Can Anyone One of Us Wholly Appreciate the Sacrifice and Powerful Unwavering Strength in This Man's Character? Imagine Where We Might be if Only... !

As we Celebrate the Life and Triumphs of Dr. Martin Luther King... 
Let's not Forget that During Those Difficult Sometimes Horrifiing Times Dr. King was Among the First to Call the War in Vietnam Patently and Ethically Wrong.

NLRB Effects: Regulating Employee Use Of Social Media

This post was co-authored by Elizabeth Arce

Edited by I, Praetorian

 It seems that every time you turn on the news some new technological innovation is being announced.  For example, recent weeks have seen the unveiling of new tablet computers and smartphones.  In addition, social media platforms such as Facebook and LinkedIn are constantly announcing upgrades to their websites to improve the way users communicate with one another via the internet.  However, just as technology is rapidly changing, the laws regulating the use of social media by school and public employees also continue to evolve in random statute and always after the fact.

Since these initial blog posts and article on legal developments regarding employee social media use, the National Labor Relations Board’s (NLRB) Office of General Counsel released a report analyzing various issues relating to social media use by employees and employer policies that attempt to regulate it.  In addition, two NLRB Administrative Law Judges (“ALJs”) issued decisions that provide further guidance in these areas. 

In Hispanic United of Buffalo (“HUB”), an ALJ ordered a nonprofit corporation to reinstate five employees who were fired after posting comments on Facebook criticizing workload and staffing issues.  The ALJ concluded that the employees engaged in protected concerted activity because they were discussing matters that involving terms and conditions of their employment. 

In Knauz BMW, an ALJ found that a car dealership’s employee handbook contained policies that restrict and limit an employee’s right to engage in concerted activity.  However, the ALJ upheld the employer’s termination of an employee who posted pictures of an accident at another dealership, also owned by his employer, with unflattering comments about the salesperson involved in it on the grounds that the posting was not protected concerted activity.

These recent pronouncements from the NLRB clarify the law regarding the scope of social media use by employees and provide the following guidance to employers:

1.    Employees’ Social Media Postings With Each Other About The Terms and Conditions of Their Employment Are Protected.  Employees engage in protected concerted activity when they use social media to communicate with one another about work related issues.  Concerted activity will also be found when the employee posts comments that express the views of other employees or that attempt to initiate or induce coworkers to take group action.  This can include complaints among employees about commissions, tax withholding practices and workload and staffing issues.  Thus, posts that are not work related or that express individual gripes, frustrations or complaints are not protected. 

2.    Work Related Postings That Are Sarcastic or Mocking in Tone May Be Protected.  In Knauz BMW, the ALJ considered two Facebook postings by the employee.  The first involved criticism of a sales event, including the inadequacy of the food being served, which employees felt could affect employee compensation.  The second posting involved an accident at another dealership.  The ALJ found that the posting concerning the accident was not protected concerted activity, and that the employer terminated the employee for that posting.  The decision discusses what language rises to the level of disparagement necessary find otherwise protected activities unprotected.  The NLRB has found statements that are mocking or sarcastic ,and terms such as “a-holes” and a “cheap son of a bitch” attributed to supervisors to be protected concerted activity when uttered in the course of otherwise protected concerted activity.  Employers must meet a very high threshold to prove language is disparaging and beyond protection in the context of employees acting together to challenge their working conditions.

3.    Polices That Can Be Reasonably Interpreted to Restrict Employees’ Right to Engage In Concerted Activity Are Improper.  In evaluating whether a social media policy improperly limits an employee’s ability to engage in protected concerted activity, employers should ask whether the rule or policy explicitly prohibits the exercise of this right or would reasonably tend to chill the employee’s exercise of it.  In order words, policies that could be interpreted as discouraging an employee to discuss the terms and conditions of employment are likely improper.

4.    Policies That Can Be Reasonably Interpreted to Protect the Relationship Between the Employer and Its Customers Are Proper.  In Knauz BMW, the ALJ determined that language in an employee handbook stating “[a] bad attitude creates a difficult working environment and prevents to [employer] from providing quality service to our customers” was proper.  The ALJ reasoned that the employer had a right to demand that its employees not display a bad attitude towards customers in order to protect the employer’s relationship with its customers.

Employers who have adopted social media policies should review them with the above guidelines in mind.  Finally, because the law in this area continues to rapidly change, employers should stay tuned to this blog and our Twitter (@lcwlegal and hashtag #lcwsocialmedia) for further updates.

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Did I Forget to Mention...
Moreno Valley Unified School District is falling possibly spiraling into the abyss of financial insolvency? That's the truth as best I can determine from financial records from previous years. The District can't even pay off the last attorney firm they used to defend themselves from the repercussions of their own petty often criminally liable personal attacks on their own employees by MVUSD administrators OR the swollen egos of the senior board trustees.


Go ahead ask, "now how would he know that?" I too have fallen victim to the same unwarranted attack on my professional and personal reputation and ultimately my employment for drawing attention to the multitude of problems in house at the district level first. Nothing. More cover-ups. More lies. The same things I write about here in my blogs. My exercise in 1st amendment rights. As it turns out HR and two senior board members are so anxious to get rid of me that they turned down their own attorneys' advice to settle this matter on two previous  occasions - that's right they ignored their own attorney's high-high priced advice twice in two months. They are burning your tax money on personal vendettas that could cost the district over a $million$ dollars in combined attorney's fees and court costs alone. If we go there, that will only be the price of admission. Three to Five years including appeals. WOW that's a ton of your money snatched right out of your child's education. You know the free and adequate education promised by state and federal law. As of today however that is the route we seem to be headed for. 


These two senior trustees and their HR puppet have squandered upwards of $30,000 dollars of your tax money to date on trying to conjure up a story that even their own attorney's know won't fly. All to make me go away. 8 mo.s without pay. Put off work for three months without explanation. Then the fictionalized allegations against me. Denied me due process. They will reach an easy $200-300 thousand if we have to ready for to civil action after the hearing on Thursday January 19, 2012. 


I tried as best I could to avoid this route. I have no interest in taking money from the kids I care about. I met secretly with Jesus Holguin in late November, 2010 and he promised to help that the problem was "being addressed as we spoke..." He lied. He didn't keep a single promise to correct the problem(s). He simply wanted to see the information I had gathered on Victoria Baca. A former board trustee that a friend and I helped to unseat. In fact Jesus voted to try and find a way to dismiss me, or starve me out. And Rick Sayre backed or forced that play. Rick is up for reelection in November. I now know why he doesn't want me digging around or anyone else for that matter. Much to come on his shenanigans and bully-boy tactics. He was right not to want me nosing around 
but 8 months without work tends to make me very curious. Come back soon, here at the only place you can get your hands dirty an keep your nails clean.
I, Praetorian

Prestige and respect, not only salary, are seen as crucial elements in the quest for a truly professional teacher workforce

By Stephen Sawchuk

One of the most troubling things that the 2010 National Teacher of the Year, Sarah Brown Wessling, hears about her profession can be summed up in a single observation: the idea that she and other top-performing colleagues are "just" teachers.

The word "just" serves as a reminder of a subtle mindset among some in the United States that a career in K-12 teaching, while considered noble, is nevertheless somehow seen as beneath the capacity of talented young men and women.

"People go into teaching because they are committed to young people, because they are incredible communicators or experts in their field," says Wessling, a high school English teacher in Johnston, Iowa. "But many people in our country see teaching as though it were something one chose as a fall back career. A type of government job with mediocre pay but good benefits. plug in for 20+ years then retire. WRONG! COULDN'T BE MORE SO. EMPLOYEES WITH THAT MIND SET USUALLY WASH OUT IN 3-4 YEARS. OR THEY FAST TRACK THEMSELVES OUT OF THE SCHOOL SITE AND INTO THE DISTRICT OFFICE ADMINISTRATION. THEY AREN'T GOING TO THROW AWAY THE 50-60 THOUSAND DOLLARS IT TOOK TO FIND OUT THEY HATE WORKING WITH KIDS AND PARENTS. IT IS NOT A AVOCATION FOR THE WEAK OF HEART OR LACKING IN PASSION FOR THE ENDEAVOR.

Its hard work and most people have unrealistic expectations of today's students and parents. And our own society sees us as mildly noble or just not ambitious enough to get into a real (read paying) field.
In Finland, the country whose education practices we've come to admire even more than the Japanese system that "W" and his cronies so often falsely and purposefully mislead us to believe were the apples to apples, the perfect example for the absolute need for NCLB. Lets not forget that NCLB was normed on fabricated test data from one or more districts in the Houston, Texas area that admitted to fixing the numbers. A thinly veiled attempt at crippling the public education system in lieu of a more privatized thereby inherently more exclusive system. I have joked sardonically about "W's" dream of a Walmart National Elementary School District for kids whose parents couldn't afford to pad their vouchers and send their children to the "nicer schools." The schools whose teachers weren't Chinese Factory Workers on assignment by the Beijing Government, under contract with Walmart Stores. International.