National Labor Relations Board Issues First Decisions Regarding Employer Social Media Policies

The National Labor Relations Board (NLRB) recently issued its first decisions involving employer social media policies, rulings that will set precedent for future cases.

In the first case, the NLRB invalidated employer handbook provisions prohibiting employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation” and from disclosing "confidential information" like employees' names, addresses, phone numbers and email addresses. Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012). In a separate decision, the NLRB invalidated a rule encouraging “courteous, polite and friendly” communications with customers and other employees. Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012). In both cases, the NLRB applied traditional National Labor Relations Act (NLRA) principles, holding that employees would “reasonably construe” these provisions as restricting their NLRA Section 7 rights to discuss wages, hours and other terms and conditions of employment.

However, in the Knauz case, which involved a car salesman and a number of his Facebook postings, the NLRB ruled that the firing of a salesman was not unlawful because federal law did not protect the employee’s Facebook updates. The NLRB ruled the dealership did not act unlawfully by firing the salesman after he posted a picture of a Land Rover accident, including the caption “Oops.”

A post by an employee on a social media website may be protected by the NLRA if it relates to working conditions, wages, and includes concerted activity. In the case of the car salesman, his Facebook postings ridiculing the dealership for serving hot dogs and bottled water may have been protected by the NLRA. However, the picture of the accident and accompanying caption was not protected speech and was ultimately responsible for his termination.

Prior to the decisions referenced above, social media policies had previously been guided by administrative decisions and memoranda from the board’s General Counsel (See http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743), but these did not set precedent.

These new decisions by the NLRB underscore the fact that all employers must remain vigilant about their obligations in the evolving world of social media. This remains a fluid area of the law and changes will continue to occur. However, this should prompt employers to thoroughly review their social media policies to ensure that they comport with the provisions of the NLRA.


Using “Subjective Criteria” During Employee Layoffs

The Sixth Circuit recently held that using subjective criteria — such as whether an employee is a “team player” — during layoffs does not by itself show discrimination.

In Beck v. Buckeye Pipeline Services Co., No. 11-3655 (6th Cir. Sept. 28, 2012), the employer assembled a group of company leaders as part of a “design team” to reform the company’s organizational structure. The team developed a new structure promoting decentralized, team-based leadership rather than top-down control. It then evaluated company employees based upon their ability to succeed in the new environment. The team considered criteria such as whether the employees were good listeners and communicators, willing to work in a team, and accepted accountability. It decided that the plaintiff, a fifty year-old female who had worked at the company for over sixteen years, was not a “team player” because she complained about the workplace, refused to fill-in for her coworkers, and was generally uncooperative. The employer fired the plaintiff, along with over a hundred other employees, as part of a company-wide reduction in force. The plaintiff was replaced with a younger, male employee with less experience.

The plaintiff sued her employer, alleging age and gender discrimination. She argued that the employer’s use of “subjective criteria” in selecting her for termination permitted the inference that she was singled out because of her age and gender. The court rejected this argument, noting that the use of subject criteria during layoffs deserves “careful scrutiny” but does not by itself show discrimination. Further, none of the criteria the employer used to evaluate employees, such as whether the employee was a “team-player,” discriminated on the basis of gender or age.

The court also rejected the plaintiff’s argument that her employer discriminated against her because the design team’s evaluation conflicted with the assessment of her immediate supervisor, who stated that the plaintiff was a good employee. The court noted that the supervisor said the same thing about all of his subordinates. Moreover, the company entrusted only the design team with deciding what qualities to require of employees under the new team-based system. The team was therefore entitled to disregard the supervisor’s opinion, which did not have an influence on the plaintiff’s evaluation.

This case offers several lessons for employers planning their own layoffs or reductions in force. Using subjective criteria in deciding which employees to terminate is lawful. Layoffs need not be based on objective criteria or “hard numbers,” such as the employees’ number of write-ups within the past year. However, employers using subjective criteria during layoffs must tread carefully. They should expect that a court will give the criteria “careful scrutiny” and be prepared to defend the criteria. Further, employers must consistently apply the criteria across their workforce. Finally, employers must ensure that the criteria do not affect protected groups at a disproportionately high rate.

Contact: Nathan Pangrace


In Workers’ Compensation, Symptoms Alone Do Not Equate Injury

The single most important question at the outset of a workers' compensation claim is, “Did the claimant suffer a compensable injury?” Under Ohio Revised Code Section 4123.01(C), an “injury” is defined as “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment.” Webster’s Dictionary defines “injury” as “hurt, damage, or loss sustained.” This sounds easy enough to prove, right? The reality is different.

Most Industrial Commission claim allowance hearings focus on witness testimony and the medical evidence. Initial treatment records are key as they normally delineate diagnosed conditions. Every so often, though, a treating doctor will give a generic diagnosis of “pain.” With a back injury, the initial diagnosis may even be “radiculopathy.” Technically, though, these are symptoms and not conditions, and thus litigation ensues.

Recently, the Tenth District Court of Appeals for the State of Ohio decided the compensability of a claim based on an application for “chest pain.” In the case of Edney v. Life Ambulance Serv., Inc., 2012-Ohio-4305 decided on September 20, the claimant alleged an “injury” of “chest pain” as the result of second hand smoke in the workplace. In its decision, the court discussed at length the definition of a “symptom” versus an “injury.” The court cited the medical records from claimant's hospital visit as indicating that he was diagnosed with chest pain of an unclear etiology or cause. In the end, the court ruled that the Industrial Commission properly denied this claim since pain is a symptom and claimant did not establish that he suffered an injury within the statutory definition.

Contact: Christopher R. Debski