on 09/02/11 •
Section American Solidarity
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