1. Beyond the Water Cooler: Speech and the Workplace in the Era of Social Media Ann C. McGinley Ryan P. McGinley-Stempel

3. Democracy and the Workplace: Two Types of Democracy Democracy in the workplace – Speech – Employee voice – Employee choice re governance Image: aflcio http://www.flickr.com/photos/labor2008/3401572023/

4. Democracy in Civil Society

5. Workplace Role in Our Democracy Cynthia Estlund: “the single most important site of both cooperative interaction and sociability among adult citizens outside the family.” W ORKING T OGETHER 7 (2003) Diversity of opinions, experiences

6. Workplace – Role in Civil Society Bridge to social and political discourse outside of work

7. Our Thesis: Social Media is the Bridge

8. Social Media 72% of U.S. internet users are on Facebook – 86% of those aged 18-29 years – 61% of those aged 30-49 years – 47% of those aged 50-64

9. Social Media Our paper – limited to employee use of social media outside of work and on their own computers Communication – Among employees – From union to employees & vice versa – From employees to outside world – From outside world to employees

10. Barriers to Free Speech in the Workplace Government Employer: (Pickering/Garcetti) – Speech as citizen on a matter of public concern – Not protected: speech pursuant to official duties Private Employer: – State Action Requirement – Employment-At-Will Regime

11. Employment-At-Will Doctrine Applies to the vast majority of workers: – In 2011, union members constituted only 11.8 % of American work force – Much lower in private workplaces – Narrow exceptions for non-unionized workforce – Workers can be fired for speech Image: DonkeyHotey http://www.flickr.com/photos/donkeyhotey/6812367587/

12. State Statutory and Common Law Exceptions to the At-Will Doctrine 1.Public Policy 2.Express/Implied Contract 3.Implied Covenant of Good Faith and Fair Dealing

13. Federal Exceptions to the At-Will Doctrine Anti-Discrimination Statutes Federal Whistleblower Protection Act National Labor Relations Act – Section 7 (“concerted activity”)

14. Unions and Social Media Unions : increasingly use social media to communicate and organize “Social media is a great tool for interacting with local union members, and a tool you will need to use if you want to communicate with younger members of your local.” Minnesota AFL-CIO, “How to use Social Media for your Union” (2009).

15. NLRA: Inside the Workplace and on Social Media

16. NLRA Section 7 grants the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Applies in both unionized and non-unionized workplaces. Section 8(a)(1) makes it an “unfair labor practice” to interfere with the rights granted by Section 7.

17. New Interpretations: Section 7 and Social Media General Counsel of the NLRB: NLRA protects speech of employees on social media platforms that constitutes “concerted activity” for the purpose of collective bargaining or other mutual aid or protection. What is “concerted activity” in the realm of social media?

18. Concerted Activity in the Context of Social Media Factual Question Concerted activity is engagement “with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Includes the “logical outgrowth of concerns expressed by the employees collectively.”

19. No Concerted Activity Reporter’s insensitive tweets about murder victims (Arizona Daily Star). Disgruntled bartender’s complaints on Facebook to his sister about “redneck” customers Institutional employee’s Facebook wall posts about patients’ psychiatric problems Wal-Mart employee’s Facebook posts complaining about working conditions at Wal-Mart with no suggestion that he sought to initiate group action

20. Concerted Activity Unionmember’s comments on Facebook calling her boss a “dick” and a “scumbag” after he refused to let her speak with a union representative before filling out an incident report Car dealer employee’s Facebook postings criticizing a poorly run sales promotion that would affect sales commissions. Derogatory Facebook postings with fellow employees about another employee who complained about how they did their jobs.

21. The Limits of Concerted Activity Concerted activity that is “so egregious as to remove the employee’s conduct from protection of the Act.” Factors: 1.Place of the discussion 2.Subject matter of the discussion 3.Nature of the employee’s outburst; AND 4.Whether the outburst was provoked by an unfair labor practice.

22. Employer Surveillance Unlawful Surveillance: – Employers who actively seek out information through social media (e.g., “friending” on Facebook). Lawful Surveillance: – Passive receipt of employee speech from other employees.

23. Social Media Policies Companies have developed broad policies GC has advised that such broad policies, if they curtail speech, violate the NLRA because they “would tend to chill employees in the exercise of their Section 7 rights.”

24. Social Media Policies (Cont’d) 1.If the policy explicitly restricts the employees’ Section 7 protected activities, it violates NLRA. 2.Even if the policy does not violate #1, unlawful if: 1.Employees would reasonably construe the language to prohibit Section 7 activity; 2.The rule was passed in response to union activity; OR 3.The rule had been applied by the employer to restrict Section 7 activities.

25. Potential Conflicts arising from NLRA Speech Protection Harassment Trade Secrets Confidential Information Product Disparagement

26. Conclusions NLRA protections are useful but narrow Still do not protect employee speech not directed to other employees Insufficient to protect speech interests of individuals Law still permits employers to curtail speech on social media that would promote – Democracy in workplace – Democracy in civil society

27. Proposal: A Federal Statute Prohibiting employers from disciplining employees for speech on social media except if speech: – Constitutes Illegal harassment – Reveals trade secrets or proprietary information – Disparages products

28. The End