CHICAGO — Audelia Santiago’s photos of co-workers on her Facebook page prompted some snarky comments.
No big deal, right?
A suburban Chicago hotel and convention center where she worked as a banquet server, thought otherwise. Last year the Tinley Park Hotel and Convention Center sacked her for violating employee handbook rules, including one against “disloyalty.”
Now Santiago could get her job back. In June, an administrative law judge with the National Labor Relations Board ruled that the convention center violated federal labor law by imposing “overly broad” employee handbook rules on Santiago and her co-workers. Those rules, the judge said, could “chill” workers from talking about their working conditions, which are protected under federal labor law.
The convention center, which can appeal the ruling, declined to comment through its attorney.
The case illustrates a growing trend of the NLRB forcing employers to revise employee handbooks for the digital age as people talk about their workplaces on sites like Facebook and Twitter.
“Workers’ rights are the same at the water cooler as they are on the Web,” said Jessica Kahanek, an NLRB spokeswoman.
Bryan O’Keefe, a Washington, D.C-based attorney who represents employers in labor disputes, said about a quarter of his caseload involves social media, work rules or disputes over activity protected under labor law. “This is a hot area,” O’Keefe said.
The volume of cases, he added, is frustrating for employers, which are having trouble keeping pace with employee handbook changes mandated by the NLRB.
Even employers that change their rules worry about getting dragged into costly legal battles, said Nancy Hammer, senior government affairs policy counsel at the Society for Human Resource Management. What’s more, she said, the law will evolve along with new types of social media.
“This isn’t going away,” Hammer said.
Richard Griffin, NLRB general counsel, released a 30-page memo in March reminding employers that “well-intentioned” rules could be illegal. Under federal labor law, Griffin said employees have a right to discuss such things as wages, hours and conditions of employment and to strike and unionize. He also wrote that employees are free to criticize or protest their employer’s labor policies or treatment of employees; to argue and debate about unions and management; to communicate with news media, government agencies and third parties; and to photograph and make recordings.
As an example of what not to do, Griffin pointed to the former employee handbook of fast-food chain Wendy’s.
One of its rules required authorization before workers could make comments on social media about Wendy’s business, policies or employees. As part of an agreement with the NLRB, Wendy’s social media policy now prohibits comments on “trade secrets and proprietary company information.”
Another previous rule forbade the disclosure of the Wendy’s handbook. This year Wendy’s changed that rule to prohibiting employees from disclosing the handbook to competitors.
Wendy’s said in a statement that it periodically changes its employee handbook to ensure it is in compliance with laws and guidance from regulatory agencies.
In the Tinley Park banquet case, Administrative Law Judge Charles Muhl found that the convention center used an illegal rule to fire Santiago. The judge said false statements are protected as long as they are not malicious.
Overall, Muhl said the convention center’s rules could be construed to prohibit workers’ rights, like workers discussing complaints about supervisors.
While the convention center argued that Santiago’s comments weren’t protected under labor law, the judge ruled that they were protected because they centered on terms and conditions of employment.
Santiago’s Facebook postings show how even relatively tame online conversations can get employees in trouble.
Her Facebook wall displayed two photos from June 27, 2014. One was a photo a co-worker took of himself with two others. The co-worker uploaded it to her Facebook during their break with the caption, “No phones at work.” One of Santiago’s friends commented, “Tell Cody to do some work for once.” Cody responded that work wasn’t required.
After work, Santiago picked up the conversation. She agreed with Cody’s comment and added that she was the only one working like a “slave” while her co-workers were taking selfies. “lol,” she wrote.
She posted a second photo of banquet servers relaxing during their break. As a joke, Santiago posted, “That’s how we work at (the convention center).” One of her Facebook friends wrote that everyone in the photo looked tired. Another said it was “unbelievable” servers were paid to do nothing. Santiago wrote that she remembered playing games in the lunch room, but now “we don’t have time for that.”
Those comments, the administrative law judge said, came after Santiago began work at 5:30 a.m. and did not take her first break until 14 hours later. He later added, “Employees’ complaints about their hours of work, including heavy workloads, long have constituted protected activity.”
Muhl ordered the convention center to reinstate Santiago, to make her whole for loss of earnings and benefits and to rescind rules that violate labor law.
Santiago declined interview requests through her attorney, Alexis Martin.
