Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.

People are used to sharing everything about their lives—from what they ate for breakfast to the funny name on their Starbucks Frappuccino. But this behavior can be scary for employers when current and former employees take to social media to complain about their jobs—or even defame their boss. Of particular interest are online platforms such as Glassdoor, which purport to provide “inside” information about working conditions, salaries, and company culture.

So what can an employer do when an employee posts a negative comment on Glassdoor about the company? The answer is … not much. The law often protects an employee’s off-duty speech. But the law does not protect defamatory speech, and it does not protect the disclosure of confidential, protected information. So proactive employers can take steps to make sure they are not unfairly smeared online and that their trade secrets are protected. We have a few suggestions in that regard.

What Are You Tryin’ To Prove: Don’t Get In The Ring

Websites such as Glassdoor, which has about 30 million monthly users, allow current and former employees to criticize or praise a company, typically through anonymous posts. Though many such sites screen critiques to prevent the posting of offensive comments and those that would disclose private information, they nonetheless present a conundrum for employers: Do you ignore criticism—even if it’s false—or do you respond to it? The former tactic can permit damage to an employer brand to go unchecked; the latter can make an employer look defensive.

In this new age of information, job applicants search employer review sites for information about companies. Responding to a negative review can help your brand if you do so in a way that shows the organization is genuinely committed to improving. But a response could also provide more fodder for further negativity, so it’s best to try to get ahead of the problem by making changes in-house, if necessary.

If your employees are posting on social media outside of working hours, California’s constitutional right to privacy can protect them from retaliation. Labor Code section 96(k) protects employees where they have engaged in lawful conduct asserting “recognized constitutional rights,” such as free speech postings on social media, occurring during nonworking hours away from the employer’s premises. A better avenue is to get ahead of the problem and educate employees about what they can and can’t post online about the company.

Put Your Robe On—And Implement a Social Media Policy

You can restrict free speech online for current employees with a social media policy (but only up to a point!). Employers should have a social media policy that prohibits posting confidential information about the company (and perhaps about posting anything about the company at all) without permission from the company’s public relations group. Every employee is required to follow the company’s legally compliant policies even if they are stricter than what the law would otherwise allow. If an employee violates your policies, that employee could be subject to employment discipline up to and including termination.

That said, there are limits to the restrictions employers can place on what employees can say about them online. The National Labor Relations Act protects the rights of workers to discuss wages and working conditions with other workers. These protections apply to posts on social media, so your social media policy cannot prevent employees from communicating with other employees online about the company’s pay or working conditions, such as might be the case with a Glassdoor review.

For example, in analyzing one company’s social media policy that forbade employees from making anonymous posts about the company online, the NLRB’s general counsel found that “requiring employees to publicly self-identify in order to participate in protected activity imposes an unwarranted burden on Section 7 rights [of the National Labor Relations Act]. Thus, we found this rule banning anonymous comments unlawfully overbroad.”

You Never Got Me Down—Employers’ One-Two Punch Combo for Dealing with Social Media

  • It is prudent for employers to prepare and implement a social media in the workplace policy in order to avoid risks of disclosure of confidential and proprietary information and claims of cyberbullying, harassment, and discrimination.
  • Social media policies should clearly articulate the legitimate business interests the employer seeks to protect, as well as provide clear definitions of prohibited behavior and private and confidential information, and spell out the consequences for violations of the policy.
  • Employers should use caution when disciplining employees based on social networking activities, as certain union and nonunion employee rights need to be considered.
  • An employer may discipline an employee for posting negative comments on a social networking site if the employee’s comments are offensive or inappropriate, and not related to employment issues, and should do so on a consistent basis.

Workplace Solutions: Employers should open up a dialogue with employees about social media and encourage them to bring grievances to Human Resources, instead of airing their grievances online. Employers should also avoid retaliating against employees for posting on social media outside of work hours, and implement social media policies that clearly articulate the penalties for posting confidential information, and any defamatory statements.

Edited by Coby Turner

Seyfarth Synopsis: With the availability of new vehicle GPS devices and smart phone tracking applications, employers need to be mindful of employee privacy rights when using location technologies in the workplace.

It Doesn’t Take A Magellan To Map Routes Anymore

Employers now have available the technology that concerned parents of wayward teenagers have often wished for. Thanks to technological advances, one can now monitor another’s movements in ways that could only be imagined a couple of decades ago.

The benefits of tracking employee activity through GPS (Global Positioning Systems) include: (i) verifying routes and locations for mobile employees, particularly in the transportation or delivery industry, (ii) ensuring that employees are not violating traffic laws, (iii) monitoring employee overtime, (iv) verifying that employee time records are accurate, (v) locating company-owned stolen vehicles, and (vi) verifying that employees are not misusing company vehicles by, for example, driving to inappropriate locations or at inappropriate times.

With the advent of GPS smart phone applications, companies have begun to install GPS tracking apps on company-issued smart phones, which monitor not only the employees’ transportation in vehicles, but may allow for out-of-vehicle monitoring as well.

So with all of this great new technology, where (if at all) must employers draw the line when it comes to tracking employee mobility?

Navigating The Nexus of Privacy and Employer Needs

At the center of the debate on the lawfulness of tracking employees via GPS is the employee’s right to privacy vs. the employer’s need for productivity and business-related information. California has a strong tradition of protecting individual privacy rights. Article I, Section 1 of the California Constitution provides that “all people” have an inalienable right of privacy. This provision applies to private as well as public employers. California employers thus must be wary of infringing on employee privacy by learning too much about private time and lawful off-duty activities.

Litigation Beginning To Moovit Related To GPS Tracking

Of major importance is whether the GPS tracking information is related to job performance: if it is not, then cataloging off-duty activities may violate constitutional rights to privacy. Consider this recent cautionary tale: In Arias v. Intermex Wire Transfer, an employee sued her former employer, claiming she was fired for uninstalling a GPS tracking app from a company-issued smart phone that was tracking her movements even when she was off the clock. The employee objected to being tracked on her own time and compared the GPS to the ankle bracelet placed on someone under house arrest. She sued for wrongful termination, invasion of privacy, unfair business practices, retaliation, and other claims, seeking over $500,000 in damages. This suit, privately settled, is likely not the last of its kind.

An additional source of legal restriction on remote employee monitoring is California Penal Code section 637.7, which prohibits the use of “an electronic tracking device to determine the location or movement of a person” via a “vehicle or other moveable thing” unless “the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.” So while an employer arguably can install GPS tracking on company-owned vehicles, and even on employee-owned vehicles used for work purposes (with advance consent as we’ve blogged previously), there is currently no such carve-out allowing employers to require GPS tracking through smart phones.

In What Waze Should Employers Be Mindful About Using GPS?

A California employer using GPS to monitor employees should have policies carefully considering employee privacy issues. As with other kinds of workplace monitoring (e.g., cameras in the workplace, use of email and Internet systems), we recommend (a) full disclosure to employees, and (b) obtaining employee consent, including implementing a separate GPS tracking policy. The policy should:

  • Outline the legitimate business reasons for using GPS tracking (e.g., increasing operational efficiencies, improving customer service, maintaining accurate timekeeping records, improving safety).
  • Provide clear notice of the company’s right to monitor employee locations while the employee is using company-owned property, describe when and how employees should expect to be monitored, and tell employees they should have no expectation of privacy while using the company property.
  • Explain how the employer will use and safeguard data collected.
  • Notify the employee of the consequences that could lead to discipline for disabling a GPS device without the employer’s permission.
  • Communicate the policy to all employees, and have them provide written acknowledgement of their receipt and understanding of the policy.

Other best practices to consider include:

  • Limit monitoring of activity to work hours, and monitor an employee’s location only for a specific business purpose in compliance with the GPS tracking policy. The collected data should not reveal details of the employee’s private life.
  • Limit access to the GPS tracking information to company personnel who have a clear business need to know that information.
  • Make sure that you store any GPS-related data securely.
  • Where employees are unionized, consider whether there is a duty to bargain before implementing the use of GPS tracking, depending on the language of the contract and the parties’ course of dealing. The NLRB has advised that a complaint would issue when an employer failed to bargain before unilaterally implementing a vehicle data recorder system to monitor employee compliance with driver safety rules.

Workplace Solution: Because this area of law is still developing as new technologies emerge, employers should continually revisit their GPS policies for compliance. We monitor developments in this area and will provide our readers with further information as it becomes available. In the meantime, if you have any questions, please contact the author or your favorite Seyfarth attorney.

Edited by Coby M. Turner.

HiResYou’re reading a blog post, and thus need no primer on the prevalence of social media. But you may not be aware of the pitfalls facing employers that use, monitor, or implement policies regarding social media.

Employers can face liability for a wide variety of social media-related practices. For example, if you thought employers generally could prohibit employees from picking fights online or that there isn’t anything wrong with an employer friending an applicant before extending a job offer … well, think again.

Big Brother The NLRB Is Watching

In recent years, the National Labor Relations Board has increasingly scrutinized social media employment policies to see if they would deter the rights of employees to engage in concerted activities, including the rights to discuss their terms and conditions of their employment.

We previously lamented the lack of clarity regarding what constitutes an acceptable social media policy in the jaundiced eyes of the NLRB. The good news is that the NLRB’s General Counsel has issued guidelines regarding social media policies.  The bad news is that the guidelines sometimes offer insufficient guidance, or guidance that the courts may not accept. Further, the views expressed in the guidelines are those of the General Counsel, and may or may not be accepted by the NLRB.

For example, the NLRB guidelines advise that the following seemingly innocuous rules are likely unlawful:

  • prohibiting employees from engaging in disrespectful, negative, inappropriate or rude conduct towards employers or management;
  • generally prohibiting employees from sending unwanted, offensive or inappropriate emails;
  • banning, across the board, picking fights online; and
  • requiring employees to get approval before creating a blog or discussion group.

The NLRB guidelines disapprove of such generally stated policies because they could have the effect of curbing protected activity.

In contrast, the NLRB explained that the following, more specific, rules would likely be lawful:

  • prohibiting employees from being disrespectful, negative or rude to customers;
  • prohibiting conduct that threatens, intimidates, coerces, or otherwise interferes with the job performance of fellow employees or visitors; and
  • requiring employees to get approval before creating an online forum that does not relate to wages, terms, and conditions of employment or other protected activity.

The NLRB guidelines suggest that these rules likely would be permissible because they are drafted with sufficient specificity to demonstrate that they won’t impede the right of employees to discuss the terms and conditions of their employment.

The main takeaway from the NLRB guidelines is that context is key. A rule that might come across as ambiguous (and unlawful) in isolation may take on a whole new meaning with carve outs or examples that demonstrate how the rule won’t prevent an employee from engaging in a protected activity.

Pandora’s Box of Potential Pitfalls

The NLRB is not the only policer of social media employment policies. California and a growing number of other states prohibit employers from (1) requiring job applicants to provide social media passwords, (2) requiring job applicants to “friend” employees, or (3) requiring applicants’ friends to disclose what the applicants posted online. [Keep an eye out for Part 2 of our Social Media article, with its link to Seyfarth’s Social Media Privacy Legislation Desktop Reference Guide.]

It remains true, of course, that California employers are not explicitly prohibited from viewing publicly available information. But just because it’s not unlawful doesn’t mean it’s advisable.

In addition to social media revealing trivial information like what someone just listened to on Spotify, social media can also reveal a host of personal information that employers cannot ask for during the hiring process (and may be better off not knowing). By viewing this information and then deciding not to hire an applicant, employers can inadvertently expose themselves to litigation risk. For example, if a rejected applicant’s Instagram or Facebook postings contain pregnancy-related pictures, or photographs of church-related functions, or show that the applicant has a disabled child or spouse, a potential employer might later find itself embroiled in a discrimination claim.

So while California has not (yet) forbidden you to check out your potential employee pool online, the potential problems caused by doing so may mean you might want to skip the Facebook stalking and stick with Candy Crush. (The uninitiated who find this reference obscure may wish to consult https://apps.facebook.com/candycrush.)

Workplace Solutions

Given the trove of personal information available online, the best practice is to avoid using social media during the hiring process. And it might seem harmless to prevent an employee from being rude to a supervisor on Twitter, or to look up a potential employee on your Facebook app, in this case what you inadvertently know might hurt you. So steer clear if you can—knowing how many Grumpy Cat memes an applicant or employee posted is not worth it!

If you have any questions regarding your workplace’s social media policies or practices, please contact the author, or another Seyfarth attorney.

EarthquakeYesterday, the National Labor Relations Board issued its much-anticipated decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). By a 3-2 vote, the Board announced a new standard to determine whether multiple entities are “joint employers” of a single workforce. The Board will now inquire whether there is a common-law employment relationship with the employees in question (including the “right to control” the employees). If this common-law employment relationship exists, the inquiry then turns to whether the putative joint employer possesses enough control over the employees’ essential terms and conditions of employment to permit “meaningful collective bargaining.”

The Board majority wrote that it was “restating” its joint employer test. “Restate” here means to alter dramatically, as Browning-Ferris overturns decades of precedent. Gone is the requirement of “direct and immediate” control over working conditions, and not of a “limited and routine” nature. Now, indirect control and even the reserved right to control working conditions is enough to establish joint employer status if two or more entities “share or codetermine those matters governing the essential terms and conditions of employment.” The essential terms and conditions of employment include hiring, firing, discipline, supervision, direction, “dictating the number of workers to be supplied,” scheduling, seniority, overtime, assigning work, and “determining the manner and method of work performance.” And this list is illustrative, not exhaustive.

So what does this mean for California employers? Browning-Ferris will likely have a wide-reaching impact. Any business that regularly uses contractors, such as a cleaning or janitorial services, maintenance services, caterers, or a management company to staff and operate its business could be affected. Among the entities possibly affected are:

  • hotels,
  • tech companies (from start-ups to the well-established),
  • investors, real estate holding companies, and general contractors,
  • any entity that outsources non-core work integral to its business model, such as a manufacturer that contracts with a trucking company for shipping,
  • any entity that uses a staffing agency to obtain additional or temporary help,
  • any franchisor that contracts with others via franchise agreements, and
  • any entity with a relationship to a subsidiary or other corporate entity.

The expanded definition of joint employer may result in companies unwittingly being pulled into collective bargaining negotiations (in the case of an already unionized workforce), or even union campaigns and elections with its contractors. With the advent earlier this year of expedited election rules, many companies will no doubt feel whipsawed by these unwelcome developments.

The new joint employer standard might also affect non-union settings. Employees—whether or not unionized—have the right under federal labor law to engage in protected, concerted activity. As the dissent in Browning-Ferris notes, companies who are putative joint employers may find themselves named in unfair labor practice charges with the NLRB, or the subject of increased picketing and boycott activity. Moreover, California employers have long faced unique obstacles to challenging union activity on their premises. The Moscone Act and California Labor Code section 1138.1, which the California Supreme Court has upheld against a constitutional challenge, make it very difficult to obtain injunctive relief against union trespass on private employer property. Now, more companies can expect to bear the brunt of this activity.

Workplace Solution

We have identified a number of steps companies can take to assess their risks and respond to the Board’s new joint employer standard, including broad indemnification agreements with third-parties. This last suggestion may sound familiar to many California employers in light of recent state law changes. As of the beginning of this year, as we’ve noted, Labor Code section 2810.3 requires a “client employer” to share civil liability with “labor contractors” (including pay rolling, temporary staffing, or employee leasing agencies) for (1) payment of wages of the contract employees, and (2) failure to procure worker’s compensation coverage. (This statute followed Martinez v. Combs, 49 Cal. 4th 35 (2010), which broadened the definition of “employer” in the wage-hour context.) A “client employer,” however, may contract with its “labor contractor” for indemnity. While client employers cannot avoid the Board’s new joint employer standard, a broad indemnification agreement (placing the duty to defend and hold harmless on the contractor), may ease the impact of this decision.

By Nick Geannacopulos and Emily Barker

You have likely noticed that business interactions and the way people communicate professionally have declined in formality over recent years.  The “Friday Casual” day has become the casual week.  Formal letters have turned into short emails.  Even slang has devolved to emoticons and language unheard of in the workplace a decade ago.  Navigating through these trends in the working environment is not always easy.  This is especially true given California’s unique employment laws.

Two categories of communication stand out in California as traps for the unwary employer: profanity and politics.  This post covers the first of those topics—profanity at work.  For a more detailed look at issues surrounding politics in the workplace, please stay tuned for a future blog post.

Profanity in the Workplace:

Profanity is not rare in the work environment but employers do not always know how to respond.  For example,

  • Can you terminate and or discipline an employee who directs the F-word to his supervisor?

  • What if it is the supervisor who is using profanity?  Can the employer ignore it?

The answer is:  “It depends.”  Traditionally, one would expect that cussing out your boss would constitute good cause for termination.  But the context of the offensive language is key.

Any workplace is populated by a range of employees.  It’s only natural that a supervisor might wish to give benefit of the doubt to a good employee who makes a linguistic slip-up, but may terminate a less good employee whose unsavory comment is the “last straw.”  However, any time you terminate someone for use of foul language, you should consider the history and the available evidence.  Was one employee treated differently than another for the same conduct?  Discipline in one instance and not the other may put the company at risk for claims that the off-color language was a pretext for discrimination under the FEHA.  Further, an employee could be found to have a right to express himself or herself in a heated manner, depending on the context.

On the other hand, a supervisor’s use of profanity in the workplace could be found to create a hostile work environment, depending on the frequency and—you guessed it—context.  For this reason, all employee complaints about profanity must be taken seriously.

  • And, bring on the California Peculiarities!  In California, profanity should also now be considered in light of new legislative standards on “abusive conduct” under AB 2053, which will become effective January 1, 2015.  That law [see our Legislative Update post here] will require employers operating in California who provide anti-harassment training to supervisors every two years (under Gov’t Code § 12950.1) to include “prevention of abusive conduct” as a component of that training.  While the law does not create any new cause of action under the FEHA, or mandate that employers adopt an anti-bullying policy, it does define “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests.  Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”  It is a fair guess that profanity may fall under that definition.

  • Also, in what seems to be a trend in this area, the National Labor Relations Board has come out fairly strongly against employers in the union environment, as well:  an employee who called his boss a “f++++ mother f*****” and an “A**hole” was found entitled to reinstatement and back pay because the Board determined his words were a protected complaint about working conditions.  The Board has also found broad civility and code of conduct policies prohibiting vulgar language unenforceable and illegal on the ground they may chill protected speech.  The struggle for employers in union environments is that virtually all swearing outbursts at work can be seen as either directly or indirectly related to “terms and conditions of employment.”

Workplace Solutions:  If you’re wondering what to do with your foul-mouthed employees, consider the above government moves toward legislating civility in the workplace, and contact your Seyfarth attorney to give you advice for these unique situations.  In addition, Seyfarth Shaw at Work has put together some great training materials on the new law about “abusive conduct” training that should help employers stay in compliance.  You can contact us for more information on those trainings here.  Last but not least, keep your eye out for our California Legislative Update webinar, where members of the California Workplace Solutions group will dig deep on the new laws and how they’re affecting California employers.

Edited by Coby Turner

By Jill Porcaro and Andrew Crane

As a well-intentioned employer, you know it is best to promptly investigate employee claims of workplace harassment  and other employee misconduct.  Due to the obvious sensitive nature of these types of investigations, you implement a policy prohibiting your employees from discussing the investigation with anyone other than the investigator.  You believe that your employees will feel more comfortable disclosing truthful information to the investigator knowing their confidences are assured.  Great policy, right?

  • Not exactly.  Now, more than ever, the National Labor Relations Board (the “Board”) is cracking down on blanket confidentiality policies that prohibit employees from discussing investigations of employee misconduct, including the right to discuss discipline or disciplinary investigations involving their fellow employees, on the grounds that these policies “chill” employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”).

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), an employer had a policy of prohibiting its employees who made complaints from discussing the matter with their coworkers while the investigation was ongoing.  The Board held that this rule violated the NLRA because an employer must justify a prohibition by showing a “legitimate business justification that outweighs employees’ Section 7 rights.”

Well then, I’ll just nicely suggest to my employees not discuss the details of any investigation.  That ought to solve the problem, right? Continue Reading A Rock and a Hard Place: Keeping a Lid On Internal Workplace Investigations