social media in the workplace: legal considerations … · disciplining employees for social media...

SOCIAL MEDIA IN THE WORKPLACE: LEGAL CONSIDERATIONS FOR PRIVATE

AND PUBLIC EMPLOYERS

Jill Gerdrum Axilon Law Group, PLLC

125 Bank Street, Suite 403 Millennium Building Missoula, MT 59802

406-532-2635 Fax: 406-294-9468

[email protected]

SOCIAL MEDIA IN THE WORKPLACE: LEGAL CONSIDERATIONS FOR PRIVATE AND PUBLIC

EMPLOYERS

Social Media & Employee Discipline 1

SOCIAL MEDIA IN THE WORKPLACE: LEGAL CONSIDERATIONS FOR PRIVATE AND PUBLIC EMPLOYERS

Employers may have a valid interest in reviewing or monitoring an employee’s or

applicant’s social media pages, even when the employee’s online conduct occurs outside of

working hours. That is often the case when the employee’s conduct affects his or her job

performance or the employer’s reputation.

Consider the following examples of employee social media conduct:

(1) A Texas daycare receives reports its new employee posted:

“I start my new job today, but I absolutely hate working at day care. I just really

hate being around a lot of kids.”

The employee’s post spread throughout the community and was shared with

an online group with more than 8,000 members. The daycare terminated the

employee.1

(2) An emergency medical technician posts comments on a co‐worker’s Facebook

wall stating she wanted to “slap” a patient. Her employer’s compliance

officer saw the comment because she was a Facebook “friend” of the co‐

worker. When the compliance officer expressed her disapproval, the EMT

posted:

“Yes, I DO get upset on some calls when my patient goes off in the house and I

have to have a firefighter ride in with me because I fear for MY own safety. I think

that is a valid excuse for wanting to use some sort of restraints. Just saying.”

Following that post, another emergency medical technician for the company

posted:

1 Peter Holley, Day‐Care Employee Fired for Facebook Post Saying She Hates ‘Being Around a Lot of Kids.’

Washington Post (May 4, 2015).


EMPLOYERS


ʺYeah like a boot to the head . . . . Seriously yeah restraints or actual HELP from

PD instead of the norm.ʺ

Both employees were terminated and sued the employer for wrongful

termination, intrusion upon seclusion and public disclosure of private facts.

Their privacy claims were dismissed on summary judgment.2

(3) In May 2015, after two police officers were murdered in Hattiesburg,

Mississippi, a Subway sandwich shop worker posted a celebratory photo of

herself in her Subway uniform with the post:

“2 police officers was shot in hattiesburg tonight.! ‐ GOT EM” ‐ “we can turn

this bxtch into Baltimore real quick – frfr police take away innocent people lives

everyday now & get away w/ it, f@#$ them [no mercy]”3

The post included several emoticons, including pistols and thumbs up signs.

Subway fired the employee, stating her “unfortunate choice” should not

reflect on the more than 400,000 honest, hardworking Sandwich Artists

worldwide.”

These kinds of posts can pose serious problems employers feel obligated to address.

However, consideration should be given as to whether the employer may lawfully access or

monitor employees’ social media activity, whether the employer may lawfully maintain a

social media policy, and whether the employer may lawfully discipline or terminate

employees for social media posts.

2 Sumien v. Careflite, 2012 Tex. App. LEXIS 5331, 34 I.E.R. Cas. (BNA) 77, 2012 WL 2579525 (Tex. App. Fort Worth

July 5, 2012); Roberts v. CareFlite, 2012 Tex. App. LEXIS 8371 (Tex. App. Fort Worth Oct. 4, 2012). 3 http://28‐2015.beforeitsnews.com/alternative/2015/05/ms‐subway‐employee‐fired‐following‐celebratory‐cop‐

killing‐tweets‐3152748.html


EMPLOYERS


Accessing Employee Social Media Accounts A. Section 39‐2‐307, MCA – Montana Restrictions on Employer Access to Applicant and Employee Social Media Accounts.

A newly enacted Montana law restricts employer access to employee and applicant

social media accounts and protects employees from retaliation for refusing to provide social

media information in certain circumstances. The law, which was adopted in 2015, prohibits

employers from requiring employees to:

(a) disclose a user name or password for the purpose of allowing the employer or

employer’s agent to access a personal social media account of the employee or job

applicant;

(b) access personal social media in the presence of the employer or employer’s agent; or

(c) divulge any personal social media or information contained on personal social

media.

Exceptions are provided where the employer has “specific information” that indicates

work‐related misconduct, criminal defamation, or disclosure of protected or proprietary

information. Another exception is provided when “an investigation is under way and the

information requested of the employee is necessary to make a factual determination in the

investigation.” Employers are subject to criminal and civil penalties for violating the law.

Mont. Code Ann. § 39‐2‐307.

Montana is one of many states regulating employer access to employees’ social media

or electronic communications. This year, the American Legislative Exchange Council

published a draft Employee Online Privacy Protection Act. The Act prohibits employers from

requiring, requesting, or coercing employees to (1) disclose their social media passwords; (2)

alter their privacy settings to allow the employer to view their account; and (3) login to their

account in front of the employer such that the employer can observe its content. The Act

includes some exceptions, including where it is necessary to investigate an employee’s

violation of law. At least 18 states have already enacted similar laws to protect employees’

private information on social media accounts.


EMPLOYERS


B. Stored Communications Act – 18 U.S.C. § 2701, et seq.

Federal law also regulates the unauthorized access or interception of electronic

communications. Employers should be aware the Electronic Communications Privacy Act

affords privacy protections to electronic communications through Title I, the Wiretap Act (18

U.S.C. § 2510, et seq) and Title II, the Stored Communications Act (18 U.S.C. § 2701, et seq).

Before accessing employee or applicant social media accounts, e‐mails, voicemails or any other

electronic communication, it is a good idea to consider whether that access would violate the

law. As a general rule, employers should avoid making unauthorized access to employee

social media sites or using surreptitious means to monitor employees’ electronic

communications.4

Consider the following cases examples:

Chavan v. Cohen, No. C13‐01823 RSM, 2015 U.S. Dist. LEXIS 87351 (W.D. Wash.

July 6, 2015) – Court enters default judgment against defendant who allegedly

accessed plaintiffs’ e‐mail and social media accounts without authorization and

established a Facebook account in plaintiffs’ names, intercepting messages

intended for plaintiffs. Based on the allegations of the complaint and

defendant’s failure to respond, the court entered judgment against defendant for

a total of $260,766.08.

Maremont v. Susan Fredman Design Grp., Ltd., No. 10 C 7811, 2014 U.S. Dist. LEXIS

26557 at *28‐29 (N.D. Ill. Mar. 3, 2014) – Plaintiff Maremont sues her former

employer when her co‐workers used information tied to the company social

media accounts to access her personal Facebook and Twitter accounts while she

was away on medical leave. Defendants argued Maremont was not damaged

even if her accounts were accessed, but the court denied defendants’ motion for

summary judgment and held a jury could decide if she is entitled to

compensatory and punitive damages

Lazette v. Kulmatycki, 949 F. Supp. 2d 748 (N.D. Ohio 2013) – Former Verizon

employee sues her former supervisor and Verizon for violation of SCA, invasion

of privacy and emotional distress because her former supervisor used her

4 Courts have held that non‐public Facebook and Twitter posts are covered electronic communications for

purposes of the Stored Communications Act. See Ehling v. Monmouth‐Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659,

668 (D.N.J. 2013); United States v. Martin, No. CR‐14‐00678‐PHX‐DGC, 2015 U.S. Dist. LEXIS 94754 at *9 (D. Ariz.

July 21, 2015)


EMPLOYERS


company‐provided Blackberry to access her personal e‐mails after the Blackberry

was returned. The court refused to dismiss the claims on defendants’ motion to

dismiss.

Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002) – Pilot sues airline for gaining access to his restricted website by asking the pilot’s co‐worker

to login and allow it to monitor the pilot’s comments. The court held

supervisor’s unauthorized access to the web site violated the Stored

Communications Act. (18 U.S.C. § 2701, et seq).

U.S. v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) – Employee concerned about

getting fired set up a rule in his supervisor’s Outlook that directed the program

to forward all messages to him and was prosecuted under the Wiretap Act.

Court held both the e‐mail server and the computer were devices, and the rule he

created in his supervisor’s Outlook essentially put a “tap” that intercepted

communications between the senders of e‐mails and the recipients.

Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D.N.Y.

2008) and 759 F. Supp. 2d 417, 430 (S.D.N.Y. 2010) – Employer accessed former

employees’ private e‐mail accounts through usernames and passwords left on

workplace computers. Employer sought to use the e‐mails in trademark

infringement and breach of duty of loyalty cases against former employees.

Former employees counterclaimed under Stored Communications Act. The e‐

mails were excluded and the employer held liable for damages under SCA.

Disciplining Employees for Social Media Posts Even if an employer legally gains access to an employee’s social media posts, careful

consideration should be given to the question of whether the employer’s policies impose

unlawful restrictions on employee rights to unionize and whether the employee may

otherwise be protected from discipline or discharge for statements made on social media.

A. Employee Protection for “Concerted Activity” on Social Media.

Employers attempting to regulate employee social media activity through the use of

personnel policies may run afoul of state and federal labor laws that protect employees from

discipline for social media activity considered “concerted activity.” The National Labor


EMPLOYERS


Relations Board (“NLRB”) has a stake in regulating employers’ policies and practices with

respect to employees’ social media activity through the National Labor Relations Act

(“NLRA”). Similarly, the Montana Public Employees’ Collective Bargaining Act,5 which

mirrors the NLRA in many respects, governs Montana public employers’ social media

policies.6 The legal restrictions apply to both union and non‐union employers.

The NLRA makes it an unfair labor practice for an employer to interfere with, restrain

or coerce employees in the exercise of their rights to self‐organize, form, join or assist labor

organizations, bargain collectively, or engage in other “concerted activities” for the purpose of

collecting bargaining or “other mutual aid or protection.“7 While “concerted activity” is not

defined in the Act, the NLRB and courts distinguish between an employee speaking out with

or on behalf of fellow employees and one speaking out solely on behalf of himself.8

Protection typically extends to disrespectful or impulsive remarks and behavior

considered “concerted,” but egregious comments may lose protection, depending upon

consideration of the following factors:

(1) the place of the discussion (e.g., were the egregious comments heard by others and

will they affect workplace discipline);

(2) the subject matter of the discussion (e.g., were the comments made while exercising

the right to unionize);

(3) the nature of the employee’s outburst (e.g., was it profane, insubordinate and likely

to have an adverse effect on workplace discipline); and

(4) whether the outburst was, in any way, provoked by the employer’s unfair labor

practices (e.g., were the comments reactionary to some term or condition of

employment or the employer’s unfair labor practices).9

5 Mont. Code. Ann. § 39‐31‐101, et. seq. 6 Teamsters Local #45 v. State ex rel. Bd. of Personnel Appeals (Mont. 1981), 635 P.2d 1310, 1312; State ex rel. Bd. of

Personnel Appeals v. District Court (1979), 183 Mont. 223, 225, 598 P.2d 1117, 1118; 2010 Mont. AG LEXIS 5, 53 Op.

Atty Gen. Mont. No. 4, 53 Op. Atty Gen. Mont. No. 4. 7 National Labor Relations Act, 28 U.S.C. §§ 151‐169. 8 Meyers II, 281 N.L.R.B. 882, 886 (1986). 9 Cellco Pʹship, 349 N.L.R.B. 640, 642 (2007).


EMPLOYERS


When the NLRB addresses the question of whether an employer engaged in an unfair

labor practice for disciplining or terminating an employee for his social media conduct, it

evaluates whether protected “concerted activity” was a substantial or motivating factor in the

adverse action, and if so, whether the employer would have taken the same action even in the

absence of protected activity.10

For example, when an auto dealership employee was terminated for posting sarcastic

comments about his employer on his Facebook page, the employee challenged the termination

and raised the issue with the NLRB. The employee’s initial posts mocked the quality of the

dealership’s BMW sales event and included pictures of sales people at the event holding hot

dogs, chips and water, with comments including:

“I was happy to see that Knauz went ʺAll Outʺ for the most important launch of a new

BMW in years . . . the new 5 series. A car that will generate tens in millions of dollars in

revenues for Knauz over the next few years. The small 8 oz bags of chips, and the $ 2.00

cookie plate from Samʹs Club, and the semi fresh apples and oranges were such a nice

touch . . . but to top it all off . . . the Hot Dog Cart. Where our clients could attain a

over cooked wiener and a stale bunn.”11

The employee also posted a picture which depicted an accident that had occurred at the

dealership’s adjacent lot, with the following comments:

“This is your car: This is your car on drugs;” and

“This is what happens when a sales Person sitting in the front passenger seat (Former

Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck

built and designed to pretty much drive over anything. The kid drives over his fatherʹs

foot and into the pond in all about 4 seconds and destroys a $ 50,000 truck. OOOPS!”12

The NLRB considered the first comments regarding the food at the sales event protected

“concerted activity,” despite their disparaging nature, because the sales people were paid on

commission, and the comments could be construed as compensation complaints. However,

the NLRB determined the dealership did not engage in an unfair labor practice in terminating

10 NLRB v. Wright Line, 662 F.2d 899 (1st cir. 1981); Wright Line, 251 N.L.R.B 1083, 1089 (1980). 11 Karl Knauz Motors, Inc., 2012 NLRB 679, LEXIS 679, *29‐31 (N.L.R.B. Sept. 28, 2012). 12 Id., 42‐46.


EMPLOYERS


the employee because his post regarding the car accident was not protected and would have

resulted in his termination, regardless of the earlier concerted activity.13

Still, the BMW dealership did not escape the NLRB action unscathed because in

analyzing the dealership’s social media personnel policy, the NLRB determined the policy

itself violated the NLRA by unreasonably restricting employees from engaging in concerted

activity. The objectionable policy was:

“Courtesy is the responsibility of every employee. Everyone is expected to be courteous,

polite and friendly to our customers, vendors and suppliers, as well as to their fellow

employees. No one should be disrespectful or use profanity or any other language which

injures the image or reputation of the dealership. “14

In a similar case, the NLRB determined the following Costco social media policy

violated the Act because it could be construed by the employees to prohibit communications

critical of Costco’s treatment of its employees:

“Employees should be aware that statements posted electronically (such as online

message boards or discussion groups) that damage the Company, defame any individual

or damage any person’s reputation, or violate the policies outlined in the Costco

Employee Agreement, may be subject to discipline, up to and including termination of

employment.”15

These cases demonstrate that navigating the line between what is and is not acceptable

in terms of regulating employee social media conduct and disciplining employees for

comments made is difficult. The NLRB has issued three general counsel memos in recent

years, attempting to clarify its position on employer restrictions on their employees’ right to

discuss work issues through social media.

13 Id. 14 Id., 48‐55. 15 Costco Wholesale Corp., No. 34, 2012 NLRB 534 (2012).


EMPLOYERS


The NLRB suggests employers consider the following elements when drafting a social

media policy:

1. A clear, articulated need for the employer to place restrictions on an employee’s

social media use;

2. Detailed notification to employees that even though there is a social media policy in

place, the employee is free to express his or her views on social media but must

accept whatever consequences arise from posting such information;

3. A concrete definition of social media, which includes specific examples of the types

of information that an employee is not permitted to disclose for business or legal

purposes (e.g., confidential information or trade secrets);

4. Definition and specific examples of communication that will be prohibited as

offensive or against the company’s policy of anti‐discrimination, harassment or

bullying; and

5. A clearly worded statement that the policy will not be applied in a way that restricts

an employee’s use of social media to engage in protected activities.16

B. Employee Free Speech Protections for Social Media Activity.

For public employers, discipline based on the content of the employee’s comments

should take into account the employee’s free speech rights under the First Amendment. In

2006, the U.S. Supreme Court re‐affirmed precedent restricting public employee free speech

rights.17 Still, public employees enjoy First Amendment protection for statements made

regarding a matter of public concern and may have legal claims for restriction of those rights.

For example, a police officer in Greenville, Mississippi, recently brought a civil rights

claim against her employer alleging she was terminated for engaging in protected speech

when she posted comments critical of her police chief to her own Facebook page and copied it

to the Greenville mayor’s public Facebook page. The employee complained the police chief

did not send a representative to the funeral of an officer from a nearby town who was killed in

the line of duty. She concluded her post with:

16 Operations Memorandum: Report of the Acting General Counsel Concerning Social Media Cases (OM 12‐59),

NLRB (May 30, 2012); (OM 12‐31) NLRB (Jan. 24, 2012); (OM11‐74) NLRB (Aug. 18, 2011). 17 Garcetti v. Ceballos, 547 U.S. 410 (2006) (reiterating its holdings in Pickering v. Board of Education, 391 U.S. 563

(1968) and Mount Health City School District Board of Education v. Dole, 429 U.S. 274 (1977).


EMPLOYERS


“Dear Mayor, can we please get a leader that understands that a department sends

officers of [sic] the funeral of an officer killed in the line of duty? Thank you. Susan

Graziosi”

When other people commented on her post, she posted:

“[W]e had something then that we no longer have. . .LEADERS. I donʹt know that

trying for 28 is worth it. In fact, I am amazed everytime [sic] I walk into the door. The

thing is the chief was discussing sending officers on Wednesday (after he suspended me

but before the meeting was over). If he suddenly decided we ʺcouldnʹt afford the gasʺ

(how absurd ‐ I would be embarrassed as a chief to make that statement) he should have

let us know so we could have gone ourselves. Also, youʹll be happy to know that I will no

longer use restraint when voicing my opinion on things. Ha!”

The City of Greenville determined the officer’s comments violated employee policies

regarding supporting fellow officers and insubordination and terminated her employment.

The Fifth Circuit analyzed her claim and determined she made the statement as a citizen, but

that it was not on a matter of “public concern” because it addressed her own grievances and

not larger scale problems or corruption.18

The Fourth Circuit reached a different conclusion when it evaluated whether a

Facebook “like” is protected speech under the First Amendment. In Bland v. Roberts, several

law enforcement officers brought civil rights claims alleging the Sherriff’s Office retaliated

against them when the sheriff refused to reappoint them because they showed support for his

opponent during the campaign.19 The Court determined ʺlikingʺ on Facebook is an expression

of support analogous to the “universally understood ‘thumbs up.’” The Court held the “likes”

were statements made as private citizens on matters of public concern – the election for sheriff

– and the jury must decide whether the sheriff refused to reappoint the officers in retaliation

for those statements.20

18 Graziosi v. City of Greenville Miss., 775 F.3d 731, 736 (5th Cir. 2015). 19 Bland v. Roberts, 730 F.3d 368, 385‐86 (4th Cir. 2013). 20 Id., see also, Three D, LLC (Triple Play), 361 NLRB No. 31 (2014) (“Like” button can be protected activity under

NLRA as expression of support for others who share work‐related concerns).


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C. Other Considerations.

Even if an employer maintains a lawful social media policy and imposes discipline in

conformance with the NLRA and First Amendment, discipline and termination should still be

handled in conformance the Montana Wrongful Discharge From Employment Act, any

applicable collective bargaining agreement, and other labor and discrimination laws. Factors

for consideration when disciplining or terminating a Montana employee for his social media

activity include:

Whether the employer is a public or private entity;

Whether the comment or social media activity violated any employer policies,

including policies not specifically directed at social media activity (e.g., did it violate

the anti‐discrimination or confidentiality policies);

Whether the employee is subject to a collective bargaining agreement, and, if so,

whether the activity constitutes “just cause” for termination;

If the Montana Wrongful Discharge From Employment Act applies, whether the

activity constitutes “good cause” for termination under the statute, whether the

termination is made in accordance with the employer’s own personnel policies, and

whether the termination is being made for the employee’s refusal to violate public

policy21;

Whether the content of the post was work‐related, personal, political, or directed at

other employees;

Whether the content of the post had an adverse impact on the workplace (i.e. did it

harm the employer’s reputation, disclose confidential information, or pose a safety

risk); and

Whether the employee used a personal or business device.

Conclusion Employers have a fine line to navigate between regulating their employees’ social

media activity for protection of their business, and respecting their employees’ rights under

the law. Employers should consider whether a social media policy is warranted and, if so,

take care to recognize employee protections when drafting one. Likewise, when disciplining

employees for social media activity, employers should evaluate whether the discipline

comports with its own policies and the applicable labor laws. That will require some

21 Mont. Code Ann. 39‐2‐901, et. seq.


EMPLOYERS


diligence, as those laws will undoubtedly change and evolve as social media usage and

technology changes and evolves. In this area of the law, Heraclitus’s statement, “change is the

only constant,” is spot‐on. When in doubt, consult with an attorney or human resources

specialist.

ADDITIONAL REFERENCES

Kimberly S. Moore & Kathleen Peahl, Employer or Big Brother: Regulating Employees’ Off‐

Duty Conduct – What Happens In Vegas Doesn’t Stay in Vegas, 2015 ALFA International

Labor & Employment Practice Group Seminar

National Labor Relations Board General Counsel Memos dated August 18, 2011, January 25,

2012, and May 30, 2012, available at: https://www.nlrb.gov/news‐outreach/fact‐sheets/nlrb‐

and‐social‐media

Jill Gerdrum

Axilon Law Group, PLLC

125 Bank Street, Suite 403

Millennium Building

Missoula, MT 59802

(406) 532‐2635

[email protected]

Angela Simonson, MPA, PHR, SHRM‐CP

Human Resources/Employment Practices Specialist

Montana Municipal Interlocal Authority

3115 McHugh Dr.

Helena, MT 59602

406‐495‐7017

[email protected]

3/25/2016

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Social Media &Employee Discipline

J I L L G E R D R U M , E S Q . ,A X I L O N L A W G R O U P

A N G E L A S I M O N S O N , M P A , P H RH R / E P S P E C I A L I S T M M I A

What is Social Media?

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Employees & Social Media

Employees & Social MediaLegal Considerations

A daycare receives reports its new employee A daycare receives reports its new employee posted:

“I start my new job today, but I absolutely hate working at day care. I just really hate b i d l t f kid ”being around a lot of kids.”

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Enacted by MT Legislature in 2015

Accessing Employee AccountsMCA § 39-2-307

Restricts employer access to employee social media accounts;

Protects employees from retaliation from refusing to provide social media information;

Civil and criminal consequences for violations.

Monitoring Employees’ Social MediaStored Communications Privacy Act -18 U.S.C. § 2701

Prohibits unauthorized access to electronically stored communications

Applies to e-mails, text messages, social media posts, private blogs,

d d b i password protected web sites, etc.…

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Federal & Montana Regulation of Employer Policies

National Labor Relations Act—Private employers

National Labor Relations Board (NLRB)—Private

Collective Bargaining Act for Public Employees

Montana Board of Personnel Appeals (BOPA)

Unlawful Social Media Policies

Prohibiting employees from posting photos of themselves in any media depicting the company in any way—including y p g p y y y glogo or corporate uniform

Prohibiting employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers or competitors

Instructing employees to report inappropriate internal SM activity.

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Employees & Social MediaLegal Considerations

First Amendment Considerations

Was employee acting as a citizen or on behalf of the government?

Was it a public employee statement p p y“regarding a matter of public concern?”

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“Dear Mayor, can we please get a leader that y , p gunderstands that a department sends officers of [sic] the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi”


Law enforcement officer’s “like” on a sheriff

did ’ F b k candidate’s Facebook page is protected free speech.

Bland v. Roberts, 730 F.3d 368, 385-86 (4th Cir. 2013)3)

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Employee Discipline Considerations

Do you have a social media policy?Is the employer a public or private entity?Is the employer a public or private entity?What was the content of the post?Did the post have an adverse impact on the workplace?Did the social media activity violate any employer policies?policies?Does the activity constitute “good cause” under the WDEA or CBA?Did the employee use a personal or business device?

Violation of Social Media Policy

Train Staff/ManagementBe ConsistentEnsure Protected RightsFollow Discipline PolicyRegularly Review Policy

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Conclusion

Consider whether you want information you gain y y gthrough social media.Do not access employee or applicant social media accounts without authorization.Do not coerce authorization.Proceed with caution in drafting a policy.Consider free speech, employees’ rights to engage in Consider free speech, employees rights to engage in concerted activities, and the law, contract or policies governing the employment relationship before disciplining.

Social Media & Employee Discipline

QUESTIONS?

Jill Gerdrum406-532-2635

[email protected]

Angela Simonson406-495-7017

[email protected]

QUESTIONS?

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Resources

Ahmad, Irfan. Social Media Today. “The Generational Content Gap: How Different Generations Consume Content Online.” 11 May 2015<http://www.socialmediatoday.com>

National Labor Relations Board General Counsel Memos dated August 18, 2011, January 25, 2012 and May 30, 2012, available at: https://www.nlrb.gov/news-h/f h / l b d i l dioutreach/fact-sheets/nlrb-and-social-media

Nestor, Alexander. National Law Review. “Newly Released NLRB Advice Memorandum Finds Several Provisions of Employer’s Social Media Policy Unlawful.” 5 December 2014. http://www.natlawreview.com/article/newly-released-nlrb-advice-memorandum-finds-several-provisions-employer-s-social-med

Smith, Allen. SHRM. “NLRB Rejects Common Practices; What is HR to Do?” 28 June 2015. http://www.shrm.org/publications/conference-today/articles/pages/nlrb-rejects-common-practices.aspx

Peter Holley, Day-Care Employee Fired for Facebook Post Saying She Hates ‘Being Around a Lot of Kids.’ Washington Post (May 4, 2015)

Sumien v. Careflite, 2012 Tex. App. LEXIS 5331(Tex. App. Fort Worth July 5, 2012); Roberts v. CareFlite, 2012 Tex. App. LEXIS 8371 (Tex. App. Fort Worth Oct. 4, 2012)

http://28-2015.beforeitsnews.com/alternative/2015/05/ms-subway-employee-fired-following-celebratory-cop-killing-tweets-3152748.html

Graziosi v. City of Greenville Miss., 775 F.3d 731, 736 (5th Cir. 2015)

Mont. Code. Ann. § 39-31-101, et. seq.

Teamsters Local #45 v. State ex rel. Bd. of Personnel Appeals (Mont. 1981), 635 P.2d 1310, 1312

National Labor Relations Act, 28 U.S.C. §§ 151-169

Costco Wholesale Corp., No. 34, 2012 NLRB 534 (2012)

Knauz BMW, Inc., No. 13, 2012 NLRB 679 (2012)

Kimberly S. Moore & Kathleen Peahl, Employer or Big Brother: Regulating Employees’ Off-Duty Conduct – What Happens In Vegas Doesn’t Stay in Vegas, 2015 ALFA International Labor & Employment Practice Group Seminar

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