Tag: Employment Law

"The Sins of the Father": Third Party Retaliation Claims Allowed to Proceed

Recently posted in the National Law Review an article written by Ralph A. Morris of Schiff Hardin LLP about third-party retaliation claims :

A recent Texas federal court decision has further expanded the bases for Title VII retaliation claims against employers. In Zamora v. City of Houston, Christopher Zamora, a Houston police officer, alleged that the Houston Police Department demoted him in retaliation for the filing of a charge with the U.S. EqualEmployment Opportunity Commission (“EEOC”). In this case, however, the charge was not filed by Christopher Zamora, but by his father, Manuel Zamora, alleging that he, Manuel Zamora, had been discriminated against by the Department.

Earlier this year, in Thompson v. North American Stainless, LP, the United States Supreme Court permitted an employee’s Title VII retaliation claim to proceed where the employee’s fiancee had earlier filed an EEOC charge. The Court held that a Title VII retaliation claim could stand where the employee is subject to an adverse employment action because a co-worker to whom the employee is “closely related” engaged in protected activity.

The Supreme Court decided Thompson while the Zamora case was pending in the U.S. District Court for the Southern District of Texas. After the Thompson decision was issued, the Zamora court reversed its prior determination that dismissed Christopher Zamora’s claim. The court concluded that under Thompson, Mr. Zamora’s retaliation claim could proceed based on his father’s filing of an EEOC charge. Thus, under Zamora, in addition to a fiancee, a parent-child relationship satisfies the “closely related” test enunciated by the Supreme Court in Thompson.

Retaliation charges and lawsuits typically are more challenging to defend because the employee’s burden of proof is not as difficult to meet, as compared with a charge of discrimination. Thompson and Zamora now place an additional burden on employers by holding that employees themselves do not necessarily need to engage in the protected activity to have standing to sue for retaliation. These decisions may have a greater impact on employers that make it a practice to hire family members and friends of existing employees than on those with anti-nepotism policies.

The Supreme Court refrained from identifying a fixed class of relationships for which third-party retaliation claims are viable. Future cases will have to decide how far retaliation claims will be expanded: whether, for example, partners involved in a romantic relationship but who are not engaged, or familial relationships more distant than parent and child, are sufficiently close so as to fall within the zone of protection. Employers can help reduce the risk for these types of claims by reviewing their EEOC and anti-retaliation policies and ensuring that managers are trained and educated on compliance.

© 2011 Schiff Hardin LLP

IRS Announces Retirement Plan Limitations for 2012 Tax Year – Most Limits Increased

Recently posted in the National Law Review an article written by Alyssa D. Dowse of von Briesen & Roper, S.C. regarding the cost of living adjustments for the 2012 tax year:

The Internal Revenue Service (“IRS”) has announced the cost of living adjustments for the 2012 tax year, which affect various dollar limitations for retirement plans. The IRS increased many of these limitations for the first time since 2009. Some limitations remain unchanged. The following chart highlights many of the noteworthy limitations for the 2012 tax year.

Plan Limit

2011

2012
Social Security Taxable Wage Base $106,800 $110,100
Annual Compensation (Code Section 401(a)(17)) $245,000 $250,000
Elective Deferral (Contribution) Limit for Employees who Participate in 401(k), 403(b) and most 457(b) Plans (Code Sections 402(g), 457(e)(15)) $16,500 $17,000
Age 50 Catch-Up Contribution Limit (Code Section 414(v)(2)(B)(i)) $5,500 $5,500
Highly Compensated Employee Threshold (Code Section 414(q)(1)(B)) $110,000 $115,000
Defined Contribution Plan Limitation on Annual Additions (Code Section 415(c)(1)(A)) $49,000 $50,000
Defined Benefit Plan Limitation on Annual Benefit (Code Section 415(b)(1)(A)) $195,000 $200,000
ESOP Distribution Period Rules—Payouts in Excess of Five Years (Code Section 409(o)(1)(C)) $985,000

$195,000

 $1,015,000

$200,000
Key Employee Compensation Threshold for Officers (Code Section (416(i)(1)(A)(i)) $160,000 $165,000

Plan sponsors should review employee communications and update such communications as appropriate based on the 2012 cost of living adjustments. Other cost of living adjustments can be found on the IRS  website: http://www.irs.gov/retirement/article/0,,id=96461,00.html.

©2011 von Briesen & Roper, s.c

 

 

Hooters Sues Competitor over Alleged Trade Secrets Theft after Top Executives Fly Away

Recently posted in the National Law Review an article by Eric H. Rumbaugh, Luis I. Arroyo and Steven A. Nigh of Michael Best & Friedrich  LLP regarding  misappropriating its trade secrets and other confidential business information following the departure of several Hooters executives:

 

Hooters of America LLC has sued a competitor in Georgia Federal Court for allegedly misappropriating its trade secrets and other confidential business information following the departure of several Hooters executives to Twin Peaks Restaurants.

Hooters’ complaint alleges that former vice president of operations and purchasing, Joseph Hummel, gained unauthorized access to Hooters’ computers and took trade secrets and other confidential information. Specifically, Hooters claims that around the time of his departure, Hummel downloaded and transferred confidential sales figures, employee training and retention strategies and purchasing information to his personal e-mail account. The suit also accuses Hummel of additional unauthorized access of private business information following the termination of his employment.

Hummel, as well as Hooters’ former Chief Executive Officer and its general counsel, left the beach-themed restaurant franchise to join up with Twin Peaks, which operates a mountain lodge-themed restaurant chain featuring an all-female wait staff. Hooters contends that Hummel’s alleged theft has allowed Twin Peaks to hit the ground running in its efforts to open 35 restaurants in the next decade, several of which are planned for markets with Hooters restaurants.

The case illustrates the potential damage that departing employees, particularly those with access to sensitive information, can wreak on an employer. Hooters has already taken one step towards protecting itself; before Hummel left, he signed a confidentiality agreement requiring him to return all confidential and proprietary information to Hooters. In addition to confidentiality agreements, employers should consider having their top executives or other employees with access to sensitive information sign non-competition agreements. Moreover, most states’ trade secret statutes require businesses to take steps that are reasonable under the circumstances to protect their confidential information in order to preserve the trade secret status of that information. Accordingly, employers should consider implementing electronic security measures beyond just login credentials; limiting the number of employees who are authorized to access confidential information; and regulating employees’ ability to take information off company premises.

Next, when key employees depart, and especially when they depart for a competitor, businesses should consult with counsel immediately, and before examining (and arguably damaging) electronic evidence. Departing employees who take information often leave a shockingly obvious electronic trail; but that trail can be lost quickly if not preserved, or inadvertently destroyed if improperly accessed.

Lastly, businesses engaging talent, and especially talent that comes from a competitor, cannot be too careful or too forceful in making sure that the incoming talent does not make, retain or transfer any copies of information from their previous employer. Businesses engaging talent that acted improperly on the way out can quickly embroil their new employers in costly and risky litigation.

© MICHAEL BEST & FRIEDRICH LLP

Creating a Social Media Policy

Posted on October 18, 2011 in the National Law Review an article by Brian J. Moore of Dinsmore & Shohl LLP regarding the importance of employers having a social media policy:

It is essential for employers to develop a social networking policy, especially in light of the many legal issues that may arise. Employers must consider the many goals that the policy intends to cover, such as:

  • Protecting the company’s trade secrets, confidential, proprietary and/or privileged information;
  • Protecting the company’s reputation;
  • Protecting the privacy of employees; and
  • Establishing guidelines for whether use of social networking sites during working hours is permitted, and if so, under what circumstances.

Employers must also consider the parameters in developing a new policy, such as:

  • Urging employees to go to human resources with work-related issues and complaints before blogging about them;
  • Setting forth the potential for discipline, up to and including termination, if an employee misuses social networking sites relating to employment;
  • Establishing a reporting procedure for suspected violations of the policy;
  • Enforcing the policy consistently and with regard to all employees;
  • Reiterating that company policies, including harassment and discrimination policies, apply with equal force to employees’ communications on social networking sites;
  • Reminding employees that the computers and email system are company property intended for business use only, and that the company may monitor computer and email usage; and
  • Arranging for employees to sign a written acknowledgment that they have read, understand and will abide by the policy.

As seen is the October 14th issue of Business Lexington

© 2011 Dinsmore & Shohl LLP. All rights reserved.

EEOC and Cracker Barrel Sign National Mediation Agreement

Recently posted in the National Law Review an article by U.S. Equal Employment Opportunity Commission regarding Cracker Barrel Old Country Store signing of a National Universal Agreement to Mediate:

WASHINGTON – Cracker Barrel Old Country Store, Inc. and the U.S. Equal Employment Opportunity Commission (EEOC) today announced the signing of a National Universal Agreement to Mediate (NUAM) to streamline the handling of employment discrimination claims.

With the signing of this agreement, Cracker Barrel joins more than 200 national and regional private sector employers, including several Fortune 500 companies, who have made similar arrangements with the EEOC. This agreement provides the framework for both organizations to informally resolve any workplace issues that may arise from time to time through Alternative Dispute Resolution (ADR) rather than through a traditional lengthy, formal EEOC investigation or potential litigation. The NUAM includes all Cracker Barrel locations.

“Nationwide mediation agreements like this are a classic win-win,” said Nicholas Inzeo, Director of the EEOC’s Office of Field Programs. “NUAMs are a non-adversarial and efficient way for companies to handle discrimination charges using the EEOC as a partner and advisor. EEOC mediation encourages a positive work environment, and the company saves time and money. Everyone benefits. We are gratified that a major employer such as Cracker Barrel has joined the growing ranks of companies that are making use of this innovative system.”

Cracker Barrel Vice President and General Counsel Michael J. Zylstra said, “Cracker Barrel is committed to providing a fully inclusive workplace, where diversity is welcomed and everyone is treated with courtesy and respect. This innovative agreement builds upon our existing policies and procedures to effectively and fairly resolve employee concerns and demonstrates our shared goal to create a bias-free workplace. We look forward to developing an even stronger relationship with the EEOC.”

Under the terms of the NUAM, any eligible charges of discrimination filed with the EEOC in which Cracker Barrel is named as an employer/respondent will be referred to the EEOC’s mediation unit. The company will designate a corporate representative to handle all inquiries and other logistical matters related to potential charges in order to facilitate a prompt scheduling of the matter for EEOC mediation.

Expanding mediation is a key component of the EEOC’s efforts to improve operational efficiency and effectiveness. The EEOC has entered into 233 national and regional Universal Agreements to Mediate (UAMs) with private sector employers, including several Fortune 500 companies. Additionally, EEOC district offices have entered into 1,743 mediation agreements with employers at the local levels within their respective jurisdictions. Since the full implementation of the EEOC’s National Mediation Program in April 1999, more than 136,000 charges of employment discrimination have been mediated, with nearly 70 percent being successfully resolved.

Cracker Barrel Old Country Store, Inc. (Nasdaq: CBRL) was established in 1969 in Lebanon, Tenn., and operates 604 company-owned locations in 42 states. For more information, visit www.crackerbarrel.com.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC and its mediation program is available on its web site at www.eeoc.gov.

Second Circuit Finds that Employers May be Obligated to Accommodate a Disabled Employee's Commute

Posted in the National Law Review an article by attorneys James R. Hays, Jonathan Sokolowski and James R. Hays of Sheppard Mullin Richter & Hampton LLP regarding disabled employees and employers requirements to assist them:

 

The Second Circuit Court of Appeals has held that under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, employers may be required to assist disabled employees with their commute.

In Nixon-Tinkelman v. N.Y. City Dep’t of Health & Mental Hygiene, No. 10-3317-cv, 2011 U.S. App. LEXIS 16569 (2d Cir. N.Y. Aug. 10, 2011), plaintiff Barbara Nixon-Tinkelman (“Plaintiff”), who has cancer, heart problems, asthma, and is hearing impaired, brought suit under the ADA and the Rehabilitation Act alleging that the New York City Department of Health & Mental Hygiene (“Defendant” or “DOHMH”) failed to reasonably accommodate her disability. Specifically, following her transfer from Queens to Manhattan, Plaintiff requested that DOHMH accommodate her commute by transferring her back to an office location closer to her home in Queens. DOHMH ultimately denied Plaintiff’s request.

The Southern District of New York dismissed Plaintiff’s complaint on Defendant’s motion for summary judgment, finding that activities which “fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer’s obligations under the ADA and the Rehabilitation Act.” However, on appeal, the Second Circuit faulted the district court’s holding, explaining that certain circumstances may require an employer to provide commuting assistance to a disabled employee, and furthermore, that providing such assistance is not “inherently unreasonable.” Accordingly, the Second Circuit remanded the case to the district court, and tasked it with engaging in the “fact-specific inquiry” necessary to determine whether it would have been reasonable to provide Plaintiff with a commuting accommodation. On remand, the Second Circuit directed the district court to consider the following factors: (a) Defendant’s total number of employees; (b) the number and location of Defendant’s offices; (c) whether other positions exist for which Plaintiff was qualified; (d) whether Plaintiff could have been transferred to a more convenient office without unduly burdening Defendant’s operations; and (e) the reasonableness of allowing Plaintiff to work from home without on-site supervision.

In addition to the above-listed factors, the Second Circuit also noted that the district court should have contemplated whether transferring Plaintiff “back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit” would have accommodated her needs.

Nixon-Tinkelman serves as a reminder to employers that they must carefully assess all requests for reasonable accommodations from disabled employees. Although employers are not required to provide the specific accommodations employees may request, they must nevertheless work with employees to determine what reasonable accommodations, if any, can be made.

Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.

NLRB Delays Implementation of Mandatory Notice Posting Rule

Recently posted in the National Law Review  an article regarding the NLRB postponing the date for employers to post notices informing employees of their rights to join a union  by Aaron J. Epstein of Andrews Kurth LLP:

 

Last week, the National Labor Relations Board (NLRB) postponed the effective date for its rule requiring most U.S. employers to post workplaces notices informing employees of their rights under the National Labor Relations Act (NLRA), including the right to join a union. The NLRB published the new rule on August 31, 2011, and initially set an effective date of November 14, 2011. However, in the face of two lawsuits challenging the validity of the new rule, and citing the need to conduct enhanced education and outreach, the NLRB has delayed the effective date until January 31, 2012.

Below is a brief overview of the new rule and the steps employers must take to comply.

To Whom the Rule Applies

The notice posting rule applies to all employers covered by the NLRA, whether or not they have a unionized workforce. NLRA coverage is intentionally broad and reaches almost all private sector employers. In the case of retail businesses, the NLRB’s jurisdiction covers any employer with a gross annual volume of business of $500,000 or more. The NLRB’s non-retail jurisdictional standard extends to most other employers. It is based on the amount of goods sold or services provided by an employer out of state, called “outflow,” or goods or services purchased by an employer from out of state, called “inflow.” Under this standard, any employer with an annual inflow or outflow of at least $50,000 is subject to the NLRA.

What the Rule Requires

The NLRB’s new rule dictates that employers post an 11-inch-by-17-inch notice detailing employee rights under the NLRA in a conspicuous place where other notifications of workplace rights and employer policies and rules are customarily posted. Employers are required to take reasonable steps to ensure that the notice is not altered, defaced, covered, or otherwise rendered unreadable. Additionally, employers who post personnel policies or workplaces notices on a company intranet or internet site must also post the NLRA notice on those sites, or they can provide a link to the notice on the NLRB’s website with the title “Employee Rights Under the National Labor Relations Act.”

Copies of the notice, in English and Spanish, are available at www.nlrb.gov or at any of the agency’s regional offices. The notice must be posted in English and in another language if at least 20 percent of employees are not proficient in English and speak the other language. The NLRB will provide translations of the notice, and of the required link to the NLRB’s website, in the appropriate languages. If a workforce includes two or more groups, each constituting at least 20 percent of the workforce, who speak different languages, an employer must post the notice in the language spoken by the larger group, and then may either post the notice in the language(s) spoken by the other group(s) or, at the employer’s option, distribute copies of the notice to those employees in their language(s). If such an employer is also required to post the notice electronically, it must do so in each of those languages.

Failure to Comply with the Rule

Failing to post the notice may, in and of itself, be treated as an unfair labor practice and subject an employer to remedial measures. The NLRB may also extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Finally, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case dealing with other alleged violations of the NLRA.

© 2011 Andrews Kurth LLP

Medical Marijuana User Not Protected from Termination

Recently posted in the National Law Review an article by Darren A. Feider  of Williams Kastner regarding medical marijuana and employment:

A developing exception to Washington law of employment at will is the tort of wrongful termination in violation of public policy. This narrow exception was recently tested in Roe v. TeleTech Customer Care, 171 Wn.2d 736 (2011), when a new hire employee asserted that her employer had violated Washington public policy for terminating her for a positive drug test for marijuana.

In Roe, the new hire claimed to suffer from migraine headaches, causing chronic pain, nausea, blurred vision and sensitivity to light. Her physician prescribed medical marijuana and she smoked it four times a day, but ingested it only at home. She was offered a position as a customer service representative contingent on a background check and a drug screening. After failing the drug screening, the new hire informed her supervisor she had been prescribed medical marijuana. Her supervisor informed her that use of medical marijuana violated the company drug policy and terminated her employment during the training phase. She sued the company for wrongful termination in violation of public policy. The trial court dismissed the claim, finding that medical marijuana merely provided an affirmative defense to criminal prosecution under Washington state drug laws but did not imply a civil cause of action in employment. She appealed.

On appeal, the Roe court recognized that the voters of Washington had provided a defense to caregivers and physicians who prescribed marijuana to those with certain illnesses such as the new hire. That statute, however, did not provide protection for employment and specifically noted that the law did not require any accommodation of on-site use of medical marijuana.

The Roe court had focused on the language of the medical marijuana statute which only discussed protecting health care providers. The court also emphasized that there was no evidence that the statute provided employment protection or prohibited an employer from discharging an employee for medical marijuana use. The court found that the statute did not support a broad public policy that would remove all impediments to authorized medical marijuana use or forbid an employer from discharging an employee because she used medical marijuana.

The Roe court also recognized that Washington patients have no legal right to marijuana under federal law, which has the effect of establishing that there is not a broad public policy that would require an employer to allow an employee to engage in illegal activity.

The take-aways from the Roe decision are that Washington courts will move cautiously in expanding the scope of legal protections for employees. Washington courts will not attempt to graft on an expansion of the public policy tort claims. The Roe decision also emphasizes that employment in Washington is at will and that any public policy exceptions are narrowly construed.

© 2002-2011 by Williams Kastner ALL RIGHTS RESERVED

Legal Issues Surrounding Social Media Background Checks

Posted in the National Law Review an article by Michelle Sherman of Sheppard Mullin Richter & Hampton LLP regarding establishing an internal procedure for using the Internet to make employment decisions is one more piece of a sound ethics and compliance program that addresses how your company is using social media.

Agatha Christie had a novel take on invention being the mother of necessity. She disagreed and said, “[I]nvention, in my opinion, arises directly from idleness, possibly also from laziness. To save oneself trouble.” She may have been onto something when you think about businesses that are turning to outside vendors to research employees and job candidates for them. Whether or not these outside vendors are the best solution, however, remains to be seen.

  1. Companies Should Have An Internal Procedure For Researching Job Candidates And Employees On The Internet

We recommended earlier this year that businesses establish an internal procedure for making employment decisions based on Internet research, so they would not run afoul of state and federal laws that prohibit job discrimination based on protected factors. The protected factors include, for example: (1) Race, color, national origin, religion and gender under Title VII of the Civil Rights Act of 1964; and (2) Sexual orientation, marital status, pregnancy, cancer, political affiliation, genetic characteristics, and gender identity under California law. Most states have their own list of protected factors, which should be considered depending on where your company has employees.

Not surprisingly, the legal risks of making employment decisions using the Internet have become a real concern for businesses, especially when you consider that 54% of employers surveyed in 2011 acknowledged using the Internet to research job candidates. The actual number of employers using the Internet is probably higher, and sometimes companies may not even be aware that their employees are researching job candidates and factoring that information into their evaluations. This is yet another reason to establish an internal procedure for researching job candidates, and communicating your procedure to employees who are participating in the employment process.

There is nothing wrong with researching people on the Internet so long as it is done properly. The Internet has a wealth of useful information, some of it intentionally posted by job applicants for employers to consider such as LinkedIn profiles.

With this “necessity” to do Internet searches properly, some businesses have turned to outside vendors to do the research for them, and, thereby, try to reduce their legal exposure and the administrative inconvenience of doing it themselves. At least one of these vendors has received letters concerning its business practices from the Federal Trade Commission (“FTC”) and, more recently, two U.S. Senators.

  1. The Business Practices Of Outside Vendors That Provide Social Media Background Checks Are Being Examined For Compliance With Privacy And Intellectual Property Laws

On May 9, 2011, the staff of the FTC’s Division of Privacy and Identity Protection sent a “no action” letter to Social Intelligence Corporation (“Social Intelligence”), “an Internet and social media background screening service used by employers in pre-employment background screening.” The FTC treated Social Intelligence as a consumer reporting agency “because it assembles or evaluates consumer report information that is furnished to third parties that use such information as a factor in establishing a consumer’s eligibility for employment.” The FTC stated that the same rules that apply to consumer reporting agencies (such as the Fair Credit Reporting Act (“FCRA”)) apply equally in the social networking context. These rules include the obligation to provide employees or applicants with notice of any adverse action taken on the basis of these reports. Businesses should also be mindful of similar state consumer protection laws that may be applicable (e.g. California Investigative Consumer Reporting Agencies Act).

The FTC concluded by stating that information provided by Social Intelligence about its policies and procedures for compliance with the FCRA appears not to warrant further action, but that its action “is not to be construed as a determination that a violation may not have occurred,” and that the FTC “reserves the right to take further action as the public interest may require.” This FTC “no action” letter was reported fairly widely, and probably increased the comfort level of businesses that wanted to use an outside service for Internet background checks.

On September 19, 2011, Senators Richard Blumenthal (D-Conn) and Al Franken (D-Minn) sent a letter to Social Intelligence with 13 questions regarding whether the company is taking steps to ensure that the information it is gathering from social networks is accurate, whether the company is respecting the guidelines for how the websites and their users want the content used, and whether the company is protecting consumers’ right to online privacy. The letter raises some legitimate concerns, and requests a prompt response from Social Intelligence to the questions presented.

  1. Legal Assurances That Your Company May Want To Seek If Using An Outside Vendor

Some of the questions also warrant due consideration on the part of businesses receiving reports from outside vendors about how much weight they want to give the information provided. Further, what the business may want in the form of legal assurances from the outside vendor that no laws (e.g. FCRA, privacy, copyright, or other intellectual property laws) have been violated in gathering the information or providing screenshot copies of pages from social networking sites.

Some of the questions from the Senators which raise these concerns include, for example:

1. “How does your company determine the accuracy of the information it provides to employers?” [Social Intelligence is reportedly collecting social networking activity dating back 7 years, and, therefore, may capture something that was later removed, or was a “tag” post through a picture that the job candidate was not responsible for making public, and may have removed once it came to his attention.]

2. “Is your company able to differentiate among applicants with common names? How?” [e.g. Have they researched the correct “Jane Smith” of the hundreds on Facebook since social security numbers or other specific identifying information is not useful on social networking sites as it is with the standard background check.]

3. “Is the information that your company collects from social media websites like Facebook limited to information that can be seen by everyone, or does your company endeavor to access restricted information.”

4. “The reports that your company prepares for employers contain screenshots of the sources of the information your company compiles…These websites are typically governed by terms of service agreements that prohibit the collection, dissemination, or sale of users’ content without the consent of the user and/or the website….. Your company’s business model seems to necessitate violating these agreements. does your company operate in compliance with the agreements found on sites whose content your company compiles and sells?”

5. There appears “to be significant violations of user’s intellectual property rights to control the use of the content that your company collects and sells. …. These pictures [of the users], taken from sites like Flickr and Picasa, are often licensed by the owner for a narrow set of uses, such as noncommercial use only or a prohibition on derivative works. Does your company obtain permission from the owners of these pictures to use, sell, or modify them?”

  1. Conclusion

Establishing an internal procedure for using the Internet to make employment decisions is one more piece of a sound ethics and compliance program that addresses how your company is using social media. If using an outside vendor to perform social media background checks is part of that policy, you should assure yourself that the company is acting in compliance with the relevant laws.  

Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.

Administrative Law Judge Finds Employer Unlawfully Discharged Employees Based on Facebook Posts

Recently posted  in the National Law Review an article by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap  of McDermott Will & Emery regarding the NLRB found that an employer unlawfully terminated five employees because they posted comments on Facebook:

In a first of its kind ruling, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) found that an employer unlawfully terminated five employees because they posted comments on Facebook related to working conditions.  This is a landmark decision because, up to this point, employers have only been able to rely on the prosecution trends of the General Counsel’s office, including a recently issued report on the topic, and not actual decisions by the adjudicative body of the NLRB.

This landmark case involved an employee of Hispanics United of Buffalo (HUB) (a nonunionized organization), who posted a message on Facebook sharing critical comments made by a coworker concerning employees’ poor job performance and asking for the employees’ reactions.  Five employees commented on the post, defending their job performance and criticizing the critical employee and their working conditions, including work load and staffing problems.  HUB later discharged the Facebook poster and the employees who responded to the post, stating that their comments constituted harassment of the critical coworker.

Based on an unfair labor practice charge filed by one of the employees, the NLRB’s Buffalo Regional Director issued a complaint in May 2011. The ALJ heard the case in July and, on September 2, issued a written decision finding that the employees’ Facebook posts were protected concerted activity under Section 7 of the National Labor Relations Act (NLRA) because they concerned a conversation among coworkers about the terms and conditions of employment and the employees’ conduct was not sufficiently inappropriate as to lose the protection of the NLRA.  The ALJ awarded the employees back pay and ordered HUB to reinstate the five employees.  The ALJ also ordered HUB to post a notice at its Buffalo facility explaining to employees their rights under the NLRA and committing not to violate those rights in the future.

While NLRB complaints related to social media have been on the rise, this is the first ALJ decision specifically addressing employees’ use of Facebook.  As a result, employers are wise to consider the ALJ’s decision when disciplining employees based on social media activity.

© 2011 McDermott Will & Emery