This issue of Take 5 encapsulates the incredible breadth of societal changes and challenges facing the entire retail workplace. The topics addressed below reflect a microcosm of the many issues currently facing our overall society, covering growing political activism in the workplace, increasing expectations to accommodate religious beliefs, otherwise outrageous employee speech that may very well enjoy protection under the law, and the ever-increasing requirements for criminal background checks enacted piecemeal by states and cities. These extremely topical subjects often tap into broader emotionally charged concerns encountered by retailers.

We also address the ever-timely issue of wage and hour classification, in this case, focusing on the classification of assistant store managers.

The articles in this Take 5 include:

  1. Managing Employees’ Political and Social Activism in the Workplace
  2. Religious Accommodation: Handling Unusual Requests
  3. Second Circuit Agrees with NLRB That Employee’s Vulgar Facebook Tirade Against Manager Is Protected Concerted Activity
  4. Increasing Criminal Background Check Requirements Pose Challenges for National Retailers
  5. Correctly Classifying Assistant Store Managers to Avoid Wage and Hour Misclassification Claims

Read the full Take 5 online or download the PDF.

By: Jill Barbarino and Steven M. Swirsky

In a recent decision involving social media posts by non-union employees, as well as employer rules prohibiting the sharing of information about compensation among co-workers and with non-employees, the NLRB affirmed the findings and proposed remedy recommended by a Board Administrative Law Judge,  holding that the Facebook posts of three employees of an upscale clothing boutique in San Francisco constituted protected activity under Section 7 of the National Labor Relations Act and the termination of the employees’ for the posts was an unfair labor practice under Section 8(a)(1) of the Act.

Significantly, a unanimous three member panel found that the Facebook posts were a “continuation” of the employees’ effort to present their concerns about safety and other working conditions to their employer, the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns,” and even without the related activity of the employees at work, “the Facebook postings would have constituted protected activity in and of themselves.”

Not only did the Board order the employer to rescind the portions of its employee handbook that the Board found violated the Act as it applied at the location where the charging party and her co-workers had been employed, the Board also agreed with the General Counsel that the employer be ordered to rescind and replace the rules in question on a company-wide basis, explaining why it was doing so to all of its employees.

The employer, Design Technology Group, LLC, d/b/a Bettie Page Clothing, is a wholesale and retail clothing sales company with operations in several states, including an upscale women’s clothing store in San Francisco. Shortly after that store opened, an employee, Holli Thomas, asked both the owner of Bettie Page and the store’s manager, whether the store could close at 7 p.m. instead of 8 p.m. because employees working late at night were being harassed by people on the street after tourists had left the neighborhood and were concerned about their safety. Following a disagreement with the store manager about the request, Thomas, and two other employees, Vanessa Morris and Brittany Johnson, engaged in the following conversation on Facebook:

Holli Thomas – needs a new job. I’m physically and mentally sickened.

Vanessa Morris – It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime [sic] we try to solve conflicts NOTHING GETS DONE!!

Holli Thomas – bettie page would role over in her grave.

Vanessa Morris: She already is girl!

Holli Thomas – 800 miles away yet she’s still continues our lives miserable. Phenomenal!

Vanessa Morris – And no one’s doing anything about it! Big surprise!

Brittany Johnson – “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris – hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow!

Six days after the posts, Thomas and Morris were terminated. Johnson was terminated about a month later.

The Board agreed with the ALJ that Thomas and Morris were engaged in “protected concerted activity when they presented concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the Respondent’s owner and that their Facebook postings were a continuation of that effort.”

The Board went even further to hold that “the Facebook postings would have constituted protected concerted activity in and of themselves” because the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns.”

Finally, the Board held that the conversation about looking at a book relating to California labor law was “classic concerted protected activity” because the conversation related to the “mutual aid and protection” of employees.

The Board also rejected Bettie Page’s argument that the posts were a scheme to entrap Bettie Page into firing them. The Board stated that this argument lacked evidentiary support and even if the employees had posted the comments in the hope that they would be discharged, Bettie Page failed to establish that such conduct was not protected activity under the Act.

In addition, the Board agreed with the ALJ that the provision in Bettie Page’s handbook stating that “[d]isclosure of wages or compensation to any third party or other employee is prohibited and grounds for termination” should be rescinded.  The Board also ordered Bettie Page to post a company-wide notice regarding the unlawful handbook provision because the policy had applied not only to Bettie Page’s San Francisco store at issue in the case, but to all other store locations.

This decision evidences the Board’s recent, aggressive approach to social media posts of employees discussing workplace concerns, as well as the application of the NLRA to non-union employees.

In deciding whether to terminate, discipline, or take adverse action against an employee for social media postings, employers must carefully review whether the employee’s conversations, comments, or posts may constitute protected concerted activity under the NLRA.

Click here for additional information on the Board’s position on social media issues.

by Ian Gabriel Nanos

Like it or not, we live in a digital-age, and how people choose to define themselves is often readily showcased on social networking sites such as Facebook.  Given the candid manner many individuals express themselves on their social networking profiles, it’s only natural that employers have started to pay attention.  Why wouldn’t they? Employers want to pick the right person for the job and that their employees do not disparage the company or act in a manner that threatens workplace security.  But when news spread that a few employers were demanding access to applicants’ on-line profiles, many – including businesses and members of Congress –decried this practice as an unwarranted intrusion of privacy.

Specifically, Facebook stated that this practice “undermines the privacy expectations and the security of both the user and the user’s friends,” indicating that sharing passwords or granting another individual access would violate Facebook’s “Statement of Rights and Responsibilities.”

On Capitol Hill, U.S. Senators Charles Schumer, N.Y., and Richard Blumenthal, CT., wrote a joint letter to the U.S. Department of Justice and to the EEOC, requesting an investigation of the practice.  A bill was also introduced in the House of Representatives aimed at prohibiting the practice.  Other legislation may be in the works at both the federal and state level.  Maryland was the first state to pass legislation banning employers from asking for an employee’s or applicant’s social media site passwords.  Other states may soon follow suit.

Although many users update their privacy settings to limit the content that is publicly available, granting a potential employer access allows them to readily sidestep those controls.  This is cause for concern, but it is not just about privacy.  It is also a question about whether it makes good business sense for an employer.

While employers may gain some benefit from learning additional information that helps guide hiring decisions, employers should weigh those benefits against possible disadvantages.  Clearly, there are circumstances, such as government positions with high-level security concerns, where it may be a “need to know” situation.  In most ordinary cases, however, employers should consider the pitfalls before deciding that Facebook should be part of the applicant review process.

In other words, employers should be cautious about what a social media search might reveal.  Many jurisdictions, including New York, have already enacted statutes that prohibit an employer from making decisions in reliance on certain lawful recreational activities or associations outside of work.

By looking at an online profile, an employer might learn information regarding an applicant or employee’s protected classification that would not be otherwise revealed on a resume.  Thereafter, the employer could be charged with a discriminatory failure to hire claim based on that newly acquired information.  Similarly, an employer may unwittingly take on a duty that had not previously existed.  For example, the employer may become privy to information suggesting that an employee is unstable and, based on that knowledge, the employer could be charged with having acted unreasonably by subsequently entrusting that individual with certain responsibility.

Moreover, an employer may face liability if it takes adverse action after happening upon conversations that could be considered union activities or “concerted activities” under the National Labor Relations Act.  The National Labor Relations Board has certainly said a lot about that recently.

Finally, employers may risk losing out on top-talent that may be discouraged by the policy.

The bottom line is that, in this digital age, employers need to consider the impact of social media on workforce issues.  Employers should review their workforce needs and address social media issues in their internal hiring policies and practices as well as in their handbooks and other policies disseminated to employees and applicants.  This goes beyond merely informing employees that their internet use may be monitored, because a basic technology policy that glosses over social media issues may end up causing problems in the long-run.  The same can be said for an inflexible, uniform policy, because a single policy may not be right for every situation.

by Anna A. Cohen

On September 28, 2011, a National Labor Relations Board (“NLRB”) administrative law judge (ALJ) found that Knauz BMW lawfully terminated the employment of Robert Becker, a salesperson, after he posted pictures and comments on his Facebook page about two different workplace incidents — an automobile accident and a dealership sales event.  The judge also found that several Employee Handbook policies, unrelated to social media postings, contained overly broad language.  Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (Sept. 28, 2011).

The first incident Becker posted on his Facebook page concerned an accident at a Land Rover dealership also owned by Knauz on an adjacent property.  Becker posted pictures of the accident, as well as comments such as “This is your car:  This is your car on drugs.”  The same day, Becker also posted pictures of a dealership sales event.  Becker and other salespersons disagreed with the General Sales Manager’s choice of food and beverages for the event, including hot dogs and chips.  Becker posted pictures of the other salespersons with the food and beverages, as well as several comments on his Facebook page, such as:

The small 8 oz bag of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch…but to top it all off…the Hot Dog Cart.  Where our clients could attain a over cooked wiener and a stale bunn [sic]…

Although both posts were made on the same day, managers of the dealership testified that Becker’s employment was terminated because “[he] had satirized a very serious car accident that occurred at our Land Rover facility on his Facebook page by posting pictures of the accident accompanied by rude and sarcastic remarks about the incident.”

The ALJ held that the termination for the posting of the accident was lawful because the posting did not amount to protected or concerted activity under the National Labor Relations Act (“NLRA”).  Rather, Becker posted it “apparently as a lark, without any discussion with any other employee of the Respondent and [it] had no connection to any of the employees’ terms and conditions of employment.”

On the other hand, the ALJ opined that had the dealership terminated Becker’s employment for the Facebook postings regarding the sales event, the termination would have been unlawful.  According to the ALJ, the sales event posting constituted protected concerted activity that could have affected Becker’s compensation.  Although unlikely, a customer may have been “turned off” by the food offered at the event and may not have purchased a car or may have given the salesperson a lower rating.  Further, Becker and another salesperson both spoke up during a meeting about what they considered to be the inadequacies of the food being offered at the event and salespersons also discussed the subject after the meeting.  Although only Becker complained about it on his Facebook page, the ALJ equated Becker’s posting to an individual employee bringing a group complaint to the attention of management, which is protected concerted activity.  The ALJ concluded, however, that Becker had been terminated for the first, unprotected posting and not the second, protected posting.

The ALJ then considered charges regarding certain policies in the dealership’s Employee Handbook.  The ALJ upheld the dealership’s “Bad Attitude” policy, which mandated that employees “display a positive attitude toward their job” because it protected the relationship between the dealership and its customers.  The ALJ held, however, that a policy entitled “Courtesy,” which prohibited employees from being “disrespectful,” was overly broad, as “[d]efining due respect, in the context of union activity, seems inherently subjective.”  The ALJ also held that two other policies entitled “Unauthorized Interviews,” and “Outside Inquiries Concerning Employees” were also overly broad as employees “would not be able to discuss their working conditions with union representatives, lawyers or Board agents.”

Although the dealership previously notified its employees that the Employee Handbook policies at issue were rescinded and the dealership did not commit any other unfair labor practices, the ALJ nonetheless held the rescission to be insufficient.  The ALJ faulted the employer for not providing further explanation about the rescission to its employees and found the rescission inadequate to inform employees that the dealership would not interfere with their rights.  The dealership was ordered to post a notice informing employees of their rights to form, join or assist a union, among other things, and that the dealership would not interfere with employees’ rights.

Although the ALJ upheld the employment termination, this case provides examples of what may be considered to be protected, concerted activity under Section 7 of the NLRA, in connection not only with social media policies and practices, but Employee Handbook policies in general.  For further information see Act Now Advisory: Helpful Guidance Summarizing the National Labor Relations Board’s Position on Social Media Issues: Two Reports and One Decision.

by Steven M. Swirsky and Michael F. McGahan

On Thursday, August 18, 2011, the Acting General Counsel of the National Labor Relations Board (“NLRB” or “Board”) issued a report on the outcome of 14 cases involving employees’ use of social media or social media policies in general. This report follows a more expansive “Survey of Social Media Issues Before the NLRB” issued by the U.S. Chamber of Commerce on August 5, 2011, which addresses 129 cases involving social media reviewed by the NLRB at some level. Further, after these reports were published, an NLRB administrative law judge (“ALJ”) issued the first decision of its kind – finding that terminating employees for using social media to express concerns about the workplace violates the National Labor Relations Act (“NLRA” or “Act”).

Read together, those two reports and that ALJ decision begin to give employers some guidance on reacting to the use of social media by their employees, and on developing social media policies. Most of the cases covered in the reports are at early stages of investigation or litigation, or were settled. Thus, the NLRB’s position may evolve further as cases are decided on fully developed records.

Generally, the cases reported on fall into two categories: (1) claims that employees have been retaliated against in violation of the NLRA as a result of statements made about their employers or working conditions on or in any of the wide variety of social media channels available, such as Twitter, Facebook, YouTube, blogs, podcasts, and the like; and (2) claims that an employer’s social media policy violates the NLRA because its prohibitions may “chill” employees in the exercise their rights under the Act.

Read the full advisory online