July 2011 Archives

The NLRB Approves Facebook Firings

Posted by Molly DiBiancaOn July 29, 2011In: Social Media in the Workplace

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Does the NLRA prohibit an employer from terminating an employee for the employee's negative comments made about his or her job and posted on Facebook?

This has been the question of the mind of many employers and employment lawyers since late last year, when the NLRB filed a complaint against a Connectitcut employer for terminating an employee, in part, for comments she posted on Facebook about her supervsior. Claiming that the posts constituted activity protected by the NLRA, the complaint took aim at the employer's social-media policy as an unlawful infringement of its employees' rights.

Despite the small wave of panic that seemed to spread following the NLRB's issuance of the complaint, there was no real precedent to suggest that a well-drafted social media policy would be subject to an NLRA attack. For example, in 2009, the Board reviewed a social-media policy and determined that it did not interfere with the rights provided by the NLRA.

And, in May, the NLRB's General Counsel issued an Advice Memorandum in which it found that an employer had not violated the NLRA by terminating an employee for posting negative comments about the employer on Twitter. But, earlier that month, the NLRB announced that it had issued a complaint against a non-profit for allegedly terminating five employees for their Facebook comments. And the Chicago Regional Office issued a complaint at the end of the same month against a car dealership for firing an employee based on his complaints about an upcoming promotional event that he . . .you guessed it. . . posted on his Facebook page.

It appears that the tide has turned yet again--this time in favor of employers. The NLRB's Division of Advice has issued three Advice Memoranda, each of which directly addresses the termination of an employee for comments made on social-networking sites. In each, the Division concluded that there had been no unlawful activity by the employer because the termination decisions were based on employees' personal gripes, which fall outside the scope of protected activity, and which constituted acts of misconduct for which the employees could be terminated.

Seth Borden, at Labor Relations Today, has posted an excellent and concise summary of each of the three cases, which include JT's Porch Saloon, Wal-Mart, and Martin House. (I've combined the three memoranda into a single PDF document, available here).

In each of these cases, the critical question is whether the employee has engaged in protected "concerted activity." As the Division explained, comments made "solely by and on behalf of the employee" are not concerted activities under the NLRA and are not subject to the protections of that law. Thus, these three memoranda serve as important reminders of a fairly basic idea--interpersonal disputes or gripes, without more, may be a lawful basis for discipline or termination.

The lesson for employees? Learn to get along with those with your coworkers and supervisors. If you can't play well with others, don't publicize it. And, finally, don't post it online if you don't want it to be repeated over and over and over.

Blogging Teacher Returns to Work Following Suspension for Blog Posts

Posted by Molly DiBiancaOn July 28, 2011In: Social Media in the Workplace

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Natalie Munroe, a high-school English teacher in Bucks County, Pennsylvania, was suspended after her personal blog, on which she'd written some not-so-nice comments about her students, came to light in February. According to the Huffington Post, the school district has determined to end the suspension and will reinstate the teacher in time for Fall classes. Interestingly, though, her attorney's comments seem to indicate that Ms. Munroe would prefer to be transferred. I'll leave it to others to speculate about the reasons for that preference, if, in fact, that is the case.

The question for readers, though, is this:
Can you forgive the social-media missteps of your employees? Perhaps more important, is whether social-media mistakes made by employees that negatively impact the employer should be forgiven?

I suggest that, although there's no certain answer to either of these questions, one thing is for sure. Wise employers will use this and other news stories like it as talking points for internal discussions now--before they're faced with similar situations. Discuss how your organization would have handled, for example, a supervisor who posted similar comments about her direct reports on her personal blog. Does your policy cover this situation? Having this discussion can identify holes in your policies and can also help you get a sense of how well your organization understands these issues, as well as the potential reaction it would face internally should it have to make this type of decision in the future.

For more on my take on the Natalie Munroe story, you may be interested in listening to my interview by the NPR Boston program, Here & Now.

3d Cir: No FMLA Protection for Employees Who Lie

Posted by Lauren Moak RussellOn July 27, 2011In: Family Medical Leave

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The FMLA requires an employee to receive (unpaid) leave for certain family and medical reasons. Employers must provide certain notices to employees, determine employees' eligibility for FMLA leave, and track leave time in accordance with the FMLA's complex regulations. A recent opinion from the Third Circuit, though, makes clear that the employer isn't the only one obligated to follow the FMLA's many rules.

In Prigge v. Sears, the employee applied for FMLA leave, telling his employer that he was suffering from prostrate cancer, which had been in remission. In fact, though, the employee needed the leave for seek treatment for Bipolar Disorder. About 8 months after he was hired, he was hospitalized due to depression, at which time he confessed to his employer the real reason he had been missing work.

Before returning to work, the employee was supposed to provide documentation to support his absences. Although he provided some of the medical certification, he never complied fully with his employer's request for information. He was subsequently terminated and later filed suit.

In defending against the lawsuit, the employer offered two reasons for terminating the plaintiff-employee: (1) the employee's failure to provide the required documentation; and (2) the false reasons offered by the employee as the basis for the leave.

The district court ruled in favor of the employer, finding that, although the employee may have been entitled to the leave that he took had he been honest about the reasons for it, he became ineligible for the protections of the FMLA when by lied about his illness. Without the protections of the FMLA, there was no basis for liability and the case was dismissed.

Here's what this case teaches us--employees must tell the truth to be protected by the FMLA. And by "truth," the court means, the "whole truth," including the reason that leave is needed, as well as the underlying illness.

Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

U.S. DOL Seeks New Employment-Law-Related Apps

Posted by Molly DiBiancaOn July 26, 2011In: Newsworthy

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Did you know that the U.S. Department of Labor is in the blogosphere? Well, it certainly is. The "official blog" of the DOL is named, "Work in Progress." Catchy, isn't it? And the social-media engagement doesn't stop there. The DOL recently announced that it is sponsoring a contest to solicit employment- and employment-law-related apps.

Readers may recall the moment of shock and alarm they felt when we reported that the DOL had released its first timekeeping / FLSA-compliance app, designed for workers to log their time in a system other than the employer's official timekeeping system.

The DOL's recently announced contest may give readers a similar feeling. According to the DOL's blog post announcing the contest, the intended users of the apps include those looking for work, "workers who want to improve their skills," and "consumers who want to know that the businesses they use value safe, healthy, and fair workplaces."

There are two DOL-sponsored app contests. The first DOL app challenge seeks an app that uses data from the Bureau of Labor Statistics "help people plan their education, find the skills they need, make informed decisions about potential career changes, know what to expect when the move to a new town, or negotiate better pay and benefits with employers."

The second, called the "informAction app challenge" seeks apps to "showcase data from Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD)." Although this is even more vague than the first contest, the goal seems to be for "consumers and workers . . . to be able to view inspection and compliance information from the hotels, motels, restaurants and retail stores they shop at, and use it to take educated action."

What publicly available wage-and-hour data is going to help consumers make more informed choices, I am not sure.

There's a hefty cash prize for the winners but the deadline is short: September 14. If you're a developer interested in taking on either of these government-sponsored app "challenges," you can visit http://developer.dol.gov/ for more information.

If you're an employer, you only can wait with eager anticipation to see what the next employment-law-related app will be.

Complaint re: Wages on Facebook Not Basis for FLSA Retaliation Claim

Posted by Molly DiBiancaOn July 20, 2011In: Fair Labor Standards Act (FLSA), Social Media in the Workplace

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The FLSA continues to strike fear in the hearts of many employers. And for good reason. The law is difficult to understand and not always easy to apply. Moreover, the penalties for failure to comply are steep and litigation of an FLSA claim--particularly one brought as a class (collective) action--is costly.

The U.S. Supreme Court's recent opinion in Kasten v. Saint-Gobain Performance Plastics Corporation gives employers yet another reason to worry about the FLSA. In Kasten, the Supreme Court ruled that an employee who complains to his employer about unpaid wages has engaged in "protected activity" under the FLSA. If the employee is subject to some adverse action (i.e., termination), in retaliation for his complaint (protected activity), the employer can be held liable. The critical holding in Kasten is the Court's finding that, to qualify as a protected activity, the complaint need not be written; oral complaints are covered under the anti-relation provision of the FLSA.

The U.S. District Court for the Middle District of Florida (Tampa), is one of the first courts to apply the Kasten decision and may be the very first to decide a retaliation claim in the context of social media. In Morse v. JP Morgan Chase & Co., the plaintiff, Lilli Morse, alleged that her former employer failed to pay her overtime wages. She also alleged that she was terminated in violation of the FLSA's anti-retaliation provision when she complained on her Facebook page.

The employer moved to dismiss both counts. The court ruled that the plaintiff had pleaded sufficient facts on her unpaid-overtime claim but dismissed the retaliation claim. The question before the court on the motion to dismiss was:

Whether a posting on an employee's Facebook page constitutes the filing of a complaint within the meaning of the FLSA.
In answering this question in the negative, the court explained:
Morse does not allege that she made anything close to a serious complaint to her employer. In fact, she never complained to her employer at all. She simply voiced her disagreement with her employer's payment practices on her Facebook page. This "letting off steam" falls far short of the activity protected by [the FLSA's anti-retaliation provision].
This decision is an important one for employers struggling to manage the complexities of social media and its impact on workplace laws and policies.

Morse v. JP Morgan Chase & Co., No. 8:11-CV-779-T-27EAJ (M.D. Fla. June 23, 2011).

FTC Approves Social-Media Background Searches

Posted by Molly DiBiancaOn July 11, 2011In: Social Media in the Workplace

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Employment-related background searches are commonplace today. For the past few years, there has been quite a bit of controversy over background searches that include searches of social-networking sites, such as Facebook and Twitter, for information about potential job candidates.

Personally, I’ve spoken to only one employer who outsources social-media background checks to a third-party vendor. I talk to a lot of employers about this topic, so I’d guess that there aren’t many engaging in this practice and probably for good reason. One of the features of searching online for information about candidates is that it’s free, which would be eliminated if outsourced.

Of course, there are risks that come with these searches, too, particularly if not done properly.
I’ve written about the risks and benefits extensively and have detailed the best way an employer can conduct these searches with minimal legal risk. A different way to minimize risk is by outsourcing these social-media searches.

This idea may seem even more attractive—despite the added costs—thanks to the Federal Trade Commission. According to Kashmir Hill’s blog on Forbes.com, the FTC investigated a company that performs these social-media background searches, Social Intelligence Corp., and concluded that its background checks complied with the Fair Credit Reporting Act. The FTC determined that Social Intelligence Corp., as a vendor for employers, may continue to search for Facebook photos and profile information, provided it continues to do so in a way that complies with the FCRA. In other words, the “old” rules still apply—even in the world of new media.

For more information about how employers can integrate social-networking searches into their job-screening process, see my three-part article on Screening Job Applicants With Facebook, Part 1, Part 2, and Part 3

Hair Today, Gone Tomorrow

Posted by Lauren Moak RussellOn July 7, 2011In: Off-Duty Conduct

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A new opinion from the Delaware Superior Court sheds light on when off-duty conduct justifies an employee’s termination for purposes of denying unemployment benefits. Because Delaware is an at-will state, it is well established that an employer may terminate an employee for off-duty conduct. However, an employer must have “just cause” for termination in order to avoid payment of unemployment benefits. The Superior Court’s opinion clarifies that an employee’s off-duty conduct must have a non-speculative impact on the employer’s business in order to constitute “just cause” for termination.

A Hairy Situation

The case of Michael Christopher Designs v. Willey (PDF) revolves around the termination of a receptionist at the Michael Christopher Salon (the “Salon”). The Court’s recitation of facts indicates that the receptionist, Nicole Willey, engaged in a “heated and profane” argument with one of her co-workers, Dottie. The argument occurred during non-work hours, via text message, and stemmed from an incident where the Salon management had confronted the women about alleged sharing of prescription medication with another employee. The two employees then exchanged a string of profane and aggressive comments going in both directions, but Willey’s text messages included threatening language, such as “Hope u aint at work 2mor. Ur gonna b sorry.”

Following the employees’ heated exchange, Dottie went to work and shared select text messages with her supervisor, John Przbylski. Mr. Przbylski then shared the messages with his supervisor, Betty Armstrong. Both Mr. Przbylski and Ms. Armstrong spoke with Willey and Dottie, and then terminated Willey’s employment. Willey subsequently filed for unemployment benefits.

A claim for unemployment benefits receives several levels of administrative review by the Delaware Department of Labor, before it is reviewed by a Court. Benefits will be denied only if an employer had “just cause” for its decision to terminate an employee. Just cause may exist where an employee engages in “a willful or wanton act in violation of the employer’s interest.”

Willey’s claim was reviewed first by a Claims Deputy, and later by an Appeals Referee, both of whom denied benefits. The Appeals Referee found that the Salon had terminated Willey for just case, arising out of her frequent tardiness and harassment of other employees via text message. Willey then appealed to the Unemployment Insurance Appeals Board (the “UIAB”). The UIAB reviewed the evidence, and concluded that the Salon did not have just cause, because it did not present sufficient evidence to show that Willey’s conduct had an actual detrimental impact on any of its interests as an employer. The salon appealed the UIAB’s decision to the Superior Court.

Hair Me Out

In its appeal, the Salon raised several issues, including whether there was a sufficient nexus between Willey’s off-duty conduct and her workplace performance. In analyzing whether Willey’s conduct was sufficiently detrimental to the Salon to constitute just cause for termination, the Court considered several factors.

First, the Court noted that neither Mr. Przbylski nor Ms. Armstrong found Willey’s text messages to be so threatening that they called the police, or undertook any measures to keep her out of the Salon. Consequently, the Court concluded that the threats had not impacted the employer in a substantive way.

Second, the Court considered past practice. Willey testified before the UIAB that the Salon had a general policy of allowing employees to work their differences out without resorting to supervisors. Willey bolstered her position by emphasizing that she and Dottie had engaged in a previous off-duty argument, several months before her termination. In that case, the employees resolved their dispute the next day at work, and were able to continue working together successfully. The Court emphasized that there was no reason to doubt that the same outcome would result after this argument. Importantly, the text-message argument “took place outside of work, and had yet to manifest itself within the workplace or effect job performance.”

Bottom Line

While Delaware employers may terminate their employees for off-duty conduct, they may still be liable for unemployment benefits if the off-duty conduct does not have a sufficient nexus to the employee’s workplace performance. Employers should think twice before they wade into employees’ petty squabbles. In order to avoid finding themselves on the hook for unemployment benefits, employers should consider whether an employee’s off-duty conduct has any actual impact on the employer’s business interests.


No Friend of Mine: Court Denies Facebook Discovery

Posted by Molly DiBiancaOn July 6, 2011In: Social Media in the Workplace

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We recently posted about Zimmerman v. Weis Markets, a case in which a Pennsylvania court required an employee to turn over his Facebook and MySpace log-in information to the opposing party during discovery. An earlier-filed opinion from a different judge in the same court, though, reached a different conclusion. In Piccolo v. Paterson, Pennsylvania Common Pleas Court Judge Cepparulo denied a motion to compel the plaintiff to accept a Facebook friend request from opposing counsel.

The Court’s Order did not elaborate on its rationale but the briefing on the motion to compel reveals that the plaintiff testified about the contents of her Facebook page during her deposition. As in Zimmerman, counsel was particularly interested in the photographs posted on Facebook. When it was discovered that the plaintiff’s photos could be accessed only by her “friends,” defense counsel sought to compel the plaintiff to accept his friend request. Just as in Zimmerman, the plaintiff in Piccolo demurred on the basis that disclosure of such information invaded her privacy and was generally annoying, embarrassing, oppressing, and/or burdensome.

The Court denied the motion to compel primarily based on the fact that the plaintiff already had provided photographs of her injuries. Because defense counsel made no showing that any photos of the plaintiff’s Facebook photos would be inconsistent with her allegations, the court denied defendant’s request. In essence, it appears that Judge Cepparulo concluded that the defense was unable to meet the threshold burden of establishing relevancy that was expressly established by the Zimmerman opinion. However, the Piccolo opinion seems to point out a significant loophole in the Zimmerman Court’s rationale: counsel cannot meet its threshold burden of proving relevance if a litigant’s social networking privacy settings limit access to “friends.”

See also Social Media Passwords Are Discoverable (McMillen v. Hummingbird Speedway, Inc.);

Defendant Granted Discovery of Plaintiff's Facebook Profile (Romano v. Steelcase)