Last week, LinkedIn debuted on the NYSE with an initial public offering of stock at $45 a share. The share price climbed on Friday, sending the social-networking company’s market value to $9.1 billion. According to the Washington Post, this is approximately 24 times its 2011 revenue. linkedin logo by webtreats

Employers like to think of LinkedIn as the “good son” among social-networking sites, especially as compared to Facebook.  LinkedIn is marketed to professionals and is used widely for recruiting. It also can be used as an online rolodex, enabling professionals to connect with others in their industry and get automatic updates when your “connections’” contact information changes.

In light of the recent LinkedIn IPO, it seems like a good time to give some thought to some of the employment-law implications of this darling of the social-networking sites. In this series, I’ll review some of the employment-law cases in which LinkedIn has played a substantive role.  In the last post in the series, I’ll discuss some of the ways that the lessons from these cases can be applied to an employer’s social-media policy. 

The National Labor Relations Board (NLRB) has announced that, on May 9, it issued a complaint against a non-profit for allegedly terminating five employees for comments they made on Facebook.  This is the latest development in what appears to be the final frontier of social media and employment law.  NLRB white

Seth Borden at Labor Relations Today gives a more detailed account of the facts as alleged by the NLRB but the short version is this:

Employee posts comments on Facebook.  Co-workers respond to the comments with comments about their own job performance staffing issues. Employer fires co-workers for the posts, which the employer contends constituted unlawful harassment.

The U.S. Department of Labor (DOL) continues in its initiative to provide employers and employees with online resources and tools designed, according to the DOL, “to help employers understand their responsibilities to report and record work-related injuries and illnesses” in accordance with OSHA regulations.  DOL 2 

From the DOL’s press release announcing the new web tool:

The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.  To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions. 

The Delaware Attorney General’s Office is seeking to appeal the Third Circuit’s ruling that Delaware’s labor apprentice law violated the commerce clause. That decision upheld an opinion in April 2010 by Judge Sue L. Robinson of the U.S. District Court for the District of Delaware that the state’s failure to recognize out-of-state registered apprentices under Delaware’s Prevailing Wage Law discriminated against out-of-state contractors by effectively forcing them to pay higher wages to apprentices than in-state competitors were required to pay. After the Third Circuit’s ruling, Tri-M sought more than $190,000 in attorney’s fees and costs from the State, but that petition was stayed by the District Court while the State petitions the United States Supreme Court to review the Third Circuit’s ruling.

The NLRB’s General Counsel’s Office has issued an Advice Memorandum in which it finds that an employer did not violate the National Labor Relations Act when it terminated an employee for his tweets critical of his employer. This is an important decision favorable for employers.

The employee was a public-safety reporter for a newspaper in Tucson, the Arizona Daily Star. The paper encouraged its reporters to use social media, including Twitter, to engage its readers.

In early 2010, the employee posted a tweet criticizing a headline written by another reporter. He was called for a meeting with Human Resources and was “encouraged” to discuss his concerns instead of airing them on Twitter. Later, the managing editor told him not to post grievances or otherwise comment about the paper “in any social-media forums that may damage the goodwill of the company.”

The Wage-and-Hour Division of the Department of Labor (DOL) has released an app called “DOL-Timesheet.”  The app works on the iPad and iPhone but may later be released for Android and Blackberry. As described by the DOL:DOL Timesheet app

This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer.  It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek.

The app does not handle tips, commissions, bonuses, deduction, holiday pay, shift differentials or other non-standard methods of pay.

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”Criminal-History Law

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

Employee theft of documents is a serious issue today. More and more often, employers discover that, before exiting, a former employee took with him (often by forwarding himself via email), many of the company’s confidential documents. The employer has limited ways to respond. If the employee refuses to comply with the employer’s demand to return the documents, it may be necessary to file suit.keyboard alert

One of the claims that an employer may bring is under the federal Computer Fraud and Abuse Act (CFAA). The CFAA is also a criminal statute, originally designed to target computer hackers—not disloyal employees. And some jurisdictions have rejected claims seeking to apply the CFAA to the employment context. The leading case finding that the CFAA can be applied to the disloyal employee is International Airport Centers, LLC v. Citrin, which was decided by the Seventh Circuit in 2006. The key to the Citrin decision and others like it is a determination that, although the employee may have been “authorized” to access the employer’s files initially, that authorization is automatically revoked once the employee becomes disloyal. Any access after this point is, by definition, “in excess” of the authorization previously provided.

Three years later, in 2009, the Ninth Circuit rejected the Seventh Circuit’s Citrin analysis, finding, instead, that an employee’s authorization to access his employer’s computer network is not revoked automatically when the employee becomes disloyal to his employer. [1] The Brekka decision held that accessing and emailing the employer’s files for a purpose contrary to the employer’s interests, alone, did not violate the CFAA.

Kent County, Delaware is considering a social-media policy. And, boy oh boy, is it causing quite the stir. Apparently, some opponents only read the headline of the article before concluding that the county is trying to ban employees’ use of social media altogether.  Of course, that’s not the case.  The policy does ban use of social media by employees at work–an idea most taxpayers may appreciate. user manual

Other opponents, though, take issue with the part of the proposed policy that, according to the News Journal, would “bar workers from posting materials on or off the job that disparage co-workers, disclose confidential information.”  The policy also would create a “duty to report inappropriate use of social media by co-workers or supervisors.”

The article says that employee representatives supported the county’s effort to prevent co-worker harassment or threats of violence but were concerned about off-duty restrictions.

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