To Tweet or Not to Tweet? Public Employee Rights During Free Time

Since President Trump took office, public participation in mass forms of civic participation has increased dramatically. The Women’s March, in Washington, D.C. and sister cities across the country, was the largest march in U.S. history. Thousands gathered at airports to protest the Muslim Ban. Activism generated more protests, like “A Day Without Immigrants,” “A Day Without Women,” and to come, a March for Science. But what role can employees working for the federal government have in speaking out? Mounting public pressure against employees highlights the need to educate public employees on their rights to engage in civic discussion and protect their interest in political speech.

A Park Ranger Started the Movement

The first display of public employee participation in civic discussion around Trump administration actions and policies began on January 20th, when the National Park Service (NPS) retweeted a side-by-side comparison of 2009 and 2017 inauguration crowds. The NPS later deleted the retweet and spokesman Thomas Crosson apologized for “mistaken RT’s.” In the first week of his presidency, President Trump instructed the Environmental Protection Agency (EPA) and the Interior Department, which oversees the NPS, to cease communicating through social media. But on January 24th, the Badlands National Park, tweeted a series of climate change data, including “Burning one gallon of gasoline puts nearly 20 lbs of carbon dioxide into our atmosphere. #climate.” By nightfall, the posts were deleted and a NPS official said that the posts were improperly posted by a former employee.

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Workplace Discrimination Against Muslims

It’s a difficult time to be a Muslim in America.  Since the tragic events of September 11, 2001, Muslim Americans have faced greater scrutiny, with recent global events triggering further anti-Muslim rhetoric in the United States and abroad.  According to a 2015 Pew Research Center study, 39% of Americans and 49% of Republicans believe that Muslims in America should be subject to more scrutiny than people of other religions.

Anti-Muslim sentiment has translated into a serious issue of anti-Muslim discrimination in the workplace.  After September 11th, the Equal Employment Opportunity Commission (EEOC) saw a 250% increase in cases of religion-based discrimination against Muslims.  Since 2002, Muslims continue to make up a disproportionate amount of the commission’s religion-based discrimination charges, hovering over 20%.

While in office, President Obama spoke out against Muslim discrimination on several occasions.  Last July, seen as a response to the growing anti-Muslim rhetoric of then candidate Trump’s campaign, President Obama called discriminatory policies against Muslims an insult to the “values that already make our nation great.”

The EEOC looked poised to further take on discrimination against Muslims in the workplace under President Obama.  Last September, the commission adopted its strategic enforcement plan for 2017 to 2021.  Among other things, the plan added the “emerging issue” of anti-Muslim discrimination to its list of priorities.  Specifically, the plan called for a focus on “backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, as tragic events in the United States and abroad have increased the likelihood of discrimination against these communities.”

It’s not clear how anti-Muslim workplace discrimination will evolve under President Trump’s administration.  The President appointed Commissioner Victoria Lipnic as the acting chair of the EEOC shortly after taking office.  Lipnic, a Republican, voted against the strategic enforcement plan that called for an increased focus on discrimination against Muslims and is expected to move the commission in a conservative direction.

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§7 Rights and Social Media: The Limits of Organizing in the Digital Age

Today the workplace looks much different than it did when the National Labor Relations Act first came into being, particularly in terms of the way workers communicate with one another and their employers.  As this transformation has taken place, a crucial question for workers is whether labor law protects their activities online.

The National Labor Relations Board has largely protected social media activity as “concerted activity” for “mutual aid or protection” under §7 of the NLRA, analogizing online activity to more traditional forms of communication.  This protection is a good thing, both for workers and for the future of labor law, a field often criticized as incapable of adapting to changing times.  But a larger question raised by these cases is the significance of organizing online.  As the cases described below explain, §7 covers communications over email, Facebook, and Twitter, but the kinds of communications protected may be poor replacements for in-person organizing.

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The Verizon Strike, The Virtual Picket Line, & The Labor Movement

36,000 Verizon workers across the Northeastern United States are currently on strike in the largest American work stoppage since 2011.  The workers, represented by the Communication Workers of America and International Brotherhood of Electrical Workers, are primarily motivated by concerns about job protection from outsourcing and the creation of well-paying jobs via expansion of services.  While many Americans have learned about the strike from picket lines, far more have seen the “virtual” picket line through Facebook, Instagram, Snapchat and other social media platforms.

As much as the strike represents an important dispute over the future of blue-collar work, it’s just as important by virtue of it being the most noteworthy work stoppage in the age of social media.  Unions and other labor-movement actors have effectively used social media before, most visibly in the Fight for $15, but they haven’t before had an opportunity to share a traditional work stoppage of this scope.  While not nearly as sizable as the ten largest strikes in American history, this strike is the first of its kind to last more than a few days and be liked, shared, and tweeted en masse in the United States (but not China).  A review of the CWA and IBEW’s social media efforts shows their virtual picket line is exposing Facebook and Twitter users to the strike, and thus represents an important visualization of collective bargaining for millennials.

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Are Workers Protected When They “Like” Facebook Posts?

Workers are increasingly using social networking sites, like Facebook, to air job-related concerns. Are their posts, tweets, and Facebook “likes” protected under the National Labor Relations Act or the First Amendment?

The National Labor Relations Board, the administrative agency that adjudicates disputes arising under the NLRA, has increasingly had to confront this question. Section 7, the heart of the statute, protects employee “concerted activity.” But the founders of the Act, which was enacted in 1935, could not have anticipated a world in which a significant amount of communication takes place online.

The Board has heard a number of cases considering employee online activity in recent years. Workers are repeatedly raising two issues (often in the same case): 1) whether the employer’s rules or policies governing employee conduct online violates Section 7; and 2) whether the employer can fire an employee for her online activity. The Board’s analysis is usually quite fact-specific (but see this law review note that identifies trends in the Boards’ rulings). The Board uses the same tests that it developed to assess more traditional forms of employee concerted activity, like face-to-face conversations, walkouts, and meetings with management, to evaluate worker online conduct.

When evaluating a workplace online policy, the Board asks whether reasonable workers would interpret the rule to prohibit Section 7-protected activity. And when assessing the legality of a firing, the Board balances the employee’s right to engage in Section 7 protected activity against the employer’s interest in protecting its reputation. Continue reading