Privacy Issues in the Workplace

i. Exception – Discussions about Union Activity or about Terms and Conditions of Employment While employers may discipline employees for conduct on the internet that has a nexus to employment (see San Diego Unified School District v. Commission on Professional Competence (Lampedusa) above), employers should be careful not to discipline employees for complaints about the employee’s terms and conditions of employment. Several recent National Labor Relations Board (NLRB) complaints address whether employees may be disciplined for information that the employees post on their Facebook pages when the information relates to the terms and conditions of employment. 538 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

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

use of employer email systems during non-working hours. 539

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. 540 An employer can rebut this presumption by showing that special circumstances make the ban necessary to maintain production or discipline. 541 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. 542 In a report from the Acting General Counsel of the NLRB dated August 18, 2011 543 , 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) 544 ) ; employee criticism and concerns about food at a sales events because it could affect his commission ( NLRB v. Knauz BWM 545 ); 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. 546 In two 2017 cases involving Butler Medical Transport LLC, the NLRB made a distinction between comments about conditions that are of mutual concern to

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 172