Thanks to Kendall Gray of Andrews Kurth for the submission to The National Law Review:
Social Media: The New Harassment Landscape Continued
Benjamin L. Riddle of McBrayer, McGinnis, Leslie and Kirkland, PLLC, recently had an article featured in The National Law Review regarding Social Media and Harassment:
A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine. With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.
Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies. For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not. Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.
Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct. Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.
The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case.
Criminal Tax Fraud and Tax Controversy 2012 – December 6-7, 2012
The National Law Review is pleased to bring you information about the upcoming ABA Criminal Tax Fraud Conference:
When
December 06 – 07, 2012
Where
- Wynn Las Vegas
- 3131 Las Vegas Blvd S
- Las Vegas, NV, 89109-1967
- United States of America
As in past years, these institutes will offer the most knowledgeable panelists from the government, the judiciary and the private bar. Attendees will include attorneys and accountants who are just beginning to practice in tax controversy and tax fraud defense, as well as those who are highly experienced practitioners. The break-out sessions will encourage an open discussion of hot topics. The program will provides valuable updates on new developments and strategies, along with the opportunity to meet colleagues, renew acquaintances and exchange ideas.
Election Primer 2012
The National Law Review recently published a series of articles by Andrew Bowman of Drinker Biddle & Reath LLP regarding the Upcoming Elections:
Election Primer Part One: The Race for the White House
Supreme Court to Hear Arguments on Contours of “State Action” Exemption to Antitrust Laws
The National Law Review recently published an article by Steven J. Cernak of Schiff Hardin LLP regarding an upcoming Supreme Court Hearing:
On November 26, 2012, the U.S. Supreme Court will hear arguments in the only case this term to squarely raise antitrust issues. The case, FTC v. Phoebe Putney Health System, Inc., raises several issues related to the “state action” exemption to the federal antitrust laws. This case, along with another Federal Trade Commission (“FTC”) matter involving a North Carolina dental board on appeal in the 4th Circuit, should provide clearer antitrust guidance to doctors, dentists, lawyers, accountants and others arguably acting under the authority of a state, such as through licensure boards.
Since 1941, Georgia law has allowed counties to create hospital authorities to acquire and run hospitals. The Hospital Authority of Albany-Dougherty County was established immediately after the law’s passage and shortly thereafter acquired Phoebe Putney Memorial Hospital. The Authority has run the hospital ever since, the last several years through two wholly-owned subsidiaries. In 2010, the Authority gave permission for one of the subsidiaries to negotiate the purchase of the other hospital in the county, Palmyra Medical Center, from a private entity. The negotiations were successful and the Authority approved the transaction late in 2010.
In April 2011, the FTC initiated an administrative challenge to the acquisition as an anti-competitive merger and sought a preliminary injunction in district court. Both the district court and 11th Circuit denied the injunction request under the “state action” exemption to the antitrust laws. In particular, both courts found that the Georgia law’s delegation of powers to hospital authorities, including the power to acquire other hospitals, was a “clear articulation” of a policy to displace competition because such mergers were a “foreseeable result” of the legislation. Neither court thought that having the acquisition made through the Authority’s private subsidiaries precluded application of the exemption.
The Supreme Court has held that actions by a state as a sovereign trump the federal antitrust laws. Subdivisions of a state such as the Authority, however, are not sovereign and their actions are immune from prosecution under the antitrust laws only if the state legislature “clearly articulated” a policy to displace competition. If private parties are implementing that policy, they must be “actively supervised” by the state itself.
In this case, the FTC objects to a finding of a “clear articulation” where the action being challenged is just a “foreseeable result” of the state action. Instead, the FTC urges the Court to require that the clear articulation be made explicitly and clearly by the legislature or that the anti-competitive effect be a “necessary” or “inherent” effect of the state action. The FTC also believes that these private hospital parties were not “actively supervised”. The Authority and Phoebe parties respond that the lower courts’ “foreseeable results” standard was correct and correctly applied. In addition, the Authority and Phoebe parties argue that the “active supervision” prong is not necessary here because either 1) the Authority, not the hospitals, was taking the action; or, if rejected, 2) the hospitals were agents of the state-created Authority.
The case has attracted several amicus briefs. Perhaps the most important comes from the American Medical Association urging the Court not to rule in this case in such a way that the state action doctrine would not be available to state or local medical licensure boards that contained competitors. Here, the AMA is referring to another current FTC challenge to allegedly anti-competitive actions by a state-sponsored health care agency, this one involving a North Carolina dental licensure board with private dentist members. That case has been fully briefed for the 4th Circuit but oral argument has not yet been scheduled. These two cases are the latest examples of a decade-long effort by the FTC to obtain clear guidance from the courts on the limits of the state action exemption.
Clients acting at the behest of a governmental entity — such as serving on the local licensure board for insurance, real estate or other professionals — need to be aware of the current limits to the state action doctrine and the possibility that those limits might be further explained by the Court in this case.
© 2012 Schiff Hardin LLP
ABA Winter Institutes – January 23-25 and February 14-15, 2013
The National Law Review is pleased to bring you information about the upcoming ABA Winter CLE Institutes:
ABA National Institutes
Learn and network at these live in-person seminars that draw lawyers from across the nation. January National Institutes include the 2013 E-Discovery and Information Governance, January 23-25 in Tampa, FL. February National Institutes include the 2013 Gaming Law Minefield, February 14-15 in Las Vegas, NV.
Sunday Funnies: Grammarian Goes Postal
The National Law Review is pleased to bring you another edition in the Sunday Funnies, submitted to us by Kendall Gray of Andrews Kurth:
8th Annual General Counsel Institute – November 8-9, 2012
The National Law Review is pleased to bring you information about the upcoming 8th Annual General Counsel Insitute:
Success Strategies: Defining Success and Adding Value as In-House Counsel in the 21st Century.
November 8-9, 2012
Intercontinental Hotel
300 West 44th Street
New York, New York
Adding value as an in-house lawyer in the 21st century requires the ability to define and realize success for yourself, your department and your company. As General Counsel – or as someone reporting to the General Counsel – you need to be an insightful lawyer, thought leader and talent manager who understands your own strengths and “opportunity areas,” commits to grow and develop personally and professionally, and brings innovative change to your organization. Learn new strategies for success at NAWL’s 8th Annual General Counsel Institute.
Hurricane Sandy: Board of Education Discretion in Issuing Alternative Work Schedules on Snow Days
Jason S. Long of Dinsmore & Shohl LLP recently had an article, Hurricane Sandy: Board of Education Discretion in Issuing Alternative Work Schedules on Snow Days, featured in The National Law Review:
With the Hurricane Sandy knocking at our front doors, now seems like a good time to update Boards of Education on alternative work schedules for professional and service personnel. As we all know, in West Virginia a school system is always faced with a number of school cancellations and delays as a result of inclement weather. A common question from school administrators is: What discretion does a Board of Education have in issuing alternative work schedules on snow days?
West Virginia Code 18A-5-2 provides that “any school or schools may be closed by proper authorities on account of . . . conditions of weather or any other calamitous cause over which the board has no control. . . [and] the time lost by the closing of schools is counted as days of employment and as meeting a part of the requirements of the minimum term of one hundred eighty days of instruction. On such day or days, county boards of education may provide appropriate alternate work schedules for professional and service personnel affected by the closing of any school or schools under any or all of the above provisions. Professional and service personnel shall receive pay the same as if school were in session.”
Of course when a Board of Education provides alternative work schedules, it must do so without discrimination and/or favoritism. West Virginia Code 6C-2-2 defines discrimination as “any differences in the treatment of similarly situated employees, unless the differences are related to the actual job responsibilities of the employees or are agreed to in writing by the employees”. And, favoritism is defined as “unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of a similarly situated employee unless the treatment is related to the actual job responsibilities of the employee or is agreed to in writing by the employee.” In sum, a Board of Education should be uniform among similarly situated employees.
For example, in Denny Sullivan v. Jackson County Bd. of Educ., Docket No. 96-18-087 (Aug. 30, 1996), the board of education on a state of emergency day called only maintenance and custodial employees to work, as they were considered essential to maintain the premises and remove snow. If any employee in either of these classifications was unable to report to work they were required to take some form of leave time. The Grievants, all in the classifications required to report, initiated a grievance alleging favoritism and discrimination because other employees did not have to report to work. However, the Grievance Board ruled that the Grievants failed to show any violation, and ruled that “a county board of education may establish ‘alternative work schedules’ for employees during a time of emergency.”
Also, it is important to note that “differences in work sites can justify differences in the treatment of employees assigned to those sites despite that the employees are in the same classification.” Bryan Rogers v. Jackson County Bd. of Educ., Docket No. 96-18-104 (Aug. 30, 1996).
Another example is found in Sandra Shetler and Deborah Weatherholtz v. Berkeley County Bd. of Educ., Docket No. 00-02-119 (June 9, 2000) in which the Board of Education directed all central office personnel to report to work on a one hour delay on a day in which school was closed for snow. School based staff was not to report to work. The Grievants were both Special Education Coordinators. The Grievance Board ruled that the “Grievants were not similarly situated to the employees who were not required to report to work. The other 210-day employees that did not have to work were school-based employees, were not in Grievants’ classification, and their schools, or places where they worked, were not open for business.” Again, the most important factor is to treat similarly situated employees equally, but, differences in work sites can justify differences in the treatment of employees assigned to those sites despite that fact that the employees are in the same classification.
© 2012 Dinsmore & Shohl LLP
Operational and Technical Changes for FACTA Compliance – January 30 – February 1, 2013
The National Law Review is pleased to bring you information about the upcoming Global Financial Markets – Operational and Technical Changes for FACTA Compliance:
key topics
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- Assess the full implications of the finalized FATCA regulation
- Coordinate an optimal approach to operational, infrastructural and technical changes under FATCA
- Identify strategies to effectively manage client accounts
- Integrate existing internal procedures with FATCA compliance
- Understand what is expected by the IRS
key features
-
- Pre-Conference Workshop on January 30, 2013 for an Additional Cost:
- Pre-Conference Workshop: The Intergovernmental Agreements: Changing the Face of International Tax lead by JP&MF Consulting and Mopsick Tax Law LLP
event focus
-
FATCA is amongst the biggest topics of debate in financial institutions across the globe. The effect that it will have on these institutions cannot be underestimated and its operational impact on the existing systems is set to be both time consuming and costly. The ability to successfully align all key stakeholders, including operations, technology, risk, legal and tax, will determine the ultimate cost of FATCA compliance. Moving on from mere interpretive matters, this GFMI conference will not only address key FATCA requirements but also discuss the practical impacts of IGAs and strategies for achieving operational and infrastructural efficiency.
The Operational and Technical Changes for FATCA Compliance Conference will be a two and half day, industry focused event, specific to Senior Executives working in Banks, Insurance and Asset Management Companies. Attendees will address key FATCA requirements, while discussing the practical implications of IGAs and strategies for achieving operational and infrastructural efficiency.
Key Themes of the Operational and Technical Changes for FATCA Compliance Conference Include:
1. Challenges of FATCA regulations and prospects for the final regulation
2. Achieving operational and infrastructural efficiency
3. Coordinating existing AML/KYC procedures with FATCA compliance
4. FATCA from the FFI’s perspective 5. Beyond banking: the challenges of FATCA implementation
6. Coping with the withholding obligation under FATCA
This is not a trade show; our conference series is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.