1. Barbara J. Diamond IATSE DISTRICT NO. ONE 60TH CONVENTION June 12, 2015

2. Diamond Law conducted a survey of NW arbitrators regarding Social Media prior to the meeting of Northwest Region of the National Academy of Arbitrators in March, 2011. Oregon LERA reviewed arbitration decisions in 2014 related to marijuana use in a presentation in 2014 by Gene Mechanic, Kyle Abraham and David Gaba.

3. Currently not many reported arbs. Current cases often draw heavily from traditional arbitral principles. P.S. Not much changed in the following 3 years. 2o11 prediction: Cases likely to increase over the next 5-10 years. 2011 prediction: Future cases will require new arbitral doctrines and principles. P.S. Not so true on new principles.

4. Social Media & Internet Drug Use (including marijuana) DUI’s “Sexploration”

5. Sexual preference and gender identity/expression cases. Sexual conduct at work. Sexual harassment outside of work.

6. Drug Test Shows Off-Duty Use Employee Goes to Rehab Employee Admits to Off-Duty Use Police involvement even without arrest

7. Allows possession, manufacture, sale of marijuana by/to adults who are 21 and over in private. OLCC website: Q: Can I lose my job for using marijuana?  A: Passage of measure 91 does not impact employment law in Oregon.

8. No duty to accommodate or to engage in the interactive process: Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 230 P.3d 518 (2010) Roe v. TeleTech Customer Care Mgmt. LLC, 171 Wash. 2d 736. 257 P.3d 586 (2011)

9. Collective Bargaining Agreement language is key. Off-Duty Marijuana use without connection to workplace insufficient for discipline. Employee must be warned of consequences of use Medical marijuana use not sufficient to avoid drug free requirements but attitudes are changing Arbitrators still consider mitigating factors.

10. Facebook posts Criminal Activity & Cyberbullying Divorce and the Spouse Who Calls the Employer

11. Duty to Bargain Concerning Private Life Issues Specific Contract Protections on Personal Life Just Cause Anti-discrimination Laws

12. NLRB supports concerted activities on FB and other social media platforms.

13. Is There a Rule? Is There a Nexus Between the Off-Duty Conduct and the Employee’s Job?

14. General Rule: The Employer Can’t Discipline For Off- Duty Conduct Without a “Workplace Nexus” Nexus is objective evidence that connects the conduct to the employee’s ability to do the job.

15. Harm to Employer’s Business Employee Fitness to Work Other Employees Won’t Work with the Employee

16. Notoriety Disparagement (social media) Provable Loss or Disruption to Business Other Employees Refuse to Work

17. Grievant is disciplined for making a disparaging remark about a manager on Grievant's Facebook page. Grievant posted the disparaging remark from her personal computer on her own time. Under just cause, discipline should be set aside unless the employer can show evidence of actual harm to its interests. 54 percent of NW arbitrators agree 17 percent of NW arbitrators disagree 33 percent “other” (the “lawyer rule”)

18. Conduct Unbecoming Immorality Employee Unavailability to Work Connection to Work Duties

19. Is the rule enforced in a non-discriminatory manner = 96 percent The employee “knew or should have known” about the policy= 94 percent Was the employer policy “reasonable”? = 71 percent What was the content of the speech= 21 percent

20. Identify policy or rule Ask for evidence of nexus, especially in social media cases Insist on confidentiality and privacy Investigate past practice

21. Require notification & testing for marijuana as with prescriptions. Be specific-define grounds for discipline/termination. Limit Testing and describe tests to be used: certain time periods, certain job classifications. Permit the placement of individuals utilizing marijuana for medical purposes in non-safety- sensitive positions. Focus on the medical model and just cause.

22. Personal life clauses: the employer agrees that an employee’s personal life is of no bearing to the employment and that no discipline will be taken based upon an employee’s off-duty or personal life decisions unless there is a clear and objective connection to the employee’s ability to do the job.

23. General rule: it’s no business of the employer what you do off the job. Watch for bargaining. Just cause protects you off the job.

24. Firefighter fired for smoking pot off duty Arbitrator held that where off-duty drug use, must be detrimental effect on the employer’s reputation or product. Three-prong test: Is there sufficient proof that the employee engaged in the conduct? Did misconduct have adverse impact on public employee’s ability to operate efficiently and effectively? Does conduct warrant the particular discipline imposed? Employee reinstated: Mitigating factors of 9 years good performance and personal & health problems Firefighter fired for smoking pot off duty Arbitrator held that where off- duty drug use, must be detrimental effect on the employer’s reputation or product. Three-prong test: Is there sufficient proof that the employee engaged in the conduct? Did misconduct have adverse impact on public employee’s ability to operate efficiently and effectively? Does conduct warrant the particular discipline imposed? Employee reinstated: Mitigating factors of 9 years good performance and personal & health problems

25. Sheriff’s deputy tested positive for marijuana use while off-duty. This was his second incident Arbitrator reduced 60 day suspension to 10 days where: One policy states that an employee who tests positive may be subject to discipline up to and including termination But Substance Abuse Policy states if employee tests positive for drug use in a follow-up test, will be suspended for 10 days. Employee had right to know consequences with specificity

26. Law Review Articles on Social Media A. Levinson, “What Hath the Twenty First Century Wrought? Issues in the Workplace Arising from New Technologies and How Arbitrators are Dealing with Them,” Tennessee Journal of Business Law, Vol. 11, (2010). L. Gelman, “Privacy, Free Speech, and ‘Blurry-Edged’ Social Networks,” Boston College Law Review, Vol. 50:1315, (2009). A. Levinson, “Industrial Justice: Privacy Protection for the Employed,” Cornell Journal of Law and Public Policy, Vol. 18 (2008-2009). “Defamation in the Internet Age: Why Roommates.com Isn’t Enough to Change the Rules for Anonymous Gossip Websites,” 62 Florida Law Review 259 (January 2010).

27. Grievant discharged based on positive test for marijuana Arbitrator reinstated employee When employee abuses alcohol or drugs during nonworking hours away from company premises, an employer, in order to take disciplinary action, is obliged to connect drug use to the employee’s responsibilities. Grievant had no warning that a positive drug test would lead to termination. Grievant did not work in a safety-sensitive position