I heard a new statistic yesterday and was all excited. LOL! Thought it would be some big news event that I could blog about this morning, maybe even debate with my labor and employment colleagues. ROTFL!
Like, how the number of wage cases filed in federal district courts rose to a whopping 8,160 at the end of the 2014 reporting period. Or, how the Pew Research Center recently noted the increasingly more diverse nature of U.S. religious groups in 2015, and perhaps how employers should consider the impact on religious rights and accommodation in the workplace.
Nope. What I heard yesterday was an even bigger stunner. Apparently, and according to Facebook, people are no longer expressing laughter online with “LOL.” Rather, “HaHa,” “HeHe,” and the use of emojis have taken over, with “LOL” now being used by a very-less-than-hip 1.9 percent of online users. Say it ain’t so!
Is this really worthy of news (let alone, a distinguished blog post, LOL!!)? This development left me with a new list: My top 3 issues to consider from the demise of LOL-ing:
1. I suppose that “HaHa” and “HeHe” will let people know that I’m laughing. But, how will they really know that I’m laughing really, really hard? If LOL makes me a loser, what’s become of LMAO, or LMFAO? Can I start trending my own “HaHaMAO?”
2. I’m willing to be hip and dive right in, but “LOL” was so easy to spell. Is the new lingo one word or two (i.e., “HaHa” or “Ha Ha”)? Is the second “ha” capitalized or not (i.e., “Haha” or “HaHa”)?
3. Am I still able to laugh at my own post like I used to do so freely with “LOL” at the end of my statement (i.e., “Here’s a pic of my friend and me in the rain. LOL!”)? Or is “HaHa” or “HeHe” reserved now only for someone else’s post?
Employer Take Away: What should you as an employer take away from this development?
This one’s tough, and a bit of a stretch I acknowledge. But there is a lesson here for you, deep down. When it comes to social media, and social/cultural swings, you need to realize that it’s not just your teenage kids doing it. So are your employees, young and old. And it’s not just Facebook they’re talking on anymore either.
As an employer of people, it’s important that you stay on top of all of these developments – newsworthy or not. Understand the language your employees are speaking and all of the platforms they are using to express their opinions, and certainly stay abreast of the ever-changing rules of the road that apply to those platforms and those opinions when it comes to making employment-related decisions based on your employees’ social media activity. It doesn’t matter how you stay on top of things, just go with whatever tickles your fancy.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Bloomberg just reported last week that the Apple Watch “is eroding demand for traditional timepieces.” That’s not just a bad sign for watch retailers, but for employers who continue to have to keep up with the ever-shrinking fine line between legitimate management of employees in the workplace and inappropriate discipline for lawful activity. For those returning from vacation since 2005, wearable technology is clothing and accessories that contain computing and other electronic capabilities. It could be the watch on the employee’s arm, or the glasses, ear piece or head/wrist band that makes up one’s attire in the office.
Together with Google Glass and other wearable technology that has entered and will enter society, this is not simply a tech fad that is going away any time soon. As Forbes also put the truism: “the end result is that technology arguably permeates every area of life.” To employees, work and the workplace is little more than an extension of (personal) life. So, while a healthy dose of fruit is good for everyone’s daily consumption, it’s time for employers to get juiced up about Apple and the others coming into their markets.
Employer Take Away: What should you as an employer take away from this development?
Here are the top 5 issues you need to consider when it comes to employee use of wearable technology:
It is easier for employees to make video and audio recordings of sensitive areas in the workplace. Wearable technology is not as simple (or as obvious) as whipping out a camera or smart phone, holding it up, and uttering “cheese.” As those devoted readers of this blog know, the NLRB maintains a strong position on what can and cannot be prohibited, and where.
In a similar vein, employees are better equipped with smaller, less obvious devices to utilize and disclose (intentionally or inadvertently) your company’s trade secrets and other proprietary information. Non-disclosure agreements and policies should unquestionably refer to more than the “traditional” ways of obtaining, using, and disclosing such information.
Employees might be more apt to engage in harassing or violent behavior in the workplace with technology that allows for surreptitious recording of co-workers in private areas of a facility, or the use of the wearables to otherwise obtain or depict inappropriate things. Written workplace policies and manuals should similarly be updated to incorporate today’s realities.
Wearable technology allows users to track their own fitness and other health-related statistics. In addition to the wellness program concerns that have come up recently for employers, it is imperative to understand GINA and other limits on your company’s ability to inquire about and use this information.
Productivity can certainly take a hit with employees having yet another device, and all of its apps, to play with. And, speaking of apps, you might be wise to remember that employees have all kinds of new ways to use their portable and wearable technologies to track their working hours and compensation owed, as well as a facility’s air quality and other OSHA-interested conditions in the workplace.
Have you thought about these issues with respect to your company?
Do your current policies and practices reflect that?
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
You thought Donald Trump was all over the place before. The golf courses, beauty pageants and reality shows paled in comparison to what we have seen and heard in 2015. Jumping into the ring of this election cycle’s Presidential heavyweight fight, Trump has made news the past few weeks with his views on Mexico and immigration. And it’s not just Trump. More than a dozen other candidates on all sides of the aisle are taking highly-charged, often 10-second sound bite positions on issues from religion to veterans to social security to abortion to gay marriage. So what happens when political discussion and activity infiltrates your company’s workplace?
It is easy to laugh off your employees’ debate at the water cooler (the physical and virtual) about the new timed approach to last night’s major league baseball home run derby. It is far more likely that emotion and judgments will run deeper and last longer when it comes to the issues blowing in the political winds. Social media has played a big part here too, as employees have greater access to information and a larger forum in which to debate and engage in political expression. Discussion within the four walls of the physical office easily spills into the posts and videos of social media.
Political-related debate among employees certainly has the potential of reducing productivity as much as any endless banter on sports would. But, more critically, it also serves to harbor bias and resentment that could lead to harassment and discrimination claims by your employees. There is no obligation to be George Orwellian to monitor everything, everywhere, but your company should be sensitive to the notion that workplace harassment claims on issues involving religion and national origin, for example, have seen a dramatic uptick in just the past couple of years. Workplace policies on harassment, discrimination and retaliation must apply even to discussions that may have stemmed at some earlier point from political reporting, and may apply even to discussions on social media, if they lead to some protected class impact or have the effect of interfering with your employee’s ability to perform his or her job.
On the other hand, many states have laws that protect those who engage in lawful activities, including certain types of political activity. I’ve said it before here, and I’ll continue to say it: Employers are not always prohibited from making employment-related decisions based on the right to control their workplace. But, they should be cautious about making trigger-happy decisions without at least considering the issues and potential ramifications involved with those decisions. This year’s intensified political climate is no different, even if it seems so easy for Trump to say on TV: “you’re fired.”
Employer Take Away: What should you as an employer take away from this development?
Don’t ignore the impact that a political election has on the workplace and the relations between employer and employee, and between employee and employee. Saturday Night Live never has, and your company should not either. The biggest issues in the workplace tend to be those issues that are discussed in the workplace at the moment. And in this big election year, politics and all things related are what your employees are talking about.
Communication and training are always important for any workplace, big or small, to alleviate the potential bias and resentment that come from certain discourse. HR training tends to occur at holiday time at the end of the year (and don’t worry, we’ll get back to the holiday parties in five months). But there may be times, like an active political season, where it may make sense to re-affirm your company’s stance on making sure that the workplace allows free thought and expression for work performance, but is also free of cultural insensitivity and bias.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
As in, “Way Too Frequently” we are hearing and reading about cyber and data breaches. The ironic hack du jour: LastPass. Wait for it: A company that lets a customer store all of his or her passwords online in a single storage file had its passwords hacked.
Really?
Employer Take Away: What should you as an employer take away from this development?
Cyber and data breaches happen to large, iconic companies that everyone thinks “must” have protocols and firewalls in place. They happen to mom-and-pop shops who can’t possibly be targets. They apparently happen to those whose business is to manage and protect passwords.
And they can happen to you.
Have you thought about things you haven’t thought of yet? Do you know what you don’t know? Have you engaged in an internal audit of your practices, protocols, response procedures, and insurance/risk management policies to determine if you adequately address cybersecurity, data breach and information governance issues? Your company spends so much time, money and energy on all kinds of business planning, why not in this area?
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
WTF already?! As in, “where’s the fairness?” Time for an acronym update from our favorite government acronym, the NLRB.
You will certainly remember that we have recommended asking yourself three questions before determining whether the NLRB would have a problem with you disciplining one or more employees: First, did the employees engage in “concerted” activity? Second, if yes, was that concerted activity “protected” under the National Labor Relations Act? And third, if yes to the first two questions, did the otherwise protected concerted activity lose its protection under the Act because it was so offensive or reckless?
The vast majority of the NLRB’s decisions and guidance have focused on the first two questions. However, we are now starting to see the NLRB beginning to shape its position on the third question, and the parameters within which otherwise protected activity may still keep employees from success under the Act.
Which brings us to the Board’s latest decision in In re Pac Bell Tel. Co., where telephone technicians wore buttons and stickers that contained the phrases “WTF Where’s the Fairness,” “FTW Fight to Win,” and “Cut the Crap! Not My Healthcare.” The union argued that they had the right under the Act to wear such union insignia, while the employer contended that any such right was lost because the messages were vulgar and offensive.
The NLRB sided with the employees. It found that acronyms such as “WTF” and “FTW” did not stand alone, but were followed immediately by non-vulgar phrases that gave relatively innocuous meaning to the acronyms:
“We find that the possible suggestion of profanity, or ‘double entendre,’ . . . is not sufficient to render the buttons and stickers unprotected here, where an alternative, nonprofane, inoffensive interpretation is plainly visible and where, further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product[.]”
“Cut the Crap,” or, as I often like to refer to it, “CTC,” was also deemed protected under the Act because the NLRB felt that “crap” had no “scatological content.”
WTF?
Employer Take Away: What should you as an employer take away from this development?
Whether the speech is through social media, or on t-shirts, hats, or buttons, your company must still toe the line between permissible discipline and allowing speech that you might not generally like. As we’ve said in the past, there is going to be a high threshold before the NLRB will determine that protected concerted activity has lost its protection under the Act. Pac Bell teaches us that double entendre with a mere “suggestion of profanity” may not be enough, and that there will likely need to be a very clear (and sole) offensive statement expressly made.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
I’ve often said that the definition of “plaintiff” in a lawsuit can be simply stated as a “pissed off employee.” The old cliché that “a happy employee equals a productive employee” still rings true, but that is only part of the equation. It’s not always the case, but, more often than not, the better you treat and communicate with your employees, they will not only be more productive but also less “pissed off” and, therefore, less likely to want to sue (or be persuaded to sue).
We spend so much time in this blog talking about being mindful of social media from the standpoint of what your employees are doing and saying on social media. It is also important to consider what other characters in the employment law theater – attorneys seeking to represent (your) employees – are doing with social media. That is, in many cases, attorneys are using LinkedIn and other social networking sites with increasing frequency to look for disgruntled employees who might be willing to start a lawsuit, and to communicate with potential class/collective members about those cases.
We know that the number of wage and hour lawsuits filed each year continues to go up. Though they are not impossible to properly defend, they are difficult cases for many companies because the class and collective nature of these suits leads to a tip of the settlement leverage scales and the potential for exponentially large damages, and because they are often premised on very strict, technical rules about which even good-intentioned employers are not even aware. So companies in your and other industries continue to increase the litigation budget to address the “old” claims that are still being filed (e.g., unpaid overtime, off-the-clock work, independent contractor and exemption misclassification), as well as some of the newer, more trendy claims (regular wage rate calculation, internships, state law claims like New York’s spread-of-hours requirement). Wage and hour lawsuits are not going away any time soon. You heard it here first.
And social media is being used in so many ways. Your employees are regularly communicating their wage and hour gripes on social media (empowered, as you know, by the NLRB), and are also using social media to quickly learn about their “rights” from various federal, state and local government entities who provide a wealth of easily-accessible information that often times is incomplete or rife with legalese not understandable by the average employee. Remember that other cliché “a little bit of knowledge is dangerous?” Once your employees post comments and discussions about wage and hour issues on social media, it is not difficult for them to be found by attorneys who are looking for them, and ultimately not difficult to get your employees on board with suing your company for thousands and maybe millions of dollars.
Not so unrelated, as I have recently updated on Twitter (shameless plug: @MSchmidtEmpLaw), the United States Department of Labor will soon be announcing proposed new regulations that are expected to dramatically impact the white collar overtime exemptions that have been changed only once since the 1930s (“What is 2004, Alex?”). Getting it right when it comes to your company’s wage and hour obligations is not only a good idea because it is the law. It is a good idea because you may then also be less vulnerable to legal solicitations of your employees through social media.
Employer Take Away: What should you as an employer take away from this development?
Plain and simple: Some attorneys are using social media to find employee clients to sue you. You can’t completely eliminate the risk, but you might be able to minimize it:
1. If you are not already, be cognizant and sensitive to the fact that employees can use and are using social media to gripe about unfair and unlawful pay practices. Those comments can be viewed by just about everyone, including lawyers having an easy time locating and communicating with your employees.
2. If you become aware of a wage and hour concern raised by one of your employees through social media, take it seriously. Do not discard in the misguided belief that informal social media complaints don’t count.
3. Train, train, train your managers (and yourself) to understand and comply with your company’s wage and hour obligations under federal law, and under the oft-forgotten state and local law. That way you can marry your good intentions to some lawful results, and also create happier employees who are less susceptible to wanting to be found and sue you.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
I don’t know if you are or aren’t. That’s probably for a different timeforhardselfassessmentlawblog.com (wish I had purchased that domain). However, I do know that your employees apparently can call their manager a nasty mother fu*ker (is the asterisk still really necessary?). Now mind you, it’s not all workplace wild, wild west. But the NLRB continues to speak and your company continues to need to hear it.
Part of the problem lies in the fact that we either don’t know exactly where the line of decorum is, or that line constantly moves. As recently stated in the NLRB General Counsel’s March 18th memorandum, employees can lawfully be prohibited from being discourteous or disrespectful to a customer of yours or to any other member of the entire general public in contact with your company. The memorandum said that your company can also enforce rules prohibiting employees from “making inappropriate gestures” to co-workers, and from “being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor [or] coworker” when such rule is placed in the “context” of rules banning “serious misconduct.” And, employees can be required “to work in a cooperative manner with management/supervision.”
Yet, in the latest episode of the serial “As The NLRB Turns,” we now learn that your employees cannot be prohibited from calling their managers a nasty mother fu*ker. So that isn’t an “inappropriate gesture”? Not insubordinate or disrespectful, in any context? That’s the 2015 version of working “in a cooperative manner with management/supervision”? Huh?
In In re Pier Sixty, LLC, the NLRB affirmed the findings of an Administrative Law Judge that the employer unlawfully infringed on an employee’s right to engage in protected concerted activities based on certain social media posts. The case involved a catering hall and employees who allegedly believed they were treated “disrespectfully and in an undignified manner.” The decision notes that the employee at issue vented his frustration with certain treatment of the company’s servers by posting the following on a personal Facebook page:
“Bob is such a NASTY MOTHER FU*KER don’t know how to talk to people!!!!! Fu*k his mother and his entire fu*king family!!!! What a LOSER!!!! Vote YES for the UNION.” [Note: the employee wasn’t as constrained to include the asterisk.]
According to the decision, “vulgar language is rife in the Respondent’s workplace, among managers and employees alike.” Maybe that “contextual analysis” is what made the comment less offensive – at least to the NLRB – since the NLRB balanced both sides’ interests before determining that:
“an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’ comments were so egregious as to take them outside the protection of the Act.”
Interestingly, there was a lone dissenter who WOULD have found that the “vulgar and obscene Facebook comments lost the Act’s protection” because, among other reasons:
“Even conceding a lack of evidence that Perez intended to engage in or threaten actual violence against McSweeney or his family, the posting reflects a level of animus and aggression directed toward McSweeney personally that goes well beyond the contrasting statements in the record that the employer tolerated and that are also distasteful[.] . . . We live and work in a civilized society, or at least that is our claimed aspiration. . . . Personally directed and insulting statements like Perez’ Facebook posting about McSweeney, his mother, and his family, typically cause irreparable damage to working relationships. It serves no discernible purpose for the Board to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity. It certainly does not serve the goal of labor peace.”
Employer Take Away: What should you as an employer take away from this development?
At least there was a dissent. Still, majority rules, and your company must continue to tread carefully when deciding to take action against an employee for social media posts or activity. Continue to go through the analysis about which we have so often posted. Yes, NLRB precedent says that even concerted discussion about the terms and conditions of the workplace may still lose the law’s protection if the employee was so opprobrious or over-the-top inappropriate in that discussion. The majority in Pier Sixty shows, however, that the threshold required to prove that is still a high one.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Last week, I had the pleasure of speaking on a panel at the Above The Law converge in New York City on emerging technology trends for lawyers and the workplace. After the conference, Bob Ambrogi and the great folks at Legal Talk Network interviewed me and my co-panelists about some of our discussion points. To listen to the interview, click here.
Employer Take Away: What should you as an employer take away from this development?
Whether you are in-house counsel, outside counsel, or a non-lawyer employer, the realities of social media and technology today and tomorrow will continue to play a major role in your company or practice. Stay abreast of these emerging trends and developments whenever and however you can.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
It’s been a little while since we talked about the NLRB and its feelings on “protected concerted activities” and social media policies. After all, there are other social media and employment law issues worth considering from your company’s standpoint. But lest we forget them completely, the NLRB’s General Counsel issued a new report late last week on the issue of workplace social media policies. This new report is helpful in some respects, still confusing in others.
General Counsel Griffin issued his report to “continue the practice of issuing periodic reports of cases raising significant legal or policy issues,” and specifically to “offer guidance on my views of this evolving area of labor law, with the hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.” Interestingly, the report’s first paragraph states:
“Although I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act, the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.”
In other words, “good intentions” and “ignorance of the law” are not defenses.
The report provides a convenient side-by-side-like analysis of what language the NLRB has and has not considered to be violative of the “protected concerted activities” right under the Act in eight different categories of rules: (1) confidentiality and non-disclosure; (2) employee conduct toward the company and its supervisors; (3) employee conduct toward co-workers; (4) interactions and communications with third parties and the general public; (5) the use of company logos, copyrights and trademarks; (6) workplace photography and recordings; (7) the ability of employees to leave work; and (8) conflicts of interest. The report concludes with specific do’s and don’ts examples from a policy established by Wendy’s International LLC.
The report is helpful to the extent it allows lawyers and employers to parrot certain exact language referenced in the report and point to the report in a subsequent NLRB proceeding if criticized for using language that appeared to have had the NLRB’s blessing. But what happens if the language does not always apply to your company’s particular workplace or workforce, or if you simply decide to paraphrase or tweak the wording in this report to customize your policies? And, more critically, what happens if you cannot reconcile some seemingly inconsistent conclusions drawn in the report or spot the lines being drawn that do not have an obvious rationale?
Furthermore, how does an employer know when the NLRB will or will not place favorable weight on the subjective “contextual analysis” it has reserved for itself on a case-by-case basis, and the ultimate impact that might come simply from the page in a larger handbook on which the subject language happens to be placed? On the latter point, the report suggests that the NLRB could determine that identical language violates and doesn’t violate the Act based on context and handbook placement, without offering much guidance (if such guidance is even possible) on how the NLRB would determine that.
Just by way of a few select examples, consider the following from General Counsel Griffin’s new report:
Can’t say “you must not disclose proprietary or confidential information about [the employer, or] other associates . . .,” but can say “no unauthorized disclosure of business secrets or other confidential information” and “do not disclose confidential financial data, or other non-public proprietary company information” (pages 4-6).
Employee criticism of an employer is protected if it is false, but is not protected if it is maliciously false (page 7).
Employees must be allowed to be rude and discourteous to a supervisor or management, but can be prohibited from being rude and discourteous to co-workers (page 7).
Can’t say that “[c]hronic resistance to proper work-related orders or discipline, even though not overt insubordination, will result in discipline,” but can say that “[e]ach employee is expected to work in a cooperative manner with management/supervision . . .” (pages 8-9).
References to “company employees” would be broad enough to include supervisors, but a reference to the “general public” does not include supervisors (page 10).
Can’t say “walking off the job is prohibited,” but can say “entering or leaving Company property without permission may result in discharge” (page 17).
Employer Take Away: What should you as an employer take away from this development?
In fairness to the NLRB, this certainly is an “evolving area of labor law.” This latest guidance is helpful in attempting to marshal the NLRB’s most recent rulings on common categories of workplace rules. But there is still more needed before employers (and those advising them) can truly be guided on permissible conduct moving forward.
The NLRB’s current positions are certainly subject to change, particularly as the political administration in Washington changes. Its positions will likely be subject to judicial analysis as well, which may prove to be the ultimate arbiter of the enforceability of these positions. For the moment though, as we’ve said before, your company should have a healthy respect for the NLRB’s pronouncements on workplace policies to avoid becoming the Board’s target, and should seek assistance when drafting or reviewing your workplace policies.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Well, maybe there aren’t too many people using social media in general. But, perhaps, that is the lesson to be taken from a recent federal court decision that addressed the intersection of one statute’s purpose and the reality of social media.
Gawker Media is a wage and hour case that involved notice being sent to “similarly situated” individuals under the federal Fair Labor Standards Act (“FLSA”). Notices are typically mailed to individuals advising them of the nature of the case and their right to join the lawsuit if they choose to do so. Here, plaintiffs’ counsel apparently asked the court for permission to post notices on various social media web sites in an effort to supplement the traditional mailings and reach a potentially larger audience that might include individuals who could potentially “opt in” to the lawsuit. The problem was, however, the argument that the sites “might include” individuals.
The court noted that, while it would contemplate the use of social media as a means to contact potential parties, the request by plaintiffs’ counsel here was “substantially overbroad” and appeared to be “calculated to punish Defendants rather than provide notice of opt-in rights.” Said the court:
“Plaintiffs’ proposal to post notices on websites such as Reddit and Tumblr – and on pages such as “r/OccupyWallStreet” and “r/Progressive” – lacks any realistic notion of specifically targeting its notice to individuals with opt-in rights, and instead would call attention to the lawsuit mostly of individuals with no material connection to the lawsuit whatsoever. The purpose of FLSA notice is to ‘notify and inform those eligible to opt in to the collective action’”
In other words, the FLSA notice provisions are designed to provide narrowly-tailored notice specifically to those individuals whose rights may be at issue and affected by a lawsuit, and to advise those individuals of their right to join. Simply putting word of the lawsuit out for the entire world to see (i.e., through social media sites of mass participation), with only a small subset of the world truly intended to get the notice and learn about the lawsuit, does not accomplish the goals of the FLSA and potentially prejudices the employer.
As the court made even clearer:
“The Court approved use of social media notice on the understanding that such notice would effectively mirror the more traditional forms of notice being used in this case. This generally means that it expected the notice to contain private, personalized notifications sent to potential plaintiffs whose identities were known and [sic] may not be reachable by other means. To the extent that Plaintiffs’ proposals are shot through with attempts to send public-facing notices – such as general tweets rather than direct messages, or publicly accessible groups – they cease to parallel the other forms of notice that the Court has already approved. . . . Accordingly, Plaintiffs’ request to put into action its proffered plan for social media notice is DENIED without prejudice to Plaintiffs proposing a revised plan that cures the current overbreadth issues.”
Employer Take Away: What should you as an employer take away from this development?
Courts continue to grapple with the proper balance when it comes to the somewhat informal, yet widespread appeal of, social media in the context of lawsuits. Can (and should) social media be used to benefit the process in many circumstances? Yes. But can one’s plan to use social media in the process be too overbroad? Yes.
Just as we discussed in the context of the discovery of social media in lawsuits, the best way to persuade a Judge to fall on the side of allowing some social media plan into your company’s case is to demonstrate that your plan is narrowly-tailored and serves the underlying purpose of promoting judicial economy and obtaining information or access that could not generally (or easily) be obtained through other means.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
Follow @MschmidtEmpLaw