Category: Labor & Employment

Labor and Employment Law: Tri-State Round-Up

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New York

“Pregnant Workers Fairness Act” Becomes Law in New York City

On October 2, 2013, New York City Mayor Michael Bloomberg signed into law the “Pregnant Workers Fairness Act” (PWFA) in an attempt to plug a perceived gap in the Pregnancy Discrimination Act, which does not require accommodation for pregnant employees. Once the new law takes effect in early February 2014, it will require employers in New York City to offer reasonable accommodation for pregnancy, childbirth and related medical conditions.

The PWFA will apply to all businesses in New York City with four or more employees, including independent contractors. It requires that written notice of its provisions be presented to all new employees at the time of hire, and that a poster advising employees of their rights under the PWFA—to be produced by the City’s Commission on Human Rights—be posted within the employer’s facility. Employers that are able to demonstrate that compliance would pose an undue hardship are excluded from compliance. Employees who believe they have been the victims of discrimination in violation of the PWFA have the option of either filing a complaint with the New York City Commission on Human Rights or bringing a court action against their employer.

NYS Department of Labor Proposes New Wage Deduction Regulations

Employers in New York have been waiting since June 2012 for guidance regarding amendments made that month to Section 193 of the New York Labor Law restoring employers’ ability to make deductions from employee wages for overpayments and advances, but only in specific, as-yet-undefined circumstances. The wait, however, appears to be nearing an end.

In May 2013, the NYSDOL issued proposed wage deduction regulations that address not only deductions for overpayments and advances, but also deductions deemed permissible because they are “for the benefit of the employee.” The complete proposed regulations are available on the NYSDOL website (www.labor.ny.gov./legal/wage-deduction-regulation.shtm), but the following is a brief summary:

  • Deductions for Overpayments

    Written authorization from the employee is not required for the employer to make deductions for unintended overpayments. The proposed regulations specify in detail, however, the timing, frequency, amount permitted and advance notice required for such deductions, along with dispute resolution procedures and the method by which improper deductions are to be repaid.

  • Deductions in Repayment of an Advance

    The new regulations state that any provision of money to an employee by an employer that is accompanied by the accrual of interest, fees or a repayment amount of anything other than the specific amount provided to the employee is not an advance, and it may not be recouped via wage deduction. Furthermore, the parties must agree in writing to the terms of repayment before the advance is given; and once agreement is reached, no further permission or notice is required until the entire amount of the advance has been recouped.

  • Deductions for the Benefit of the Employee

    Such deductions are expressly limited to those listed in Section 193 of New York’s Labor Law, along with benefits for health and welfare, pension and savings, charity, representation, transportation, food and lodging.

Employers are encouraged to proceed with caution if they wish to implement a program for recoupment of overpayments and wage advances, as the wage deduction regulations proposed by the NYSDOL are not yet final and are thus subject to change.

New Jersey

New State Law Limits Employer Access to Employees’ Social Media Accounts

A new law set to take effect on December 1, 2013 will make New Jersey the latest of a growing number of states—including Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah and Washington—that prohibit employers from requesting access to the social media accounts of current or prospective employees. The law also prohibits employers from retaliating or discriminating against any such individual who either refuses to provide such access or who complains about what he or she believes to be a violation of the law.

The law applies only to those social media accounts that are the exclusive personal property of the employee or prospective employee. Employers are, however, permitted to obtain access to private accounts for the purposes of ensuring legal or regulatory compliance, investigating employment-related misconduct or investigating a potential disclosure of the employer’s proprietary or confidential information. The law does not prohibit employers from accessing accounts its employees use for business-related purposes, and employer review of material that employees or prospective employees post publicly on an otherwise private social media account remains lawful.

Enforcement of New Jersey’s social media law is left solely to the state’s Department of Labor; the law does not provide individuals with a private right of action. Companies may be fined up to $1,000 for their first violation and $2,500 for violations thereafter.

Amendment to NJLAD Prohibits Retaliation Against Employees Who Seek Information About Their Coworkers

An amendment to New Jersey’s Law Against Discrimination (NJLAD), signed into law on August 28, 2013 and given immediate effect, adds a nonretaliation pay equity measure to NJLAD. Intended to protect employees who request information about other employees’ or former employees’ compensation or potential membership in a protected class, the amendment prohibits employer retaliation for such a request, provided the request is made either as part of an investigation into potential discriminatory treatment or to take legal action for such discriminatory treatment with regard to compensation.

It is important to note that the amendment does not require employers to take action in response to such a request from an employee or to provide him or her with the information sought while employers are free to deny such requests; they are, however, prohibited from retaliating against the employee making the request.

Employers in New Jersey should consider examining and, if necessary, revising their policies pertaining to requests for and disclosure of protected information, and they should take steps to make sure that supervisory and managerial employees are aware of NJLAD’s new provisions.

“NJ Safe Act” Requires Unpaid Leave for Employees Affected by Domestic or Sexual Violence

A new law that took effect on October 1, 2013 enables eligible employees within New Jersey to take 20 days of unpaid leave within a 12-month period in the event that the employee, his or her child, parent, spouse or domestic or civil union partner is the victim of domestic or sexual violence.

Dubbed the New Jersey Security and Financial Empowerment Act, but better known as the “NJ Safe Act,” the law applies to employers within the state with 25 or more employees. Its intended purpose is to allow victims of assault, or those who are giving care to such victims of assault, to engage in a series of activities related to such victims’ recovery without fear of losing their jobs.

The NJ Safe Act covers those employees who have worked for a covered employer for at least 12 months and who have worked at least 1,000 hours during the previous 12 months. Leave may be taken within one year of an occurrence of domestic violence or sexual assault, and it may be taken intermittently. If the need for leave is foreseeable, employees seeking such leave are required to provide written notice to their employer as far in advance as possible. Employers are permitted to request documentation from the employee supporting the employee’s need for leave. The act also requires employers to post a notice made available by the New Jersey Commissioner of Labor and Workforce Development to inform employees of their rights.

Employees are provided with a private right of action under the NJ Safe Act and are able to seek relief in the New Jersey Superior Court up to one year after an alleged violation. Prevailing plaintiffs may be entitled to recovery of economic and noneconomic damages, as well as attorneys’ fees, a civil fine and an order of reinstatement. The law, like most of New Jersey’s employment laws, contains a provision that prohibits retaliation against an employee who exercises his or her rights under it.

New Jersey employers with more than 25 employees should take steps to ensure that their leave policies comply with the new law. Such employers should also make sure that any employee training on the subject of retaliation includes information on the NJ Safe Act and that they have posted the required materials within their workplaces.

Connecticut

Significant Changes Made to Connecticut’s Personnel Files Act

As a result of an amendment to Connecticut’s Personnel Files Act that took effect on October 1, 2013, employers within the state now have a dramatically shorter period of time within which to respond to requests from current or former employees to inspect the contents of their personnel files. Whereas the law previously required employers to permit such inspection “within a reasonable period of time,” the law now mandates that current employees be allowed to inspect their files within seven days of a written request; former employees must receive the same opportunity within ten days. Such inspections are to take place during regular business hours and at a location at, or reasonably near, the employee’s place of employment.

The amendment also places a number of other new requirements on Connecticut employers. Among them are the following:

  • Employees must now be provided with a copy of any documented disciplinary action not more than one business day after the action is imposed;
  • Employees must “immediately” be given copies of any documented notice of the termination of their employment;
  • Employers must now include a “clear and conspicuous” statement in any written termination or disciplinary notice that, should an employee disagree with any information contained in such a document, the employee may submit a written explanation of his or her position. If an employee chooses to submit such a statement, employers are required to include it within the employee’s personnel file; employers must also include the employee’s statement with any transmission of or disclosure from the file to any third party.

As before, Connecticut’s Personnel Files Act does not contain a private right of action. The state’s Department of Labor may impose a fine of up to $500 for a first violation and up to $1,000 for subsequent violations involving the same employee.

 

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Vedder Price

Supreme Court To Consider Employers’ Arguments Regarding Contraceptive Mandate

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The United States Supreme Court will revisit the Affordable Care Act (“ACA”)requirement that most employers provide contraceptive coverage in employee health insurance plans. On November 26, 2013, the Court accepted two cases which center on the issue, each of which resulted in a different outcome. The ACA currently provides an exemption to certain non-profit religious organizations, but there is no such exemption for private employers.

The Supreme Court will now consider whether private companies should be able to refuse to provide employees with contraception coverage under their health plans on the basis of religion. Further, the Supreme Court may consider whether for-profit corporations may validly claim protection under freedom of religion.

In Sebelius v. Hobby Lobby Stores, Inc.[1], the U.S. Court of Appeals for the 10th Circuit ruled that a requirement which forced Hobby Lobby to comply with the contraception coverage mandate violated the Religious Freedom Restoration Act, which protects religious freedom. Hobby Lobby is owned by David and Barbara Green, who have stated that they strive to run their company in accordance with their Christian beliefs. The Greens have no objection to preventive contraception, but only medication which may prevent human embryos from being implanted in the womb (i.e., “the morning-after pill”).

The 10th Circuit Appeals Court ruled in favor of Hobby Lobby based upon its  decision in a previous case, Citizens United v. Federal Election Commission[2], which held that corporations hold political speech rights akin to individuals. Taking this reasoning further, if a corporation can have political speech rights, then it should also have protection for its religious expression, according to the Court.

In Conestoga Wood Specialties v. Sebelius[3], the U.S. Court of Appeals for the 3rd Circuit viewed the issue differently. The Court upheld the contraception coverage mandate based upon what it perceived as a “total absence of case law” to support any argument that corporations are guaranteed religious protection.

According to the ACA, contraceptive coverage provided by employers’ group health insurance plans is “lawful and essential” to women’s health; however, certain businesses assert that their religious liberty is more important. Ultimately, the United States Supreme Court will cast the deciding vote.

[1] Sebelius v. Hobby Lobby Stores, Inc., 723 F.3d 1114 (10th Cir. 2013).

[2] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[3] Conestoga Woods Specialties v. Sebelius, 724 F.3d 377 (3d Cir. 2013).

 

Article by:

Brittany Blackburn Koch

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC

 

Holiday Warning Update: Cut Sexual Harassment From Your Holiday Party Invitation List (seriously)

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OK, we admit it is somewhat cliché for employment lawyers to circulate client alerts every December warning about the dangers lurking at company holiday parties. But when real-life examples show just how expensive claims arising from these events can be, we would be remiss not to issue yet another such alert.

Last December, we issued an alert concerning a federal district court’s refusal to dismiss a holiday party related sexual harassment lawsuit filed against an employer,Shiner v. State University of New York at Buffalo (Case No. 11-CV-01024).

The case finally settled in August 2013, with the employer paying the plaintiff a whopping $255,000.

The plaintiff, Leslie Shiner, was a clerk at the University at Buffalo Dental School. She alleged that she had not wanted to attend the school’s annual holiday party because the conduct at previous events made her uncomfortable. However, a supervisor encouraged her to attend the party, which was held at a local bar. During the party, an associate dean, with supervisory authority over the plaintiff, allegedly made sexual advances toward her that included fondling her, putting his tongue in her ear and pulling her onto his lap. Another department official with supervisory authority allegedly cheered him on.

In early 2012, the plaintiff filed claims of sexual harassment under state and federal anti-discrimination laws, as well common law claims of assault and battery. In November 2012, as we wrote last year, the judge denied the defendant-employer’s motion to dismiss and allowed the case to proceed. After months of discovery and over a year and a half after the plaintiff filed her lawsuit, her employer ultimately agreed to pay her $255,000 to settle her claims. That amount obviously does not include the attorneys’ fees expended by the employer during a protracted time period of motion practice and discovery. Not including the inconveniences to the employer, the total out-of-pocket cost of the case to the employer likely exceeded $350,000 or $400,000.

The lesson for all employers is that the lighthearted, and sometimes drunken, atmosphere at office holiday parties does not equate to a free pass for unwanted touching, lewd comments and other types of inappropriate behavior that otherwise would not be tolerated. As the University of Buffalo Dental School eventually had to recognize when it agreed to settlement, employers who fail to protect themselves can be held liable for workers’ conduct that might easily get out of hand at festive events particularly when there is drinking.

The following are examples of ways employers can reduce the threat of dangerous misbehavior:

  • Remind employees prior to the event that the company’s code of conduct remains in effect during the event
  • Establish procedures in advance to handle any inappropriate behavior that might occur
  • Limit the amount of drinking and provide taxis or other safe transportation home to employees who may be intoxicated

If an employee does come to you with a sexual harassment complaint, please consider it seriously and take prompt action as necessary to investigate and stop the harassment.

 

Article by:

Michael B. Kass

Of:

Armstrong Teasdale

Supreme Court Declines Review of Intern Compensability Issue

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While the compensability of time spent in internship programs continues to be an hotly contested litigation issue, the United States Supreme Court has declined an opportunity to provide clarity in this area, denying certiorari to a Florida medical billing intern whose claim was rejected last year by the Eleventh Circuit.  Kaplan v. Code Blue Billing & Coding, Inc., 2013 U.S. LEXIS 8046 (U.S. 2013).

Perhaps multiple requests for high court review of an appellate decision will be necessary before the Supreme Court addresses the status of interns under the FLSA, as was required before the Court accepted review of the exempt status of pharmaceutical sales representatives.

Article by:

Noel P. Tripp

Of:

Jackson Lewis P.C.

The Christmas Conundrum, continued

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Last week we discussed the basic framework for providing employees with days off during recognized religious holidays.  A related issue commonly presented during the holiday season is whether employees must be paid for their time off.

While an employer may have to give an employee time off in order to observe a religious holiday in accordance with Title VII of the Civil Rights Act, the “reasonable accommodation” does not have to be accompanied by pay.  Although it may not be a popular decision, denying paid time off is perfectly acceptable when it comes to non-exempt (hourly) employees. Generally speaking, an employer is only required to pay hourly employees for time actually worked. For exempt employees (generally, salaried) who are given time off, the full weekly salary must be paid if they worked hours during the week in which the holiday falls. As always, a contract or collective bargaining agreement can create an affirmative obligation to provide paid time off.

Notwithstanding the foregoing, private employers or employees engaging in work with the federal government should be conscious of two possible exceptions to their paid time off rules.  The federal government provides its employees with paid time off on several recognized holidays and, in addition, often provides overtime pay to those employees who must work during the holidays. Although this is not legally mandated for private employers, persons who work under a government service contract subject to the McNamara O’Hara Service Contract Act and persons who work under a government labor contract subject to the Davis-Bacon and Related Acts must receive holiday and vacation benefits. The exact terms of these benefits depend on worker classification and contract.

Always remember, offering paid time off around the holidays is a gesture of good will. Regardless of an employer’s legal obligations, offering paid time off can go a long way in making the holidays a happier time for employees.

Article by:

W. Chapman Hopkins

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC

The “Relocation Costs” Reimbursement Arrangement: A Section 409A Trap for the Unwary

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When an employer requires an employee to move his or her primary residence to work, or continue working, for the employer, oftentimes the employer, as an inducement for the employee to accept the offer employment or continue employment, will agree to pay for some or all of the employee’s “relocation costs.” Employers must be aware of the critical tax implications that can flow from such an arrangement.

Agreements to reimburse the employee for the costs of relocating vary. For example, an employer and employee may agree that the employer will reimburse the employee for moving his or her personal belongings to the new location and perhaps one round-trip airfare for the employee and his or her family; or, the employer may agree to reimburse the employee for all associated relocation costs and related expenses up to a maximum amount. Regardless, if the reimbursement constitutes taxable income for the employee and is subject to Section 409A of the Internal Revenue Code (the “Code”), but the terms of the arrangement do not comply with the Code’s requirements , the employee may have to pay a whopping 20% excise tax on the reimbursement.

Not all moving or relocation expenses are treated alike for federal income and payroll tax purposes. Generally speaking, for moves within the United States an employee may deduct from his or her gross income the reasonable expenses associated with (1) moving his or her household goods and personal effects, and (2) travelling to his or her new home. However, these categories of expenses are deductible only if all of the following requirements are met: (1) the move is closely related to the start of employment, (2) the new job location is at least 50 miles farther from the prior home than the employee’s prior job location is from the former home, and (3) the employee works full time for at least 39 weeks during the first 12 months of employment at the new location.

If the expenses are of a type that may be deducted and meet the foregoing requirements, then an employer’s reimbursement of those expenses will also not be subject to withholding for income taxes, social security and Medicare taxes, provided that the reimbursement arrangement meets the following additional requirements: (1) the expenses have a business connection, i.e., the expenses were incurred in connection with performing services for that employer, (2) the employer requires that the employee adequately account for the expenses within a reasonable period of time, and (3) any excess reimbursements are returned to the employer within a reasonable period of time.

If the relocation cost reimbursement arrangement does not meet the foregoing requirements, or if the employer reimburses the employee for expenses that do not qualify as deductible moving expenses of the type outlined above, the amount of the reimbursement is subject to income taxes, social security and Medicare taxes. For example, employers may agree to pay for return trips to the former residence, pre-move house hunting expenses, temporary housing, storage costs for personal belongings (excluding those incurred in transit), or costs associated with entering into a new rental lease or canceling a prior lease. Reimbursement for any of these costs will be includable in income and subject to social security and Medicare taxes because they do not qualify as the type of expense that may be deductible, even though they may otherwise meet the requirements to be excluded from compensation. Since the reimbursements are taxable, careful consideration must be given in the event that the reimbursement constitutes non-qualified deferred compensation subject to Section 409A.

By way of background, subject to certain exceptions, and generally speaking, Section 409A requires that any compensation promised in one year that could by its terms be paid in a later tax year must be paid only upon certain permissible payment “events,” such as, for example, a fixed date or schedule, or upon termination of employment.

An agreement to reimburse an employee for relocation expenses may or may not cross tax years, but if under the terms of the agreement the reimbursement could be made in a later tax year, then it constitutes deferred compensation subject to Section 409A, and there are important documentary and operational requirements that must be met under Section 409A. If the agreement does not comply with these documentary and operational requirements, the reimbursement amount that the employee receives could be subject to the 20% excise tax.

First, the relocation reimbursement agreement should be written and the written document must provide (1) an objectively determinable non-discretionary definition of the expenses eligible for reimbursement, (2) the reimbursement will be for expenses incurred during an objectively and specifically prescribed period, and (3) that the amount of expenses eligible for reimbursement in one year will not affect the expenses eligible for reimbursement in any other year. (The reason for the rule outlined in number (3) is because the IRS does not want the employee to be able to, indirectly or directly, pick a more favorable tax year by, for example, holding on to the reimbursement request or delaying the incursion of the cost.)

Second, the reimbursement must be made on or before the last day of the employee’s tax year following the year in which the expense was incurred, and the right to the reimbursement cannot be exchanged for another benefit.

For the most part, an employer’s expense reimbursement policy will satisfy the rules regarding the timing of the reimbursement. Unfortunately, employers all too often either provide for a very vague definition of the “relocation costs” that may be reimbursed, or agree to a cap without taking into consideration that the expenses incurred in one year could impact the expenses eligible for reimbursement in the following year. Employers should draft their relocation agreements carefully to provide the desired benefit to the employee while staying within the confines of the limitations of Section 409A. Accordingly, we recommend that whenever an employer or employee agree to a relocation cost reimbursement arrangement, that counsel review the arrangements to ensure that it is either exempt from or otherwise in compliance with Section 409A.

Article by:

Jessica W. Catlow

Of:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

The Christmas Conundrum Re: Employee Time Off

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The holidays are a joyous time of year, but many employers face the season with a certain sense of trepidation as their employees inevitably request time off work.  As the holiday season kicks into full gear, now is a good time for employers to refresh themselves on basic guidelines for granting and denying employees’ vacation requests.

As a starting point, the availability of time off is typically dependent on a number of factors, including the employer’s formal policies, employment contracts, or a collective bargaining agreement. While there are no express state or federal laws requiring private employers to provide time off to celebrate holidays like Christmas, Hanukkah or Kwanzaa, Title VII of the Civil Rights Act of 1964 does require employers to ”reasonably accommodate” an employee’s religious practices, so long as it does not impose an “undue hardship” on the employer. Allowing an employee time off to observe a recognized religious holiday is normally a reasonable accommodation that should be made, if requested, without an undue burden.

Although some employers voluntarily reward employees with at least some time off during the holidays, employers must be careful to recognize that some employees may observe holidays that are not reflected in the employer’s office calendar. For example, if employees are given time off for Christmas day but not for Ramadan, employees observing the Muslim holiday may claim discrimination. Such situations can typically be avoided by utilizing “floating holidays” which allow time off for religious days that do not appear on a company’s official schedule. In addition, employers can include in the company policy that any holiday not appearing on the calendar can be requested and granted subject to review.

Article by:

W. Chapman Hopkins

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC

It's Official—The Supreme Court Announces That It Will Review The Contraceptive Mandate

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On Nov. 26, 2013, U.S. Supreme Court announced that it will review two cases in which for-profit employers challenged the application of the contraceptive mandate under the Patient Protection and Affordable Care Act. The cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialites Corp. v. Sebelius.

Both employers say that their religious beliefs bar them from providing employees with drugs or other items that they consider abortifacients. These employers argue that the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act protects their religious beliefs and therefore bars the application of the contraceptive mandate. In contrast, the government argues that for-profit corporations cannot exercise religion and therefore have no protection from the mandate.

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At present, the federal courts of appeal are deeply divided on this issue. Three circuits—the Seventh, Tenth, and D.C. Circuits—have upheld challenges to the mandate, while two circuits—the Third and the Sixth—have rejected these challenges. The most recent decision came from the Seventh Circuit in Korte v. Sebelius, Case No. 12-3841, and Grote v. Sebelius, Case No. 13-1077.  The court’s ruling, issued Nov. 8, 2013, held that the Religious Freedom Restoration Act barred the application of the mandate to closely held, for-profit corporations when the mandate substantially burdened the religious-exercise rights of the business owners and their companies.

The Supreme Court will likely hear oral argument in the consolidated Hobby Lobby andConestoga case in March 2014. The decision is expected to decide whether—and to what extent—for-profit corporations have a right to exercise religion. Many commentators see parallels between this case and the Citizens United case in which the Court held that corporations had a First Amendment right to make certain political expenditures. If the Court finds that corporations also have religious rights, it could have significant impact on the application of other laws—including the Title VII, the ADA, the FMLA, etc. For example, could a religious employer object to providing FMLA leave for an employee to care for a same-sex spouse, even in a state that recognizes same-sex unions? Keep an eye on this case—it could have far-reaching consequences.

Article by:

Mark D. Scudder

Of:

Barnes & Thornburg LLP

Google Glass In the Workplace

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WSJ reported on November 22, 2013, Google’s push to move Google Glass, a computerized device with an “optical head-mounted display,” into the mainstream by tapping the prescription eyewear market through VSP Global—a nationwide vision benefits provider and maker of frames and lenses. If the speed and immersion of technology over the past few years had shown us anything, it is that it will not be too long before employees are donning Google Glass on the job, putting yet another twist on technology’s impact on the workplace.

Employers continue to adjust to the influx of personal smartphones in the workplace, many adopting “Bring Your Own Device” (BYOD) strategies and policies. These technologies have no doubt been beneficial to businesses and workplace around the globe. The introduction of Google Glass into the workplace may have similar benefits, but the technology also could amplify many of the same challenges as other personal devices, and create new ones.

For example, employers may experience productivity losses as employees focus on their Glass eye piece and not their managers, co-workers, customers. Likewise, some businesses will need to consider whether Google Glass may contribute to a lack of attention to tasks that can create significant safety risks for workers and customers, such as for employees who drive or use machinery as a regular part of their jobs.

A popular feature of Google Glass is the ability to record audio and video. Smartphones and other devices do this already, but recording with Glass seems so much easier and become potentially less obvious overtime as we get used to seeing folks with the Glass. Of course, recording of activities and conversations in the workplace raise a number of issues. In healthcare, for instance, employees might capture protected health information with their devices, but potentially without the proper protections under HIPAA. Conversations recorded without the consent of the appropriate parties can violate the law in a number of states. Employees with regular access to sensitive financial information could easily capture a wealth of personal data, raising yet another data privacy and security risk.

The capturing of data on the Glass, even if not collected, used or safeguarded improperly, will add to the challenges businesses have to avoid spoliation of data stored in these additional repositories of potentially relevant evidence.

Only time and experience will tell what the impact of Google Glass will be in the workplace. However, as companies continue to adapt to present technologies, they should be keeping an eye on the inevitable presence of such new technologies, and avoid being caught without a strategy for reducing risks and avoidable litigation.

Article by:

Joseph J. Lazzarotti

Of:

Jackson Lewis LLP

National Labor Relations Board (NLRB) Judge Gives a “Like” to Facebook-Related Termination

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National Labor Relations Board (NLRB) Administrative Law Judge Jay R. Pollack recommended the dismissal of a complaint involving the termination of two former employees of the Richmond District Neighborhood Center, a non-profit organization in the San Francisco Bay Area that runs community programs including after-school and summer programs for youth.

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The decision is all the more surprising because Judge Pollack agreed with the General Counsel that the employees at issue were engaged in protected concerted activity in complaining about their employer on Facebook; yet he found that some of the actions described by the employees (including having “crazy events [without] permission,” “do[ing] cool [expletive] and let[ting] [the employer] figure it out,” “playing loud music and get[ting] graffiti artists to place graffiti on the walls,” and hav[ing] clubs and tak[ing] the kids”) in their Facebook conversations were not protected. Accordingly, the Judge found that the employer could lawfully find that the employees conduct was not protected and that they were unfit for further service.

While this decision shows that not all social-media misconduct must be tolerated by employers, it is important for employers dealing with these types of issues to contact competent labor and employment counsel prior to making any termination decisions involving social media, as defending against an action of this nature before the NLRB can be costly.

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Barnes & Thornburg LLP