Defending The Digital Workplace

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Archive for the ‘Workplace Policies’ Category

Facebook Firing Ends in Settlement with NLRB

The National Labor Relations Board (NLRB) announced that it had reached a settlement in a case involving an employee’s discharge for posting negative comments about a supervisor on the employee’s Facebook page. Click here for the NLRB’s press release.

In sum, however, the NLRB had issued a complaint against American Medical Response of Connecticut, Inc., on October 27, 2010,  alleging that the discharge violated federal labor law  (the National Labor Relations Act or “NLRA”) because the employee was engaged in “protected activity” when she posted the comments about her supervisor, and responded to further comments from her co-workers.

Under the National Labor Relations Act, employees  have a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or non-union — for discussing working conditions or unionization.

The NLRB complaint also alleged that the company maintained overly broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. This policy prohibited employees from making disparaging remarks about the company or depicting it online without permission. Further, the NLRB alleged that AMR (the employer) had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the approved settlement, the company agreed to revise its social media policy to ensure that the rules do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The Take Away for Employers

This had been the first case in which the NLRB sought to argue that workers’ criticisms of their bosses or companies on a social networking site was a protected activity under the NLRA and that employers would be violating the NLRA by punishing workers for making statements in the context of social media. Accordingly, employers likely would have welcomed guidance from the NLRB as to how the 75-year-old NLRA would be reconciled with the technological realities of how employees communicate in the age of social media.

For example, the employee involved in the NLRB’s complaint, Dawnmarie Souza, at one point mocked her supervisor on Facebook, using several vulgarities to ridicule him. This eventually drew supportive responses from her co-workers that led to further negative comments about the supervisor. Where a Facebook conversation involves several co-workers it is more likely to be viewed as “concerted protected activity.” But what if instead, Ms. Souza had simply lashed out in a negative post against a supervisor and no co-workers joined in the discussion (not even a single “like” in Facebook terminology). Would that type of comment in the absence of “co-worker discussion” still be considered protected?

In any event, from a strategic perspective, employers should appreciate that this issue will be resolved another day, perhaps under a less “labor friendly” NLRB.

The clear take-away, however, is that the NLRB’s original complaint and this settlement signals that the NLRB intends to protect employees’ rights to discuss the conditions of their employment with co-workers irrespective of whether this discussion takes place at the water cooler or on Facebook.

Accordingly, it is critical for employers – regardless of whether your workforce is unionized or not – to review your Internet and social media policies to determine whether they would be subject to a similar attack by the NLRB that the policy ‘reasonably tends to chill employees’ ” in the exercise of their rights under the NLRA to discuss wages, working conditions and unionization. Areas to consider include:

  • Does the social media policy expressly restrict protected activity;
  • Would an employee construe the social media policy as prohibiting protected activity;
  • Has the social media policy been used to discipline employees who engaged in protected activity; and
  • Was the policy put into place in in response to concerted or protected activity.

None of  this should be taken as legal advice, but it is good advice. And we would welcome the opportunity to offer our insight as to what policies should and should not say and strategies for managing the unique risks found at the intersection of social media and employment and labor law.

Workplace Violence – Preventing and Minimizing Tragedy

This past Wednesday, the family owned Hartford Distributors Inc. in Manchester, Connecticut, reopened its doors. Eight days before this reopening, police reported that a truck driver facing possible dismissal charges fatally shot eight coworkers before killing himself.

Tragically, this incident is not isolated: The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries (CFOI) reported 11,613 workplace homicide victims between 1992 and 2006. Averaging just under 800 homicides per year, the largest number of homicides in one year (1080) occurred in 1994. In 2004, violent workplace incidents  accounted for as much as 18% of all violent crime in the United States.

Against this dark backdrop, it is apparent that for any business workplace violence must be a top concern. This is especially true for smaller business organizations who are often hit by violent incidents much harder. Based on experience and personal observations, smaller companies typically do not have the resources to employ security, invest in work place violence prevention training, or employee counseling services. Nonetheless, there are measures that any business – regardless of available resources – should take so it does not become another grim workplace homicide statistic.

Identifying Warning Signs of Workplace Violence

Employers cannot guarantee workplace safety. But there are red flags and behaviors employers should recognize to minimize the chance that an employee’s actions do not boil over into a violent altercation.  For example, the National Institute for Prevention of Workplace Violence identifies 13 signs to look for:
  1. Employees making threats;
  2. Acting unreasonably;
  3. Intimidating or controlling other employees;
  4. Exhibiting paranoid behavior;
  5. Acting irresponsibly;
  6. Exhibiting angry or aggressive behavior;
  7. Showing a fascination with or acceptance of violence;
  8. Holding grudges;
  9. Exhibiting generally bizarre behavior;
  10. Exhibiting signs of depression;
  11. Demonstrating obsessions;
  12. Demonstrating signs of substance abuse; and
  13. Demonstrating signs of desperation.
But recognizing violent tendencies is only the first step. Employers must also enforce workplace violence policies.These policies should be applied uniformly, and should be based upon an objective analysis of the employee’s present tendencies to commit a violent act.

Implementing an Anti-Work Place Violence Policy

Effective anti-violence policies should generally include the following:

  • The policy should clearly establish that violence will not be tolerated in any manner from any employee. The policy should also provide a non-exhaustive list of violent acts, including verbal threats or harassment;
  • The policy should explain that prohibition on violence also extends to customers, clients, patients, or guests;
  • The policy should plainly state that employees who engage in workplace violence are subject to discipline, up to and including termination. Further, employees should be advised that appropriate law enforcement agencies may be contacted; and
  • The policy must also establish a convenient method of reporting any examples of violence. The policy  should also promise that all reports will be taken seriously and promptly investigated. Because employees may be reluctant to turn in a fellow employee, the policy should also provide a confidential means of making good faith complaints.

A free sample Workplace Violence Policy is available here as a download. This policy is intended for educational purposes only and is not a substitute for a one-on-one discussion with a competent attorney. Aside from an obvious self-interest in job security, there are many subtle pitfalls when it comes to the interplay with various employment statutes and implementing workplace violence policies. For example, the Americans with Disability Act (ADA) prohibits discrimination on the basis of a disability (whether actual or perceived) or a record of disability. This prohibition could complicate the enforcement of a work place violence policy if misconduct was the result of an employee’s disability. Both the Equal Employment Opportunity Commission (EEOC) and courts generally take the position that employers are almost always entitled to enforce workplace violence policies pursuant contains a “direct threat” exception, and if  the policies are enforced uniformly. But at least one court has found that taking an adverse action against a current employee for past conduct related to a disability may violate the ADA. See Josephs v. Pacific Bell, 443 F. 3d 1050 (9th Cir. 2006) (Employer violated the ADA by refusing to rehire a former employee based upon the former employee’s history of violence). Cases like this make it critical for employers to fully understand what are often subtle pitfalls when it comes to how various employment laws may interact.

Additional Best Practices for Implementing an Anti-Work Place Violence Policy

The following topics for consideration are not “legal” requirements. In fact, there are no current federal laws expressly prohibiting or even regulating workplace violence. Instead, based on experience, the following are measures that should be considered to prevent work place violence or to minimize the damage caused by such violence if it occurs:

  • Senior Management Briefings. Senior management should be briefed on threats and violence at company sites. Such briefings should either provided routinely or when serious incidents occurred.
  • Training to Detect “Red Flags.” Employers should consider providing mandatory training to detect behaviors that indicate the potential for violence. This training may be provided to all employees or only to management. An additional component of this training could include conflict resolution.
  • Employee Assistance Program. Experts recommend that an employee assistance program should be made available at all times. The reality is, however, companies have already been forced to make  deep cuts and are unlikely to have the resources to make such a program available. Nonetheless, employers can identify state and county mental health or social service programs and make such programs known to employees. Identification of domestic violence programs should be a top priority.
  • Crisis Management/Trauma Team. Employers should create some form of crisis management or trauma team. Typically such a team draws members from the following departments: senior management, human resources, security (if applicable), employee assistance, legal, medical, labor relations, labor law, communications, employee support/benefits, operations, and psychological services. If your company is unionized, then a union representative should also be considered;
  • Critical Incident Review. Employers should have a review or debriefing process for critical incidents. The main purpose of this review is to analyze, learn from, and improve procedures. Additionally, this review can assess whether proper procedures were followed in the first place and, if not, why.
  • Establishing emergency road map for Law Enforcement. It is also important to be able to provide a road map for law enforcement if a violent situation erupts. This road map should be a package that includes: (i) A checklist for management to follow that includes contact information for appropriate law enforcement and emergency responders; (ii) Express directions to not speak to anyone other than law enforcement (information that could compromise law enforcement’s ability to resolve the situation could be inadvertently disclosed); (iii) A detailed schematic of the facility that identifies entrances and exits; (iv) A list of all employees on duty at the time of the incident, including emergency contact information for all such employees; and (v) A list of any potentially hazardous substances that are stored on-site that could pose additional risks if compromised or used by the perpetrator. From a practical perspective, this road map should be duplicated so that it is available on-site and off-site.

Conclusion

The Connecticut shooting is a grim reminder of how quickly workplace violence can erupt. But it should also be a reminder of what can be done to prevent or, at least, minimize the tragedy that follows such violence. Accordingly, employers should review and update their anti-workplace violence policies and procedures.

Written by Jason Shinn

August 14, 2010 at 5:58 pm

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