Privacy & Information Security Law Blog

As reported in the Hunton Employment & Labor Perspectives Blog:

In Purple Communications, Inc., a divided National Labor Relations Board (“NLRB”) held that employees have the right to use their employers’ email systems for statutorily protected communications, including self-organization and other terms and conditions of employment, during non-working time. In making this determination, the NLRB reversed its divided 2007 decision in Register Guard, which held that employees have no statutory right to use their employer’s email systems for Section 7 purposes.

Hunton & Williams Labor & Employment partner Susan Wiltsie reports:

Fears of a worldwide Ebola pandemic appear to have abated, but the tension between workplace safety and employee privacy, thrown into relief by this health emergency, remains an issue relevant to all employers. Any potential health threat created by contagious illness requires employers to plan and put into effect a reasonable response, including policies governing the terms and conditions under which employees may be required to stay away from the workplace, and in which their health care information may be relevant to workplace decisions.

As reported in the Hunton Employment & Labor Perspectives Blog:

The U.S. District Court for the District of New Jersey recently ruled that non-public Facebook wall posts are protected under the Federal Stored Communications Act (the “SCA”) in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-CV-3305 (WMJ) (D.N.J. Aug. 20, 2013). The plaintiff was a registered nurse and paramedic at Monmouth-Ocean Hospital Service Corp. (“MONOC”). She maintained a personal Facebook profile and was “Facebook friends” with many of her coworkers but none of the MONOC managers. She adjusted her privacy preferences so only her “Facebook friends” could view the messages she posted onto her Facebook wall. Unbeknownst to the plaintiff, a coworker who was also a “Facebook friend” took screenshots of the plaintiff’s wall posts and sent them to a MONOC manager. When the manager learned of a wall post in which the plaintiff criticized Washington, D.C. paramedics in their response to a museum shooting, MONOC temporarily suspended the plaintiff with pay and delivered a memo warning her that the wall post reflected a “deliberate disregard for patient safety.” The plaintiff subsequently filed suit alleging violations of the SCA, among other claims.

As reported in the Hunton Employment & Labor Perspectives Blog:

Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s (“NLRB’s”) Office of the General Counsel released a memorandum providing additional guidance on the confidentiality of internal workplace investigations. Banner Health held that to require confidentiality of investigations, an employer must show more than a generalized concern with protecting the integrity of its investigations. Rather, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”

As reported in the Hunton Employment & Labor Perspectives Blog:

On September 20, 2012, Administrative Law Judge Clifford H. Anderson struck down telecommunications company EchoStar Corporation’s policy prohibiting employees from making disparaging comments about it on social media sites. The National Labor Relations Board (“NLRB”) judge found that the prohibition, as well as a ban on employees using social media sites with company resources or on company time, chilled employees’ exercise of their rights under Section 7 of the National Labor Relations Act (“NLRA”). The EchoStar decision comes on the heels of the NLRB’s recent ruling striking down Costco Wholesale Corporation’s policy barring employees from posting statements online that were harmful to the company’s reputation.

As reported in the Hunton Employment & Labor Perspectives Blog:

On September 7, 2012, the National Labor Relations Board invalidated Costco Wholesale Corp.’s policy of prohibiting employee electronic posts in its first decision involving an employer’s social media policy. In Costco Wholesale Corporation and UFCW Local 371, Case No. 3A-CA-012421, the Board held, among other things, that Costco’s rule prohibiting employees from posting statements electronically that “damage the Company, defame any individual or damage any person’s reputation” was overly broad. The Board reasoned that the policy language contained no restrictions on its application and, thus, clearly encompassed protected concerted communications, such as speech that is critical of Costco or its agents. Accordingly, the rule had a tendency to chill employees’ protected activity in violation of Section 8(a)(1) of the National Labor Relations Act, which makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7.

As reported in the Hunton Employment & Labor Perspectives Blog:

The National Labor Relations Board ("NLRB") has again asserted its willingness to encroach upon employers’ long standing legitimate employment policies in a non-unionized workforce. In Banner Health System, 358 NLRB No. 93 (July 30, 2012), the Board held that a blanket policy prohibiting an employee from discussing an ongoing investigation violates section 8(a)(1) of the National Labor Relations Act.