Surveillance of Employee Facebook Activities
From Ancel Glink's sister blog, The Workplace Report: NLRB: Facebook and Surveillance, and Concerted Activities, Oh My!
In a
recent decision from the National Labor Relations Board, an administrative law
judge addressed whether a laid-off employee’s Facebook photos and comments,
which were critical of her employer’s pay and workplace condition policies,
could be used in the employer’s decision not to rehire the employee.
Strain, a former sales employee at Natural Life, claimed the
company engaged in unlawful surveillance by checking her Facebook page. A company manager (Guggia) had heard that Strain was
posting “horrible things” about her on Facebook. Guggia, who was Facebook friends with Strain, looked
and saw that Strain had made negative comments about the company and its owner.
Guggia specifically recalled Strain commenting that “she had something
for their ass.” Strain made other comments in which she claimed that her
employer was racist and stealing from her paycheck. Based on those
negative Facebook posts, Guggia chose not to rehire Strain, and Strain's complaint went to the NLRB.
The case included a number of claims, including that the company (1) engaged in unlawful surveillance of Strain's Facebook page; (2) unlawfully listened to employee phone calls; and (3) improperly terminated Strain and co-workers for engaging in protected concerted activities.
First, the administrative law judge dismissed Strain’s unlawful surveillance claim,
finding that Guggia looked at Strain’s Facebook to determine what Strain was
saying about her individually. Guggia’s action was not enough to
establish that the company had engaged in surveillance of its employees in an
effort to discover their protected concerted activities.
The case also included an allegation that the company
unlawfully listened in and recorded phone calls between its employees. In
contrast to Strain’s Facebook claim, the administrative law judge found that
the company did engage in unlawful surveillance when it snooped through the
phone calls since the employees were discussing taking legal action against the
company. In his opinion, the administrative judge reminded the company
that “[t]filing of an employment—related class or collection action relating to
terms and conditions of employment is protected activity.”
Finally, the
administrative law judge held that the company had improperly terminated
Strain and several of her colleagues because they engaged in protected
concerted activities. At a meeting prior to the employees’ discharges,
Guggia made several comments about the employees’ conversations in regards to
filing a lawsuit and their complaints about the terms and conditions of their
employment. The company failed to set forth persuasive, lawful reasons
for the terminations. Strain, as well as several other employees, was
awarded reinstatement and back pay due to the unlawful terminations.
This
decision serves as a good reminder for what constitutes as unlawful
surveillance of concerted activities under the National Labor Relations Act. Observing employees engaged in protected conduct in a manner that is
“more than ordinary or casual,” can be considered coercive. The decision
also provides some further insight regarding the how the NLRB is addressing
workplace-related comments published on various social media platforms.
Original Post Authored by Katie O'Grady, Ancel Glink
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