Today's Technology for Tomorrow's Firm.
Issue link: https://cpapracticeadvisor.epubxp.com/i/707157
12 July 2016 • www.CPAPracticeAdvisor.com A YEAR IN THE LIFE: PAYROLL ACCOUNTANT e situation began when a Chi- potle crew member took to Twier to vent about his job. In January 2015, he tweeted several times to com- plain about working on snow days. e employee also used Twier to express his dissatisfaction about crew members' hourly pay rate of $8.50. Soon aer, a supervisor told the crew member that the tweets violated the company's social media policy that prohibited employees from making disparaging and false statements about Chipotle. e employee took the posts down, but was fired several weeks later for organizing a petition claiming that workers weren't geing their required breaks. A er the crew member was fired, the Pennsylvania Workers Organiz- ing Commiee filed an unfair labor practice charge on his behalf. e NLR B's general counsel then filed a complaint against the company for its social media policy and for firing the employee. In her March ruling, Administra- tive Law Judge Susan A. Flynn ruled against the company, claiming the employee's rights to tweet were protected under the NL. "Having determined that [the employee]'s tweets satisfy both prongs of the anal- ysis—they were protected concerted activity and were for the purpose of mutual aid or protection—I further find that the Respondent's request that [the employee] delete those tweets was unlawful, although no discipline was imposed on him," the ruling noted. e crew member is among the nearly two-thirds of American adults who use social networking sites, according to the Pew Research Cen- ter. As the number of people using social media to vent about problems grows, companies have become more vigilant about monitoring their online reputations. at includes wanting to make sure that their own employees don't mock or insult them on Facebook, Twier, and other sites. However, in recent years, the NLR B has regularly ruled that employees have the right to complain and even insult their employers online, as long as doing so constitutes "protected activity." W hen developing policies around how workers can talk about their workplaces on social media, companies must be careful that they don't violate federal laws. Social Media Policies and the NLRA W hile it may seem like a stretch that employees have a legal right to bash their employers on social media, the NL protects the right of employees to engage in "protected concerted activities," such as group action to improve wages, benefits, and work ing conditions, and to engage in union activities and sup- port a union. Section 7 of the NL guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Sec- tion 8(a)(1) of the NL makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." The NLR B began receiv ing charges in its regional offices related to employer social media policies in 2010. In March 2015, NLR B General Counsel R ichard F. Grif- fin, Jr. released a report, "Report of the General Counsel Concerning Employer Rules," that looked at issues in employee handbooks that could be "reasonably construed" as having a chilling effect on employees' Section 7 activity. e 30-page report compares legal and illegal handbook rules, and analyzes, as an example, the handbook rules of a large employer that the general counsel found unlawful. The NLRB Faces Criticism e Chipotle case is just one of many where the NLR B ruled that employ- ees were allowed to criticize their employers online because they were exercising their Section 7 rights. In another high profile case involving a worker at Pier Sixty in New York, the NLR B found that an employee had a right to post a profane rant about his manager and his manager's family on Facebook, since the message involved a bid for unionization, along with a complaint about alleged workplace abuse. at case began in 2011, when Pier Sixty workers began considering unionizing, in part because they felt they were being treated disrespect- fully. Two days before a unionization election in October 2011, an assistant banquet director criticized employ- ees for talking among themselves during an event. One of the workers was upset by the manager's comments and responded by using his mobile phone to post a Facebook message that read: "Bob is such a NASTY MOTHER F***** don't know how to talk to people!!!!!! F*** his mother and his entire f ****** family!!!! W hat a LOSER!!!! Vote YES for the UNION!!!!!!!" e post was visible to the employee's Facebook friends, including 10 of his coworkers. e day aer Pier Sixty employees voted to unionize, the employee deleted his post. About two weeks later, the company fired the employee for violating company policy, based on the Facebook posts. A n NLR B administrative law judge initially sided w ith the employee. On March 31, 2015, the NLR B affirmed the ruling, voting 2-1 that the worker had been wrongly fired. "Although we do not condone [the employee's] use of obscene and vulgar language in his online state- ments about his manager, we agree with the judge that the particular facts and circumstances presented in this case weigh in favor of finding that [the employee's] conduct did not lose the Act's protection," read the decision by NLR B Chairman Mark Gaston Pearce and Member Lauren McFerran. Rulings like these have raised alarms at the U.S. Chamber of Commerce, which recently blasted the NLR B's approach to handbook policies, including social media, in a report entitled "eater of the Absurd: e NLR B Takes on the Employee Handbook." Are Your Firm's And Clients' Social Media Policies Legal? By Richard D. Alaniz M ost employers prefer that employees not discuss their wages with people they know. ey definitely prefer that employees not com- plain about their pay on Twier. So when a Chipotle employee at a Haverford, Pa., restaurant did exactly that, the company asked him to delete the posts. Eventually, the company fired the worker. However, earlier this year an administrative law judge with the National Labor Relations Board ("NLRB") ordered that the employee be rehired and held that the company's social media policy violated the National Labor Relations Act ("NL"). CONTINUED ON PAGE 20