Tag: Labor Law

Target Faces First Ever Union

The Wall Street Journal reports the NLRB has rejected an appeal from Target Corp. seeking to invalidate an employee vote in favor of unionization.  In September, a “micro-unit” of about one dozen pharmacy workers in Brooklyn, NY voted in favor of unionization.  The company appealed, but the NLRB affirmed the vote yesterday.

As reported in the article, “The group of less than a dozen employees in Brooklyn, N.Y., would be the first union among Target’s nearly 350,000 employees, marking a significant milestone for a company that has fought to keep unions out of its stores.”  The complete article can be found here.

Article By John T.L. Koenig of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

No Pay Can Be OK – A New Test to Determine the Primary Beneficiary in Unpaid Internships

This summer, two federal appellate courts declined to follow the U.S. Department of Labor’s six factors for determining whether an unpaid intern is an employee under the Fair Labor Standards Act (“FLSA”). In doing so, those courts — the Second Circuit (covering Connecticut, New York, and Vermont) and the Eleventh Circuit (covering Alabama, Florida, and Georgia) — instead adopted a more modern, flexible approach.

money, dollar sign

In the case before the Second Circuit, Glatt v. Fox Searchlight Pictures, Inc., the plaintiffs were unpaid interns who asserted that they were entitled to minimum wage and overtime pay. The district court concluded that the plaintiffs were improperly classified as unpaid interns and should rather be classified as employees, and granted a motion to certify the class of interns (a discussion of the district court’s decision is available here). The district court based the decision on a Supreme Court precedent from 1947, Walling v. Portland Terminal Co., 330 U.S. 148 (1947), a case dealing with the “trainee exception” to the FLSA for prospective railroad employees. Upon review, the Second Circuit vacated the district court’s order, setting out its own set of factors to be considered in determining whether an unpaid intern is entitled to compensation as an employee under the FLSA. In doing so, the Second Circuit departed from the six-part Department of Labor test based upon Portland Terminal, finding that test too rigid. The Second Circuit adopted a more flexible test looking to see whether the intern or the employer is the primary beneficiary of the relationship.

The Second Circuit indicated that the non-exhaustive factors for determining whether an unpaid intern at a for-profit business should be considered an employee for purposes of the FLSA include:

  1. The extent to which the intern and the employer clearly understand that there is expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee – and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Each of these factors need to be weighed and balanced in light of the circumstances. No one factor is dispositive, and courts are permitted to consider relevant evidence that is not contained in the above factors.

The Second Circuit noted that this flexible test better reflects the role internships play in today’s economy, recognizing that students gain value from practical, real-world experience, while also remaining true to the Portland Terminal inquiry as to whether the intern or the employer is the primary beneficiary of the relationship. The Second Circuit noted that the updated test first looks at what the intern receives for his/her work, and second, that it provides courts flexibility to examine the economic reality between the intern and employer. Also of note is that the Second Circuit emphasized an individualized approach to examine whether an intern qualifies as an employee under the FLSA. This could indicate a limitation on class action suits for unpaid interns moving forward.

A few months after the Second Circuit’s decision in Glatt, the Eleventh Circuit considered a similar issue in Schumann v. Collier Anesthesia, P.A., a case where the plaintiffs were former students attending a master’s degree program to become certified registered nurse anesthetists. As part of obtaining a degree, the students were required to participate in clinical curricula. The plaintiffs sought wages and overtime for their clinical hours. The Eleventh Circuit also found the Department of Labor’s six factors too rigid and adopted the seven non-exhaustive factors that the Second Circuit identified in Glatt. The Eleventh Circuit did not expressly reach the issue of whether students were FLSA employees, and time will tell whether the decision is distinguished as applying primarily to internships for academic credit and/or certification requirements, or whether it will have broader application.

While the decisions from the Second and Eleventh Circuits are positive developments for employers, the landscape regarding unpaid interns and the FLSA is still evolving as case law in this area continues to develop. Many lawsuits have been filed by interns or former interns seeking wages and overtime under the FLSA. Many of these cases have settled in the multi-million dollar range, many other cases remain pending, and it is likely that more cases will be filed. The consensus between the Second and Eleventh Circuits on the departure from the Department of Labor’s six-part test toward a more flexible and updated primary beneficiary test may be persuasive as other circuits consider the issue, but it remains unknown to what extent other courts will agree with these decisions. Because only the Second and Eleventh Circuits have adopted this more flexible approach, the Department of Labor will continue to follow the stricter six-part test for determining whether an unpaid intern qualifies as an employee under the FLSA.

Article By Elise E. Libbey of Gonzalez Saggio & Harlan LLP

Gonzalez Saggio & Harlan LLP | Copyright (c) 2015

Minor League Baseball Players’ Minimum Wage, Overtime Claims Proceed to Class Certification Stage

Former minor league baseball players are one step closer to gaining class certification of their wage and hour lawsuit against 22 Major League Baseball (“MLB”) franchises. The players allege that the franchises have been paying them less than minimum wage, denying them overtime pay, and requiring them to train during off-season without any pay. They contend the MLB and its clubs violated the FLSA, as well as similar state wage and hour laws in eight states by paying them a total of only $3,000 to $7,000 over the course of a five-month season despite workweeks of 50 to 70 hours.

On July 13, a California federal district court denied a motion by the baseball franchises to dismiss the high-profile suit for failure to pay minimum wages and overtime pay under the Fair Labor Standards Act and state wage and hour laws, allowing the players to proceed to discovery “to determine whether certification is appropriate and whether the proposed class representatives have standing to represent the various proposed classes.” Senne v. Kansas City Royals Baseball Corp., No. 3:14-cv-00608 (N.D. Cal. July 13, 2015).

On May 2, the court dismissed claims against eight of the MLB franchises, finding they did not have sufficient contacts with California, where the suit is pending, to establish personal jurisdiction over them. In the July 13 ruling, however, the court denied Defendants motion to dismiss stating that “the named plaintiffs who are proposed as class representatives of the various state classes seek to represent unnamed plaintiffs who were employed by these other franchise defendants on the basis that they suffered a similar injury.  As to these claims, the court ruled that it is appropriate to defer addressing the question of standing until after class certification.” (Senne, p. 25). As a result, the players have established sufficient standing to pursue discovery by claiming that at least one of the named plaintiffs was denied minimum wages or overtime pay from each of the remaining 22 defendants, and that at least one of the named plaintiffs was employed in each of the states for which the players assert state wage and hour violations.

The franchises have yet to reveal their defense to the specific claims; however, they may argue the players are exempt from FLSA’s minimum wage and overtime requirements because they are employed by a “seasonal amusement or recreational establishment.” Employees of establishments that operate for up to seven months per calendar year, or whose average receipts for any six months of the calendar year are not more than one-third its average receipts for the other six months of the year, are exempt from the FLSA’s minimum wage and overtime requirements.

Rulings on the applicability of the exemption to non-player employees in baseball have been inconsistent.  In 1998, members of the Cincinnati Reds maintenance staff sued the team, demanding overtime pay. An Ohio district court initially ruled in favor of the Reds, describing the team as “an amusement or recreational establishment” that played its games during a season that lasted seven months or less. That decision was overruled when the United States Court of Appeals conducted a detailed accounting analysis of the team’s operation and determined that the Reds did not qualify for a seasonal exemption.

The Detroit Tigers won a similar lawsuit in 1997 when bat boys sought overtime pay for their work in excess of 40 hours in a week. The Tigers claimed the seasonal exemption as a defense and were successful as the court recognized that Tiger Stadium only operated on a seven-month schedule, making its operation seasonal.

The Sarasota White Sox, a former minor league franchise in the Florida State League, also won a lawsuit by claiming a seasonal exemption in 1995 when a groundskeeper sued for overtime. The court ruled that the team played in a six-month season and made 99 percent of its revenue during that time period.

The question of whether the franchises will be safe from potentially significant wage and hour liability in this latest litigation may be a close call.

ARTICLE BY Keith L. Hammond & Gregg E. Clifton of Jackson Lewis P.C.
Jackson Lewis P.C. © 2015

High Tech and New Media: Organized Labor’s New Frontier

When one thinks of industries where union activity remains strong and additional organizing is likely, one may think of health care, education, retail, heavy manufacturing, and other “old school” fields, but not high tech and “new media.” Recent developments, however, including targeted campaigns focusing on employers in the Silicon Valley, its East Coast cohort Silicon Alley, and online, demonstrate that these assumptions may not be correct. High tech and new media are in the sights of not only some of America’s most actively organizing unions but also a coalition of interest and advocacy groups that are partnering with a coalition of unions with the common goal of increasing union representation at high-tech companies and the various contractors, subcontractors, and vendors that clean their facilities, feed their employees, and drive them to and from their facilities.

Taken together with the recent rule changes adopted by the National Labor Relations Board (“NLRB” or “Board”) to allow for much faster union representation elections in smaller units defined by unions, and the Board’s continuing emphasis on the application of the National Labor Relations Act to employees who are not represented by unions and who work in non-union workplaces, employers in the high-tech and new media fields should be aware of how these forces can impact their businesses and the ability to maintain dynamic workplaces.

Silicon Valley Rising: An Industry-Targeted Movement

When 1930s legendary bank robber Willie Sutton was asked why he robbed banks, he replied that was where the money was. Today’s labor unions, with their emphasis on income inequality and the gap between the 1 percent and the 99 percent have realized that Silicon Valley and technology companies are where the money is today and that there are many more employees in these industries who are not receiving the high salaries, stock options, and perks that many think of when they think of Silicon Valley.

A well-financed effort by a coalition of unions—including the Teamsters, the Service Employees International Union (SEIU), the Communication Workers of America (CWA), UNITE-HERE, the South Bay Labor Council, the NAACP, and other community organizations—have banded together to establish “Silicon Valley Rising” to organize employees of high-tech employers and the various vendors and service providers that they rely upon.

Silicon Valley Rising’ describes its goal as addressing what it sees as a two-tiered economic system in which, in its view, direct employees of the companies in the technology and media industry are paid well and receive good benefits, while those who support the industry as employees of contractors and suppliers are not. Silicon Valley Rising’s focus includes the vendors and contractors that Silicon Valley employers rely upon for transportation, maintenance, food service, and the like.

One of Silicon Valley Rising’s first successes came earlier this year, when it was certified as the bargaining representative of the company that Facebook relies upon to provide shuttle bus services between its various facilities at its headquarters. Soon after it won a representation election, Teamsters Local 853 negotiated a first contract with Loop Transportation that significantly increased wages and benefits and changed work rules and the like. In its campaign, Local 853 made clear that it saw the party that ultimately controlled the purse strings as being Facebook and media reports demonstrated the fact that Facebook was dragged into the matter and was ultimately responsible.

SiliconBeat (the “tech blog” of the San Jose Mercury News), theLos Angeles Times, USA Today, and other publications are all reporting that while apparently not a direct party to the negotiations between Loop and the union, Facebook has now “approved” the collective bargaining agreement, which it had to do before the contract could go into effect. In fact, Loop and Local 853 announced in their joint press release, “The contract, which workers overwhelmingly voted to ratify, went to Facebook for its agreement as Loop’s paying client before implementation.” Such economic realities are the type of consideration that the NLRB’s General Counsel has been urging the Board to look at in deciding whether a joint-employer relationship exists.

High-tech and new media companies often rely upon third-party vendors to provide a range of non-core support services so that their own employees can focus on their primary activities. But if, as expected, the NLRB rewrites its definition and standards for determining who is a joint employer, the risks are increasing that high-tech and new media companies, like other employers, will face the prospect of having to stand alongside their vendors as employers of the vendors’ personnel, including bargaining with their unions when they are represented.

ARTICLE BY Steven M. Swirsky of Epstein Becker & Green, P.C.

©2015 Epstein Becker & Green, P.C. All rights reserved.

Workers Should Properly be Classified as Employees Under the FLSA

U.S. Department of Labor (“DOL”) yesterday issued an Administrator Interpretation Memorandum announcing its position that most American workers are employees (as opposed to independent contractors), and thus are covered by the Fair Labor Standards Act (FLSA). The announcement comes exactly two weeks after the DOL issued a Notice of Proposed Rulemaking that would significantly change the legal requirements for an employee to qualify as exempt from the overtime requirements of the FLSA.

Department of LaborAccording to the Memo, employers are intentionally misclassifying workers as independent contractors to cut costs and avoid compliance with various laws, which deprives workers of certain benefits of employment. Taken together, the two recent DOL actions make the DOL’s true intentions abundantly clear: to sweep more American workers under the umbrella of the FLSA, and in turn, have more of those covered employees earning overtime compensation (or significantly higher salaries).

In the Memorandum, the DOL sets forth its interpretation of the FLSA’s definition of “employ” and the multi-factored “economic realities test” utilized by the courts to guide the analysis of whether a worker is properly classified as an independent contractor under the law. According to the DOL, applying the economic realities test in view of the FLSA’s expansive definition of “employ” will result in most workers being employees, and not independent contractors. In other words, a worker is an employee unless a convincing argument can be made that the worker is properly classified as an independent contractor.

While the “economic realities test” might vary somewhat depending on the court applying the test, the traditional questions considered are:

  • Is the work done by the worker an integral part of the employer’s business?;
  • Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?;
  • How does the worker’s relative investment compare to the employer’s investment?;
  • Does the work performed require special skill and initiative?;
  • Is the relationship between the worker and the employer permanent or indefinite?; and
  • What is the nature and degree of the employer’s control over the worker?

These questions should be considered under the guiding principle that workers who are economically dependent on the employer are employees, and only workers who are really in business for themselves are independent contractors. All factors must be considered in each case, no one factor is determinative, and the ultimate determination must be the degree of the worker’s economic independence from the employer.

ARTICLE BY Jeremy M. Brenner, John P. Hasman, Robert A. Kaiser, Daniel K. O’Toole, Jovita M. Foster & Dione C. Greene of Armstrong Teasdale

© Copyright 2015 Armstrong Teasdale LLP. All rights reserved

President Obama Makes Announcement on Overtime Regulations

On Monday, June 29, President Obama announced a change in rules that would expand overtime eligibility to millions of Americans.

CHARLOTTE NC - SEP 21: Democratic nomonee Barack Obama makes a campaign stop in Charlotte NC on Sept 21 2008Beginning with the observation that “It’s been a few good days for America,” Obama announced the salary threshold where workers wouldautomatically qualify for time-and-a-half overtime wages would be raised from  $23,660 to $50,440.  This change in regulation can be made by the Administration, with no need for Congressional approval. The announcement came through a blog post written by the President for the Huffington Post, you can read it here.

President Obama argued that by failing to change the regulations, they had modified their original intentions–instead of highly-paid white collar workers being exempt from overtime, this was negatively impacting workers making as little as $23,660 a year, no matter how many hours they put in during the week. He asserted that “A hard day’s work deserves a fair day’s pay,” and that’s “how America should do business.”  This study, published in late 2013 by Jared Bernstein and Ross Eisenbrey of the Economic Policy Institute, increased the momentum for movement on this issue.

Conservative and Retail groups oppose this idea, claiming it will cost jobs and negatively impact the industry, including negative impacts on customer service.  The National Retail Foundation argues against the measure, saying their research indicates, “overtime expansion would drive up retailers’ payroll costs while limiting opportunities to move up into management. Most workers would be unlikely to see an increase in take-home pay, the use of part-time workers could increase, and retailers operating in rural states could see a disproportionate impact.”

Observers don’t expect this rule to be set into motion until 2016.

Read more at the New York Times here.

ARTICLE BY Eilene Spear of The National Law Review / The National Law Forum LLC
Copyright ©2015 National Law Forum, LLC

NLRB Issues Guidance Regarding Lawful Employee Handbook Policies

Gonzalez Saggio & Harlan LLP

Employers might know (or if they do not, they should) that the National Labor Relations Act (or “NLRA”) applies even to employers who do not have a unionized workforce. Due to the broad reach of the NLRA, the recent guidance issued by the General Counsel of the National Labor Relations Board (“NLRB”) regarding employee handbook policies is a must-read for human resources professionals and those charged with maintaining their company’s employee policies.

The focus of the General Counsel’s “Report” issued on March 18, 2015, arises out of Section 8(a)(1) of the NLRA, pursuant to which the mere maintenance of a rule that has a chilling effect on an employee’s Section 7 activity is unlawful. (“Section 7 activity” is any activity by an employee or group of employees by which they seek to improve their pay and working conditions, regardless of whether or not they are already unionized.) The most important obstacle for employers to consider when drafting and revising their policies, according to the General Counsel, is the fact that policies will be considered unlawful by the NLRB when they would bereasonably construed by employees as restricting Section 7 activity, even if the policies are not designed or intended to have that effect.

The primary recommendation from the General Counsel is that handbook policies include clear and specific language, precise examples, and explanatory context so that employees will not reasonably construe otherwise lawful policies as limiting their Section 7 activity.

An exhaustive recitation of the General Counsel’s extensive examples of lawful and unlawful handbook language goes beyond the scope of this article. However, as a general matter, the General Counsel found that language that provided sufficient context to employees, so as to avoid employees misconstruing the targeted conduct, was the most likely type of policy to meet with NLRB approval.

Again, as with other policies, the use of clarifying examples and context to avoid misinterpretation is highly recommended in the Report.

Regarding confidentiality, for example, handbook policies are considered unlawfully overbroad if they leave employees with the impression they cannot discuss wages, hours, and other terms and conditions of employment with fellow employees and with non-employees. Employers can minimize the risk of creating such an impression by defining terms such as “confidential information,” or by placing confidentiality policies within a context that clarifies their scope, such as within handbook sections addressing trade secrets or patient medical information.

As for employee conduct rules governing action that might include criticism of management (a protected Section 7 activity), the NLRB considers it unlawful for such rules to prohibit merely “rude” or “disrespectful” behavior toward managers or the “company” without sufficient clarification or context. Even false statements cannot be prohibited by a blanket rule (maliciousfalsehoods, however, may be lawfully prohibited). Businesses may nevertheless prohibit disrespectful or unprofessional behavior toward co-workers, clients, and other non-managers – as opposed to the company management – and may generally prohibitinsubordination toward management, as well.

Company media policies, in the meantime, need to be clear that any prohibition on speaking with the media is with respect to anyone purporting to speak on behalf of the employer without authorization. Employees should not be led to believe, whether intentionally or not, that they are in any way limited from speaking with the media regarding their employment in an individual capacity regarding wages, benefits, and other terms and conditions of employment. For example, the General Counsel found lawful a media policy that indicates one person only should speak for the company and that instructs any employee interviewed to state that he or she is not authorized to comment for the employer in response to any reporter inquiries.

The General Counsel looked unfavorably upon employee handbook policies that invoked anti-strike language within policies restricting employee movement to and from work. Such policies should not prohibit “walking off the job,” which can be misconstrued to refer to protected strike actions and walkouts. Phrases like “work stoppage” should also be avoided. The General Counsel, however, found acceptable a policy that simply stated, “Entering or leaving Company property without permission may result in discharge.” But employers must also be careful regarding a requirement of permission before employees can enter property, as employers may not deny off-duty employees access to non-work areas (such as parking lots) unless justified by legitimate business reasons.

As a final example, the General Counsel’s Report indicates that lawful employee policies may prohibit employee activity that amounts to competition against the company or to self-dealing, but a policy may not, under the broad label of a “conflict-of-interest” rule, prohibit any conduct that is not “in the best interest” of the employer because protected Section 7 activity can, of course, be against the interest of the company.

Employers with questions on a particular situation should consult with experienced labor and employment counsel regarding their handbook policies.

U.S. Union Numbers Continue Their Decline – Reach 100 Year Low

Barnes & Thornburg LLP Law Firm

The U.S. Bureau of Labor Statistics has released its annual report on unionization data in the United States, and the numbers continue to be on the decline for unions as a whole. Membership in unions nationally dropped from 11.3 percent in 2013 to 11.1 percent in 2014. Other interesting data points in the report include:

  • Public-sector workers had a union membership rate of 35.7 percent, more than five times higher than that of private-sector workers (6.6 percent).

  • Workers in education, training, and library occupations and in protective service occupations had the highest unionization rate at 35.3 percent for each occupation group.

  • Men had a higher union membership rate (11.7 percent) than women (10.5 percent) in 2014.

  • Among states, New York continued to have the highest union membership rate (24.6 percent), and North Carolina again had the lowest rate (1.9 percent).

A link to the full report can be found here.

Additionally, one news outlet is reporting that these numbers show a “100 year low” in U.S. Union Membership, and that article can be found here.

As discussed previously on the BT Labor Relations Blog, however, union election rule changes recently issued by the NLRB will make it significantly easier for unions to organize employers in the coming years, so we could see an upswing in these numbers, at least in the private sector, in future editions of this report.

ARTICLE BY

David J. Pryzbylski
OF
Barnes & Thornburg LLP

Varying Maternity Leave Policies Within the Same Company

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Is it permissible for a company to have separate maternity policies for a corporate office from that of a store location? The concern is of course that a claim of discrimination would be made if different policies were used, and it was right for the question to be asked.  However, what may be surprising is that there is no requirement that employees at different company locations all be offered the same benefits. In fact, it is common for employees in a corporate office to receive different employment packages than those at other locations, such as the company’s retail store or restaurant. In fact, an employer does not have to have the same policies for all employees in the same location in many instances. The key is that a policy not have an adverse impact on any protected groups or result in unintentional discrimination.

Maternity leave can involve a combination of sick leave, personal days, vacation days, short-term disability, and unpaid leave time. Thus, exactly how a maternity leave will be structured for any one employee will likely vary.  It is important to note that if your policy allows women to take paid leave beyond what’s considered medically necessary after childbirth (for instances, to arrange for childcare or bond with the child), then you should also allow male employees to take paternity leave for similar purposes. Not allowing a male to take leave under the same terms and conditions as females, if the leave is not related a pregnancy-related disability, can be considered sex discrimination.  So, realize that in some cases your maternity leave may also require a mirroring paternity leave.

The Family and Medical Leave Act (“FMLA”) should also always be considered. If FMLA eligible, a new parent (including foster and adoptive) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of a new child.

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10 DOs and DON’Ts for Employer Social Media Policies

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In recent years, the National Labor Relations Board has actively applied the National Labor Relations Act to social media policies. The Act exists to protect employees’ right to act together to address their terms and conditions of employment. What many employers fail to realize is that the Act applies to union and non-unionized employers. With the Board’s increased scrutiny of social media policies, including review of non-unionized employers’ policies, the following list of dos and don’ts is meant to assist employers in drafting or reviewing their social media policies.

1. DON’T have a policy prohibiting an employee from releasing confidential information. The Board has found that such an overbroad provision would be construed by employees as prohibiting them from discussing information that could relate to their terms and conditions of employment, such as wages.

2. DO have a policy that advises employees to maintain the confidentiality of the employer’s trade secrets and private or confidential information. The Board advises employers to define and provide examples of trade secrets or confidential information. However, the Board cautions employers to consider whether their definition of trade secrets or confidential information would include information related to employees’ terms and conditions of employment.

3. DON’T have a policy prohibiting employees from commenting on any legal matters, including pending litigation. The Board found that such a policy would unlawfully prohibit discussion about potential legal claims against an employer.

4. DO have a policy prohibiting employees from posting attorney-client privileged information. The Board recognizes an employer’s interest in protecting privileged information.

5. DON’T have a policy prohibiting employees from making disparaging remarks about the employer. The Board held that such a policy would have a chilling effect on employees in the exercise of their rights to discuss their terms and conditions of employment.

6. DO have policy that prohibits employees from making defamatory statements on social media about the employer, customers, and vendors, and generally remind employees to be honest and accurate.

7. DON’T have a policy advising employees to check with the company to see if the post is acceptable, if the employee has any doubt about whether it is prohibited. The Board held that any rule that requires permission from the employer as a precondition is an unlawful restriction of the employee’s rights under the Act.

8. DO have a policy that prohibits employees from representing any opinion or statement as the policy or view of the employer without prior authorization. Advise employees to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of the [Employer].”

9. DON’T have a policy prohibiting negative conversations about co-workers or supervisors. The Board held that without further clarification or examples, such a policy would have a chilling effect on employees.

10. DO advise employees to avoid posts that reasonably could be viewed as malicious, obscene, threatening or intimidating, or might constitute harassment or bullying. Provide examples of such conduct such as offensive posts intentionally mean to harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of a race, sex, disability, religion or any other status protected by applicable state or federal law.

Read more: http://ecommercelaw.typepad.com/ecommerce_law/2013/10/ten-dos-and-donts-of-employer-social-media-policies.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+E-commerceLaw+%28E-Commerce+Law%29#ixzz2ir3v2KvK

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