Posts tagged ‘NLRB’

NLRB Gives Employers Greater Protection To Discipline Abusive Conduct

Yesterday the National Labor Relations Board (NLRB) issued a key ruling impacting the ability of credit unions to discipline employees for abuse of conduct, whether or not they have a unionized work force.

The National Labor Relations Act not only protects union activity.  As I have previously explained, it also extends to non-union workforces whose members are engaging in concerted activity regarding workplace concerns and conditions.  This is why your credit union would be violating the act if it fired employees for expressing concerns about the steps your credit union has taken to protect against COVID-19.

Over the years however, the NLRB has blurred the lines between abusive workplace conduct and concerted activity.  For example, you can’t necessarily fire an employee who bad mouths the boss on Facebook if it is determined that the abusive speech was meant to engage other employees in discussing workplace concerns.

Similarly, the company hot-head has some breathing space.  For instance, conduct which arguably violates Article VII of the Civil Rights Act such as yelling out racial epithets on a picket line or using foul language such as “b%#ch” and “motherf@*er” towards a supervisor have been afforded legal protection under the act.

In General Motors LLC and Charles Robinson the NLRB announced a unified framework for analyzing these type of cases.  Under this new approach, the NLRB has the burden of proving that the employees protected activity was a motivating factor in the discipline.  This is a key change since, on a practical level, it is basically presupposed that an employees concerted activity is a motivating factor in the discipline.  If it is determined that the employees protected activity was a motivating factor, then the employer can still win the case if it proves that the action would have been taken anyway “…even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct”.

The NLRB is going to use this standard for all concerted activity cases regardless if the comments were made online, on a picket line or during a workplace meeting.

What is the practical significance of this change?  Well let’s say your hot-headed employee engages in behavior which could make his female supervisor subject to harassment.  As a result of this change, you can now take action based on the harassment confident that you will not be violating concerted activity restrictions.

Needless to say, this is one blog I would pass on to your HR people.  They could probably use a break from thinking about COVID-19 24 hours a day anyway.

Board Decision

July 22, 2020 at 9:53 am Leave a comment

Is Bathroom Banter Concerted Activity?

That’s the question posed in a case recently decided by an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB). His decision demonstrates that March Madness extends well beyond the basketball court.

The National Labor Relations Act protects not only unionized workers but non-unionized workers involved in concerted activities dealing with workplace concerns.  I strongly suspect that this language was included in the statute to protect employees who wanted to unionize or at least stand together to solve a common workplace problem with their employer.  However, the NLRB has used this authority to encroach into virtually every workplace in America.  The latest example of this trend comes in the form of a March 16 decision involving Quicken Loans. 

On February 11, 2015, two employees of Quicken Loans, Austin Laff and Michael Woods, were in a rest room adjacent to a reception area and open for use by the public.  The two were having a bad day and Laff told Woods to smile.  Woods proceeded to tell him that a potential client should get in touch with a “f…ing client care specialist and quit wasting his f…ing time.”  Laff responded to Woods by telling him he understood why he was frustrated. The conversation was overheard by Quicken Loans management, which eventually sent out an email reminding employees in no uncertain terms that there should never be any swearing in the bathroom, especially about clients.  It also made clear that it was not professional to accuse clients of wasting employee time. 

The email led to a further investigation of the bathroom banter.  Laff, who had been involved in previous misconduct, was eventually discharged and Woods was disciplined.  Now here’s the part of the story that is most important to you.  The ALJ ruled that this brief expletive laden exchange was not simply two employees blowing off steam, but rather protected activity for which they could not be disciplined.  According to the ALJ, “there is no question” that Laff and Woods “were discussing common concerns regarding terms and conditions of employment” related to how calls were handled. 

I’ve said it before and I’ll say it again, the NRLB makes the CFPB look downright conservative.  My diatribe notwithstanding, this case serves as yet another reminder of why you don’t have as much flexibility to discipline your employees as you once did.

March 21, 2016 at 8:56 am 2 comments

If you have an employee handbook you have to read this…

Whether or not you work in a unionized workplace, the National Labor Relations Board has used an  expansive view of federal law to insert itself  into , and implicitly attempt to micromanage, the American workplace in a way that is directly impacting your credit union operations.

Those of you who think I’m exaggerating and\or those of you whose job it is to manage employees would be well advised to review the NLRB’s recent  guidance  outlining language that can and can’t be in workplace handbooks(http://www.nlrb.gov/reports-guidance/general-counsel-memos Report of the General Counsel Concerning Employer Rules).  On the one hand the memorandum is an attempt to provide a concise compendium of handbook dos and don’ts based on its prior rulings;  on the other hand  it  reads like an  “April  Fools” joke.   Unfortunately it isn’t.

First, the NLRB correctly reminds us that handbook language violates federal law when “employees would reasonably construe the rule’s language to prohibit” concerted activity be it in a unionized or non-unionized workplace.  The problem is that the mythical  employee the NLRB is protecting apparently  has a law degree, is utterly devoid of commonsense, behaves like an out-of-control  teenager who has just been told  she has  to be home by 11:00PM   and  works for the NLRB.  No other workplace could  function in the workplace as pictured by the Board

In the-“ You can’t make this stuff up category” the NLRB explains that  a workplace policy “that prohibits employees from engaging in. “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful…  Moreover, employee criticism of an employer will not lose the Act’s protection simply because the criticism is false or defamatory.”

Apparently the NLRB doesn’t think your average employee has a rudimentary grasp of the English language or can be expected to have the etiquette  of a kindergartener.

But wait there’s more.  Did you know that a policy banning “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.” Or another prohibiting “Chronic resistance to proper work-related orders or discipline, even though not overt insubordination will result in discipline.” Is illegal?

I want to give the NLRB the benefit of the doubt.  Maybe it is so committed  to protecting the Norma Rae’s of the world chafing under  employer misconduct  that it wants to give   complaints about  management malfeasance   the widest possible protection. The problem is that its prohibitions also prohibit language intended to regulate employee to employee civility. For example it  found the following policy to also violate the FLSA.

“Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. …”We found the above rule unlawful because several of its terms are ambiguous as to their application to [concerted] activity—”embarrassing,” “defamatory,” and” otherwise . . . inappropriate.” We further concluded that, viewed in context with such language, employees would reasonably construe even the term “intimidating” as covering Section 7 conduct”

Finally even where the NLRB tries to be reasonable the distinctions it draws between lawful and unlawful conduct is so paper-thin that a properly designed  handbook  needs more qualifiers than a  Viagra  Ad.   For example the following language is unlawful  “ Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.” But this policy is legal “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”

 

April 2, 2015 at 9:27 am 2 comments

A Social Media Nightmare?

The CU Times recently reported on the misfortunes of $1 billion Max  Credit Union in   Alabama. An employee is suspected of posting information about a members’ negative balance to a social media site accompanied by the hashtag “perks of my job.”

The credit union’s misfortune underscores just how important it is to have a comprehensive social media policy that not only clearly explains appropriate employee conduct but addresses the amount of public access your credit union wants to grant to its own website.

As regular readers of this blog  know,  the National Labor Relations Board has been on a crusade for several years now to protect the rights of employees, be they unionized or not, to utilize social media to engage in concerted activity to discuss workplace concerns. Earlier this year the NLRB ruled that the same type of protections also applied to employees discussing workplace issues using a company’s email system.

Would you be prepared if  what happened to Max  happened at your credit union?

How would you go about disciplining the employee? The good news is that even the NLRB recognizes that the disclosure of confidential member information is not a concerted activity for which employees are protected,   For example,  in a 2012 memorandum opinion it upheld a pharmaceutical company’s policy prohibiting discussion of proprietary issues by employees using  social media  because an employee  “ would reasonably understand that this rule was intended to protect the privacy interests of the Employer’s customers and not to restrict Section 7 protected communications. ” Similarly your credit union should  have a narrowly drawn policy prohibiting  the dissemination of member information.

This is obvious enough but let’s say your credit union is victimized by an employee disclosure and one of your loan officers responds with a post on his Facebook page saying that “while the disclosure of personal information is foolish, Let’s face it, the credit union’s standards are so low now  that anyone who breathes can  get a loan or open an account.”  An irate member brings the post to the credit union’s attention saying it’s disparaging and demands the credit union discipline the employee.

This is the type of concerted activity that you better hold your fire on and talk to your attorney about before taking any action. On the one hand deteriorating underwriting standards are clearly a matter of workplace concern.  On the other hand,  the post does suggest that many members at the credit union have bad credit. Is it protected speech?  In my hypothetical you are going to want to know the context in which the comments were made and whether other people responded by expressing similar concerns. When it comes to disciplining someone based on social media comments these are the types of questions you should be asking yourself.

So far I have been talking about your ability to regulate employee conduct when they are using their own social media.  In the case of the Alabama credit union more than 60 comments have been posted to the credit union’s website some of them defending it.   Has your credit union ever discussed the parameters of public access to its website or Facebook page?  Remember you don’t have to give anyone the authority to post comments and you certainly can screen comments before publication.  Conversely pretending an event hasn’t happened is a  lousy PR strategy in an age when news about  any credit union can make national headlines within hours.  Regardless of the size of your credit union I would personally discuss what your social media strategy is and will be should you be faced with an embarrassing disclosure.

Here is a link to the article and the NLRB ruling to which I was referring.

http://www.cutimes.com/2015/03/20/facebook-firestorm-burns-credit-union

http://nlrb.gov/news-outreach/news-story/acting-general-counsel-issues-second-social-media-report

 

 

 

I

March 24, 2015 at 9:25 am 1 comment

Why your email policy probably isn’t legal?

Your email policy probably isn’t legal; It may have been perfectly appropriate last week but there is a good chance it is a hopelessly outdated relic of labor law today.

Is this just a pathetic attempt to get your attention as my blog competes with your overloaded Inbox? Kind of but it also reflects the fact that late last week the NLRB fundamentally changed the legal rights of employees to use email on company time, At the very least you should grab your email\electronic communications policy and see if a call to your HR attorney may be in order. If you don’t have a policy then get to work creating one.

Our story begins with a company in California that provides interpreting services for the hard of hearing, The employees spend most of the day at their desks and are given a company email account. The employees decided to unionize but argued that their right to vote for representation was illegally inhibited by a company email policy that I bet reads a lot like yours it explained that:

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

 

  1. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.

. . . .

  1. Sending uninvited email of a personal nature.

As recently as 2007 the NLRB and a federal court in the District of Columbia reviewed a similar policy and upheld a straightforward rule: Employers can limit the use of employer owned equipment to work related activities. Email service is an investment in company property and as such is subject to a company’s rules prohibiting its use for non-work related activities,( In Re the Guard Publ’g Co., 351 NLRB 1110 (2007))

In last week’s  decision the NLRB overturned this earlier ruling and created a new legal framework for analyzing what  limits can be placed on the use of company email by employees. Now there is “a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.”Purple Commc’ns, Inc. & Commc’ns Workers of Am., Afl-Cio, 361 NLRB No. 126 (Dec. 11, 2014)

What does this mean?

First, as I have explained in previous blogs an employee has a right to engage in concerted activity to discuss workplace conditions with their fellow employees irrespective of whether or not they belong to a union. This ruling could impact your credit union.  For instance employees exchanging emails critical of a new marketing initiative that they think is bad for the credit union might be legally protected.

Second the fact that you might allow your employees to bring their tablets and iPhones to work doesn’t alter your obligation to allow the use of email. A dissenting opinion to the Board’s decision argued that employees have more than enough ways of communicating with work- mates irrespective of their access to a company’s email system. To the NLRB majority this doesn’t matter.

Third, the decision doesn’t mean you can’t regulate email use. It just applies to email use during non- work time such as a lunch hour. The majority made clear that you can still monitor email. And remember most communication is not concerted activity. For example, employees still don’t have the right to sexually harass each other over the internet Furthermore companies that can prove that their workplace has unique attributes that require it to adopt more restrictive email policies will be allowed to impose restrictions. But this is going to be an extremely difficult argument to make.

Fourth, this is not the last word on this case. The NLRB’s In Re the Guard Publ’g Co decision on this issue ended up in court and I would bet you that this decision ends up before the courts in the not so distant future.

Now for a personal observation: The NLRB is pushing for employee email protections precisely when we have a real life example of just how detrimental email can be to a company’s reputation  courtesy of hackers who have published embarrassing emails from executives at Sony. For example one Email from an executive had the audacity to question the talent of Angelina Jolie! Now in “LA LA land this is big news since  you don’t want stars to pass on making your studio’s next movie.  The point is there are some conversations businesses should be allowed to keep in-house or comments that simply shouldn’t be made by an employee in the first place. Now some of those comments might be legally protected.

Here is a link to the decision and an earlier blog I did on this case.

http://www.nlrb.gov/cases-decisions/board-decisions

https://newyorksstateofmind.wordpress.com/2014/05/05/can-you-email-your-buddies-on-company-time/

 

December 16, 2014 at 9:07 am Leave a comment

When Employees Go Too Far

One of my favorite HR issues that I discuss in this blog is the extent to which employers can reprimand employees for comments they make about the workplace on their own Facebook or other social media accounts.  The basic point to keep in mind is that whether you are a unionized or non-unionized workplace, employees have a right to engage in concerted activity in which they come together to discuss issues of concern about their workplace.  They also have the right, of course, to discuss the pros and cons of unionizing.

The National Labor Relations Board (NLRB) has been extremely aggressive in applying concerted activity protections to the social media comments of employees.  The result is that you should move with extra caution, including consulting with your HR attorney, before disciplining an employee for derogatory social media comments about his workplace.

So I was pleasantly surprised on Friday to learn that the NLRB recently issued a decision upholding the right of employers to terminate two employees for insubordination based solely on a Facebook conversation. The case involved two employees who worked at a not-for-profit in the San Francisco area that provided after-school services for kids.  During the incriminating conversation, they asked each other if they were going to be rehired for another school year.  Both got their jobs back, but one of them was going to be demoted.  One of the employees explained how he would organize “crazy events and not seek permission.”  He also stated that he would play loud music, get artists to place graffiti on the walls, and let his not-for-profit employer “figure it out.”  Not to be outdone, the other disgruntled employee stated that when the organization started losing control of kids in their care, she wasn’t going to help.

First, the NLRB agreed that this colorful discussion was concerted activity.   But it also agreed with an earlier ruling that the conduct of the employees was so egregious that they lost the protections of federal law.  The decisive factor was that the insubordinate behavior went beyond hyperbole.  Instead, the Facebook post could reasonably be interpreted as two employees planning acts of insubordination that put the employer’s business at risk.  The not-for-profit center was not required to wait and see if the employees followed through on their plans before taking steps to terminate them.

While the decision is a welcome relief for any employer who wants to use common sense in the workplace, it also underscores just how narrow an employer’s flexibility is when it comes to disciplining employees based on their social media conduct.  The outcome of this case would have been different had the NLRB determined that the employees were just joking.  We may also have seen a different outcome had the employer not been responsible for children.  Still, this decision is a good one to put in your file.

Here is some additional information about the case from Bond, Schoeneck and King’s labor and employment blog, which alerted me to the decision.  In addition, here are some of the previous blogs I’ve done on this subject:

http://newyorksstateofmind.wordpress.com/2011/10/25/when-bad-mouthing-the-boss-is-legally-protected/

http://newyorksstateofmind.wordpress.com/2012/08/09/could-asking-an-employee-to-be-discreet-violate-the-labor-law/

Stronger Than Expected Jobs Report

On Friday, the U.S. Labor Department reported that 322,000 people were hired in November.  In addition, there is some evidence indicating that the economy may be experiencing modest wage growth.  Even if you are not an economist  or an economist want-to-be like your faithful blogger, the jobs report is particularly important to credit unions in the coming months.  The stronger the jobs report, the more likely it is that the Federal Reserve will start raising short term interest rates no later than the middle of next year.  Whether or not this is a good idea is an idea to ponder in a future blog.

December 8, 2014 at 8:47 am Leave a comment

Can You Email Your Buddies On Company Time?

Judging by the number of people who have told me over the years that they have had to get permission to access my blog at their credit union, I know there are many credit unions that have policies prohibiting the use of company electronic equipment and email systems for activities unrelated to the employee’s job.  Assuming you have an appropriate policy on the issue, and you aren’t selectively enforcing it, such policies are fine according to a 2009 decision by the United States Court of Appeals for the District of Columbia, (Guard Publishing Co. v. National Labor Relations Board, 571 F.3d 53 (2009)).

But has the Internet become such an integral part of communication that policies imposing blanket bans on non-business use of employer equipment are outdated?  Our good friends at the NLRB think so and its head counsel is bringing an Administrative Appeal before the Board in a case called Purple Communications, Inc. (Cases 21-CA-095151; 21-RC-091531 and 21-RC-091584) in which it is going to ask the Board to reverse the DC court’s 2009 ruling.  Given the importance of the issues involved, the NLRB is requesting interested parties to file amicus briefs for or against its appeal.  It’s a very good assumption that win or lose, the issue will once again be examined by the DC federal court.

Why should you care?  Most importantly, even though most of you don’t have union shops, the NLRB is seeking to regulate the ability of all employers to limit the use of office technology.  It is concerned that overly restrictive technology policies inhibit the ability of employees, regardless of whether or not they belong to a union, to take “concerted actions” against problems in the work place.  Second, the case will provide HR professionals much-needed guidance about the use of technology in the workplace.  For example, this case deals specifically with the use of company owned and distributed technology but is likely to provide some indication as to where regulators and the courts are headed related to appropriate limitations for employees who are allowed to bring their own devices to work.

My personal view is that the existing legal precedent makes perfect sense and provides both employees and employers a bright line rule to follow.  Unfortunately, common sense and consistency aren’t top priorities of the current NLRB hierarchy.  Bottom line: this is a case to keep an eye on and even to consider writing an amicus for if you think it may have  an impact on your credit union policies.  By the way, if you don’t yet have a technology policy, you should develop one quickly.

 

 

 

May 5, 2014 at 8:52 am 1 comment

Is expecting employees to be courteous illegal?

Don’t expect your employees to be too courteous to vendors, co-workers or customers.  You may be in violation of the labor law regardless of whether or not your credit union employees are unionized.

The National Labor Relations Board upheld a previous finding that a car dealership’s courtesy policy was too broad because it might be interpreted by employees as discouraging their use of concerted activity to address work place concerns.  The offending policy stated:

(b) Courtesy: Courtesy is the responsibility of every

employee. Everyone is expected to be courteous, polite

and friendly to our customers, vendors and suppliers, as

well as to their fellow employees. No one should be

disrespectful or use profanity or any other language

which injures the image or reputation of the Dealership.

 

What was wrong with this policy? The National Labor Relations Act makes it illegal for employers to keep employees from joining together to raise concerns about workplace conditions.  The protection of so-called “concerted activities” applies to both unionized and nonunionized workplaces, and at its best furthers the important goal of allowing employees to speak out about workplace conditions without fear of reprisal.

Suffice it to say this is not implementation of a law at its best.  Your average employee understands the distinction between acting courteously and speaking out about workplace conditions.  But the NLRB doesn’t think the American worker can be held to the same standards that parents expect of their kids every day.  Rulings like this undermine rather than strengthen legitimate employee protections by creating the perception that regulations are being interpreted not to ensure that employees are being treated fairly but to impose restrictions on the ability of employees and employers to conduct themselves with as little government oversight as necessary.

On the bright side, the comments that triggered this litigation were made on an employee’s Facebook page; however, while the initial decision that was appealed gave employers some guidance on their rights to monitor and restrict an employee’s online conduct, the NLRB decision doesn’t deal with the Facebook issue in the case.  So even this silver lining is of limited value.

 

 

October 10, 2012 at 6:54 am 1 comment

What Can You Do About Big-Mouth Bob?

Assuming you weren’t able to get in on Facebook’s Initial Public Offering (IPO), and will therefore have to show up for work on Monday, now seems like a good time to remind credit unions that regardless of your size, social media raises questions for your HR staff at each stage of the appointment process.  Consider this your social media audit. 

1.  Do you go on the Facebook page of prospective employees?  If so, why?  If not, why not?  Credit unions seem somewhat split on this one.  There’s a very good argument to be made that doing Facebook checks are more trouble than they’re worth because they could open the door to arguments that you discriminated against applicants (for example, let’s say you only interview White applicants).  Conversely, if you’re hiring a Chief Executive Officer, do you really want to hire someone who has posted a picture of himself walking around with a lampshade on his head at last year’s Christmas party?  My personal view is that the higher up the position, the more prudent it is to view the public pages of Facebook and other social media, but I would only do this as part of my due diligence when considering my top candidates for a given position.  If the person doesn’t have a public page, then I would say here’s a discrete person who knows the importance of keeping her private life private, an increasingly rare commodity in the Facebook age.

2.  Let’s say you hire Bob and find out that he’s complaining about the workplace.  This is actually one of my favorite HR issues.  The National Labor Relations Board (NLRB) has issued a guidance pointing out that even non-unionized employees  have a right to engage in concerted activities discussing workplace conditions.  So, if you find out that Bob is complaining that the credit union’s marketing plan isn’t getting new members in the door and that ten people have joined his discussion on Facebook, tread carefully before disciplining him.  With or without a policy about speaking out publicly against the company, the NLRB has signaled that it will protect such discussions.  Conversely, you don’t have to put up with insubordination.  So if you find out that Bob routinely badmouths his bosses and these rants have nothing to do with work place conditions, then you are on firmer ground to discipline him.  As you can see, this is an extremely fact-sensitive issue, so consult with an expert before taking steps against an employee in this context.

3.  Let’s say you legally fire big-mouth Bob.  Now he has lots of time on his hands and he’s using it to spread the word over Facebook that XYZ Credit Union is the worst place to work in the world and that he’d feel safer depositing his money into a Greek bank account.  What can you do to shut him up?  Not much.  The few cases on this issue have pointed out that the former employee enjoys first amendment protections against any attempt by a company to get a court ordered injunction.  You could try to make this a contract issue by including language in employment contracts prohibiting public comments against the company.  However, this presupposes that you have a contract with the employee and that it is binding once he leaves.  My personal view is that you’re just going to have to ignore big-mouth Bob and make sure you have your own, robust social media presence so you can effectively and quickly combat any bad information that is out there.

May 18, 2012 at 7:35 am Leave a comment

When bad-mouthing the boss is legally protected

Suppose after reading this blog, you take one more look at your Facebook and find that an employee of the credit union got home from work last night and posted a sarcastic critique of the credit union’s latest marketing advertisements.  Can the employee be fired?  This is the type of question for which the National Labor Relations Board (NLRB) provided guidance in a memorandum released by its Office of General Counsel summarizing fourteen administrative decisions in which employees were terminated after posting comments on social media.

As explained by attorney Michael Schmidt in a column yesterday in the New York Law Journal (subscription required), the analysis provides a useful advice for any one involved with your credit union’s HR and management functions.  Most importantly, even if your credit union is not unionized, the National Labor Relations Act gives employees the right to engage in “concerted activities” for either the purpose of collective bargaining or to provide mutual aid and protection.  This means that before firing that employee who bad-mouthed the credit union’s marketing efforts, there are several things to keep in mind:

  • Whether the posting on Facebook was with or on the authority of other employees and not solely the opinion of the poster.   In other words, was the employee just griping about a bad day or are other employees encouraging him to speak out about a bad idea.
  • Assuming a group of employees are acting together (i.e. concerted activity), is such a posting protected?  As explained by Schmidt, employee speech is protected when it implicates the terms and conditions of employment.  For example, a car salesman was deemed to be engaging in protected speech when he sarcastically posted pictures and comments about a recent sales event hosted by the dealership because such management decisions impacted commissions.
  • Whether the posting is so reckless or malicious as to provide grounds for dismissal notwithstanding the fact that its subject matter would otherwise be legally protected (i.e. the Charlie Sheen rule).  On the one hand this stands for the principle that you can’t bad mouth the boss with impunity, but in reviewing the memo you might be surprised to find that the NRLB found it was ok to poke fun at the auto sales event because the employee was merely expressing frustration.
  • Finally, even if you are 0-3, the NLRB may still let you get away with firing the employee if you can show that you would have fired him notwithstanding the comments.  However, as criminal defense lawyers sometimes say to their clients, don’t start packing your toothbrush based on that argument.

Clearly, these are extremely fact sensitive inquiries.  Given the fluidity of the field, you would be well advised to contact your HR professional before firing an employee based their opinions expressed in social networking media.  Your reactions may be totally legitimate, but there are legal issues as new as the technology.

October 25, 2011 at 7:00 am Leave a comment


Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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