Employment Law: Even a Selfie Can Be Protected by the NLRA

Why it matters

selfies_at_work_facebookA worker who violated her employer’s no cellphone use and disloyalty policies by taking selfies with coworkers that were posted online with a comment that she was “working like an [sic] slave” was terminated in violation of the National Labor Relations Act (NLRA), an administrative law judge recently determined. The Tinley Park Hotel and Convention Center had a rule banning cellphone use during working hours, as well as a provision in the employee handbook prohibiting disloyalty. When she was fired after a selfie taken during work hours was posted and commenting on it, Audelia Santiago filed a complaint with the National Labor Relations Board (NLRB). An administrative law judge had no problem with the no-cellphone rule but found the disloyalty policy ran afoul of the NLRA, impeding concerted, protected employee activity. Even though Santiago’s discharge for violating the ban on cellphone use was lawful, Tinley Park also cited the disloyalty policy for her termination and therefore remained liable under the statute. “[A]n employer does not escape liability for an unlawful discharge because it asserts other, lawful reasons for the same disciplinary actions,” the judge wrote, ordering the employer to rehire Santiago and change its policy. The decision is the latest in the streak of employee-friendly rulings from the NLRB, striking down policies on everything from dress codes to social media policies.

Detailed discussion

Tinley Park Hotel and Convention Center provides hotel, meeting, and convention center services in Illinois. Audelia Santiago was employed at one of its operations, a Chicago Holiday Inn hotel, where she worked as a banquet server since 2007.

In 2011, Tinley Park issued an updated employee handbook. As relevant to the dispute, Rule 9 prohibited “Disloyalty, including disparaging or denigrating the food, beverages, or services of the company, its guests, associates, or supervisors by making or publishing false or malicious statements.” In addition, Rule 30 stated: “Cellular phone usage during work hours is prohibited.”

Employees in violation of the handbook were subject to discipline—including discharge—even for a first-time offense.

On June 27, 2014, Santiago arrived at work at 5:30 a.m. and worked continuously without a break until she finished setting up for dinner at 7:30 p.m. Joined by other employees, she then took a break in a nonpublic hallway until 8 p.m. A coworker took a selfie with a handful of employees and then posted the picture to Santiago’s Facebook page with the caption, “No phones at work.”

Multiple people commented on the post and when her shift was over, Santiago herself replied to a comment by writing “Yea Cody you are right cause while I was the only one working like an slave you guys were taking selfies with my own phone and posting them on my wall lol.” She also posted additional pictures from the hallway, one with the caption, “That’s how we work at TPCC.”

Santiago later testified the comment was a joke because the picture made it appear that the employees were not working when they had actually just taken their first break of the day. Again, several people commented on the post with remarks like “keep paying all these people for doing nothing.”

A few days later, Santiago was terminated for using her cellphone while on duty and violating the disloyalty provision of the employee handbook. Santiago lied and said she did not take or post any pictures to Facebook. She then filed a charge with the National Labor Relations Board (NLRB). The General Counsel filed a complaint against Tinley Park and a trial was held in April.

Santiago’s termination violated Section 8(a)(1) of the National Labor Relations Act (NLRA), Administrative Law Judge Charles J. Muhl determined. “Rule 9 reasonably could be construed to prohibit protected activity, such as coworkers discussing with one another the complaints they have about their supervisors.”

The Board has “repeatedly” found language similar to that in Tinley Park’s disloyalty provision to be unlawful, Muhl wrote, and has drawn a distinction between statements that are both false and malicious (which are not protected) and statements that are merely false (which retain protection). “By prohibiting ‘false or malicious’ statements, [Tinley Park] has banned merely false statements, an overly broad prohibition,” the ALJ wrote.

Santiago’s June 27 comments were protected, even if not concerted, and implicated the concerns underlying Section 7, Muhl determined. “Part of the back and forth between Santiago and her Facebook friends centered on their terms and conditions of employment that day, in particular how hard Santiago and other employees had been working,” the ALJ said. “Santiago stated she had been working like a ‘slave’ and noted that she had no time to play games like she used to do. These comments came after Santiago began work at 5:30 a.m., but did not take her first break until 14 hours later at 7:30 p.m. that day. Employees’ complaints about their hours of work, including heavy workloads, long have constituted protected activity.

Tinley Park argued that Santiago was terminated in part because she violated the ban on cellphone use, a rule that did not violate the NLRA. But Muhl held that because her discharge was based at least in part on her violation of Rule 9—her termination form explicitly cited the violation—her discharge was unlawful.

“Although her discharge also was justified by violations of [Tinley Park’s] cell phone rules, an employer does not escape liability for an unlawful discharge because it asserts other, lawful reasons for the same disciplinary action,” the ALJ said. “The fact that one reason for a disciplinary action is lawful in no way diminishes the fact that the other reason was unlawful.”

The General Counsel also challenged three other provisions of Tinley Park’s employee handbook: a rule forbidding employees from disclosing confidential information, including wages; a rule prohibiting “discourteous or disrespectful” treatment of guests, among others; and a “catch-all” provision for “[a]ny other conduct that the company believes has created, or may lead to the creation of a situation that may disrupt or interfered with the amicable, profitable and safe operation of the company.”

Muhl struck down all three of the rules, finding they violated Section 8(a)(1) of the NLRA. The ALJ ordered Tinley Park to cease and desist from maintaining the challenged rules and to offer Santiago full reinstatement to her former position and make her whole for any loss of earnings and benefits.

Tinley Park has already appealed the decision to the Board.

Read the decision in Tinley Park Hotel and Convention Center v. Santiago:

Source: Employment Law – July 2015 | Manatt, Phelps & Phillips, LLP – JDSupra

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