November 2010 Archives

2010 Holiday Gift Guide: Coworkers and Office Mates

Posted by Molly DiBiancaOn November 29, 2010In: Just for Fun

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Back by popular demand is this year's edition of the Holiday Gift Guide--ideas for gifts you don't want to buy for people who don't want to receive them. Ah, don't you just love the holiday season?  And, this year's shopping list is posted appropriately on Cyber Monday--the day that 20% of Americans are expected to be shopping online--many of them from the comfort of their office.

 Holiday Gifts for the Office

First up is the Blabber Meter.  This is a gift that everyone can use.  We all have at least one office mate or coworker who just doesn't seem to understand that the workday means that there's work to do.  You know, the one who, when he walks the halls, everyone suddenly grabs their phones, shuts their doors, or tries to appear to be deep in thought in the hopes that the conversationalist will bypass their cubicles and they can actually get some work done. 

The Blabber Meter purports to help solve the problem of the overly chatty coworker.  Next time the blabbermouth stops by "just to say 'hello,'" start the Meter running.  The desk clock converts into a meter to track the cost of the time wasted by endless blabber.  Lawyers know that every minute matters--this is a great tool to help others see the clock in the same way. $24.99

 

 

Holiday Gifts for the Office

The second gift on this year's Gift Guide is the ID Blocker.  Although it may look like a gag gift, this is an incredibly practical tool.  Basically, it's a stamp (that's right, the kind you use with real ink).  Instead of shredding documents that contain sensitive information, such as social-security numbers, financial accounts, or other confidential data, you can use this nifty low-tech gadget to "redact" it.  Just stamp over the information you want to hide - the stamp contains "thousands of tiny symbols that block out whatever is under them."  In this day of oversharing and ever-evading privacy controls, this is a great solution to a problem anyone who uses paper all day faces regularly.  $19.99

 

 

Holiday Gifts for the Office

Third on the list is a particularly snarky gift--my favorite kind.  There are 47 different cards in The Daily Mood, each representing a different mood.  On the front of the card is a Smiley, which alerts your office mates to your mood that day.  On the back of the card, which faces you at your desk, are informative quotes and definitions.  The way I see it, communication is key.  If you're feeling snarky, your best bet is to let others know about it in advance.  With this gift, your coworkers will never again have to guess the answer to the question, "How are you today?"  $9.95

 

 

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Fourth on the list is the I'll Be Back Notepad.  There's nothing wrong with keeping your personal life personal.  But that doesn't mean that your coworkers don't need to know when you'll be back.  Don't keep them guessing--it's annoying.  Instead, stick one of these notes on your door or computer monitor to let others know when you'll be available and, of course, that you're sorry you missed them.  $4

 

 

 

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The fifth gift on the list this year is one near and dear to my heart--the Deluxe Lunchbox.  Anyone who knows me knows that I never leave home without food.  Ever.  I have no qualms with lugging a small Igloo cooler with me to a day-long training session.  Of course, this accessory makes me look more like a construction worker than a lawyer, so I'm particularly excited about the idea of legitimate, "grown-up" version of the lunchbox--especially a version that is actually large enough to hold enough food to keep me in a good mood through a long day of seminars.  The stacked design is all about functionality--4 small and 1 large containers stack together and prevent food from being tossed around or mixed together on the road.  You can even fit a bottle under the strap on the lid of the box.  $30Holiday Gifts for the Office  

 

The last gift on this year's list is the To Do Tatoo.  I'm a notorious list maker, as many of my readers surely are.  One thing I don't do, though, is scribble on my hand--although I've certainly been tempted.  With this kit, you get 12 "To Do" forms that you can apply to your hand, or elsewhere, and a skin-safe washable ink gel pen with which to fill in the various items.  It's a perfect gift for someone in your office who constantly misses appointments or due dates--or who is always asking to borrow a piece of paper to make a note.  $7

 

 

See also:

2009 Holiday Gift Guide: Technology Edition

2008 Gift Guide: Office Mates & Coworkers

A Season for Giving: How Ready Is Your Ethics Policy for the Gift Season?

Mining Facebook Pages of Police-Officers-To-Be

Posted by Molly DiBiancaOn November 21, 2010In: Social Media in the Workplace

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Can employers search Facebook and other social-networking sites for information about applicants as part of a background search?  This has been the question I’m asked the most when it comes to social media in the employment context.  I’ve written about it extensively on this blog for the past 3 years and speak about it regularly to employers in all industries.  My short answer is, “Yes, provided you’re searching only publicly available information.”  The longer answer involves a procedure that employer should put into place if they decide to conduct a social-media search for potential new employees.

One of the fundamental rules that I suggest is not to request an applicant’s password in order to gain access to their site.  There are a number of alternative ways to gain access to the information sought—including requiring candidates to grant your friend request for 24-48 hours.  Another option, which is currently being used in the financial sector, is to have the candidate log in to his or her Facebook page during the interview in the presence of the HR professional.  There are, however, certain caveats to conducting these searches, but I’ll let you read about them in my previous posts. 

The number of reasons to consider using social-media mining during the hiring process are too many to list here.  And they differ between industry and job position being sought.  Law enforcement officers are an excellent example of this.

The International Association of Chiefs of Police (IACP) recently reported the results of a survey of 782 police chiefs and found that more than 1/3 of those surveyed are currently using social-media searches to vet candidates.  There are at least two reasons why social-media activity can be so important to law-enforcement employers.  First, the wrong kind of postings by law-enforcement officers can undermine the officer’s credibility, thereby compromising an investigation or criminal prosecution. Second, it can undermine the integrity of the police force and damage law enforcement’s reputation within the community.  For some disturbing real-life examples of these possibilities, see this prior post on Police Officers Online: Web 2.0 Worries for Public Employers.

Although I appreciate the purposes behind the Police Chief’s decision to search candidate’s social-networking profiles, I do disagree with those police departments who require applicants to turn over their social-networking passwords, especially when there are equally effective alternatives. 

Teachers’ Union Sues Over Proposed Social-Media Policy

Posted by Molly DiBiancaOn November 18, 2010In: Public Sector, Social Media in the Workplace

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You may have heard about the Teamsters’ complaint, filed with the NLRB, which alleges, in part, that a Connecticut employer’s social-media policy constitutes an unfair labor practice under Section 8 of the National Labor Relations Act.  In short, the Union contends that the employer, American Medical Response Team, has a social-media policy that prohibits employees from disparaging their supervisors online, which, the Union contends, is overly broad so as to effectively preclude employees from engaging in protected concerted activity of discussing workplace conditions and terms of employment.  The Union also contends that the employer disciplined an employee pursuant to the policy when she and other employees disparaged their supervisor on the disciplined employee’s Facebook page.

Well, the Teachers’ Union in Manatee County, Florida, has filed a similar complaint—this one alleging that a proposed social-media policy is overly broad so as to violate their right to free speech pursuant to the 1st Amendment. 

The First Amendment protects individuals from government action—which means that non-government employees (i.e., those employed in the private sector), cannot make out a constitutional claim based on free speech.  In the public sector, though, such as in public-school districts, employees do have constitutional rights.  But those rights are not unlimited. 

The basic free-speech analysis asks three questions.  First, is the speech on a matter of public concern?  If not, constitutional protections do not attach.  For example, if the policy prohibits employees from discussing standard workplace grievances, such as work schedules or budget issues, the speech is not of a public concern and not protected. 

Second, is the employee speaking as a citizen or as an employee?  This step of the analysis is relatively new and derives from the Supreme Court’s Garcetti decision.  The newness of the question means that the courts are still navigating the exact contours and the decisions vary greatly.  Generally speaking, though, if an employee speaks only to his or her supervisor or coworkers, as opposed to, for example, writing a letter to the editor of a local newspaper, the speech is said to have been made as an employee and is not therefore protected. 

Third, if the speech is on a matter of public concern and is made by an employee speaking as a citizen, the courts conduct a balancing test to determine whether the government’s interest in maintaining an effective, non-disruptive workplace outweighs the employee’s right to speak freely. 

If the Florida case proceeds, the court will have to determine whether the proposed policy has the effect of prohibiting what would otherwise be protected speech.  One problem for the Union, though, is whether the case will proceed at all.  It is only a proposed policy, so there may be an issue of justiciability—whether the court has jurisdiction to hear the case when there has not yet been any harm to the plaintiff.  Some may argue that, by merely filing suit instead of trying to negotiate the terms of the policy, the Union has acted in an unreasonable manner designed more for media attention than to effectuate meaningful change.  We’ll have to wait to see what the court decides. 

GINA Follow Up

Posted by Adria B. MartinelliOn November 16, 2010In: Genetic Information (GINA)

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I had the pleasure of speaking on the Genetic Information Nondiscrimination Act, including the final GINA regulations (issued by EEOC last week), last week in Las Vegas at the Advanced Employment Issues Law Symposium.

One question came up in the seminar that I promised to follow up on in the blog. Although my presentation was focused on employer obligations under Title II, the question related to Title I of the statute, which addresses insurers’ obligations under GINA. In general, Title I of GINA provides that health insurers cannot collect genetic information or discriminate based on it in connection with a group health plan. “Genetic Information” is defined to include family medical history. Therefore, a group health insurer cannot require participants to provide family medical history. Nor can they adjust a premium or contribution amount based on genetic information.

This prohibition requires to a health insurance issuer offering group health insurance coverage in connection with a group health plan. It does NOT apply to life insurance, long-term care insurance, or disability insurance. A specific question was asked at the conference regarding AFLAC, because it was believed that AFLAC collected detailed family medical information. AFLAC would most likely be considered disability insurance, not group health insurance; therefore they would be exempted from GINA’s prohibitions on collecting family medical history.

In addition, other questions raised individually after my presentation pointed to a fundamental misconception about GINA as it applies to health insurers. Once an employee has manifested a disease him or herself, we are not talking about genetic information covered by GINA. Therefore, if an employee has, for instance, angina that runs in the family: that is current medical information, not genetic information. A health insurer can “discriminate” by charging higher premiums, etc., based on this information (subject to existing laws on pre-existing conditions) and that would not be a violation of GINA. GINA deals with the potential to acquire diseases in the future, a potential that may be revealed either through genetic tests or a review of family medical history.

Employers, Don’t Despair. Social-Media Policies Are Not Prohibited by the NLRA

Posted by Molly DiBiancaOn November 15, 2010In: Social Media in the Workplace, Union and Labor Issues

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The NLRB’s recently filed complaint against an employer, in which it alleges that the employer’s social-media policy violates the National Labor Relations Act, has caused quite a stir in the blogosphere. See, for examples, Jon Hyman’s post at the Ohio Employer’s Law Blog, collecting various posts discussing the case. Despite the near hysteria that the American Medical Response Team complaint has caused, the truth is that social-media policies are not doomed, nor are employers who enforce them. 

In December 2009, the NLRB’s Office of the General Counsel issued an Advice Memorandum in Sears Holdings, C.A. 18-CA-19801, which specifically approved an employer’s social-media policy and recommended dismissal of a complaint that alleged that the policy violated Section 8 of the National Labor Relations Act (“NLRA”).

In June 2009, Sears issued a social-media policy regarding its employees’ use of blogs, social networks, and other social media.  The introductory section of the policy stated that its purpose “was not to restrict the flow of useful and appropriate information, but to minimize
the risk to the Company and its associates.”  The policy went on to list several “prohibited subjects,” which employees were not permitted to discuss online, including:

  • Company confidential or proprietary information;
  • Confidential or proprietary information of clients, partners, vendors, and suppliers;
  • Embargoed information such as launch dates, release dates, and pending reorganizations;
  • Company intellectual property such as drawings, designs, software, ideas and innovation;
  • Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects; 
  • Explicit sexual references;
  • Reference to illegal drugs;
  • Obscenity or profanity;
  • Disparagement of any race, religion, gender, sexual orientation, disability, or national origin.

The Union filed an unfair-labor-practice charge with the National Labor Relations Board (“NLRB”), shortly after the policy was issued, alleging that the policy, particularly the section in bold, above, violated the NLRA.  The Advice Memorandum recommended that the charge be dismissed, concluding that the policy did not conflict with the right to engage in protected concerted activities.

The NLRA prohibits an employer from promulgating workplace rules or policies that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” A rule that does not expressly restrict protected activities will violate Section 8(a)(1) in three conditions:

1.  Employees would reasonably construe the policy’s language to prohibit Section 7 activity;

2.  The rule was promulgated in response to union activity; or

3.  The rule has been applied to restrict the exercise of Section 7 rights.

Because there’d been no allegation that the policy was enacted in response to union activity and because there’d been no claim that any employee had been disciplined pursuant to the policy in response to their union or protected activity, only the first condition was at issue.

The Memorandum explained that, when reviewing an employer’s policy, including social-media policies, a review of the complained-of policy requires that the policy is evaluated as a whole, instead of parsing it out in small pieces, to ensure that the context of the language is not ignored.

The Memorandum referred to an earlier decision, in which a rule proscribing “negative conversations” about managers was unlawful.  In that instance, the rule was contained in a list of policies regarding working conditions, with no further clarification or examples.  The Board held that, in the absence of further guidance from the employer, an employee could reasonably construe the rule to limit his or her Section 7 right to engage in protected protest.

By contrast, in a different case, the Board found that a rule forbidding “statements which are slanderous or detrimental to the company” which appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage” could not be reasonably understood to restrict Section 7 activity. 

Similarly, the Board concluded that Sears’ rule against the “[d]isparagement of company’s . . . executive leadership, employees, [or] strategy . . . .” could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a
reasonable employee from construing the rule as a limit on Section 7 conduct. The Advice Memorandum explained:

The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7. . . . [T]he rule appears in a list of plainly egregious conduct, such as employee conversations involving the Employer’s proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs. The Policy preamble further explains that it was designed to protect the Employer and its employees rather than to “restrict the flow of useful and appropriate information.” Taken as a whole, . . . the Policy contains sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions.

Thus, the policy was found not to violate the National Labor Relations Act.  Lesson to be learned for employers is this:

  1. Implement a social-media policy.
  2. Have your employment counsel review the policy.
  3. As with any workplace policy, the key objective should be compliance. 
  4. Thus, if your policy is so broad that employees cannot really comply with it in any effective manner, it’s no good—toss it and start over. It may also be in violation of the National Labor Relations Act. 

Facebook Unfriending as Workplace Retaliation?

Posted by Molly DiBiancaOn November 13, 2010In: Social Media in the Workplace

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I spoke about social media and employment law last week at the Advanced Employment Issues Symposium last week in Las Vegas. I always find that I learn as much as I teach at these events—both from attendees and from other presenters.  One of the most interesting stories I heard in the social-media context was from another employment lawyer.  The story that she shared illustrated yet another reason for employers to consider prohibiting (or at least discouraging) supervisors from being Facebook friends with their direct reports. 

In her case, the supervisor and employee were, indeed, Facebook friends.  Until, that is, the employee filed a charge of discrimination with the EEOC.  At that point, the supervisor became nervous about what the employee might disclose about the suit on her Facebook profile, prompting the supervisor to “unfriend” the subordinate. I can imagine that I would conclude something similar—that, once a complaint has been made, it may not be appropriate for the two individuals to  have access to one another’s “private” thoughts and personal commentary.  And, if I were counseling the employer and was asked whether the supervisor should “unfriend” the employee, I can imagine that I’d likely respond, “yes.”

In this case, though, the employee later added a retaliation charge to the EEOC complaint—which is far more common than most employers seem to realize.  Once the claim proceeded to litigation, the employee-plaintiff was asked to identify the facts that prompted her to conclude that she’d been subjected to unlawful retaliation in her workplace.  Once of the facts she cited was, as you may by now have guess, the fact that the supervisor immediately unfriended the employee upon learning that the employee had filed a charge of discrimination. 

The employee felt that the “unfriending” was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context.  Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint.

See also:

Judge Shows Why Supervisors Shouldn’t Facebook Friend Employees

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

Social Media Policies: What about my “friends”?

EEOC Issues Final GINA Regulations for Employers

Posted by Adria B. MartinelliOn November 9, 2010In: Genetic Information (GINA)

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GINA, the Genetic Information and Nondiscrimination Act, took effect nearly a year ago.  After several delays, the EEOC has published final regulations that interpret and implement the nondiscrimination provisions of the Act, which apply to employers.  Those employers who have been paying attention to GINA and its requirements won't be surprised at the regulations, as they are substantially similar to the proposed regulations.  They do , however, offer specific examples applicable to employers. 

I'll surely have more detailed commentary after I've reviewed the regs in full; but, until then, here are a few of the highlights:

Medical Information

The regs offer employers specific language for use in medical-exam and -inquiry forms:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

The purpose of this "boilerplate" language?  It's an insurance policy, of sorts.  So long as the employer uses this language, it will not be held to have violated GINA if the medical provider discloses genetic information in spite of the warning.

Social Media

I've posted before on some of the potential GINA-specific risks of social-media "background checks" conducted by employers.  The regs may alleviate some of these concerns.  The final regulations provide that, in general, an employer who obtains protected genetic information inadvertently probably does not violate the statute.  For example, if the information is learned via a Google search performed using the employee or applicant's name, the receipt of the information is considered inadvertent. 

The regs also provide that genetic information learned from an employee's Facebook or other social-networking site will be deemed inadvertently obtained, provided you have permission to access the information on that site (i.e., if the employee or applicant has accepted you as a Facebook friend).

The final GINA regulations (29 CFR Part 1635) take effect on January 9, 2011.  We'll surely have more comments in the meantime but, if you need to get up to speed on this important law affecting employers, see these previous posts:

Judge Shows Why Supervisors Shouldn’t Facebook Friend Employees

Posted by Molly DiBiancaOn November 5, 2010In: Social Media in the Workplace

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Employers often ask me whether they should have a policy prohibiting supervisors from making Facebook friend requests to their direct reports.  My position is that, although an explicit prohibition may not be appropriate (and, depending on your State, may not be legal), at the very least, the risks of such conduct should be explained to supervisors and they should be warned against it.  I think the best way to teach, though, is by example.  Real-life stories about how the discouraged conduct has played out badly for others is often the best motivator.  Here’s a real-life story straight from the headlines and the bad behavior was by a judge, no less, showing that even those with the highest standards and best judgment can (and do) make mistakes in the world of social media.

According to the NY Post, Staten Island Criminal Court Judge Matthew Sciarrino will be moved to a Manhattan court as a result of his Facebook activity.  Apparently, some of the lawyers that appear before Judge Sciarrino complained to court officials when the judge sent them friend requests. 

"It's just inappropriate," said one insider familiar with the matter. "It puts the lawyer in a very uncomfortable position. If you say no, and then you have to appear before him and ask for bail. And if you say yes, that's also awkward."

I couldn’t have said it better myself.

See also:

Are Employee’s Facebook Posts Protected Activity?
Employee Fired When Her Sex Blog Is Discovered by Her Boss
Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies
Social Media Policies: What about my “friends”?

And, for more about social-networking and the law, check out my second blog, Going Paperless Blog, where I talk about judges, lawyers, and Facebook.

Employee’s Fake Jury-Duty Leave Busted via Facebook

Posted by Molly DiBiancaOn November 5, 2010In: Social Media in the Workplace

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Employers have been dealing with it for just about forever.  What is the “it” to which I’m referring? Leave abuse. The employee who calls out sick from work to take a “mental-health” day—meaning, at least in my vernacular, a day of shopping. Today, Facebook and other social-networking tools have become the tattletale that other employees used to be.

When a supervisor and his direct report are Facebook friends, the supervisor may very likely see what the “sick” employee is really up to—and often, that picture doesn’t match the picture painted by the employee. Heck, there’s even a well-known story of a lawyer who requested that the judge grant a continuance of the lawyer’s trial due to the death of the lawyer’s family member, only to have the same judge discover via Facebook that the lawyer was out partying all week.

In those cases, it’s common for the employee to lose her job due to the misrepresentation made to the employer.  But here’s one story with a far more serious outcome.

HR Manager Rebecca Thybulle told her employer that she’d been summonsed to serve jury duty for an 8-day trial. In compliance with the company’s policy, she produced a copy of the summons as documentation of the need for jury-duty leave.

Her boss, however, found paper on Thybulle’s desk showing that the summons had actually been sent to her father, who lives at the same address.  Thybulle had changed the date and name on her dad’s summons before submitting it at work. 

But leaving evidence of the forgery on her desk was only her first dumb mistake.  According to the NY Post, Thybulle’s Facebook page shows that, on her second day of “jury-duty leave,” she posted that she was “Bmore bound” and, later, was “Off to Fogo de Chao then going to see [Comedian] Kevin Hart perform.”  Apparently, the HR manager wanted to take time off of work and had gone to Baltimore for a big adventure.

Well, big adventure she got.  She was arrested for the forgery and held lieu of $25,000 bond and faces up to 14 years in prison for her performance.

There are too many lessons to be learned to summarize them all her, so I’ll just stick to the basics.  For employees—don’t tell lies, don’t forge government documents, and don’t post evidence of either on your Facebook page.  For employers—there are times that an employee’s conduct may be so bad that it’s actually criminal; when that happens, call the police.

Are Employee’s Facebook Posts Protected Activity?

Posted by Molly DiBiancaOn November 4, 2010In: Social Media in the Workplace, Union and Labor Issues

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Employers often ask whether they can terminate an employee who posts negative comments about his coworkers or supervisor on his Facebook page. For private-sector employers, this question has gone largely without an answer from the courts.  There are no cases of which I am aware holding that terminations for Facebook are per se unlawful.   One of the most significant risks for “Facebook firings” is the risk of violating the National Labor Relations Act (“NLRA”).  This risk has materialized in a complaint filed by the National Labor Relations Board (“NLRB”). 

The NLRB has filed a complaint against a Connecticut company as a result of its firing of an employee for her Facebook posts.  The complaint alleges the following:

  • As part of a disciplinary action, the employee was asked to prepare an incident report.  The employee requested and was denied representation from her union rep;
  • The employee’s supervisors threatened her with discipline because of her request;
  • The employee posted negative comments about her supervisor on her Facebook page from her home computer;
  • Other employees joined in and engaged in the online disparagement of the supervisor; and
  • The employee was fired three weeks later.

An NLRB investigation concluded that the Facebook postings constituted “protected concerted activity” and that the company’s blogging and Internet posting policy was overly broad.  Specifically, the policy prohibited employees from making disparaging remarks when discussing the employer or supervisors.  The NLRB also takes issue with another policy, which prohibited employees from depicting the company in any way over the Internet without permission. 

The filing of this complaint is an important reminder to employers--whether unionized or not--that a social-media policy is a must while, at the same time, the wrong policy can have equally severe consequences.   Employers should also remember that the filing of a complaint is not the same as an adverse decision.  The matter will be litigated and the Board's decision is what will matter at the end of the day. 

Until a decision is rendered, though, this story serves as yet another reminder of the immediate and significant impact social media has on the workplace.

See also:

District Attorney's Sexting Is a Lesson for Employers

Judge Obtains Protective Order Based on a Tweet

Social Media Passwords and Account Content are Discoverable

Take-Aways from the Navy’s Social-Media Handbook

Romano v. Steelcase: Defendant Granted Discovery of Plaintiff’s Facebook Profile

The Need for (Workable) Social-Media Policies

The DOJ Doesn't Like Employers Who Agree to Play Nice

Posted by Lauren Moak RussellOn November 3, 2010In: Non-Compete Agreements

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All employers want to protect the investment they make in their employees.   One strategy used to accomplish this goal is the use of non-competition and non-solicitation agreements. In closely integrated industries, some businesses have all but abandoned these agreements in favor of reaching a pact with competitors not to hire away one another employees.  This has been especially pertinent in California, where non-compete agreements are unenforceable. But a recent lawsuit brought by the Department of Justice’s Anti-Trust Division has called this strategy into question, as well as the idea of non-compete agreements as a whole. DOJ

After more than a year of investigation, the DOJ filed a lawsuit against Adobe, Apple, Google, Intel, Intuit, and Pixar Animation on September 24, 2010. The lawsuit challenged the legality of a group of contracts entered into between the tech firms to protect their investment in highly skilled technical employees. By these contracts, each company agreed not to solicit the other companies’ employees via “cold calls.” On its face, this is a fairly standard non-solicitation provision. According to the DOJ, though, the non-solicitation contracts were not related to any collaborative work between the companies.

As a result, the DOJ contended that the contracts were attempts by the defendants to limit competition and keep down payroll costs and filed an antitrust complaint.  The firms deny that the agreements had any impact on hiring practices. The DOJ and the firms reached a settlement agreement that would prohibit the firms from entering into any non-solicitation agreements for five years. So what does this lawsuit and settlement mean for you? There are several lessons that we can take away:

First, under Delaware law, an employer must demonstrate a legitimate business interest before he can restrict an employee’s ability to compete in the job market. It appears that the DOJ felt that this interest was missing where many large employers joined forces to restrict the job opportunities for highly skilled workers. The outcome would likely be different had the non-solicitation agreements been linked to collaborative work between the defendants.

Second, the breadth of the agreements is significant. The six businesses named in the DOJ lawsuit are large, powerful businesses that operate on the cutting edge of technological development. To restrict a skilled employee’s access to these businesses seriously restricts his or her ability to make a lateral career move. A more limited restriction, with a less severe impact on job opportunities, might not be interpreted as anti-competitive because employees would maintain access to other desirable opportunities in the job market.

Third, we don’t know how the courts will hold. The DOJ based its lawsuit on an analogy to other anti-trust lawsuits based on customer allocation schemes. This analogy is untested, and might not be upheld by the courts after a trial on the merits. As a result, the DOJ’s position should be taken with a grain of salt.

Nonetheless, if you have a non-solicitation agreement with other businesses that does not arise from cooperative work, you may want to reconsider the agreement with an eye toward the DOJ’s concerns. Agreements that are limited in scope, and related to a legitimate business interest are least likely to draw scrutiny.

For more on non-competition agreements, see our sister blog, The Delaware Noncompete Law Blog, as well as these prior posts:

Employees' E-Mails Lead to Non-Compete Lawsuit

Why Restrictive Covenants Should Include Delaware Choice-of-Law and Forum-Selection Clauses

District Attorney's Sexting Is a Lesson for Employers

Posted by Molly DiBiancaOn November 2, 2010In: Harassment, Policies, Social Media in the Workplace

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Kenneth Kratz, district attorney of Calumet County, Wisconsin, sent 30 text messages to a 26-year-old domestic-abuse victim.  Odd choice of medium, one might say, for an attorney to communicate with a witness.  I can't say that I generally communicate with clients or witnesses via text message.  But that may be because I tend to communicate with clients and witnesses about case-related issues--and do so in a professional context.  Not Mr. Kratz. text alert

DA Kratz is reported to have sent these text messages in an attempt to solicit her for a romantic relationship.  In other words, he "sexted" her.  The content of the messages are salacious and, well, obnoxious.  For example, he wrote in one message, "Are you the kind of girl that likes secret contact with an older married elected DA ... the riskier the better?" 

Remember, he is sending these messages to a woman whose ex-boyfriend he was also prosecuting on charges that the ex-boyfriend nearly choked her to death.

Katz did not deny sending the message but, instead, defended himself, saying that the state's disciplinary board had cleared him of any misconduct.  He is reported as being angry that the "non-news story" of his sexting worried him because of its potential effect on his "reputational interests."  

The story came to light after Katz failed to take the witness' lack of interest seriously, leading her to report the messages to the police.  The police department released the messages to the media at the request of the Associated Press. 

[H/T Sharon Nelson, Ride the Lightning]

So, what are some of the numerous lessons for employers to learn from this story?  (Read on after the jump to find out)

Continue reading "District Attorney's Sexting Is a Lesson for Employers" »

"How's the Family?": Family-Responsibilities Discrimination In Job Interviews

Posted by Adria B. MartinelliOn November 1, 2010In: Family Responsibilities (FRD)

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We hope that most interviewers know it is inappropriate to ask in an interview: “How old are you” (you can ask if the person is 18 years of age or older) or “Do you celebrate Ramadan?”  There is another danger zone in interviewing, which is often unrecognized by employers but which can get them into just as much trouble: questions pertaining to an applicant’s family or family responsibilities.3d family

Innocent ice-breaker discussions often seem to involve questions about the applicant’s family.  I see this happen most often with female interviewers, who tend to find family and children as a common ground with the applicant.  Sports—the default for men—is a much safer topic. Go Eagles/Phillies/Flyers!

The Center for WorkLife Law has published a helpful alert for employers as it pertains to what NOT to ask in an interview regarding the applicant’s family. As the alert emphasizes – focus your questions on the candidate's ability to do the job. An employer (or potential employer) should not care about the why or how, only whether the job can be done. You do not have to treat an employee any differently because the reason for his or her failure to perform adequately is child-care responsibilities at home. Just remember to focus on the performance, not the reason. The WorkLife Law alert gives other helpful examples and guidance worth reviewing.

Benefit Limitations Remain Unchanged from 2009 to 2011

Posted by E-LawOn November 1, 2010In: Benefits

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If you were hoping to be able to sock away more money into your 401(K) Plan in 2011 than you did in 2011, fuggedaboutit! The maximum elective deferrals for 2011 remains the same as it was for 2009 and 2010 -- $16,500. The catch-up contribution limitation for those who are at least age 50 during 2011 is also unchanged at $5,500. The annual limit on compensation remains at $245,000, the defined contribution limit on contributions remains at $49,000 and the maximum benefit payable from a defined benefit remains at the lesser of 100% of compensation or $195,000.

Congress established the method by which the IRS determines the inflation adjusted annual benefit plan limitations. However, it seems like bad public policy to limit amounts that will be payable to employees upon retirement by the current cost of living increases, especially when the stock market is performing sluggishly.

Look for the complete listing of the adjustments to the benefit limitations when we publish our 2011 Benefits Update Card, a link to which will be posted on this blog.

*This post was written by Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections.