Privacy Issues in the Workplace

information that the employees post on their Facebook pages when the information relates to the terms and conditions of employment. 535 Section 7 of the National Relations Act gives both unionized and non-unionized employees the right to discuss the terms and conditions of their employment with co-workers and others. This includes conducting Section 7 activity through use of employer email systems during non-working hours. 536 In Purple Communications, Inc. v. Communications Workers of America, AFL-CIO , the NLRB determined that employees who have been given access to an employer’s email system in the course of their work are entitled to use system to engage in Section 7 activities during non- working hours. 537 An employer can rebut this presumption by showing that special circumstances make the ban necessary to maintain production or discipline. 538 An employer may also institute controls to the extent the controls are necessary to maintain production or discipline and the controls are applied uniformly and consistently enforced. 539

In California, employers should also note that California Labor Code sections 232 and 232.5 prohibits employers from taking adverse actions against employees for disclosing the amount of their wages and working conditions. Accordingly, we recommend that employers consider the context of employee speech in social media.

LCW Practice Advisor

In a report from the Acting General Counsel of the NLRB dated August 18, 2011 540 , the Acting General Counsel found the following were concerted protected activities: a Facebook discussion between 5 coworkers about their job performance and workload; employee negative remarks about a supervisor who refused her request for union representation during an investigatory interview ( NLRB v. Hispanics United of Buffalo (New York) 541 ) ; employee criticism and concerns about food at a sales events because it could affect his commission ( NLRB v. Knauz BWM 542 ); and an employee postings about employer tax withholding practices. On the other hand, the NLRB has noted that speech that involving individual gripes or “unprofessional and inappropriate tweets” that did not involve concerted activity was not protected by the NLRA. 543 In two 2017 cases involving Butler Medical Transport LLC, the NLRB made a distinction between comments about conditions that are of mutual concern to employees and posts that are “maliciously untrue and made with the knowledge that they are false.” 544 In the case of the later, the employer was able to show that at the time the employee posted his complaint about his work vehicle breaking down, the employee was in private vehicle and not a Butler ambulance. 545 The Board upheld the conclusion of the ALJ that an employee’s public criticism of his/her employer loses its protection under the Act if the statements are maliciously untrue even if the statements might have otherwise had protection under the Act. 546 The Board also found that the employer did not violate Section 8(a)(1) by discharging the employee pursuant to its “unlawful social media policy” when the employee had lost the protection of the Act. 547

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 163