Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘Social Networking’ Category

Georgia-Pacific Employees Can Now Tweet Without Fear

Wednesday, January 8th, 2014

Mike ElkIn October 2012, In These Times revealed that the Koch brothers had instructed 45,000 employees of Georgia-Pacific, a paper company owned by Koch Industries, to vote for Mitt Romney in the upcoming presidential election. But even as the Kochs took advantage of expanded free speech rights for corporations under the Supreme Court’s Citizen United ruling, Georgia-Pacific was busy circulating a strict policy that prohibited workers from speaking poorly of the company or its officers on social media. Thanks to a new decree by the National Labor Relations Board, however, employees can now feel free to post about their jobs to Facebook or Instagram without fear of retribution.

Georgia-Pacific’s now-defunct social media policy, which it implemented in 2011, warned, “Even if your social media conduct is outside of the workplace and/or non-work related, it must not reflect negatively on GP’s reputation, its products, or its brands.”

Many employees took this to mean that they could not post anything criticizing the company on social media.

Greg Pallesen, vice president of the Association of Western Pulp and Papers Workers (AWPPW), which represents workers at Georgia-Pacific paper plants in the Pacific Northwest, says that the policy was emblematic of the Koch brothers’ hypocrisy when it comes to workers’ rights.

“It all ties back into the last round of politics,” he says. “On one hand [the Kochs] say they believe and want free speech [for themselves], but on the other hand, they don’t allow their employees to have free speech.”

Though labor law does not unequivocally protect workers’ free speech on the job, it does give employees the right to advocate on behalf of their co-workers. With this in mind, in July 2012, AWPPW filed charges with the NLRB arguing that Georgia-Pacific’s overly broad social media policy interfered with employees’ ability to speak out about working conditions there. AWPPW also alleged that the company should have included the policy, as well as parts of the Employee Code of Conduct, in the union’s contract negotiations as a mandatory subject of bargaining.

In December 2013, after a year and a half of investigation, the NLRB reached a settlement with Georgia-Pacific requiring the company to rescind the policy and to post a statement in all its facilities assuring workers of their rights under federal labor law. The statement will read, “WE WILL repeal our social media policy and WE WILL NOT issue policies that interfere with your right to share information relating to wages, hours, and other terms and conditions of employment, including on social media.”

Under the terms of the agreement, Georgia-Pacific must also now allow employees to use the company email system to share information about working conditions. In addition, the corporation revoked the portions of its Code of Conduct that forbade employees from “sharing personal employee or compensation information with others”—a ban expressly prohibited by federal labor law.

Greg Guest, spokesperson for Georgia-Pacific, said in a statement, “Georgia-Pacific worked cooperatively with the National Labor Relations Board to better understand its position on employees’ rights, including employee rights in the social media space, and we are pleased that we were able to find a compromise that worked for both parties.”

Despite Guest’s talk of compromise, however, Pallesen feels the settlement is a clear victory for AWPPW and Georgia-Pacific’s workers.

“It was a good win for us. It slows the company down on just implementing things, which they tend to do. This forces them to come to us to negotiate policy,” says Pallesen. “Instead of the employer having 100 percent of the control of speech in the workplace, this gives employees some protection when it comes to ‘protected and concerted efforts’ [to organize at work].”

This article was originally printed on Working In These Times on January 7, 2014.  Reprinted with permission.

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.

A “Like” is a Like, Court Says, and is Protected Free Speech

Wednesday, September 25th, 2013

portrait-schwartzIn a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1? on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

This article was originally printed on Connecticut Employment Law Blog on September 19, 2013.  Reprinted with permission.

About the Author: Daniel Schwartz is an experienced employment law attorney, a Bar leader, an award-winning author, and a noted speaker. He is a partner at Shipman & Goodwin LLP.

Your Rights Job Survival The Issues Features Resources About This Blog