Employment and Labor Insider - Legalese Is Not Spoken Here

Fellow blogger Jon Hyman, among others, has already written an eloquent critique of the latest report from the Office of the General Counsel of the National Labor Relations Board on social media and protected concerted activity, and Dan Schwartz has a good roundup of what labor lawyers are saying about it (and also a call for employers not to overreact). If you haven't read Jon and Dan, you ought to do so.

I was interviewed by LXBN TV recently about this topic, but today I'd like to expand on it a bit with the help of my law partner and labor "gladiator," Cliff Nelson. To hear Cliff tell it, he is a low-tech kind of guy. Maybe because of this, he had a fresh insight into the NLRB's social media policy that I haven't heard anywhere else.

Cliff notes (hahaha - get it?) that an overbroad no-solicitation policy can result in setting aside a union election, and he says that the same could be true where an employer has an overbroad social media policy. So, even if you agree with Dan Schwartz that generally it's premature to rush out to rewrite your social media policy, you might want to do it post haste if you think your company is vulnerable to a union campaign -- especially with the new "streamlined" election procedures, which don't give employers much time to get ready.

"In any event," Cliff says, "amending the policy once an 'R' case [election] petition had been filed would not insulate the policy from being objectionable and from being ground for overturning a company victory."

He adds, "Of course, it may take some of the unions a bit of time to wake up to this fact, but employers would be taking an unnecessary risk nonetheless."  

Accentuate the Positive

The NLRB report said that almost every social media policy under consideration was overbroad. However, two policies survived the General Counsel's scrutiny*, and they bear some examination: (1) it was ok for an employer's social media policy to prohibit discriminatory or harassing comments based on race, sex, and other "EEO-protected" characteristics; and (2) it was ok for a pharmacy chain's social media policy to prohibit communication of the employer's confidential and proprietary information, client or employee protected health information, or information that had been "embargoed" by corporate (in other words, scheduled for public release but not until a later date).

I will go out on a limb and posit two principles based on the above:

(1) If a communication would violate a law (or cause the employer to be in violation of the law) or a specific legitimate employer interest, the employer can probably prohibit it.

(2) If the policy provides specific guidance, preferably with examples, about what types of communications are prohibited, it is more likely to be upheld because the specificity would make it that much less likely to have a "chilling effect" on all protected communication. This is in contrast to policies that simply ban "inappropriate" use of social media, or "disparaging" comments.

One other reason not to panic about this: As long as you haven't fired an employee for violating your social media policy, or taken some other action that results in a monetary loss (like a demotion or suspension without pay), the legal remedy for your "unlawful" policy is to replace it with a lawful one and to post an NLRB notice in the workplace saying you did wrong and won't do it again. In other words, not the end of the world.

That is, unless your policy invalidates your union election victory and requires you to go through all that mess again. Sigh.

Terminations and Other Adverse Actions 

When the first General Counsel report on social media came out last summer, I provided some bullets on the terminations that were considered legal and illegal. Recall that "protected concerted activity" (affectionately known as "PCA" for short) can exist even if the employer is non-union. For those of you used to the "EEO" world, a protected concerted activity claim is essentially a type of "retaliation" claim. As you read the outcomes of the latest social media/termination charges, keep these two points in mind:

The activity has to be "concerted," meaning that the employee must be part of a group or acting on behalf of a group, or preparing for group action.

The subject matter of the "concerted" activity must pertain to terms and conditions of employment.

A summary of the terminations discussed in the January General Counsel report appears after the jump:

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Colin O'Keefe of LXBN TV interviewed me yesterday about the NLRB's latest report on social media, and what it means for employers. Here it is, but you may want to turn the volume down before you start -- my volume was a lot louder than Colin's for some reason.

Colin, thank you for the interview and for your kind words about Employment & Labor Insider!

What a year, am I right or am I right? Here is a catalog of the major employment and labor law developments from 2011. And, just to keep it entertaining, I've started off each month with a weird but true off-topic story that was in the news that month. Many thanks to Drudge Report archives for the strange stuff. Thanks also to Esquire magazine's annual Dubious Achievement Awards (sadly, discontinued in 2008) and Dave Barry's Year in Review, both of which I am ripping off paying homage to.

Now, fix me a drink, will ya? We have a lot to talk about.

JANUARY

Ah-choo! Some teenage burglars stole an urn that contained the cremated remains of a man and two great Danes. The teens, obviously not criminal masterminds, snorted the ashes, believing them to be cocaine. 

and . . .

"He*l, they're all disgruntled. I ain't runnin' no da*n daisy farm!" The EEOC reported that for fiscal year 2010 it received a record number of charges, and that retaliation charges surpassed race discrimination charges for the first time in history.

Express yourself. The U.S. Department of Labor issued guidance on its "lactation accommodation" provisions in the Patient Protection and Affordable Care Act (aka "Obamacare") and requested feedback from the public.

GINA: It's more than just a pretty name. The Genetic Information Nondiscrimination Act, which prohibits the acquisition, use or disclosure of "genetic information," which includes family medical history information, took effect.

Nice family. I'd hate to see somet'ing happen to 'em, ya know? The Supreme Court held in Thompson v. North American Stainless that the Title VII anti-retaliation provisions extend to fiances and other significant others of the person who engages in legally protected activity.

FEBRUARY

"Of course, you realize this means war." Uber-disgruntled ex-employee Charlie Sheen declared war on his former employers CBS and Warner Brothers.

and . . .

Another county heard from. (Or is it "country"?) Constangy, Brooks launched the most-excellent Employee Benefits Unplugged, which covers income tax, executive compensation, 401(k) and 403(b) plans, fiduciary compliance, and Department of Labor and Internal Revenue Service audits. All of the attorneys in the firm's Employee Benefits Practice group contribute, but the Chief Blogmistress is Jewell Lim Esposito from the firm's Fairfax, Virginia office.

MARCH

I hate to say "You can't make this stuff up," but you really can't make this stuff up. A New York man who had a court appearance on a DWI charge showed up with an open can of beer and (allegedy) was carrying a bag with four more cans of beer. The man, who had prior DWIs, was jailed with no bail.

and . . . 

At the stroke of a pen, entire nation becomes disabled. The EEOC issued its Final Rule interpreting the Americans with Disabilities Act Amendments Act.

Make sure your "paws" know the laws. The U.S. Supreme Court found in Staub v. Proctor Hospital that an employer could be liable under a "cat's paw theory" for employment decisions that were influenced by a supervisor or other member of management who had an unlawful motive.

APRIL

Study: Members of Congress give each other much less grief than they deserve. A Harvard professor conducted a study that concluded that members of Congress spent 27 percent of their time taunting each other.

and . . .

Life begins at Concepcion. The U.S. Supreme Court found in AT&T v. Concepcion that arbitration of class claims was ok and consistent with the policy underlying the Federal Arbitration Act. The Concepcion decision overruled the interpretation of the California courts that class claims could not be arbitrated.

OFCCP starts pilin' on. The Office of Federal Contract Compliance Programs issued a proposed rule regarding the obligations of federal contractors to recruit and hire veterans. Although the desire to help veterans is laudable, the rule would impose significant compliance burdens on federal contractors.

Nothing could be finah . . . The NLRB filed a complaint against Boeing Corporation for opening a production line in North Charleston, South Carolina, instead of the outskirts of Seattle, Washington, where most of its production was located. The Board alleged that the move to right-to-work South Carolina was the company's unlawful attempt to avoid dealing with the International Association of Machinists, which had carried on a number of strikes at the Washington State facility over the years.

MAY

Cannibal Lecter. A man ran an internet ad seeking someone "who would agree to be killed, cooked, and eaten." A Swiss man answered the ad, thinking it was just a fantasy game, but after talking with the "cannibal" on the phone, determined that he was deadly serious. (Tehe. Get it?) The would-be "meal" called the police, who answered the ad undercover and foiled the banquet.  

and . . .

"I'm a victim of soicumstance!" (Probably true.) Bruce Raynor, President of the Workers United affiliate of the Service Employees International Union and International Executive Vice President of the SEIU, was forced out of both positions after being charged with filing misleading expense reports. Raynor, a labor leader for 38 years and who had been president of UNITE and UNITE HERE for eight years before joining Workers United, contended that he was a victim of SEIU politics.

Kiss our apps! The U.S. Department of Labor launched its wage and hour recordkeeping app (at link, scroll down to "Email your timesheets directly to Big Brother!") for iPhones and iPods, with a promise to develop counterparts for Androids and Blackberrys.

Labor pains. The NLRB sued the state of Arizona over a constitutional amendment that protected the right of employees to have secret ballots in union representation elections. The Board contends that state constitutional amendments like Arizona's are preempted by the NLRB. It has also sued the state of South Dakota for the same reason.

Your money, or your life. The OFCCP proposed changing the scheduling letter that it sends to federal contractors who are being audited. The changes would require contractors to provide detailed, individualized information about employees' compensation, among other proposed changes.

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Happy Labor Day weekend! Over the next 6 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.

I may also have more in-depth postings as circumstances warrant.

Employer FAQ No. 6: We don't have a union. Do I still have to display that new NLRB poster?

Maybe. If you are covered under the National Labor Relations Act, then you have to display the new poster, which explains employees' right to join a union and engage in other activity protected by the NLRA. Unless you are a federal contractor, in which case, you don't.

Now, wasn't that easy?

There is actually a fairly simple explanation for this. Back in 2009, the Obama Administration began requiring federal contractors to post what we liked to call the "anti-Beck" poster.

(Now that I think about it, maybe the explanation isn't that simple.)

OK, OK, let me try again. See, back under the Bush Administration, federal contractors were required to post a notice telling employees that they had the right under Communication Workers v. Beck to withhold the portion of their union dues that went to support political and other activities unrelated to collective bargaining. We called this the Beck poster, for obvious reasons.

When President Obama came into office, he issued an Executive Order 13496 requiring federal contractors to post a notice that contained content that was much more "union-friendly" and, as it so happens, had content identical to the content of the new NLRA poster.

For that reason, federal contractors will not be required to post the new NLRB poster, which would say exactly the same thing as the "anti-Beck" posters that they already have up. But all other NLRA-covered employers will have to have the new NLRB poster up by November 14. (The NLRB poster is expected to be available on the Board's website beginning November 1.)

How do I know whether I'm covered by the NLRA? Generally, if you are a private employer in interstate commerce, you are covered. (Public employers, railway and airline employers, and agricultural employees are among the exceptions.)

What are all the ins and outs of the new NLRB posting? Here is a great print 'n' save by our own Kim Seten. It will tell you everything you need to know.

FAQ No. 1: What exactly is this "interactive process" that we hear so much about?

FAQ No. 2: "What does 'right to work' mean?"

FAQ No. 3: When do I have to start saving electronic evidence?

FAQ No. 4: Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?

FAQ No. 5: Is there any difference between light duty and reasonable accommodation?

Don't forget to send me your own employer FAQs! And don't forget, if you vote for Pedro Employment & Labor Insider, all of your wildest dreams will come true.

DEAR READERS: If you enjoy this blog, we'd be most grateful if you would nominate it for the 2011 Blawg 100 list of the American Bar Association. (Blawg = blog + law . . . get it?) Attorneys and employees of Constangy are not eligible to vote. All entries must be submitted by September 9. While you're at it, please cast another vote for our sister blog, Employee Benefits Unplugged. Thank you for your support!

A number of employers, non-union as well as union, have been burned recently by the National Labor Relations Board for their social media policies, or the application of those policies.

The National Labor Relations Board issued yesterday a memorandum summarizing its findings on social media cases from the past year. The memo is well worth a read, and provides helpful guidance on the Board's position.

First -- for you non-union folks, a quick summary of "protected concerted activity." The National Labor Relations Act protects even non-union employees who act together in matters related to the terms and conditions of their employment. This can include group activity (a "group" is defined as more than one employee), or even the activity of a single employee, if the employee is acting on behalf of a "group" or preparing for "group" action.

For example, in an employee meeting, two employees may complain that the company is scheduling too much overtime and that it's hindering their safe performance of the job. This is "protected concerted activity," and it would generally be unlawful for the employer to take action against the employees because they raised these concerns.

Protected concerted activity has become a big concern, thanks to the internet and social media, which make it so much easier for employees to complain "in concert," and for employers to find out about it. Anti-employer rants on Facebook, Twitter, and personal blogs are not uncommon. If your gut reaction to this is the same as my gut reaction, you are thinking, "Why in the world can't I fire an employee who calls me a 'scumbag' or an 'as**ole' on the internet?"

Because it may be "protected concerted activity," that's why.

Here is a quickie reference to the guidance provided by the NLRB. As I said, reading the full memo will be well worth your time. The memorandum also contains guidance for employers on developing social media policies that will pass legal muster.

PROTECTED:

*Employee of non-profit was scheduled for a meeting with her executive director to discuss a dispute about her job performance. She posted about it on Facebook and got feedback from her co-workers.

*Emergency medical technician was asked by her supervisor to respond to customer complaint and was denied a request for union representation. EMT posted negative comments about her supervisor on Facebook, received responses from her co-workers, and called her supervisor a "scumbag."

*Car salesman posted on Facebook photos and criticism of food offered by dealership at sales event, saying that food was too chintzy for their clientele and would adversely affect sales commissions. Co-workers commented their agreement.

*Restaurant employees posted on Facebook comments about employer's allegedly improper tax withholding practices, and one employee said employer was "[s]uch an as**ole."

NOT PROTECTED:

*Newspaper reporter tweeted (on Twitter, duh) criticisms of his copy editors and was instructed to stop it. He did, but he continued to tweet about local homicides and sexually oriented topics. Finally, he tweeted a criticism of a local television station, drawing a complaint from the TV station to the newspaper. Presumably the criticisms of the copy editors might have been protected, but there was no indication that the newspaper had terminated him for that. The other tweets were not about terms and conditions of his employment, and he didn't seek to involve other employees.

*Bartender griped to a relative on Facebook about employer's tipping policy, calling customers "rednecks," and saying he hoped they would choke on glass as they drove home drunk. 

*Employee criticized employer on Facebook wall of her Senator but no one else, and was not seeking to involve other employees.

*Employee who worked in program for people with mental health problems posted on Facebook about alleged mental illnesses of the clients, saying that it felt "spooky" being alone in mental institution, that a client "was cracking her up," and making similar comments. The only "friends" who responded were not co-workers.

*Retail employee posted on Facebook about management "tyranny" and called his assistant manager an obscene name, and said that a lot of employees were ready to quit. Although he received generally supportive comments from co-workers (like "hang in there"), the Board's regional office found that it was an "individual gripe."

NOT PROTECTED, AND ILLEGAL:

*Union business agent and three organizers went to worksite of non-union employer and began interrogating workers as to whether they were legally authorized to work in the United States, and threatening to call immigration and have the employees deported. One of the union representatives videotaped the event, and an edited version was posted on YouTube and Facebook. The regional office found that the Union unlawfully interfered with the employees' rights by interrogation, threats, and coercion, and also interfered with the rights of other employees who might have seen the video on the internet.

. . . AND IN OTHER NEWS . . .

EEOC office issues directive on preservation of electronic evidence. The St. Louis office of the Equal Employment Opportunity Commission is issuing written instructions to companies about the preservation of electronic evidence. We don't know whether other EEOC offices are doing this. On one hand, it is not a bad idea for the Commission to remind employers of their obligations in this area and may prevent them from getting into trouble with a spoliation instruction later. On the other hand, will this just give the EEOC one more weapon against employers?

He may have a superior legal mind, but he has a fool for a client. The ABA Journal reported this week that a first-year associate who was fired from his law firm job for sending an all-attorney email touting his "superior legal mind" (and related "ego" issues) is now suing his ex-firm for $77 million. Not surprisingly, he is representing himself. Pretty big case for a first-year going solo . . . one third of $77 million is, what, a little more than $25 million?

My head is spinning so fast, I feel like I'm Linda Blair. (Or, "Keepin' up is hard to do.") Remember Ricci v. DeStefano, in which the U.S. Supreme Court said that the city of New Haven, Connecticut, could not throw out the results of a firefighter promotion exam because of a racial disparity in the results? After that decision, the city complied and promoted the white guys (and one Hispanic guy), and got dismissal of a lawsuit filed by some African-American firefighters who contended that the test had a racially disparate impact. The trial court threw out the black firefighters' lawsuit on the ground that the town was doing what it had to do to comply with Ricci. Now, a three-judge panel of the U.S. Court of Appeals for the Second Circuit (which handles appeals from federal courts in Connecticut, New York, and Vermont) has vacated the dismissal -- allowing the black firefighters' lawsuit to proceed, at least for now. Poor New Haven is damned no matter what it does.

Check us out! Employment & Labor Insider was included in the August Employment Law Blog Carnival, hosted by Jon Hyman (scroll down to "Say you're sorry when you hurt somebody," but read the other fine posts, too).

The Wall Street Journal had a good article this week about Girl Scout cookie sales at the workplace and how much charitable solicitation (if any) should go on at work.

Before I say another word, let me make one thing perfectly clear: I am 100 percent pro-charity. Those of us who are fortunate enough to have incomes ought to be as generous as possible in supporting our communities and those who are in need. I also think it's admirable that employers want to be good corporate citizens.

I have no problem with individual co-workers helping their kids sell whatever overpriced product they have to sell to keep their schools solvent (wrapping paper, pizza dough, whatever), or with putting their kids' Girl Scout cookie order forms in the break room. I had school-age kids once myself, and I was always grateful to get some help from my co-workers so that my kids could meet their various sales quotas. Now that my kids are grown, I am happy to return the favor by purchasing from the next generation. (Plus, that school wrapping paper totally rules, man.)

What I do think employers should be careful about is other charitable or political solicitations, and especially those made by persons in authority. The reason is simple -- just because you support a given cause doesn't mean that your employees do, and because you're the boss they may feel pressure to do your bidding anyway. Here are four reasons I would be cautious about soliciting for charities at work:

1. They gave at the office. This is an expression. My point is that you don't know what your employees do with their salaries. Maybe they waste it all on booze and cigarettes and potato chips, Manolo shoes, and the Playboy Channel. In which case it might be good if they put it to better use. But it's more likely that they are already using their hard-earned money to support their children's schools, contribute to their places of worship, help the homeless man on the street corner who Will Work for Food, and pay for their elderly mother's nursing home care. Not to mention making house payments in a bad market, paying inflated prices for vegetables and gasoline and home heating oil, and paying off their own student loans while simultaneously trying to scrape together enough to send their kids to college in a few years. If the latter is the case, they may not appreciate being made to feel that they could jeopardize their standing at work (which pays for all these things) if they don't squeeze out a little more blood to support their boss's favorite charity.

2. Your cause may violate their religious beliefs. Even if your cause is not explicitly "religious" in nature, it may still take positions that violate the religious beliefs of some of your employees. And even if you are sophisticated enough to know about Title VII's religious accommodation requirement and allow employees with sincere religious objections to "opt out," it can put them in an awkward position at work and make them feel that they are not perceived as "team players."

3. If it's a political cause, you really ought to know better. This may be an apocryphal story, but it's so good (bad) I can't resist using it. I was told that an employer in the 1990's "encouraged" all of its employees at a manufacturing facility in the United States to write letters to Congress encouraging the enactment of the North American Free Trade Agreement ("NAFTA"). Many of the employees did not support the NAFTA because, like Ross Perot, they were afraid that it would result in their jobs' being sent out of the United States. On the other hand, they were uncomfortable saying no to their employer because they were afraid they'd endanger their jobs for that reason. The facility at which this allegedly occurred is now closed, and as far as I know the work performed there is now being done somewhere south of the border.

My workplace has a vast diversity of political beliefs, and I suspect yours does, as well. I would never assume that my co-workers shared my beliefs on anything. There's a reason that it's considered good manners to keep our political views to ourselves except for discussions with our family and close friends, and people who we know share our views. And everyone else in the world via the internet, of course.

4.  If you allow solicitations for charity and politics, you may also have to allow unions to solicit. Although the law allows limited charitable exceptions to a no-solicitation rule (such as an annual United Way campaign), you generally cannot make too many exceptions or you'll have to allow unions to do it, too. Something to think about. 

OK, OK, you may say, but what can we do to be a "nice corporate guy or gal" without making our employees feel threatened? Here are a few suggestions:

*If you solicit for a charitable organization, be very clear in all communications that you are not trying to pressure anyone and are just letting them know about the opportunity "as information." It's even nice to acknowledge that you realize they may already have financial/charitable obligations that preclude them from helping your cause.

*I hope this one goes without saying, but just in case -- if someone refrains from supporting your organization, LET IT GO. Don't "keep score," and don't assume they're just a cheapskate. If the objection is based on religious beliefs and you hold that against the employee, you may even be violating the law.

*If you are helping a political candidate or a political cause, again make it clear that you are letting people know about the opportunity but that there is no "expectation" whatsoever. One of the partners in my office regularly brings candidates for office around to "meet and greet." He's let us know more than once (and in writing!) that he is not necessarily endorsing these individuals and is not trying to pressure anyone to even vote for them, much less donate to their campaigns. Although the partner's own views are known, he has taken exactly the right approach and as far as I know has not caused any discomfort or hard feelings. 

(One final caution: Be aware that even if you take these precautions, my Point No. 4 about union solicitations is probably still going to apply.)