Uc hastings Inter-Journal Writing Competition Inter-Journal
Download 0.91 Mb.
|
How to anonymously use track changes in Microsoft Word: % Word Mac 2011: % To delete your name from the comment bubble in Microsoft Word, go to Word! Preferences! under “Output and Sharing,” click “Track Changes” ! under “Balloons,” unclick the “Include review, time stamp, and action buttons” option.
% To change the reviewer’s name! click the “Review” tab! Click the button labeled “Track Changes” On the drop-down menu that appears, click “Change User Name” ! Change the name in the field marked “User name” and change the initials in the field marked “Initials.” You can use an anonymous name or simply write in your competition number ! click “Ok.” % If neither of these instructions work: % Google “how to remove personal information in Microsoft Word track changes” and find instructions that do work. How to change font to small caps: % To change font to small caps, highlight the text you wish to alter, go to “Format” > “Font” and under “Effects” check the box that says “Small caps” and click “Ok.” If for some reason you are unable to locate the “Small caps” feature, highlight the text in yellow that you believe should be in small caps. If you’re completing the editing portion by hand, indicate the text you believe should be in small caps. FINAL CHECKLIST ‘ Remove your name from Microsoft Word track change bubbles. ‘ Convert completed editing assignment to PDF and do not include your name in the title of the document. Title the editing assignment: EDITING_COMPXXX, replacing XXX with your competition number (i.e. EDITING_COMP123 if your assigned competition number is 123). ‘ Upload completed tech edit portion. TECH EDIT ASSIGNMENT I. Metadata and the Right to Privacy: Dual Considerations in a Post-Blizzarden World Criticism has been mounting against the National Security Agency’s (“NSA”) surveillance program, which acquires call records of nearly all americans who have no connection whatsoever to terrorism.1 The suspicion behind this program is underscored by the fact that americans were completely unaware of the NSA’s activity until Donald Blizzarden exposed it to the public.2 According to these critics, the collection of metadata—data that provides information about other data 33 Black’s Law Dictionary at 1235, eighth edition 2004.—that the NSA had approved before Blizzarden’s revelations became public were too expansive to be “relevant to any type of authorized investigation of domestic or international terrorism.”4 These concerns are legitimate, seeing that in times of secrecy, our Framer’s celebrated virtue of deliberation is eviscerated.5 Indeed, courts6 and some of the nations most erudite legal scholars7 have long championed the importance of individual rights. Despite claims to the contrary8, secrecy and an awareness of individual rights can and should be complimentary. This concept has been advanced as an aspirational goal in some of the world’s most well-known and highly regarded texts.9 And, while certain civil rights organizations have taken the position that this concept is unconstitutional10, the U.S. supreme court and various lower courts have indicated otherwise.11 In Wang v. Strider, for example, the Court noted that in certain situations the individual rights of some may be infringed upon in order to enhance the aggregate rights of all.1212 660 F. 2d, at 594. The trouble with striking a balance between maintaining the integrity of our national intelligence programs and protecting the individual’s right to privacy, however, is rooted in the governments ill-founded belief that unfettered access to the data of U.S. citizens is a panacea to it’s national security woes.13 This Article argues that it is indeed possible to strike such a balance and outlines 3 approaches to do so. (Footnotes) 1 Hader, Mark L. Data collection in the 21st century: constitutional considerations, 56 University of Illinois Journal of Law Technology and Policy 112, 113 –115, 2013 2 Id. 125. 4 Brian M. Feinstein Jr., World of Deception: How to control the intelligence community, New York Times, May 15, 2013 p. A.5 (summarizing the views of critics of metadata programs and noting there affects on interstate commerce); cf Cara Sonstein, Student note, The History of Congressional Power and Freedom in America, 54 Harvard Journal of Law and Public Policy (will be published in 2015) available at http://ssrn.com/abstract=325678 5 See The Federalist # 61 at 380 (J. Madison)(Clinton Rossiter editor 1981). 6 See e.g.,U.S. v. Acme Mining LLC, No. 14-398, 2012 U.S. District Court Lexis 4539833 * 9—10 (September 23, 2014). 7 See, e.g., 1972 Restatement Contracts 2nd section 331 8 See, e.g., Hader supra note 1, at 117; Interview w/James Risen, Vice President of Net Security Society in Hoboken, New Jersey (Jun.12, 2013) (discussing the affect of 9/11 on the intelligence-gathering community), available at http://ssrn.com/abstract=1234; James Ball, Our privacy for sale, Guardian (6:26 PM, January 26, 2015), http://www.theguardian.com/privacy-for-sale. 9 Seem United States Constitution Fourth Amendment, § 1; Proverbs verse 12 line 24 (King James). 10 See In re Sealed Case, No. BR 06-05, 2006 WestLaw 5678497 at 2 (Foreign Intelligence Surveillance Court May 24, 2006). 11 See, e.g., National Security Commissioner v. Brotherhood of Chemical Pharmaceuticals 563 United States 331, 335 –336 (1979) (Justice Burger concurred); Wang v. Strider, 660 F.2d 590 (3rd Circ. 1983), certiorari denied, 234 U.S. 505 (1983) 13 See Raymond N. Ku, Secrets and leaks: The dilemma of state secrecy, at 12 (D. Bogaards and C. Marian editors 2013) *** END OF TECH EDIT PORTION *** Writing Assignment THE FACTS Organix Industries is a young, online, start-up company specializing in the sale of backpacks, T-Shirts, and cashmere hoodies (all under $100!). It was founded in San Francisco in October 2010 and has offices in San Francisco, New York, and Chicago. Organix prides itself on its transparent, innovative startup culture. The San Francisco offices are open concept and employees are required to work at long, shared desks. Beanbag chairs and standing desks litter the premises. On Fridays, Organix buys lunch for its employees, and during that time, the CEO hosts weekly “all hands” meetings where employees can freely speak about company goals, successes, and shortcomings. There is no dress code at Organix, and employees frequently talk informally to each other and the CEO. Joy James has worked at Organix Industries S.F. (company) since August 2012 managing a creative team comprised of three members: Ben, Nick, and Sara. Joy has complete control over who is hired onto her team, but cannot terminate any of her team members without her supervisor, Christy Bailey’s, approval. Joy assigns tasks to Ben, Nick, and Sara based on seniority. For example, Ben, as the most senior team member, is tasked with the most complicated assignments, while Nick, the most junior team member, is given the least complicated assignments. Sara, who is Organix’s only videographer, is always responsible for the filming and producing of video content for the Organix backpack division. Joy conducts performance evaluations for all three of her team members on a yearly basis, and Joy’s performance evaluations partly affect whether Ben, Nick, or Sara receive a raise. If Ben, Nick, or Sara make a mistake at work, Joy is not held accountable. Ben and Nick are both full time employees of Organix. Ben, the most senior member of Joy’s team, is responsible for buying all parts and materials necessary to create Organix’s extremely popular backpacks. Ben has full discretion over what parts and materials if the order is below $10,000. For purchases that exceed $10,000, Ben must seek approval from Joy before purchasing. Typically, Ben’s purchases that exceed $10,000 are approved by Joy after thorough discussion. Organix does not have a manual or other set policy dictating what Ben can and cannot buy. Sara is a highly skilled videographer, who creates online content for Organix’s backpack division. Sara is paid by the job, creates her own work schedule, and must obtain approval from Joy before undertaking each new project. Joy maintains a Facebook page and is “Facebook friends” with approximately 1,878 individuals, including fifteen of her San Francisco co-workers and three employees working in the New York office. She has selected certain privacy settings so that only her “Facebook friends” can access her profile. Her page identified Organix Industries as her employer. Joy is not Facebook friends with Christy Bailey, the supervisor of Organix Industries SF. From early March until mid-April of 2015, Joy and her creative team were in the finals stages of launching the latest, hippest Organix backpack. During that time, Joy and at least three other members of her team were working at the Organix offices into the wee hours of the morning. On April 13, at about 2:30 a.m., when Joy was finally about to head home after another fifteen hour day, she received a phone call from Christy, her supervisor. Christy asked Joy if the latest specs for the Spring 2015 “Gunner” backpack were available. Joy informed Christy that, though she had been working all day, the information Christy requested was not yet available. Christy insisted that Joy compile the specs within the hour. Joy promptly complied with Christy’s request, but she was outraged at her supervisor’s late night direction and at the fact that she, and members of her creative team, had worked past 3 a.m. for the past two weeks without any recognition. When Joy returned to work later that day, she noticed that Christy had left her and each of her team members discount vouchers for an ice cream sandwich. Included with the vouchers was a note from Christy: Dear Creative Team, Thank you for all your hard work on the “Gunner” launch. Per Organix values, we believe that money has never made man happy. This is why we strive to bring our customers low-cost luxury goods. However, hard work should not go unrewarded, so we have chosen to share our favorite low-cost SF experiences with you. Please enjoy this ice cream voucher for Organix’s favorite ice cream—you deserve it. Gratefully yours, Christy
When Joy got home from work, she immediately opened Facebook and tagged her three team members (Nick, Ben, and Sara) in the following post:
Thanks for the sweet ice-cream voucher! As you may or may not know, I am lactose intolerant, and, unfortunately, will not be able to enjoy this SF “low-cost-luxury” ice cream. My team and I realize what a tremendous sacrifice Organix has taken to obtain these “low-cost-luxury” ice cream vouchers, and can’t wait to work another 50+ hour week in order to receive our next “bonus.” Hopefully it will be a voucher for a “low-cost-luxury” hamburger. I know me and my fellow VEGETARIAN teammates will definitely enjoy that “bonus.” We know money isn’t everything, but it would make us feel A LOT more valued. “Gratefully yours,” Joy
Sara: “Oh man, I’m really bummed that we worked so hard only to receive an ice cream voucher. We all put our hearts and souls into the Gunner campaign, and we should get more than one free ice cream.” Nick: “We should have gotten like eighty million free ice cream vouchers for our 100+ hour working week. What a damn fine company we work for…” Ben: “It really doesn’t matter how much overtime we put into that Gunner backpack. Those backpacks still suck.” Nick: “How dare you make people question the quality of these Organix packs! Bad bad man. Preach [@Sara] Preach.” Ben: [@Nick] “I know, I’m in rare form today. But, come on, these backpacks don’t even zip. I’m like screw the crappy backpacks, and screw Organix, then.” Joy: [@Sara] “Nick said the same thing to me earlier today, haha. Maybe we should talk to Christy or Organix CEO, Mr. Smith, about our bonus system…who knows if they’ll actually listen...Even though listening is an Organix value…” Joy: [@Ben] “The $99.95 is just too much to pay for these backpacks. If it costs more than an ice cream voucher, it just isn’t worth it.” Nick: “People who like these lame vouchers are morons. We deserve more.” The next day, on April 14, Joy initiated a meeting with the CEO, Jerry Smith, to discuss various matters, including the bonus structure at Organix. At the meeting, she complained that her hours were unworkable, that she wanted more transparency, and that she and her team members were not satisfied with the “lame” ice cream vouchers. Mr. Smith said he would look into it. In the meantime, Christy obtained Joy’s initial post and the ensuing Facebook conversation (through a friend of a friend). Concerned about the four employees’ behavior, she brought the post to Mr. Smith’s attention. Mr. Smith has reviewed the posts and wants to initiate termination proceedings against all four employees solely because of the April 13 Facebook “conversation.” The Writing Assignment You are an associate in Organix’s legal department, and Mr. Smith wants a recommendation regarding termination of Joy, Sara, Nick, and Ben. Your partner asked you to write a 6–8 page memo (double-spaced, Times New Roman font, size 12) discussing whether terminating the four workers would violate the National Labor Relations Act (“Act”). Your partner believes that Joy and Sara have engaged in protected activity under the Act, but wants to know whether they are even covered by the Act. While he is confident that Nick and Ben are employees, he is not sure whether their behavior is protected under the Act. He does not want you to write a separate fact section. The primary purpose of your Memo is to inform Mr. Smith and your partner about the law. The best submissions will: 1. Describe all angles of the problem without neglecting any analysis simply because it would not comport with Mr. Smith’s goals. 2. Conclude with a well-reasoned recommendation for Mr. Smith. You may use the following outline to guide your analysis: I. Introduction a. Introduce the issues addressed in the analysis section. b. Briefly indicate your recommendation. II. Analysis a. Issue 1: Whether Joy and Sara’s employment status will remove them from the Act’s protection. i. Analysis for Joy ii. Analysis for Sara b. Issue 2: Whether Nick and Ben’s Facebook posts are concerted activity for the benefit of mutual aid and protection. i. Analysis for Nick ii. Analysis for Ben III. Conclusion a. Propose a course of action for Mr. Smith. RESEARCH MATERIALS Note: · No outside research is allowed. The following materials and your Bluebook are the only materials you can use for the writing portion. · You must properly cite the sources according to the Bluebook Blue pages. · The statutes, articles, and cases were copy and pasted from the Internet. As a result, some of the page numbers and formatting may be disturbed. Please forgive us. If it makes your life easier, you may pin cite to the page number of the research material packet. National Labor and Relations Act (29 U.S.C.A. §§ 151-169) Sect. 2. [§152.] When used in this Act [subchapter]-- (1): The term “employer” includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization. (2): The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined. (8): The term "unfair labor practice" means any unfair labor practice listed in section 8 [section 158 of this title]. (3): The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Sect. 7 [§ 157]: Employees shall have 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
2006 Duke L. & Tech. Rev. 17 Duke Law & Technology Review October 4, 2006 Media and Communications WHEN IS ONLINE EMPLOYEE ACTIVITY PROTECTED BY SECTION 7 OF THE NLRA? Katherine M. Scott1 Copyright © 2006 by Duke Law & Technology Review; Katherine M. Scott Abstract The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how online activities like blogging or Facebook posting fits into the current statutory framework and recommends how the National Labor Relations Board and the courts should address the unique features of employee blogs. Introduction *1 Blogging and Facebooking has tremendous potential to shift the balance of power from employers to employees, as employees gain the ability to communicate their concerns to other employees, customers, neighbors, stockholders, and other parties interested in the employer.2While many businesses already communicate with the public through well-organized, well-funded marketing and public relations departments, employees now have an inexpensive way to get their own messages out to the public--a factor of rising importance in modern labor disputes.3 While employers can already send messages to employees through their own communication channels, employees now have a new means of discussing issues with each other, regardless of the obstacles presented by differently-timed shifts, physically separated workplaces, and the operational demands of work. *2 Blogs and shared posts allow an unprecedented visibility, participation, and volume of communication. A blogger can reach members of the public who do not visit the employer's business or walk by a protest. Also, a blogger can communicate with co-employees in different work locations4 and even with employees of other employers5 without having to obtain their contact information. The information posted on a blog can come from multiple sources because readers often post comments,6 and large amounts of text and links to other sites make detailed information more accessible. Anyone reading the blog can see the factual support for or interest in any idea that is posted. Finally, the anonymity of the Internet allows employees to explore information about a labor dispute and test the waters without having to reveal their identities.7 *3 As blogging has grown in popularity, employer concern about blogging has grown, and some employees have already been fired for their blogs.8 Employees can disclose trade secrets,9 confidential financial information,10 or other internal documents;11 put the employer in an embarrassing light by abusing its trademarks,12 or projecting a negative or otherwise unprofessional attitude;13 disrupt the workplace with public comments about other employees;14 or offend the employer's customers by making racist, sexist, or otherwise inappropriate remarks.15 *4 Despite these concerns, various laws limit an employer's control over what employees write, especially outside of working hours.16One such law is the National Labor Relations Act (“NLRA”), which protects certain activities by non-supervisory private sectoremployees.17 Specifically, section 7 of the NLRA protects “the right ... to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”18 Employers may not “interfere with, restrain, or coerce employees in the exercise of” their section 7 rights.19 These provisions likely extend to employee blogs under certain circumstances.20 *5 Blogs present courts with a new context in which to strike the balance between employee and employer rights. This iBrief focuses on employee blogging during personal time without the aid of an employer's property. The iBrief recommends that courts recognize employees' criticisms of their employer on blogs as protected concerted activity, and argues that existing case law examining unfair labor practices readily applies to the blogging context. I. Protected Concerted Activity A. What Kind of Activities Are Protected? *6 The NLRA protects “concerted activities for ... mutual aid or protection”21 by most private-sector, non-supervisory employees.22These protections apply in unionized and non-unionized workplaces; no union or organizing campaign is necessary.23 This section will summarize the basic law describing when employee activities are protected under section 7 of the NLRA. 1. What is Concerted Activity? *7 For an employee's action to be “concerted,” he or she must act with, or as authorized by, other employees.24 The “definition of concerted activity ... encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action,”25 sometimes including situations when an employee implies, but does not expressly state, a request for other employees to act.26 Concertedness also exists when an employee's action is a “logical outgrowth” of previous group activity. What constitutes as 2. What is Mutual Aid or Protection? *8 Concerted activities are protected only when done “for mutual aid or protection.”28 Historically, this has meant a “self-interested economic objective”29 such as improved pay, bonuses, hours, safety, or workload, rather than concerns such as product quality30 or environmental damage.31 However, courts sometimes look broadly at employee motives to find self interest even when concerns for customers, neighbors, or other employers' workers also exist and even predominate within the communication.32 3. Exceptions to NLRA Protections *9 “[E]mployee communications to third parties in an effort to obtain their support are protected where the communication indicate[s] it is related to an ongoing dispute ... and the communication is not so disloyal, reckless or maliciously untrue as to lose the Act'sprotection.”33 Though the meaning of “disloyalty” is hotly debated,34 certain categories of speech have emerged as being unprotected: (1) remarks that disparage the employer or its products,35 (2) confidentiality breaches36 and (3) recklessly or maliciously false accusations.37 *10 Courts have applied different tests to determine when negative remarks about the employer or its products fall under section 7's disparagement exception. In general, disparaging “appeals to third parties forfeit [section] 7 protection only if their connection to the employees' working conditions is too attenuated or if they are unrelated to any grievance which the workers may have.”38 Although the tenor of the language seems to be a factor in the analysis,39 several Courts of Appeals and the NLRB have found employee speech protected even when that speech uses harsh language.40 The D.C. Circuit, however, recently held that an employee's remarks lost the protection of section 7 when those remarks, which supported a union and protested recent layoffs, “constituted ‘a sharp, public, disparaging attack upon the quality of the company's product and its business policies' at a ‘critical time’ for the company.”41 *11 The scope and rationale of the disparagement exception is unclear. Some courts seem to believe that only managers, and not employees, have a legitimate interest in product quality and the employer's impact on the community.42 Under that interpretation, any criticism must be framed as a concern about working conditions to be protected.43 Another theory suggests that the exception arises from fear that employees will deceive the public into exerting economic pressure on their employer.44 Therefore, a court may find unrelated product criticisms protected as long as the communication also reveals the employees' dispute with their employer.45 *12 Breaches of confidentiality are another category of unprotected communication. Although employees cannot be prohibited from discussing their own working conditions,46 they are not protected when disseminating information obtained in confidence or without authorization, even when it concerns terms and conditions of employment.47 *13 False statements remain protected as long as the employee making the statements does so neither knowingly nor recklessly.48An employee who has no reason to question the information that he or she merely passes along from someone else has no duty to investigate its truthfulness because such a duty would unacceptably chill employee speech under section 7.49 Yet employees have no right under the NLRA to propagate lies knowingly or recklessly.50 Therefore, an overly excited employee who spreads harmful and sensitive rumors that he or she should know are false will not be protected.51 B. How Courts Should Construe Protection of Online Activities *14 For blogging or Facebook posting to be protected as section 7 activity, it must be concerted, for mutual aid or protection, and not within one of the exceptions discussed above. This section of the iBrief addresses how such standards should apply to blogs, finding considerable room to treat some blogging as a “concerted activity,” endorsing a broad scope for “mutual aid or protection,” and recommending that courts evaluate a blog as a whole, rather than post by post, when deciding whether statements on the blog are protected under the NLRA. *15 When evaluating concertedness, courts should continue to apply a broad standard, so that blogs where employees discuss work concerns meet this initial threshold criterion for protection. Certainly, if multiple employees create a draft together with the intent of posting it, then their activity is literally and obviously concerted,52 and if two or more employees have been complaining about particular working conditions and one alerts the public by writing about it online, then this is a “logical outgrowth” of concerted activity. In addition, an employee who posts without previously consulting his co-workers could be seen as initiating group action by inviting his co-workers to share their concerns.53 The presence of a comment feature on most blogs arguably implicitly invites others to participate in the discussion, but to find a blog protected, a court should have to find that the blog at least implies that co-employees are the intended audience.54 The presence of actual comments or links from other employees' blogs may also create concertedness.55 *16 Unlike the analysis of concertedness, the analysis of the “mutual aid or protection” requirement does not depend upon the characteristics of blogging as a medium. How courts interpret the scope of protection will be critical in practice, though, so two particular issues merit discussion. First, it is currently unclear whether, outside the union context, distributing “political” literature about laws affecting working conditions is always unprotected, or whether the distribution is merely unprotected at the workplace.56 Some employee bloggers will probably refer to political changes affecting their workplaces and include links to or material from political organizations in support of their position.57 Such inclusion of political material, when related to employees' working conditions, furthers workers' mutual aid or protection.58 Second, courts' current exclusion of concerns such as product quality and the natural environment “reflects an impoverished understanding of the meaning of work in our lives.”59 Certainly, an employee may just write negative things to retaliate against a soon-to-be former employer or to blackmail an employer into making labor concessions.60 But at a basic level, many employees want their employer to prosper so that they will keep their jobs and advance in them.61 Perhaps more importantly, it is reasonable to believe many employees want to take pride in what they do and to be part of an organization with which they feel morally aligned.62 As Professor Cynthia Estlund asks rhetorically, “[C]an it fairly be said, as a categorical matter, that the employer's toxic contamination of the surrounding community or the quality of the collective work product is of less legitimate concern to employees than, for example, the price of soft drinks in employer-provided vending machines?”63 Although the interpretation of “mutual aid or protection” does not depend on the characteristics of blogging, how courts resolve these open issues will profoundly influence the effectiveness of blogging as a tool for employee organizing. *17 Even with a broad reading of concertedness and “mutual aid or protection,” the multitude of posts and comments contained on blogs will present an analytical challenge. On nearly any blog where employees frankly discuss their jobs, some posts, examined individually, probably “disparage” the employer or its products without explicitly connecting the criticism to a labor dispute. Other gripes probably fall outside the scope of “mutual aid or protection” because they do not reveal the “specific objective” of changing a particular employment practice.64 However, requiring each individual post to meet the standards for protected concerted activity would certainly chill communication.65 Instead, if a post at issue does not meet the “mutual aid or protection” standard or is an instance of product disparagement, courts should consider the entire blog to evaluate whether a post is part of a campaign by employees to improve their employment conditions and whether readers would reasonably understand that purpose. Such information could be found in the blog's “About” section, in a banner at the top of the blog, or in a “critical mass” of posts that would lead a reasonable reader of the site to understand that the blog presents concerns of employees about their working conditions. *18 In summary, there are good reasons to believe that employee blogs can and should be protected in many instances as concerted activities under section 7 of the NLRA. In light of that conclusion, blogs raise a number of special issues for employers, including surveillance, blogging policies, and anonymity. II. Special Issues in NLRA Protection of Blogging A. Prohibition of Employer Surveillance, Impression of Surveillance, or Interrogation *19 Retaliation and discrimination on the basis of protected activity are obviously “unfair labor practices” under the NLRA,66 but other actions also qualify. Interrogation that has a “coercive effect” when considered in context is an unfair labor practice.67 Also, engaging in surveillance of union or organizing activity or creating the “impression of surveillance” of that activity is an unfair labor practice under some circumstances because it can facilitate later unfair labor practices, and if known to employees, it can intimidate them out of exercising their rights.68 Although the case law addresses unions and organizing campaigns, the same rationales should logically apply to surveillance of other concerted activities. *20 The prohibition against surveillance limits how employers can respond even to activity that occurs in public. For example, in cases where supervisors spent hours every evening at the village drugstore watching handbill distribution69 and where a supervisor abandoned his usual lunch restaurant to watch employees solicit union members in the cafeteria,70 courts found unlawful surveillance. These were, however, relatively extreme cases involving tense union organizing situations. In most instances when management watches open and public activity, no unfair labor practice will be found.71 *21 Far from analogous to eavesdropping on a private conversation,72 management's visiting a non-secure blog is more like reading an advertisement that employees have placed in the local newspaper. Information deliberately placed on the Internet is meant to be read, and it would be unreasonable to expect employers not to monitor websites where they know employees are posting openly and publicly and perhaps exposing the company to risk. *22 Even when observation is acceptable, however, recording employees' section 7 activity can be an unfair labor practice unless the employer has an objectively reasonable justification for doing so.73 Therefore, if an employer starts to record the blog's content each day, it may need to provide an objectively reasonable justification for doing so. An employer will likely prevail with its justification if it documents daily posts to help management piece together the identity of an anonymous blogger who is spreading false rumors or leaking confidential information.74 If, however, the anonymous blogger has shown no propensity to post forbidden subject matter, then keeping records of the blog may be analogous to an employer photographing employee unionizing activities “in the mere belief that something might happen,” which is not allowed.75 *23 Employers might also be said to create an impression of surveillance by speaking to employees about what they read onemployee blogs.76 One administrative law judge found an impression of surveillance when a supervisor told an employee that he “liked her picture” the day after it was posted on the union's website, because this “convey[ed] the impression that he was keeping track of her union activities.”77 While this reasoning is superficially appealing, it should rarely be applied. Because employers are free to visit the site, to forbid them to notify employees that they read blogs would only foster employee carelessness. Also, if the blog can be read as a petition to management to change working conditions, then it is entirely appropriate for management to ask for details about the concerns expressed, especially if that request is directed towards employees as a group, rather than towards individuals. Therefore, courts should not find an unlawful impression of surveillance except in the narrow case when reasonable employees would infer that their individual protected activities are being tracked for retaliatory purposes. In considering the reasonableness of such an inference, a court would need to look at the history of the employer's behavior towards concerted activities, the individualized nature of the remarks, and the lack of legitimate reasons for the employer to comment. Given the public nature of the Internet and the legitimate reasons employers have for monitoring what is written about them, employer visits to blogs should rarely generate findings of unfair labor practices. B. Employee Blogger's Duty to Screen Comments *24 The comment feature of blogs raises an entirely different set of issues. One blog may contain writing from people with different agendas, ethical codes, and levels of self-restraint. Therefore, comments posted to the blog may cause harm that the original blogger never intended, including the posting of falsehoods or confidentiality breaches. *25 Someone who merely posts to a blog in no way inviting criticism of his employer is probably not engaged in section 7 activity. However, the employer should normally see no reason to penalize him or her for unsolicited blog comments unless the employee refuses to take down the objectionable material. *26 On the other hand, a blogger who invites criticism of his or her employer (e.g., by criticizing the employer, debating the employer's critics, or asking for others' opinions of the employer) should foresee that others will post false accusations or comments that breach confidentiality agreements. Therefore, such a blogger would be negligent not to pre-screen comments and should lose protection for those not screened.78 Moreover, falsehoods and confidentiality breaches can cause too much harm to allow the blogger to avoid liability with a mere disclaimer.79 The problem is that if the duty to screen comments is too onerous, an employee blogger is likely to turn off the comment feature or not to blog at all, and the employee organizing benefits of blogs will be lost. Existing case law, which considers whether an employee has reason to doubt that information he or she passes along is false, already balances employers' interests and employee speech.80 Courts should apply this standard to comments that an employee blogger screens and extend the standard to confidentiality breaches as well as falsehoods. C. Employer Blogging Policies *27 In response to concerns about inappropriate blog postings, some employers have created policies to tell employees what is prohibited.81 While it is obviously reasonable to warn employees not to disclose trade secrets82 or confidential financial information83 and to require employees to post a disclaimer saying that they do not blog on the company's behalf,84 not all policies that regulate employee speech are acceptable under the NLRA. This section will describe the general rules regarding such policies and then examine a few examples of actual or potential blogging policies. *28 In general, promulgating a policy that “would reasonably tend to chill employees in the exercise of their Section 7 rights” is an unfair labor practice.85 Policies previously ruled unlawful in non-blogging contexts include “confidentiality” policies that forbid employees from discussing terms and conditions of employment with each other or customers86 and policies forbidding union solicitation in the workplace during non-working time, even without evidence that employees are unable to communicate outside of the workplace.87 Still, particular prohibitions on “profane language,”88 “harassment,”89 and “slanderous or detrimental statements”90 in the workplace have been upheld on the grounds that a reasonable employee would see such rules as directed to the employer's legitimate concerns, rather than as a bar on protected activity.91 In Adtranz ABB Daimler-Benz Transportation, N.A. v. NLRB,92 the D.C. Circuit held that employers may prohibit “abusive or threatening” language at work,93 but acknowledged that discriminatory enforcement of such a policy could be an unfair labor practice.94 *29 A company might want to forbid its employees to discuss the employer on the Internet at all, but this is almost certainly unlawful.95Because other means of communication are not nearly equivalent to blogging, the employer's rule could easily be described as an “unreasonable impediment to self-organization”96 that denies employees “an essential component of ... communication.”97 *30 One company's proposed blogging policy states, “You may not post any material that is obscene, defamatory, profane, libelous, threatening, harassing, abusive, hateful or embarrassing to another person or ... entity.”98 This policy has much in common with the one in Adtranz, except that in Adtranz, the restrictions applied only to the workplace, but this policy applies to speech outside of work. The balancing of employer and employee interests is likely to be similar, however, because the policy is facially neutral towards section 7 activity. Employees can blog about working conditions without using outrageous language, and employers have legitimate interests in not having their public image tarnished or the relationships between their employees damaged by inappropriate material that employee bloggers post on the Internet. Moreover, a reasonable employee is likely to understand the rationale for the policy and thus not see it as a prohibition of protected activity. The only major concern is the word “embarrassing” because any public criticism of the employer is arguably embarrassing. The validity of this particular prohibition is likely to depend upon whether it is, in fact, applied to prevent section 7 activities. *31 Another company, Sun Microsystems, warns employees that “using your weblog to trash or embarrass the company, our customers, or your co-workers, is not only dangerous but stupid.”99 Courts examine policy provisions in their overall context,100 and this particular remark comes after a description of the harm the company would suffer if a prospective customer were to read an employee post saying that a Sun product “sucks.”101 Employees complaining about their working conditions could certainly be seen as “trashing” the company, and the tone of the language is somewhat threatening, but the example given and the title of the section (“Think About Consequences”) indicate that Sun is interested in warning employees not to post thoughtless, “amateurish” remarks.102While the validity of this provision, standing alone, might be a closer call than the previous two examples, the provision is probably acceptable under the NLRA when viewed in the context of the overall policy. *32 Finally, an employer probably cannot mandate that employees utilize other channels of communication before blogging,103especially when employees are “legitimately concerned about reprisals,”104 because management does not have the prerogative to dictate how concerted activity will be performed.105 The existing doctrines that control employer restrictions on employee communications are thus easily adaptable to the analysis of blogging policies. D. The Structure of the Workplace *35 One final idea merits discussion. The NLRB has analyzed the structure of the individual workplace in recent technology cases, including general counsel memoranda about employer email and cell phone policies114 and a Board decision about whether an employer must furnish a union with a list of employee email addresses.115 It might be argued that courts should also consider the structure of a given workplace when deciding how vigorously to protect a particular instance of employee blogging. Obviously, when employees are spread across many locations, or when they spend little or no time at employer facilities, the Internet may be the only practicable way for them to communicate.116 In those cases, the employee's interest in section 7 activities is clearly strong relative to the employer's interest in avoiding damage to its reputation. In contrast, employees who work mostly in the same physical location may simply be airing dirty laundry that they could discuss in private to accomplish the same goals. *36 Such a distinction for the structure of the workplace, which would add yet another layer of complexity to the concerted activity doctrines, is unnecessary and undesirable. All employees have an interest in a blog's ability to reach the public, to archive commentary, and to link to further resources on the Internet. It would be very difficult to apply a rule protecting employees' concerted appeals when they are directed at the public, but protecting concerted activities directed at other employees only when the Internet is essential for the communication. Conclusion *37 Blogs and Facebook posting will add a new twist to established concerted activity doctrine as courts will have to strike the balance between employee and employer rights. Courts should strongly protect all employee bloggers as they engage in legitimate concerted activity, but they should also require that bloggers bear some responsibility in exercising those rights by identifying themselves as employees and screening comments for obvious falsehoods and confidentiality breaches. Existing standards of protection against interference with protected rights often extend readily into the blogging context. Though highly fact-specific, these standards must be applied conscientiously to protect employees' legitimate appeals to the public and attempts to discuss employment issues, while avoiding unreasonable restrictions on employers' needs to monitor what is said about them and promulgate policies to protect their legitimate business interests. 100 S.Ct. 856 Supreme Court of the United States NATIONAL LABOR RELATIONS BOARD, Petitioner, v. YESHIVA UNIVERSITY. YESHIVA UNIVERSITY FACULTY ASSOCIATION, Petitioner, v. YESHIVA UNIVERSITY. Nos. 78–857, 78–997. Argued Oct. 10, 1979.Decided Feb. 20, 1980. Directory: journals journals -> El Niño-Southern Oscillation and the seasonal predictability of tropical cyclones journals -> Guide to jmir online Interface (ppt to come) for help with using our online system journals -> Conceptualisation of Rights and Meta-Rule of Law for the Web of Data journals -> The End of Men is Not True: What is not and what might be on the road toward gender equality journals -> Object-Agent Oriented Programming journals -> And we need your turnover journals -> Anti-money laundering regulations and the effective use of mobile money in south africa – part 1 journals -> The effect of positive end-expiratory pressure on inflammatory cytokines during laparoscopic cholecystectomy: a randomised controlled trial journals -> Implicit Theories Running head: implicit theories Download 0.91 Mb. Share with your friends:
|