Employees’ Facebook Gripe Session Is Protected ‘Concerted’ Activity: Retaliation Firing Violates NLRA

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It’s against a cultural backdrop of social media ubiquity and nonexistent online anonymity that today’s post vividly illustrates the tricky intersecting legal issues involving employee free speech rights and online privacy concerns.

In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), a Facebook on-employee group gripe session turned ugly for two of the participants when their boss – a sports bar owner – fired them after he found out they trashed him in a group message.

Seems the employees were upset that their employer miscalculated their income tax withholding amounts so they decided to air their grievances on Facebook.  One employee (a claimant in the NLRB proceeding) blasted her employer (“what an asshole!”) while the other claimant said nothing: all she did was  “like” another participant’s (an ex-employee) hostile comment about the tax mishap.

The National Labor Relations Board (NLRB or “Board” ) found that the employer violated the National Labor Relations Act (NLRA or “Act”) by firing the employees for their Facebook activity.  The Board held the employees’ discussion was protected “concerted activity” that involved improving employment conditions.  By firing the employees for protected activity, the employer violated the Act.

Reasons:

Section 7 of the NLRA protects employees’ rights to engage in concerted activity for their “mutual aid or protection.”  29 U.S.C. s. 157.  This Section extends to social media comments that address improving workplace conditions or that vocalize legitimate employment concerns.

NLRA Section 8 outlaws an employer’s attempt to interfere with an employee’s exercise of concerted activity rights.  29 U.S.C. s. 158.

An employee’s concerted activity rights aren’t unlimited, though.  The law recognizes that where an employee disparages an employer’s products or services or defames an employer, the employee’s conduct loses the Act’s protection.

For an employee communication to meet the defamation or disparagement test, the challenged statement must be false, malicious (knowingly or recklessly false) and it must cause damage.

The Board ruled that the employee comments were part of an conversation involving  a legitimate workplace concern – employee tax liability.

The Board also found the simple act of “liking” a group member’s derisive comments about the boss merited Federal protection since it involved the other Facebook participants’ work-related concerns and opinions.

The Board rejected the employer’s argument that the “what an asshole” comment was defamatory and unprotected as a result.  The Board stated that while the comment was certainly rude, it was protected as rhetorical hyperbole.

The Facebook invective wasn’t factual enough (after all, how do you objectively verify if someone is an a-hole?) to constitute  defamation.  And since neither employee claimant disparaged the sports bar’s services, the activity was protected.

The Board also struck the employer’s Internet policy on the basis that it encroached on employees’ protected rights under the NLRA.  An employer social media policy violates the NLRA when it chills an employee’s concerted activity rights.

Here, the employer’s Web policy outlawed, among more specific items, “inappropriate” Internet use.  The Board found the policy’s reference to “inappropriate” social media discussions was too vague and overbroad and could reasonably be viewed as punishing protected activity.

Afterwords:

– The Board extends concerted employee activity to social media communications;

– An argument can be made in the wake of this decision that as long as an employee couches his inflammatory rhetoric beneath a veneer of legitimate workplace concerns, an employee’s comments are protected from employer retaliation.

 

 

Stored Communications Act Claim Survives Summary Judgment In Social Media Account Hijacking Case

Maremont v. Fredman, 2014 WL 812401 (N.D.Ill. 2014) examines an employee’s claims under the Stored Communications Act (18 U.S.C. § 2701)(the “SCA”) where the employer accessed the employee’s social media accounts     that she used for both personal and business purposes.

The Court found that plaintiff submitted evidence to raise triable fact questions on each element of the Complaint’s SCA count. 

The SCA aims to deter computer hacking and gives a private right of action to someone whose private electronic information is intentionally breached. 

The SCA plaintiff must establish that the defendant either (a) intentionally accessed the plaintiff’s private computer communication or (b) intentionally exceeded authorized access and obtained, altered or prevented authorized access to plaintiff’s private communications. *6.

For their part, the Defendants argued that Plaintiff voluntarily provided her Twitter and Facebook password information so that Defendants could continue marketing their company from plaintiff’s pages. 

Plaintiff disputed this: she claimed that she kept her Twitter and Facebook passwords in a locked electronic folder on Defendants’ server.  This fact dispute led the court to deny summary judgment on the SCA claim.

Another disputed fact question concerned plaintiff’s damages.  The SCA provides for both actual damages and minimum statutory damages of $1,000.  The case law is in flux as to whether actual damages are required before a plaintiff can recover the statutory minimum damages.  The Court looked to other jurisdictions to find that an SCA plaintiff  does not have to first prove actual damages (e.g. medical bills, lost wages, pain/suffering, etc.) before she can recover statutory damages.

But the Court still found plaintiff raised a disputed and triable fact question on actual damages.  Plaintiff, her husband and her father all testified to plaintiff’s acute mental anguish in the wake of Defendants’ unauthorized Tweeting and Facebooking barrage.  Under Federal Rule of Evidence 701 – witness observations of the Plaintiff’s mental distress was competent “lay opinion testimony”, based on the witnesses’ personal observations.  *7.

Take-aways: Clearly a pro-employee ruling; at least on the SCA claim.  The plaintiff not only stored her computer information on her employer’s computer server, but several witnesses for defendants also claimed that plaintiff willingly gave out her account passwords so that defendants could use the accounts as a marketing platform. 

Still, the Court found that plaintiff’s privacy and commercial interest (the Court found that plaintiff could enhance her reputation in the design community via social media) in her Twitter and Facebook accounts trumped the employers’ right to access those accounts. 

Employee Sues After Employer Hijacks Personal Twitter and Facebook Accounts (the ‘With Friends Like These…’ Post)

The case is dated (2011) but interesting.   The salient issues in Maremont v. Fredman, 2011 WL 6101949 (N.D.Ill. 2011), have enduring relevance in this culture of omnipresent electronic commerce and social media use.  The case is also post-worthy for its discussion of state law privacy and publicity torts in a computerized factual setting.

Plaintiff was director of marketing for the defendant interior design firm where she was in charge of formulating and executing the firm’s social media marketing efforts.  After she was hospitalized in a serious car crash, plaintiff alleged someone from the design firm accessed her personal Facebook and Twitter accounts and sent promotional messages to plaintiff’s Twitter and Facebook followers/friends.  Plaintiff filed suit against the design firm and its principal officer under the Federal Lanham Act (15 U.S.C. § 1125)  and Stored Communication Act (18 U.S.C. § 2701) and also for violating the Illinois Right to Publicity Act (765 ILCS 1075/60) and for common law intrusion on seclusion.  The parties moved for summary judgment on all claims.

Result: The Court denied both parties’ summary judgment motions on plaintiff’s Lanham Act (a false association claim) and Stored Communication Act claims.  The Court granted summary judgment for defendants on plaintiff’s state law publicity and privacy claims.

Rules/Reasoning:

The Court denied both parties’ summary judgment motions on Plaintiff’s false association claim.  Also called  false endorsement, an action for false association lies where a person’s identity (including likeness, voice, or other unique characteristics) is impermissibly connected with defendant’s product or service in such a way that consumers get the impression that plaintiff sponsors or endorses defendant’s products or services.  A false association/endorsement plaintiff must show she has a reasonable interest to be protected and an intent to commercialize her identity.  Otherwise, anonymous persons with no ability to monetize their identity could conceivably sue for false association.  The plaintiff must also prove actual economic damages (e.g. lost sales, profits, good will) resulting from the consumers’ reliance on defendant’s misleading statements or conduct.  Maremont, *4.

Here, the Court did find that plaintiff had a well-known name in the design community and therefore had a protectable commercial interest in her identity.  But because discovery wasn’t complete on the damages issue, it was premature for the Court to enter summary judgment for either party on the false association count.

Update: On March 3, 2014, the Court granted defendants’ summary judgment motion on Plaintiff’s false association claim.  Plaintiff’s Stored Communications Act claim survived summary judgment and the parties are going to trial on that count.

Plaintiff’s Stored Communications Act (SCA) claim also survived summary judgment because of unresolved fact disputes.  A Federal statute aimed at protecting against computer hackers, the SCA creates a private cause of action against a defendant who intentionally accesses (either without authorization or after exceeding authorization) and  alters or obtains plaintiff’s stored electronic communications (e-mail, e.g.).  Maremont, *5, 18 U.S.C. § 2701.

Plaintiff established that her Twitter and Facebook accounts belonged to her even though she signed up for both accounts at defendants’ office and on its computer equipment.  Since defendants clearly were able to access and send promotional tweets and Facebook messages from plaintiff’s personal accounts, there was a triable fact question as to whether defendants exceeded their authority to access those accounts.

In her state law right to publicity count, plaintiff asserted that the design firm  – by sending marketing messages from plaintiff’s social media accounts – used plaintiff’s likeness to promote defendants’ business.  A statutory publicity act claim requires a plaintiff to plead and prove (1) an appropriation of one’s name or likeness; (2) without written consent; (3) for another’s commercial benefit.  765 ILCS 1075/60; Maremont, *6.  Plaintiff’s right of publicity claim failed because she couldn’t establish element (1): that defendants pretended to be plaintiff when they sent messages from plaintiff’s Twitter and Facebook accounts.  Defendants clearly made it known that plaintiff was injured and that defendants, not plaintiff, were sending the promotional electronic missives.  Maremont, *7.  As a result, since defendants weren’t passing themselves off as plaintiff when they sent the messages, the defendants didn’t misappropriate plaintiff’s identity or likeness.

Defendants also defeated plaintiff’s intrusion on seclusion claim.  A species of the right to privacy tort, an actionable intrusion on seclusion claim requires a plaintiff to show (1) an unauthorized intrusion into seclusion; (2) intrusion that is highly offensive to a reasonable person; (3) the matter intruded upon was private; and (4) the intrusion caused the plaintiff anguish and suffering.  The plaintiff must also demonstrate that she attempted to keep private facts private.  And if something is displayed openly, there is no reasonable expectation of privacy under the law.  Maremont, *7.

Here, because plaintiff had so many Twitter (more than 1,200) and Facebook followers and frequently invited her followers to visit the design firm’s website and also linked to the firm’s public site and blog, the Court found that plaintiff didn’t try to keep any facts private.  Since plaintiff couldn’t point to any private information which defendants intruded on, the intrusion on seclusion claim failed.  Maremont, *7.

Afterwords: According to PACER, the Federal court public access portal, the case is still going.  Defendants have now moved five separate times for summary judgment.  Substantively, the case is relevant because it posits that a Twitter account is property of the individual account holder even though it was opened on employer premises and using employer equipment.  Maremont also demonstrates that a party’s commercial interest in her name and reputation and her private electronic communications are legally protectable interests under Federal and state law.