The nationally publicized case, in which an employee's posts on Facebook, led to her termination was thought to be a test of how far employees could go when posting comments about work matters from their home computers on social media sites.  Despite all of the press over the case, there was no landmark opinion issued by the National Labor Relations Board (NLRB). 

 

On October 27, 2010, the NLRB's Hartford regional office issued a complaint against American Medical Response of Connecticut, Inc. (AMR) alleging their discharge of an employee, who posted comments about her supervisor on Facebook violated federal labor law because the employee was engaged in protected activity.  Under NLRB case law, employees are granted broad rights to criticize their supervisors, their employer, and discuss terms and conditions of their employment.

 

An Administrative Law Judge was scheduled to hear the case on January 25, 2010 but the hearing was postponed to allow the NLRB and AMR to discuss a possible settlement.  The parties reached a settlement on the eve of the hearing.  

 

According to the NLRB News Release:

Under the terms of the settlement approved by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly 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 for engaging in such discussions.
 

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation.  The allegations involving the employee's discharge were resolved through a separate, private agreement between the employee and the company.

 

According to NLRB acting General Counsel, Lafe Solomon, the bottom line is that employees are allowed to discuss the conditions of their employment with co-workers - at a water cooler, a restaurant or on Facebook.  Unfortunately, since there was no hearing, there was no official ruling as to how far an employee can go when posting comments on social media sites. 

-----------------------------------------------------------------

  For more information on the circumstances and law surrounding the initial charges, please see "Supervisor Bashing Permitted and Protected on Facebook", which recently appeared in Collins and Lacy's

Employment Law Answers Quarterly .

 

However, Kreisberg said the board is looking at a growing number of complaints that explore the limits of corporate Internet policies.  One case which may provide additional insight on social media policies was recently filed by CSEA/SEIU.  
 

On February 4, 2011, the CSEA/SEIU filed an unfair labor practice charge against a Connecticut bus company.  Unlike the AMR case and other charges filed by CSEA/SEIU earlier, the charge in Case No.34-CA-12906 contains no specific allegations the company improperly disciplined any particular employee.  Rather, this charge alleges the employer violated Section 8(a)(1) of the National Labor Relations Act by merely  "maintaining" policies in its employee handbook, including a policy against:
 

The use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.
 

The treatment of what appears to be simpler facts in the CSEA litigation case provide guidance on how the NLRB will evaluate social media policies in the future.  Be on the lookout for additional updates on these cases as they progress.
 

The bottom line is employers need to start carefully reviewing their policies and actions in regards to social media.  We are here to help your business, so if you have a social media policy or are considering creating one, contact us or your in-house counsel for further advice.

  

With its January 24, 2011 decision in Thompson v. North American Stainless, the United States Supreme Court case has significantly broadened the scope of Title VII and the anti-retaliation provision under the Civil Rights Act.  For the first time, an employer can be responsible to a third party as a result of alleged discrimination of another.

  

In 2003, Petitioner Eric Thompson and his fiancé Mariam Regalado, were employees of North American Stainless (NAS).  In February 2003, Regalado filed a charge alleging sex discrimination with the Equal Employment Opportunity Commission (EEOC) against NAS.  As part of its investigation, EEOC contacted NAS employer regarding Regalado's charge.  Approximately three weeks later, NAS fired Regalado's fiancé Thompson.

  

Thompson later filed a charge with the EEOC and sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964.  The basis of his suit alleged he was retaliated against for Regalado filing her charge with the EEOC.  The District Court granted summary judgment in favor of NAS, concluding Title VII "does not permit third party retaliation claims."  Eventually, the Sixth Circuit affirmed the District Court's ruling stating "Thompson did not engage in any statutorily protected activity, either on his own behalf or on behalf of Mariam Regalado."  The Sixth Circuit stated Thompson was not "included in the class of persons for whom Congress created a retaliation cause of action." 

  

In a unanimous opinion, the United States Supreme Court, led by Justice Antonin Scalia, opined the anti-retaliation provision of Title VII covers "a broad range of employed conduct" that could deter "a reasonable worker" from objecting to discrimination.  In reasoning Title VII's anti-retaliation provision must be construed to cover a broad range of employer conduct, the Court relied upon its previous opinion in Burlington North and Santé Fe Railroad Co. v. White, 548 U.S. 53 (2006).  (See website for Article written in DRI).  Unnecessary delay in dealing with an employment issue or even termination inevitably leads to larger problems, including retaliation claims.

  

To give balance to this significant broadening of Title VII, the Supreme Court found in order for a person to have standing under the retaliation portion of Title VII, he or she must be a "person aggrieved." The Court went on to explain a person aggrieved is one who "falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint."  Title VII's term "aggrieved" incorporates a test, enabling suit by any Plaintiff with an interest arguably [sought] to be protected by the statute. 

  

Applying the test here, the Court reasoned Thompson falls within the "zone of interest" protected by Title VII.  Thompson was an employee of NAS and Title VII's purpose is to protect employees from employer's unlawful actions.  Accepting the facts as alleged, Thompson is not an accidental victim of the retaliation, but rather hurting him comes from the unlawful Act by which NAS punished Regalado.  The Supreme Court has remanded the case back to the lower courts for trial. 

  

Although NAS had defended its termination of Thompson based upon poor performance and a "derogatory" memo written by Thompson, the combination of his relationship to Regalado and his termination just three weeks after the filing of the EEOC charge was too great for the Court to ignore.  With any retaliation case, time is always an essential factor to be considered with making employment decisions.  Good employment practice requires that if an employee is underperforming, consistent and immediate documentation must take place at the time of occurrence.  Documentation of the poor performance after the termination is often interpreted as conjectural and retaliatory. 

  

Should you have any need for employment related questions similar to this please do not hesitate to contact the Employment Practice Group of Collins & Lacy.