labor and employment Archives - Page 13 of 14

Right-to-Work Battle in Illinois Enters Cease Fire – For Now

Illinois is completely surrounded by right-to-work states that have laws making it unlawful for companies to require union dues as a condition of employment. Notwithstanding the recent trend of states enacting such laws, the Illinois legislature tried its best this year to block right-to-work legislation within its borders.

Earlier this year, the Illinois legislature passed a law that would prohibit local governments from enacting their own right-to-work laws after one Illinois municipality attempted to enact a right-to-work ordinance in 2015. Illinois Gov. Bruce Rauner vetoed the legislation – based on his belief that right-to-work laws promote business growth – and this week the legislature fell one vote short of overriding his veto. There are signals legislators may attempt to revive the legislation next year. Thus, this remains an issue for Illinois employers to watch.

This issue is not unique to Illinois; local governments in Kentucky enjoyed some success with their own right-to-work ordinances several years ago before the state enacted its own right-to-work law.

Right-to-work laws are permitted under Section 14(b) of the Taft-Hartley Act and make it unlawful for companies to require union dues as a condition of employment. In states where right-to-work laws are not enacted, most unionized employers have clauses in their labor agreements that require dues payments as a condition of employment – the clauses generally are known as “union seniority clauses.” At present, 28 states have right-to-work laws on the books. The National Right to Work Foundation maintains a current list.

For more Labor & Employment legal analysis, go to The National Law Review

The Politics of Tragedy – New Employment Rights Proposed for Bereaved Parents

You know it’s time to re-issue your employment legislation when the nearest available section number for the insertion of an amendment into the Employment Rights Act is Section 171ZZ. Though it might sound like a bottom-rank Star Wars droid, that little fellow is actually the proposed product of a new Bill on time off work for parents who lose children, the Parental Bereavement (Leave and Pay) Bill.

No one can question the lasting devastation of the death of a child, but what evidence is there that we really need still more employment legislation to ensure that the parent has some time to mourn? So far as is apparent from recent speeches on the matter (go to www.theyworkforyou.com to see who has said what in Parliament on the point), the sponsoring MP has no direct evidence of time off not being granted by an employer in those circumstances. Instead he relies on an unattributed story from another MP about someone in Scotland who was told on the death of his new baby that as he would therefore no longer need the balance of his paternity leave, he was expected to return to work. If true, this is obviously grim beyond words, but no Employment Tribunal on earth would support a dismissal on those grounds and so it seems scant grounds indeed for this new legislation. Any employer which would say such a thing at that time is hardly likely to pay attention to some obscure Westminster regulation anyway.

All that said, what about the proposal itself? Running to 18 pages, a full third of them consequential amendments to other statutory provisions, the Bill sets out a scheme with distressing parallels in terms of complexity and rank over-engineering with the Shared Parental Leave rules, including the frankly appalling proposition, that the employer should be entitled to ask for proof of the child’s death as a condition of granting the leave.

Key points so far, bearing in mind that the Bill is merely an enabling framework, not the detailed regulations due to be made under it:

“Child” is anyone under 18 and likely to include stillbirths after 24 weeks of pregnancy. “Parent” may include step-parents and others with established caring relationships above and beyond the biological parents.
The minimum period of leave will be two weeks, to be taken in whole weeks (but not necessarily consecutively) within eight weeks from the passing of the child.
Like maternity absence, you keep all your terms and conditions (and obligations) of employment over the absence period except in relation to remuneration.
There is a hint that the employer’s ability to dismiss the employee during the absence period may be limited and/or there may be an obligation on the employer to offer alternative employment. I imagine that this may end up looking like the Regulation 10 rules in the Maternity and Parental Leave Regulations around redundancy and priority for redeployment during maternity leave. A dismissal in breach of those rules in likely to be automatically unfair.
The right to time off has no prior service condition but Statutory Parental Bereavement Pay will by a new Section 171ZZ6(2)(b) – I am not making this up, I promise – only be available to those with six months’ prior continuous service.
Eligibility for SPBP may also be conditional on appropriate prior written notices being given to the employer of the week or weeks for which it is to be paid. I would take the view that giving an express form of notice to my employer would be the last thing on my mind if my world had just fallen apart through the loss of a child, so you would at least hope that any such notice could be retrospective.
SPBP will be deemed included in any continuation of the employee’s salary over the absence period and by Section 171ZZ10 you will not be able to contract out of paying it or make the employee contribute to it.

Losing a child is a horrible thing but this fairly overt attempt to turn grief into political capital is neither necessary nor fit for purpose. We must hope, for the benefit of both employers and the very people it is designed to protect, that if the Bill makes law at all, the implementing measures greatly declutter the provisions which it currently proposes.

For more Labor & Employment legal analysis go to The National Law Review

Citing Failure to Cooperate, Court Orders Use of Specific Keyword Search Terms

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

In this pay discrimination case, the Court addressed Defendants’ motion for a protective order precluding further searching for responsive documents. Citing defense counsel’s failure to “adequately confer” before performing the initial searches, “which resulted in searches that were inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order Defendants to conduct additional searches with specific terms, many of which were proposed by the plaintiff.

Plaintiff alleged that Defendants payed a female employee less than they were paying her male counterparts, despite similar responsibilities in the track and field program, and sought, broadly speaking, production of documents reflecting communications regarding her compensation; production of documents regarding her complaints concerning pay; and production of documents regarding any other complaints of pay discrimination made by other coaches, trainers, etc. Without adequately cooperating with the plaintiff, Defendants performed “more than 20” keyword searches and produced “more than 14,000 pages of documents.” When Plaintiff indicated concern regarding the adequacy of Defendants’ searching, the parties were unable to resolve their dispute and Defendants ultimately moved for a protective order. Defendants argued that the discovery sought was not proportional to the needs of the case, noting the efforts already undertaken. Plaintiff disagreed.

Indicating that this case presented “the question of how parties should search and produce [ESI] in response to discovery requests,” the Court reminded the parties that “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and that “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.” In the present case, the Court concluded that the failure to confer resulted in inadequate searches and, acknowledging Plaintiff’s argument that “[Defendant] alone is responsible for its illogical choices in constructing searches” indicated that, “which searches will be conducted is left to the Court.”

As promised, the Court went on to discuss the three disputed discovery requests and identified specific search terms and custodians to be searched, many of which were proposed by the plaintiff. The Court also instructed the parties to work together to the extent necessary, if the non-responsive documents returned were too voluminous, for example.

The Court ended the opinion by returning to the topic of cooperation:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

[Citation omitted.]

A copy of the Court’s order is available here.

For more legal analysis go to The National Law Review

Employers Helping Employees—Are Disaster Relief Payments and Loans Exempt From Puerto Rico Income Tax?

With the havoc wrought by Hurricane Maria in Puerto Rico, employers are exploring options to provide emergency relief to those employees who have encountered financial hardship to meet their necessities and repair their homes in the wake of the disaster. Occasionally, aid from employers to employees comes in the form of disaster-relief monetary payments and interest-free loans. In light of the state of emergency in Puerto Rico declared by local authorities, on October 4, 2017, the Puerto Rico Department of Treasury released Administrative Determination No. 17-21 (AD 17-21), which provides necessary and well-timed guidance on the taxation of this type of assistance.

Qualified Disaster Assistance Payments

Disaster assistance payments, which meet the requirements of AD 17-21, are not includable in an employee’s taxable income and, thus, are exempt from Puerto Rico income tax. Under AD 17-21, any payment made by an employer to an employee, or directly to a provider of goods and/or services, will be considered “qualified” and not treated as taxable compensation provided that:

payments are made in lieu of wages lost by the employee while he or she is not able to work due to the disaster;
payments are made to (a) cover necessary and reasonable expenditures of the employee or the employee’s relatives for food, medications, gas, lodging, medical expenses, the care of children or dependents, power generators, funeral services, and/or the repair of destruction to the employee’s principal residence incurred as a result of Hurricane Maria, as long as the payment is made directly to the provider of goods and/or services; (b) to the employee himself or herself and to mitigate damages or losses resulting from Hurricane Maria, subject to a monthly cap of 1,000; and/or (c) for other purposes, as recognized by AD 17-21;
payments are received by the employee (or the provider of goods and/or services, as appropriate) at any time between September 21, 2017, and December 31, 2017; and
payments are in no way attributable or related to the level of the employee’s position or salary.

Employers that make qualified disaster assistance payments must report such payments no later than January 31, 2018, by submitting a sworn statement to the Puerto Rico treasury stating the names and social security numbers of the employees who received qualified payments and the total amount of the payments. Qualified disaster assistance payments made in compliance with AD 17-21 are tax-deductible for the employer.

Interest-Free Loans

Interest-free loans of up to $20,000 (either individually or in the aggregate) granted by an employer to an employee, from September 21, 2017, through June 30, 2018, to cover necessary and reasonable expenses of the employee or the employee’s family and expenditures for the construction or repair of the employee’s principal residence due to damage from Hurricane Maria are exempt from Puerto Rico income tax.

Employers may grant interest-free loans to employees in addition to qualified disaster assistance payments.

For more Labor & Employment legal analysis, go to The National Law Review

New California Laws Provide Protections to Immigrant Employees

On October 5, 2017, California Governor Jerry Brown signed 11 bills essentially making California a sanctuary state. The California Values Act (SB 54) aims to protect undocumented immigrants living in California. Brown stated that “this bill strikes a balance that will protect public safety while bringing a measure of comfort to those families who are now living in fear every day.” The law, which will become effective on January 1, 2018, stops state and local enforcement agencies from using state resources to enforce federal immigration laws.

While the California Values Act has received a good deal of press, it is the Immigrant Worker Protection Act (AB 450), that is most relevant to employers.

With the signing of the IWPA, California became the first state to explicitly affirm the rights of immigrant workers at the worksite. The bill imposes an affirmative obligation on California employers to provide employees notification that ICE has determined they are lacking work authorization, thereby giving them advance warning that ICE may be considering their apprehension and removal from the U.S. through a workplace raid. Beyond union support, the IWPA is designed to protect an immigrant workforce essential to California’s economy – especially its agriculture. “According to [California] state Controller Betty Yee, undocumented immigrants’ labor is worth more than $180 billion a year.”

To protect immigrant employees, the IWPA:

Requires employers to ask for a warrant before allowing federal immigration officials into a workplace to interview employees
Bars employers from sharing employees’ confidential information (i.e. Social Security numbers) without a subpoena except for I-9s or other documents when a Notice of Inspection has been provided
Establishes penalties ranging from $2,000 to $10,000 for employers that:
- Fail to give employees public notice within 72 hours of an upcoming federal immigration inspection of employee records including written notice to any Collective Bargaining Representative
- Fail to provide affected employees with a copy of any Notice of Inspection and a copy of any inspection results within 72 hours

In late September, just prior to the signing of these bills, ICE implemented “Operation Safe City.” During the four-day operation about 500 people were arrested in California, Colorado, Illinois, Maryland, Massachusetts, New York, Oregon, and Pennsylvania, in cities and counties specifically targeted for their sanctuary policies. Thomas Homan, ICE’s Acting Director stated: “Sanctuary jurisdictions that do not honor detainers or allow us access to jails and prisons are shielding criminal aliens from immigration enforcement and creating a magnet for illegal immigration . . . As a result, ICE is forced to dedicate more resources to conduct at-large arrests in these communities.” Now, in response to the California Values Act and the IWPA, ICE announced it would have to target California neighborhoods and worksites.

For more Immigration legal analysis go to The National Law Review

Employees Sue for Fingerprint Use

Employees of Peacock Foods, an Illinois-based food product manufacturer, recently filed a lawsuit against their employer for alleged violations of Illinois’ Biometric Information Privacy Act. Under BIPA, companies that collect biometric information must inter alia have a written retention policy (that they follow). As part of the policy, the law states that they must delete biometric information after they no long need it, or three years after the last transaction with the individual. Companies also need consent to collect the information under the Illinois law, cannot sell information, and if shared must get consent for such sharing.

According to the plaintiff-employees, Peacock Foods used their fingerprints for a time tracking system without explaining in writing how the saved fingerprints would be used, or if they would be shared with third parties. According to the employees, this violated BIPA’s requirement for explaining -in the consent request- how information would be used and how long it would be kept. The employees also alleged that Peacock Foods did not have a retention schedule and program in place for deleting biometric data. The employees are currently seeking class certification.

Putting it Into Practice: This case is a reminder that plaintiffs’ class action lawyers are looking at BIPA and possible complaints that can be brought under the law. To address the Illinois law – and similar ones in Texas and Washington – companies should look at the notice and consent process they have in place.

For more Labor & Employment legal analysis, go to The National Law Review

Chicago City Council Committee Approves Hands Off-Pants On Ordinance to Protect Hotel Employees

On October 2, 2017, the Chicago City Council Committee on Workplace Development and Audit approved an amendment to the Municipal Code (the “Ordinance”) that, if approved by the full City Council, will require hotel employers to equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices and develop and implement new anti-sexual harassment policies and procedures. The Ordinance is in response to multiple reports of sexual assault and harassment targeted at hotel employees by hotel guests.

The Ordinance in its current form will require hotel employers to (1) equip employees who are assigned to work in a guest room or restroom, under circumstances where no other employee is present in the room, with a panic button (at no cost to the employee) which the employee may use to summon help from other hotel staff if s/he reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence; (2) develop, maintain and comply with a written anti-sexual harassment policy to protect employees against sexual assault and sexual harassment by guests; and (3) provide all employees with a current copy of the hotel’s anti-sexual harassment policy, and post the policy in conspicuous places in areas of the hotel where employees can reasonably be expected to see it.

With respect to the anti-sexual harassment policy mandates, employers must develop a policy that:

Encourages employees to immediately report to the employer instances of alleged sexual assault and sexual harassment by guests;
Describes the procedures that the complaining employee and employer shall follow in such cases;
Affords the complaining employee the right to cease work and leave the immediate area where danger is perceived until such time that hotel security or the police arrive to provide assistance;
Affords the complaining employee the right, during the duration of the offending guest’s stay at the hotel, to be assigned to work on a different floor or at a different station or work area away from the offending guest;
Provides the complaining employee with sufficient paid time to (a) file a complaint with the police against the offending guest, and (b) testify as a witness at any legal proceeding that may ensue as a result of such complaint;
Informs the employee that the Illinois Human Rights Act and Chicago Human Rights Ordinance provide additional protections against sexual harassment in the workplace; and
Informs the employee that it is unlawful for an employer to retaliate against any employee who reasonably uses a panic button or exercises any right under the Ordinance.

Employers in violation of the Ordinance would be subject to a fine between $250-$500 for each offense, and each day that a violation continues constitutes a separate and distinct offense.

Consequently, it is critical that Chicago hotel employers monitor the status of this Ordinance, which is now pending before the full City Council. If passed and signed into law, the Ordinance will take effect within 90 days of signature. Employers should consider preparations for providing panic buttons to those employees protected by the Ordinance and training hotel employees on their use, and revisiting anti-sexual harassment policies, whether stand-alone or included in employee handbooks, to ensure compliance with the Ordinance’s mandates. Additionally, employers should consider providing updated anti-sexual harassment and anti-retaliation training to all employees, including those who are assigned to work in guest rooms or restrooms, to ensure that all employees fully understand their employer’s policies and procedures.

For more legal analysis go to The National Law Review

The Time to Comply is Now: The New “I-9 Sheriff” is in Town!

As we have previously informed our readers, the Department of Homeland Security (DHS) has issued yet another update to U.S. Citizenship & Immigration Services’ (USCIS) Employment Eligibility Verification Form (commonly referred to as Form I-9).

As of September 18, the revised Form I-9 is in effect, bringing a new paperwork duty for all U.S. employers. All employers who have not already done so must immediately disregard the old version of and begin using the new version of Form I-9. The new form is accessible on the (USCIS) website, and older versions of Form I-9 are no longer available to the public. The new version of Form I-9 is not required for existing employees, since it pertains only to new hires joining a company on or after September 18, 2017.

Following are some reminders for employers to keep in mind during the onboarding process:

While the core requirements of Form I-9 remain unchanged, employers will find minor revisions concerning the instructions and the list of acceptable documents that confirm an intended employee’s identity and employment eligibility. Specifically, USCIS changed the name of the U.S. Department of Justice’s enforcement arm on employment eligibility compliance, namely from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name of Immigrant and Employee Rights Section. What is more, USCIS modified the form’s instructions by removing “the end of” from the phrase “the first day of employment.” As a result, employers should amend their Form I-9 procedures to ensure that all intended employees complete the form’s Section 1 at the outset of the first day of employment.
USCIS has also revised the list of acceptable documents concerning employment eligibility. Notably, USCIS added the Consular Report of Birth Abroad Form (Form FS-240) as an acceptable List C [employment eligibility] document. Form FS-240 is generated by the U.S. Department of State (DOS) at U.S. embassies worldwide to record the birth of a U.S. citizen outside U.S. territorial limits. Now, employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C pertaining to Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9. Lastly, USCIS combined all the certifications of report of birth issued by the DOS into selection C # 2 in List C and renumbered all List C documents, except the Social Security card.

USCIS has included all these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is more user friendly than older editions of this document. Unlike previous versions of M-274, users can no longer download the handbook as a PDF document. Instead, USCIS has now organized and posted the M-274 handbook’s content as a web-based resource. It is yet unclear how USCIS will be updating this document. By consequence, employers should regularly review the most updated, on-line content of the M-274 handbook, as it will likely be a more dynamic document.

3. Another valuable resource for employers handling Form I-9 issues is the I-9 Central webpage available on the USCIS website. This webpage provides additional information about Form I-9, including learning resources and frequently asked questions.

Although the changes to Form I-9 are minor, failure to use the new version of the form can result in significant fines. Employers should therefore revisit their compliance policies to ensure a seamless transition to the new Form I-9.

For more Immigration Legal Analysis go to The National Law Review

Why the Billable Hour Is Here to Stay

While you may grind away on files day in and day out through six-minute intervals, tracking the time can prove distracting and burdensome. The billable hour remains the standard method for billing with lawyers, and this has been the standard for decades. Despite the longevity of the billable hour, plenty of lawyers believe they can find a better way to bill their clients.

The Argument Against the Billable Hour

Lawyers from a variety of fields have raised arguments against billing by the hour. One of those arguments is how you only have so many hours in the day that you can work. In addition, an hourly billing setup fails to acknowledge how different legal services will have differing value. Some have made the claim hourly billing encourages inefficiency and incompetence because the longer it takes a lawyer to finish the job, the more they get paid. This shows a conflict of interest because a lawyer might feel tempted to spend the maximum hours on a file.

Does the Billable Hour Remain the Standard?

Gradually, lawyers have started to charge through alternative methods. Some of those methods include:

Flat fees
Results-based fees
Contingency fees
Fees by stages

In today’s world, a client asks more value for his dollar, and plenty of lawyers are happy to accommodate. Still, the billable hour reigns supreme even despite talk of a massive shift. The billable hour hasn’t taken hold as of yet. However, it has been growing. In fact, a recent study found how the alternative fee arrangements were up five percent from several years ago to 22 percent since.

Revolutionizing the Law Industry

Plenty of firms have seen this and started to shift their own law practice out of the curiosity of what a billable-hour free firm might look like. Since the early 1990s, lawyers have predicted the eventual end of the billable hour, but it has never truly ended. Until a more alternate billing comes, it’s unlikely that the billable hour will ever fully go away. In fact, some law firms will always prefer it, and unless the clients demand a change, the billable hour serves both lawyers and clients in a way where an alternative arrangement might prove to be more difficult.

Education of the Client

Bill Rice, a partner at Bennett Jones, says that his national firm offers the alternate billing proposal. Many times clients will ask for the alternate billing, but in the end, they wind up choosing the hourly billing because they don’t know how to judge if the alternate arrangement will be fair. Rice says, “While we’ve moved forward with breaking the billable hour, we still haven’t reached the appropriate level of comfort with alternate billing.” Essentially, clients are unable to find a better way to judge the value or to maintain control over it.

This is where research comes in play. If you decide to want to take an alternative route, education is key. By explaining the process, average cost, and the highest potential cost, your client can decide which avenue he or she may want to take.

Where Alternative Billing Does Best

In some cases, the billable hour continues to be the best fit for the attorney and/or law firm. This includes the markups and discounts and how much time a lawyer puts into the case. Sometimes blended rates come into play due to work getting divided amongst the firm. In these circumstances, you will experience a blend of hourly rates.

Where fixed-fee billing (say that five times fast) works best, might be when an event an activity is scheduled. Some of the possible examples include:

Patenting
Immigration visa

Fixed-rate billing also allows an attorney to exit a case with less worry. Sometimes with the billable hour, there’s that worry of a possible lawsuits malpractice. When you lay everything on the table, the client knows what he’s getting himself into. As a result, you have a more satisfied group of clients because they feel they got the value out of what they paid for.

The Problem of Efficiency: The Billable Hour

You could spend up to an hour trying to fix a leaky faucet and getting nowhere in the process, even though the problem is fairly simple. The same could be said about the billable hour. You want to provide attorneys with some incentive on why they should work hard to finish the case fast. It’s true that some of the other billing methods might not necessarily be cheaper than the billable hour, but it gives clients a fixed budget to work with and peace of mind knowing it won’t go higher.

The billable hour isn’t likely to go anywhere in the future. New methods of billing will, however, probably come up as lawyers get more creative on how to bill their clients for their legal services. The world today focuses more on value-driven legal services. For that reason, it seems like a good incentive to provide lawyers with a reason to up the quality of their services while giving clients predictable budgets they can count on to stay the same.

For more legal analysis go to The National Law Review

Athletes and Employees Speak Out: Do Your Employment Practices Drop the Ball in Addressing Diversity, Controversial Speech, or Tensions at Work?

With the 2017-18 National Football League (NFL) regular season and National Basketball Association (NBA) pre-season underway, many spectators are excited to don their favorite players’ jerseys and cheer on their teams. Yet in recent years, many fans also find themselves equally entrenched in controversial debates that have little to do with who wins or loses the game.

Rather, these dialogues relate to the frequent media coverage over the alleged “blacklisting” of former San Francisco 49ers quarterback Colin Kaepernick after he took a knee during the national anthem last season to protest police brutality against minorities, related demonstrations held in front of the NFL’s corporate offices, and actions of solidarity on football fields across the country by athletes like Marshawn Lynch and members of the Cleveland Browns virally trending with the hashtag #ImWithKap. Most recently ESPN sports host, Jemele Hill, drew the attention of the White House and placed her own employment in the cross-hairs by stating in a series of tweets that President “Donald Trump is a white supremacist who has largely surrounded himself w/ other white supremacists” and is “unqualified and unfit to president.” and in In response, the White House press secretary called Hill’s statements a “fireable offense.”

As athletes and other public figures use their careers to bring awareness to social movements and other world events such as the Charlottesville tragedy, the implications of social movements on employee relations remains a hot topic that poses challenging issues for employers related to diversity, inclusion, and free speech. Here are a few of those related topics and some practical suggestions of ways employers can address these issues in the workplace:

Does the First Amendment Apply to Athletes or Employees Generally?

People often mention their First Amendment guarantees without understanding that this right is not without certain limitations, especially in the employment context. Specifically, while this protection covers federal, state, and local government employees, courts have held that First Amendment protections do not generally extend to the employees of private-sector employers.

Does Social Media Change Things?

As evidenced by legendary athletes Dale Earnhardt Jr.’s and Kareem Abdul-Jabbar’s Twitter posts in response to the Charlottesville tragedy, many athletes and employees use social media to vocalize their positions on social issues. The National Labor Relations Board (NLRB) has taken on cases where employers have fired or taken disciplinary actions against employees who have engaged in certain protected speech via various social media platforms. On the agency’s website, the NLRB states: “The National Labor Relations Act protects the rights of employees to act together to address conditions at work…. [t]his protection extends to certain work-related conversations conducted on social media”.

This raises the question: Can an employee be disciplined for making racially- or politically- charged speech via social media?

The standard that the NLRB considers is whether the employee is engaging in “protected concerted activity” involving the terms and conditions of employment. Courts have used a multi-factor assessment to determine whether discipline or discharge violates Section 8(a)(1) of the NLRA, which evaluates whether:

the activity in which the employee was engaged was “concerted” within the meaning of Section 7 of the NLRA;
the employer knew of the concerted nature of the employee’s activity;
the concerted activity was protected by the NLRA; and
the discipline or discharge was motivated by the employee’s protected, concerted activity.

If the employer alleges that an employee engaged in misconduct during otherwise protected activity, the NLRB generally considers four factors in determining whether speech is protected:

the place of the discussion;
the subject matter of the discussion;
the nature of the employee’s outburst; and
whether the outburst was, in any way, provoked by an employer’s unfair labor practice

In many instances, purely individual speech about a social or political topic that in no way involves an employee’s work conditions will not be protected by the NLRA. Because of the fact-specific nature of the inquiry, a determination must be made on a case-by-case basis.

So What Now?

Even employers not covered under the First Amendment and NLRA’s protections are finding themselves examining some weighty questions. For example:

Although there may be legally sanctioned limitations to free speech in the workplace, does the modern day work culture require employers to facilitate an employment experience that goes beyond what the law requires?
Are employers tasked with creating a workplace that is inclusive but also allows people to express unique (and sometimes controversial) viewpoints on social or political issues?
If so, how does this work and does it ultimately help the business to thrive long term?

Last year the NBA and the NBA’s Players Association (NBAPA) appeared to have answered this question in the affirmative and implemented this approach with its players. Despite having player agreements with language that can, in some cases, regulate players’ conduct, NBA athletes have expressed their positions on social issues both on and off the court. For example, during pre-game warm ups LeBron James wore a t-shirt stating “I Can’t Breathe,” bringing awareness to the death of Eric Garner. Similarly, Carmelo Anthony and Dwyane Wade made a social action appeal during the 2016 ESPY awards.

Many players have been so outspoken that last year NBA Commissioner Adam Silver and NBPA Executive Director Michele Roberts penned a letter noting that both organizations were addressing the best ways they could move forward in “developing substantive ways . . . to come together and take meaningful action.” The letter noted that, in recent weeks, many teams had reached out to the organizations to figure out how they could “create positive change” and garner support with team efforts.

Employers may want to take note of the ways that the NBA and the NBAPA are attempting to address this topic. Additionally, employers may also want to review the following considerations.

Be Aware of Blacklisting Laws

Many states have blacklisting laws that, generally, prohibit employers from limiting former employees’ opportunities. The following are a handful of state laws regulating blacklisting:

North Carolina law prohibits employers from preventing or attempting to prevent any “discharged employee from obtaining employment with any other person, company, or corporation” whether by verbal or written action.
The California Labor Code also prohibits any person from preventing or attempting “to prevent the former employee from obtaining employment” by misrepresentation and punishes any manager or employee who knowingly “fails to take all reasonable steps to prevent” such action.
Indiana law makes it illegal for an employer to prevent a “discharged employee from obtaining employment with any other person” or employer.
Florida law makes it illegal for two or more people to “agree, conspire, combine or confederate together for the purpose of preventing any person from procuring work . . . or to cause the discharge of any person.” The law also prohibits verbal, written, or printed communication that “threaten[s] any injury to life, property or business of any person for the purpose of procuring the discharge of any worker . . . or to prevent any person from procuring work”.
New York Labor Law says it is an unfair labor practice “[t]o prepare, maintain, distribute or circulate any blacklist of individuals for the purpose of preventing any of such individuals from obtaining or retaining employment because of the exercise by such individuals of any of the rights guaranteed by section seven hundred three,” which discusses the right to join a labor organization or to bargain collectively.
Arizona law explicitly defines the term “blacklist” as “any understanding or agreement whereby the names of any person or persons, list of names, descriptions or other means of identification shall be spoken, written, printed or implied for the purpose of being communicated or transmitted between two or more employers of labor, or their bosses, foremen, superintendents, managers, officers or other agents, whereby the laborer is prevented or prohibited from engaging in a useful occupation. Any understanding or agreement between employers, or their bosses, foremen, superintendents, managers, officers or other agents, whether written or verbal, comes within the meaning of this section and it makes no difference whether the employers, or their bosses, foremen, superintendents, managers, officers or other agents, act individually or for some company, corporation, syndicate, partnership or society and it makes no difference whether they are employed or acting as agents for the same or different companies, corporations, syndicates, partnerships or societies.”

Be Proactive

Do not wait for your company to become the next trending hashtag on social media as a result of a workplace controversy! Instead, be prepared and take proactive measures in the event employees take a stand on controversial issues. Some options are to proactively address and be sensitive to diversity issues, and to recognize and understand the benefits of workforce diversity both as a source of varied ideas and a competitive advantage. Employers may also want to consider hiring a Chief Diversity and Inclusion Officer or diversity and inclusion team responsible for addressing equity issues.

Be Current

Consider reviewing your employee handbooks, in addition to contracts you might have with individual employees (or athletes) and third parties to ensure your company’s policies regarding diversity and inclusion, nondiscrimination and harassment, and professional development are up to date. Employers may also want to consider evaluating successes and areas for growth in the following areas:

the recruitment, hiring, promotion, and advancement of diverse employees;
the availability of alternative work schedules for working parents;
the evaluation of salaries and compensation levels of all employees in terms of current pay equity principles; and
the stemming attrition rates of diverse employees.

Finally, employers may want to examine records to determine whether all employees, especially management employees, have participated in appropriate diversity and inclusion trainings, particularly on implicit or unconscious bias.

Be Careful

Employer-created bans on any socially- or politically-related speech rarely if ever actually work and may create exposure to liability under the First Amendment, the NLRA, or state-specific laws. Rather than imposing an outright ban on certain conduct, employers may want to slow down and engage in careful thought at the outset prior to taking any action on behalf of the organization. Employers may also find it beneficial to acknowledge that what happens in the world impacts the workplace. Accordingly, employers may want to develop affinity or employee resource groups, and/or maintain a diversity committee that facilitates well-thought-out inclusion initiatives. With many issues at play from reducing the risk of unlawful discrimination charges to preventing social media reputational harm, planning ahead may help to avoid potential risks.

For more Labor & Employment legal analysis go to The National Law Review

Tag: labor and employment

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