Photo_8d2e40f09eba415c94853641c5eae96f.jpegLeah Williams concentrates her practice in the area of employment litigation. Her practice includes the defense of employers against claims of wrongful termination and discrimination, including race, sex, religion, national origin and age discrimination.

Ms. Williams has represented numerous clients in the retail and technology industries and has handled arbitrations regarding contract interpretation, discipline and discharge. She also represents employers in administrative agency proceedings, including EEOC charges and state agency charges. In addition, Ms. Williams conducts internal investigations regarding allegations of discrimination, harassment and violation of company policies. Her practice also involves handling employer privacy issues.

Ms. Williams devotes a portion of her practice to employment class actions, particularly matters involving wage and hour issues arising under the Fair Labor Standards Act. She also has handled cases involving allegations of meal and rest period violations under the California Labor Code.

Prior to joining Baker Hostetler, Ms. Williams began her career as an attorney with a boutique employment firm in Cleveland, where she represented management clients in employment-related disputes, charges and lawsuits. Ms. Williams then served as a judicial law clerk for the Honorable Kenneth S. McHargh of the United States District Court, Northern District of Ohio. During her clerkship she helped manage a case docket that addressed a wide range of matters, including civil rights, insurance, criminal, social security disability, contract and constitutional law.

Ms. Williams is a member of the American, Ohio State and Cleveland Metropolitan Bar Associations. She serves on the board of the American Sickle Cell Anemia Association and Transitional Housing, Inc.

 

Entries authored by Leah Williams

NLRB Provides Guidance Regarding Social Media Sites

Posted by Leah Williams on September 09, 2011

In its continuing effort to grapple with when and where employee speech is protected under Section 7 of the National Labor Relations Act ("NLRA"), on August 18, 2011, the NLRB's Acting General Counsel issued a report addressing when it is lawful and unlawful to discipline employees for social media activities and the proper scope of employers' social media rules and policies.

Generally, employees have the right under the NLRA to be free from reprisal for discussing with their co-workers the terms and conditions of their employment. This is protected concerted activity because by doing so, they are implicitly or explicitly seeking to join together for their mutual aid or protection. Accordingly, employers who discipline their employees for concertedly complaining about their wages, hours, and conditions of employment violate Section 8(a)(1) of the NLRA.

SOCIAL MEDIA ACTIVITIES PROTECTED UNDER THE NLRA

The General Counsel's report discussed four advice memorandums in which it was determined employee conduct was protected under the NLRA. The specific conduct at issue (the majority of which took place outside the workplace) involved:

1. Employees complaining to each other via Facebook (with expletives) about their employer's tax withholding practices;

2. A commission-paid employee posting on Facebook pictures and sarcastic commentary criticizing the inexpensive manner in which his employer conducted a sales event;

3. An employee posting negative comments on Facebook about a supervisor (including calling him a "scumbag"), who was investigating a customer complaint against the employee; and

4. Multiple employees posting comments (which included swear words and sarcasm) on Facebook criticizing the work performance of their coworkers and staffing level problems.

In each of the above situations, the conduct was deemed protected under the NLRA because: (1) the communications concerned the terms and conditions of employment; (2) the subject of the communication was brought to management's attention or the employee had reason to believe the communication would result in a discussion with management; (3) the communications addressed employees' shared concerns; and (4) the communications were directed at coworkers and/or discussed with coworkers.

SOCIAL MEDIA ACTIVITIES NOT PROTECTED UNDER THE NLRA

In addition, the August 18, 2011 Report dealt with two Advice Memorandums in which an employee's use of social media was not protected activity. The first Advice Memorandum involved an employee who complained on a senator's Facebook page that her employer paid low wages and lacked sufficient equipment. This communication did not constitute protected activity because (1) the post was not discussed with the employee's coworkers; (2) the employee did not try to raise the issue with management and she did not expect the senator to resolve the problems with her employer; and (3) none of the employee's coworkers had met or organized any group action regarding the subject of the employee's comments. Complaining by yourself about your employer to an outside entity that is not a union has never been protected activity.

The second Advice Memorandum involved a reporter who created a Twitter account after being encouraged to do so by his employer. On that account, the reporter criticized his employer's copy editors, made comments about area homicides (which were a part of his beat), and criticized an area television station. The General Counsel stated the reporter's subsequent termination was not unlawful because the Twitter posts did not relate to the terms and conditions of his employment and the reporter did not seek to involve coworkers -- both of which are fatal to any claim of protection under the NLRA.

RECENT ALJ DECISION

While not addressed in the NLRB's report, it is important to note that on September 2, 2011, an Administrative Law Judge (ALJ) issued the first post-hearing decision regarding an allegation that discipline of employees for comments made on a social media site violated Section 8(a)(1) of the NLRA. In Hispanics United of Buffalo Inc., NLRB ALJ, No. 3-CA-27872, 9/2/11, five employees were fired after they used Facebook to post complaints about a fellow employee's criticism of their work. The employer claimed that the Facebook comments caused the employee to suffer a heart attack and were a violation of the company's harassment policy. After a hearing, the ALJ ruled that firing the workers for such work-related comments violated the NLRA because the employees engaged in concerted activity that was protected by the NLRA. The ALJ specifically rejected the employer's defenses finding no evidence to support that the Facebook comments harmed the employee's health or violated the employer's harassment policy.

The Facebook comments at issue in Hispanics United of Buffalo Inc., clearly concerned terms and conditions of employment which were directed to coworkers and addressed the shared concerns of the employees. Accordingly, the ALJ had no problem concluding that the communications were protected concerted activity under the NLRA.

GUIDANCE REGARDING THE SCOPE OF EMPLOYER'S SOCIAL MEDIA POLICIES

The Advice Memorandums as well as the recent ALJ decision in Hispanics United of Buffalo Inc., make clear that an employer must tread very carefully in seeking to promulgate policies which regulate the activities of employees on social media sites. Certainly, any policy which seeks to regulate discussion among employees concerning the workplace or their terms of employment will be deemed unlawful and overbroad by the NLRB to the extent that it regulates protected concerted activity under Section 7 of the NLRA.

It is equally clear that employers have very limited defenses when disciplining an employee who engages in concerted activity. For example, in a matter in which the employees complained about an employer's tax withholding practices, the General Counsel rejected the employer's argument that discipline was appropriate, or that the conduct was not protected, because it was defamation. The General Counsel reasoned that an activity does not lose its protected status simply because the statement is false. The statement must be maliciously false to lose its protected status. Similarly, the fact that the protected communication contained swear words and insults was insufficient to render the communication unprotected. This reasoning is consistent with long-term precedent that holds that employee conduct must be significantly outside the realm of normal workplace conduct to lose the protection of the NLRA. Accordingly, it will be critical for employers to seek counsel before implementing such policies in the future.

NLRB Issues Advice Memorandums Regarding Disciplining Employees for Social Media Misconduct

Posted by Leah Williams on August 05, 2011

Since the advent of social networking websites like Facebook, employers have struggled to determine when it is appropriate to discipline an employee who engages in misconduct through social media.  Fortunately, the NLRB offered significant guidance on this issue in three Advice Memorandums submitted in July 2011.  These Memorandums seem to indicate an employer may discipline an employee for comments made on Facebook without violating the National Labor Relations Act (NLRA) if:

1.  The employee’s work complaints on Facebook were made only to family or friends; or

2.  The employee’s complaints expressed only an individual gripe with the employer, rather than concerns expressed by employees collectively.

The first Advice Memorandum.PDF concerned an employee who worked at a residential facility for homeless individuals who suffered from substance abuse and mental illnesses.  The employee posted demeaning comments about some of those individuals on her Facebook wall and was subsequently terminated.  None of the employee’s coworkers were her Facebook “friends,” and only personal friends responded to the relevant posts. 

The General Counsel determined that these Facebook posts were not protected because they: (1) were merely communications to friends about work; (2) did not relate to the terms and conditions of the employee’s employment; (3) were not discussed with the employee’s coworkers and no coworkers responded to the posts; and (4) were not an outgrowth of collective concerns and the employee was not seeking to induce collective action.  The employer, therefore, was permitted under the NLRA to discipline that employee as it saw fit since those posts did not constitute protected activity.

The second Advice Memorandum.PDF dealt with a bartender who complained to his step-sister through Facebook about not receiving a raise over the past five years and his employer’s policy that prohibited him from receiving a share of waiters’ tips, even though the bartender helped serve food.  He also posted insults regarding the employer’s clientele.  The bartender had a similar conversation about the unwritten tipping policy with a fellow bartender several months prior to the Facebook posts, but neither employee raised the issue with management.  Upon learning of the bartender’s Facebook posts, the employer terminated his employment.

The General Counsel reasoned that the employer bore no obligation to reverse the bartender’s termination because: (1) the Facebook communication was not addressed to the bartender’s coworkers and he did not discuss the post with his coworkers; (2) there had been no employee meeting nor any attempt to initiate group action with regard to raises or the unwritten tipping policy; and (3) no effort had been made to take the bartender’s complaints to management. It should be noted that the General Counsel reached this determination despite fully acknowledging that the communication addressed the terms and conditions of the bartender’s employment, and that the tipping policy had been the subject of conversation between the bartender and the coworker.  The General Counsel, nevertheless, concluded the Facebook posts did not grow out of earlier conversation with a coworker. 

The third Advice Memorandum.PDF involved an employee who posted the following language on Facebook:

I swear if this tyranny doesn’t end in this store, they are about to get a wakeup call because lots are about to quit.

. . . .

[The Assistant Manager] is being a super mega puta! Its [sic] retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting [sic] it for that price … that’s false advertisement if you don’t sell it for that price … I’m talking to [the Store Manager] about this shit because if it don’t [sic] change [the Employer] can kiss my royal white ass.

Obviously these posts addressed the terms and conditions of the employee’s employment.  Further, unlike the other employees addressed above, this employee’s Facebook posts were communicated to his coworkers, earning responses on the website such as, “hang in there,” “bahaha like! :),” and “What the hell happens after four that gets u so wound up??? Lol.”

The General Counsel concluded that even though these posts addressed the employee’s terms and conditions of employment and were directed to coworkers on Facebook, they did not constitute a protected activity.  The General Counsel determined that the Facebook post expressed only an individual gripe with the employer, and that the employee was merely expressing his personal “frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items.”  Thus, there was no outgrowth of collective concerns and the employee was not seeking to induce collective action.  As to the post being directed at coworkers, the General Counsel reasoned that the coworker’s responses did not convert the posts to collective action because their joking and sympathetic responses demonstrated their belief the employee was only speaking on his own behalf. 

An employee’s conduct is concerted only when he/she: (1) acts with or on the authority of other employees; (2) seeks to initiate, induce or prepare for group action; or (3) brings group complaints to the attention of management.  Based on the above-mentioned Advice Memorandums, it appears that social media communications that are solely on the employee’s behalf (e.g., posts that are not communicated to coworkers or management) or communications that are individual in subject matter (e.g., posts that may be communicated to coworkers but concern only an individual gripe) are not concerted activities and, therefore, are not protected under the NLRA.