Wednesday, June 27, 2012

Miniature Horses, Golf Courses, and Allotments of Common Sense

A recent news story highlights another aspect of the Americans with Disabilities Act that occasionally touches on employment law- ADA public accommodation rules, which are found in the regulations entitled "Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities" , a guide published by the Department of Justice.

These are the regulations that have plenty of good intention, but in practice frequently create what I would characterize as absurd results. Case in point-a requirement for business establishments, including restaurants, to accommodate so-called "guide or companion miniature horses" for people who, out of choice, allergy, or religious belief (Muslims, for example, frequently do not want to use guide dogs) can't use a guide or companion dog. In an apparent effort to "normalize" the presence of novelty animals, the regulations note that people have traveled, including air travel, with miniature horses, as if this were an everyday and relatively inconsequential event.

Personal note-I have yet to get on an airplane with a horse, miniature or otherwise. I would bet that no one in the DOJ has, either.  And I can't imagine the accommodation that would be necessary for other passengers who found a horse in the seat next to them.

There are some similarly problematic requirements for miniature golf courses (you can't have too much slope on the putting areas), shooting ranges (accommodations have to be made so that the disabled can shoot in all positions.  Really? Even the prone position?), and health clubs. Unfortunately, what seems to be missing from the analysis is some type of cost-benefit assessment. I'd like to know whether someone at the DOJ had to account for whether it makes economic sense for these establishments to make thousands of dollars in retrofit adjustments for the benefit of relatively few users. Or whether it makes sense for airlines to put a "horse friendly" seating area on every airplane. At some point there will be some type of public backlash. But I think we'll have to see how this initiative plays out in terms of enforcement actions before we get a real feel for the true cost of compliance.

Saturday, June 23, 2012

It Hasn't Been a Good Month for Public Employee Unions

The Supreme Court yesterday delivered another blow to public employee unions by limiting their use of mandatory member dues for political purposes. Following on the heels of the Wisconsin recall campaign, which featured copious amounts of mandatory union dues used in to support various unions' political ends, and resulted in a significant hit to public employee unions' bottom lines, it's been a rough first part of June for public-sector, collective-bargaining.

This case comes out of California, the land of powerful and well-heeled public employee unions. California law permits public-sector employees to create so-called "agency shops" in which all employees are represented by a union, and nonmember employees are required to pay an annual fee for "chargeable expenses". Chargeable expenses in this setting are fees required to support non-political union activities related to collective-bargaining. In order to properly collect chargeable expenses, public unions are required to provide employees with so-called Hudson notices, that advise the nonmembers of how much of their dues payments go to political activities, and allowing the nonmembers to opt out of paying for non-chargeable costs.

Of course, the unions do not want people to opt out of paying non-chargeable political costs. Much of the public employees' political influence comes from the ability of their unions to amass significant war chests to fund campaign contributions and political advertising on behalf of candidates who will then support public-sector pay increases.

In the circumstances here, the SEIU sent out the requisite Hudson notice to the members of a bargaining unit, estimating that approximately 56% of its total dues requirements would be chargeable. Nonmembers had 30 days to object to the full payment of dues, but were on the hook for the chargeable costs, nonetheless. A month after sending out the Hudson notices (after the time to object had expired), the union announced a temporary 25% increase in dues and the elimination of a dues contribution cap, in order to increase political funding for the November 2006 election. Nonunion employees were not given a choice as to whether they would pay in to the fund, and in fact the union indicated that all of the 25% increase would go to pay for political operations.

The plaintiffs in this case were a group of employees who did not like having their dues co-opted for political purposes to which they did not subscribe. They prevailed and got their money back at the trial court level, but the Ninth Circuit ruled for the union, setting up the appeal.

The Supreme Court, as is its normal practice, reversed the Ninth Circuit, finding that what the union did with respect to public employees constituted a violation of their First Amendment rights of free association and free speech. Specifically, the Court determined that the union should have provided a fresh Hudson notice advising employees of their right to opt out of the increase, and allowing them to do so. The Court said that a public entity effectively compelling the funding of the speech of individual speakers or groups is virtually the same as a public entity compelling speech and association. Mandatory subsidies from a public employee group for private speech are subject to exacting First Amendment scrutiny and those subsidies cannot be sustained unless there is a comprehensive regulatory scheme involving a mandated association among those who are required to pay the subsidy.

What this means is that public employee unions will have to be more careful about how they spend their money, how they account for the money, and how they give notice to their workforce. Public sector unions may not use nonmember dues for political purposes, without those employees' consent. This case sends a relatively clear message that the Court is looking carefully at the coercive practices of unions, especially in the public sector.

Wednesday, June 20, 2012

Common Sense and the FLSA

The Supreme Court this week struck a blow for form over substance in its Fair Labor Standards Act decision here. The language of the decision indicates that the justices took a commonsense type of approach to statutory and regulatory analysis in finding that pharmaceutical sales representatives were indeed exempt employees and not entitled to overtime.  Given that the sales representatives at issue in this case earned in excess of $70,000 a year (which would equate to their normal 40 hour week compensation if they were not exempt employees), the potential overtime damages here would have been substantial.

The decision by the Court is relatively narrow in that it applies to a specific subset of the outside sales job classification. Pharmaceutical sales representatives visit doctors' offices (a totally irrelevant aside here-my doctor friends note that many, if not most, of the sales representatives  they deal with are strikingly attractive young women, leading to this hilarious comment from a Wall Street Journal post about the economic effect of the decision:  "There are going to be a LOT of really, pissed off former college cheerleaders…"), bring them samples of products, take them to dinner, play golf with them, and generally do everything that a normal outside sales representative would do, except close the sale.  Drug companies may not sell directly to physicians via the sales representatives. Instead, the sales representatives get a nonbinding verbal commitment from the physician customer that the physician will prescribe a particular drug or treatment regimen using the drug to their patients.

The sales representatives are compensated in part based on the volume of prescriptions for particular drugs in their territory, and do a considerable amount of work outside normal business hours in the service of promoting their company's products. The sales representatives had been treated as exempt employees under the traditional interpretation of the FLSA until fairly recently.   Then the Department of Labor under the Obama administration changed its position on the exemption issue in a series of friend of the court briefs that it filed supporting plaintiffs in several FLSA cases.

In affirming the Ninth Circuit (something that is noteworthy enough on its own), the Court looked to both the language of the regulations and the statute to determine that the definition of what constituted a “sale” was broad enough to encompass a circumstance where the transaction in question was tantamount to a sale in
every important respect. The irony is even more direct because the Department of Labor has traditionally focused on the actual duties of positions to determine exemption status, something that DOL failed to do here.

What's particularly noteworthy about the Court's decision is the beat down that it administers to the Department of Labor. The Court determined that the DOL's position was flatly inconsistent with both the FLSA's regulatory structure, and the language of the statute itself. I've commented in other posts about the growing dissatisfaction of federal judges with changing executive agency opinions based on whatever administration happens to be in power in Washington. Now the highest court in the country has rebuked the Department of Labor for taking a position that is inconsistent with its long-standing precedent, based on nothing else than a change in administration.

Whether that will matter in the long run remains to be seen. But for right now, there is a solid basis to examine and challenge federal agencies' interpretations of their own regulations and statutes. As employment law practice becomes increasingly statute dependent, this decision might prove to have a much greater reach.

Tuesday, June 19, 2012

Roger Clemens--Case Closed

And so the DOJ wastes another tranche of taxpayer money pursuing a case that no one really cared about--the "perjury" of Roger Clemens before Congress.

My firm opinion is that whether Clemens used performance enhancing drugs is a matter for Major League Baseball, not for Congress or the Justice Department. I believe he was under no legal obligation to even appear in the Congressional freak show that involved dragging major league players in and trying to get them to confess in the face of incompetent cross examination.

But someone at the hearing apparently got upset at Clemens and no doubt a phone call was made to light up the right Justice official, and the wheels of government turned to move Clemens into the crosshairs. The whole affair was ridiculous, and the DC jury knew it. From the failure to properly review Andy Pettitte's previous congressional deposition testimony, in which he admitted he was not clear on precisely what Clemens said with respect to drug use, to the devastating testimony of the soon-to-be ex-wife of the star witness, Brian McNamee, the government's case was poorly thought out and executed from the start. That alone is enough to indicate that the prosecution was being pursued for political rather than juridical reasons (in my experience, the DOJ attorneys at this level are highly competent).

And while I'm at it, I don't think Lance Armstrong should face anything other than the wrath of the cycling community if what is alleged about his drug use turns out to be credible. The international sports community has more than enough lawyers, regulations and judicial resources to deal with him.

Law enforcement has bigger fish to fry.

Careful Terminations: Why Blurting out Justifications for Employee Terminations Is Almost Always a Bad Idea

I typically advise clients that it's a mistake to rush into employment decisions, even though a situation may call for immediate and drastic action. The reason I give this advice is that rushed employment decisions are almost always based on sloppy, incomplete, or misleading investigations, leading to sloppy, incomplete or misleading conclusions. The pressure to get something done almost always overrides the pressure to get something right. And there are significant consequences for not getting things right.

Case in point: an employee at a retail establishment found herself being accused of racism after she innocently typed in generic data on a computer database purchase return record. Unfortunately, a former employee had sabotaged the database so that when the commonly used generic data was entered, the return receipt printed out a racial slur. When the receipt went to an African-American family, the incident went viral and spread over the Internet. Two days after learning about the return, and before its internal investigation was complete, the company fired the employee.

The company then compounded its error by releasing a statement designed to mollify the public relations firestorm that was developing around the incident, indicating that it had fired the offending employee. And even after its investigation indicated that in fact another employee had been responsible for the incident, the company issued a "clarifying" statement that simply indicated that corrective actions have been taken, but did not correct the impression that the fired employee was guilty of racial harassment.

The appellate court reviewing the case (the trial court dismissed plaintiff's claim of defamation) determined first that the initial and subsequent press releases created a relatively clear implication that the plaintiff was responsible for entering the racist language, something that was not true. The court then determined that the plaintiff was not a public figure, so that she was only required to make a showing of negligence on the part of her former employer to sustain her defamation claim. Finally, the court noted that the plaintiff had little difficulty in showing damage to her reputation, given the widespread publicity she received as result of the store's press release. The appellate court reversed the lower court and put the case back for trial.

Much of the problem here could've been avoided if the store had: a) completed its investigation before releasing the public statement about what happened; b) published a or issued a correction in its clarification that did not point at the plaintiff as the cause of the problem. But because of the publicity storm, store management apparently felt it was necessary to put something out to mollify the mob. The end result-a defamation case that is going to go to a jury whose sympathy will likely reside almost solely with the plaintiff.

Saturday, June 16, 2012

The NFL and DoD Partner on Head Injuries

This is noteworthy.  The NFL and the US military are collaborating on efforts to get their employees to stop trying to "gut it out" with respect to head injuries.

I hope that this works--I can say from personal experience that there is a lot of history and game culture at work that discourages players from telling their coaches that they have a concussion and need to come out.  And it's even worse in combat units--no one wants to be the guy left behind and not contributing because of an injury that can't be seen or understood by your fellow soldiers.

One More Time, Folks: E-Mail is Permanent

And here's a really good example of why you should not conduct romantic relationships with your paramour using the company's email system.  That goes double when you are a senior public employee, and all of your messages can be discovered through a state freedom of information request.

Holy Fifty Shades of Gray, Batman!

A Bright Line Retaliation Test, High Ranking Harassers, and Judgment Offers, All in One Case!

Every so often you read a case that has important concepts littered through it like those unpopped kernels at the bottom of the popcorn bag (I love those things).  Here's an example from the Second Circuit, involving harassment, retaliation, and some litigation strategy advice.

Retaliation claims in employment discrimination law are based on the concept of "protected activity."  This is not exactly the kind of protected activity discussed below under the NLRA  social media cases ("protected, concerted activity"), but rather activity in which an employee either complains about discrimination to management (because he experienced discrimination or observed it), or participates in some type of investigation or litigation activity in a way that undercuts or damages his employer's interest.

One of the issues that arises in "participation" retaliation cases is determining when the protected activity starts.  Generally, any employee participation in an EEOC or state fair employment practice agency investigation is protected.  But what about a situation where there is no EEOC charge or other formal claim of discrimination filed, yet?  Where the employer starts its own investigation of alleged discrimination, is participation in that process protected?

This case (and a number of others that it cites) says "no".  An HR director was terminated shortly after she commenced investigating a claim of sexual harassment against the company president's husband.  She claimed that she was fired because of her investigation, which was running before any EEOC or other process had been invoked by the harassment victim.

The Second Circuit Court of Appeals held that there was no liability here, because an employer investigation is not protected activity under the terms of Title VII.  An employee must be participating in a formal investigative process prescribed by statute before his conduct in that investigation becomes protected.

There are several other important points in the case.  Sexual harassment claims involving a supervisor of the victim are generally subject to the Faragher defense.  The defense is a doctrine that allows an employer to escape liability from a harassing supervisor if it can show that there was a systematic effort to prevent such harassment, complete with an adequate reporting system for victims, and that the victim unreasonably failed to avail herself of the opportunity to report the conduct.

But, as the Second Circuit, held, the Faragher defense is not available when the harasser is of such a high rank that he is effectively the alter ego of the corporate entity itself.  There is an excellent discussion of how much business authority gets you tagged as the equivalent of the company, but the short answer is that high level managers, especially those who report directly to the company president and who happened to be married to the president, are particularly bad defendants in harassment cases.  Their stature severely limits the ability of the company to defend itself.

Finally, there is an unusually clear discussion of the requirements and ultimate effect of an offer of judgement, a litigation tool seldom used by defendants, but that ought to be considered more often.  A offer of judgement under federal litigation rules allows a defendant to essentially place a bet on the amount the plaintiff will recover.  The defendant offers a specific amount of money at a pretrial stage; if the plaintiff rejects the offer, and doesn't recover at least as much as the offer (and the attorneys fees expended at the time of the offer) at trial, then the defendant can recover its costs (attorneys fees, for example) from the time the offer is made.

As noted above, the offer must account for the plaintiff's attorneys fees that have accrued at the time of the offer is made.  Here, the defendants made an offer that they thought would catch everything, and they would have been right, except that the trial court did not base its fee calculation on the rates charged in plaintiff's retainer agreement.  Instead, the court used (properly, the Second Circuit held) the prevailing fee rates in the community.  Those rates were higher than the contract rates, and pushed the award past the offer's value.  Thus, no recovery for the defendants.

So the lesson here is that offers of judgement must be calculated carefully--use the prevailing counsel rate, and be a little generous.

This is a highly highly instructive opinion.

Wednesday, June 13, 2012

Entitlement Mentality

It's not Penn State, or even Ohio State, but the latest college football scandal at UNC speaks volumes about how big time college athletics is run, even at non-factory schools.

Phony coursework and assignments for football players in the African-American studies department were so obvious that it should have been detected almost immediately, at least by the people providing academic oversight of the athletic department (this is nothing new, although easy courses for football players in my day were grounded a little more in the hard sciences, e.g. a "rocks for jocks" geology offering).  Perhaps the fact that the courses were being taught by the head of the department (make that the "former" head of the department) provided a smokescreen for what was actually going on.  But no one can read these accounts without thinking that the whole enterprise of major college athletics is corrupt and corrupting, from recruitment to graduation.

And it's that corruption and corrupting influence that we see on display now in Chapel Hill, and in State College, PA. Once a program sends the word that integrity doesn't matter, it's not much of a leap from wholesale academic fraud that no one bothers to report, to turning a blind eye to allegations of sexual assault.

There needs to be some serious housecleaning of this entire system.

Thursday, June 7, 2012

I'm Not Your Wife--And a Good Thing, Too!

Here's an interesting article from the Atlantic, which raises a topic that seems to be getting some traction within employment discrimination litigation-the idea of unconscious, unintentional, discrimination, especially against women, as a result of culture, upbringing, etc. In this article, the thesis is that husbands embedded in traditional and neo-traditional marriages, compared to husbands in so-called modern marriages, exhibit attitudes, beliefs and behaviors that undermine the role of women in the workplace. Modern marriages are considered those where the wives are employed full-time and traditional / neo-traditional marriages are those in which the wives are unemployed.

Essentially, the authors of a study on which the article is based argue that men in traditional marriages unconsciously treat the women working around them as if they were their wives, seeking to protect them from risks and stress, and at the same time devaluing their ambition and ability to contribute to an organization.

There are couple of problems with this assertion, which, for all I know, is true. The first is that the same can be said equally of married women, I presume--that they view men in the workplace through the prism of their marital experience with their husbands. I don't know whether this has a positive or a negative effect, except to say that most married men would pity the poor buggers who were treated at work the same way their wives treated them at home.

Okay, I'm just kidding on that last sentence.  Really, just kidding.

The second point is more significant-I'm not sure we should care about what people think in their hearts or their heads, as long as it doesn't translate into measurable discriminatory conduct. Presumably, it is impossible to eradicate every single preconceived notion from our minds about our fellow human beings.  I'm not sure we want to anyway, and in many cases it can be a useful survival mechanism.  The best we can do is to try to deal with any manifested, improper behavior resulting from this preconception.  In other words, as a boss I don't care if your view of women in the workplace derives from The Clan of the Cave Bear; if you're treating them evenhandedly and as individuals (the same way you should treat your male coworkers), then what does it matter?  Thought crimes went out with 1984, at least in my opinion.

In any event, this is worth a read just to get us thinking about workplace attitudes, and their sources, and how or whether we ought to deal with them.

Tuesday, June 5, 2012

Feline Appendages and Individual Liability--A Lesson for HR Directors?

Readers will know that I have frequently commented on the "cats paw" model of employment discrimination in the last few months.  This is not because I am a fan of cats (to prove this, take a look at what constitutes a cat fan in my universe; although this is technically a cat rotor), but because there have been a number of these cases littering the legal landscape.

Get it?  Cats-paw--littering?  You have to be quick on this blog.

A recent 7th Circuit Court of Appeals case here in Chicago demonstrates yet another way that well-meaning human resources personnel can find themselves defendants in an employment discrimination lawsuit.  The HR director of a company was accused of facilitating the termination of an employee after he complained about race discrimination and went to see a lawyer.  Following the termination, the now ex-employee sued the company, his direct supervisor, and the HR director.

Note to potential plaintiff readers--while seeing a lawyer is frequently a good idea when you think your bosses are racist, telling your racist bosses that you are seeing a layer--while perfectly legal-usually gets a less than enthusiastic response.

The plaintiff brought his case not under Title VII, but under the so-called Civil War Civil Rights Act of 1866. This type of case is often referred to as a "Section 1981" action, and the law applies only to claims of race discrimination and has several key differences from Title VII.  The big difference for our purposes is that individual supervisors are liable under Section 1981 claims, while they are generally not liable under Title VII.  The plaintiff here sued the HR director personally, claiming retaliation under the cat’s paw theory, alleging that she had been at least partially responsible for manipulating the plant supervisor into firing him, although she did not have the authority to do so herself.

The unfortunate HR director, who had, of course, been involved in the plaintiff's termination because that's what HR people usually do, found herself in the litigation crosshairs after the company went bankrupt, cutting off any remedy, and the allegedly racist supervisor settled out his claim.

The Court issued two important holdings--the first is that cat’s paw liability can exist in Section 1981 cases.  That's big--if individual employees can be liable for race discrimination claims, then the cat’s paw application allows a plaintiff to reach far into a corporate structure to touch multiple defendants.  This makes HR personnel especially vulnerable since they can be accused of facilitation for almost any adverse employment action.

The second holding is also important, because it resulted in the HR director being let off the hook.  The court determined that there was insufficient evidence of retaliatory animus to allow the case to go forward against her.  In short, although you can be sued as a cat’s paw (or more properly, as a monkey, see here), the plaintiff still has to come up with evidence that your actions were motivated by race or retaliation.

And it has to be more evidence than just involvement in the employment decision. In this case, that fact of involvement was a given-indeed, for an HR director, it would've been unusual for her not to have been involved. What saved the HR is that there was no admissible evidence that she was retaliating when she processed the termination.  And in making this determination, the Court made what I consider to be a major evidentiary ruling: comments by managers with respect to an employment termination could properly be considered to be made in furtherance of a "conspiracy”, and therefore each manager's comment could be admissible against the other manager as evidence of illegal discrimination; but to establish the underlying conspiracy, there needs to be a showing of more than just normal corporate coordination in the process.

That's a mouthful, but here's what it boils down to-it's perfectly normal for an HR director to have multiple conversations with supervisors about a problem employee, and that employee's termination.  But HR directors and their staff must understand that if the employment decision is challenged as discriminatory, not only everything that they say, but everything the other supervisors say is potentially admissible against them to establish their individual liability to the plaintiff. The only saving element here is that normal, day-to-day interaction on employment situations is not sufficient to show a conspiracy; there has to be some type of showing that the HR staff and the supervisors were taking unusual or extreme measures, or focusing on the individual more than they normally would under the circumstances, or knew they were doing something improper.

So, this case is worth a read.  The decision identifies a number of potential avenues for personal liability in race discrimination claims, particularly for human resources personnel. My advice is to constantly monitor internal communications with respect to problem employees, and keep those communications on a professional level at all times—the people here got into trouble because there was a fair amount of personal dislike between the supervisor and the plaintiff that spilled over into their communications. Moreover, employers should be aware that in race discrimination claims, more than just company assets are on the line.

Saturday, June 2, 2012

Breast Feeding Rights--Is There a Problem?

A recent Time Magazine cover photo stimulated, among other things, increased discussion about breast feeding rights for nursing mothers.  Specifically, the right to breast feed in public or at work, whether there should be mandatory accommodations for nursing mothers at work, and whether women should have a right to breast feed anywhere and with little or no requirement to cover themselves while nursing.

This is a touchy issue, of course.  I am aware of restaurants being besieged by angry, lactating women after the removal of a nursing mother because it (the nursing) made the patrons uncomfortable.  Retail sales establishments are no better--Target stores have been subjected to "nurse-ins" after one store asked a shopper to move to a more discreet location to nurse.

For employers, the breast feeding issue is a mixed bag. State breast feeding statutes vary dramatically.  In addition, the PPACA ("Obamacare") has a little known and seldom discussed provision amending the Fair Labor Standards Act that requires employers with more than 50 employees to provide nursing women unpaid work breaks and a suitable location (i.e., not a bathroom) to pump breast milk.  The regulations on this provision are still in flux, but employers should be aware of this requirement, as well as requirements of their localities, which are likely more onerous anyway.  A reasonably current listing of states where such laws are in place is here.

In Illinois, for example, women may breast feed, uncovered, anywhere except in churches or places of worship, where they are required to comply with normal dress requirements.  Since I practice in Illinois, I've often wondered how such an "uncovered" situation interplays with a company's obligations and policies on say, sexual harassment, or religious tolerance.  Does a woman who openly exposes her breast to her co-workers to feed her baby have a cause of action for hostile work environment if people stare at her?  Can she claim that comments about her breasts are "unwelcome" under these circumstances?  What about complaints by her co-workers whose religious beliefs or sensitivities are violated by the sight?  I don't know the answers here--there are analogies to be made for either side of the argument.  At least one federal court has ruled that breast feeding as a status is not a protected category (although you can certainly argue that nursing is so closely tied to pregnancy that it should be) and an employer could terminate someone for breast feeding at work.

The issue has also arisen in the relatively rigid environment of the US military.  I suspect that this photo is going to cause the people involved some problems, not so much because of the breast feeding, but because they are in uniform (or in this case, partially out of uniform).  While the military has made some accommodations to women with children, I'm guessing that DoD will draw the line at any public display like this.  But I could certainly see allowing soldiers to express milk in private while on duty, although not in forward areas, or while deployed.

Employer responsibilities here will continue to develop as state and federal courts take these cases.  Advice now--look to your state law for guidance, be aware of the federal requirements, and, as always, don't rush to make a decision.

UPDATE:  Apparently the powers that be took an appropriately dim view of the military moms.  Again, the issue isn't breast feeding as much as it is publicly doing it in uniform.

UPDATE II:  And now the woman who organized the inappropriate photo shoot has been fired from her regular job for misconduct.  This will get interesting.

UPDATE III:  More from the breastfeeding at work front.  Even pro-lactation types are opining against this professor's decision to breastfeed in class in front of her students.

Friday, June 1, 2012

More Unhelpful Social Media Guidance From the NLRB

If there's one thing the federal bureaucracy has demonstrated, it's a total inability to match legal concepts with a changing reality. Nowhere is this more true than the labor and employment law field, where large agencies like the EEOC or NLRB are full of people who presumably sit around and do little else but think about the laws they enforce, and yet consistently issue guidance to the private sector about these laws that is, shall we say, less than helpful.

Case in point: the recent NLRB Report that supposedly provides useful guidance on the interaction between the National Labor Relations Act, and social media. Never mind that electronic social media issues have been around for more than a decade, and that Facebook, MySpace, LinkedIn, YouTube, and the rest have had a stranglehold on the popular imagination for the last eight years or so, the NLRB is still treating these electronic gathering places like the office water cooler or coffee pot. As a result, the Board continues to regulate 21st century communications technology under 1940s and 50s standards relating to so-called "protected, concerted activity". The end result doesn't work very well because, at least in my humble opinion, the Board fails to account for the fact that posting something on Facebook is quantitatively and qualitatively different than talking to two or three people around the Keurig. An employer might have relatively little interest in restricting water cooler chat between two or three people; an employer could have a huge interest in preventing slanderous misinformation from being posted where it instantly becomes viewable by millions within an hour or so.

Important safety tip-while most of the NLRA relates to union activity, the provisions under discussion here cover any employer, unionized or not, with employees engaged in commerce, and that meets the statutory minimums in terms of gross business volume ($50,000 for non-retail establishments, $100,000 for shopping centers and office buildings, and $500,000 for retailers).

Employers are encouraged to have a policy on social media use because it puts people on notice with respect to the kind of conduct that the employer expects, and provides guidance on the use of a relatively novel software. Most companies by now are well aware of the dangers of unregulated social media access and use by their employees-harassment lawsuits, intentional and inadvertent disclosure of trade secrets, violation of Federal Trade Commission regulations, etc. Judging by the nature of the problems that arise in employment cases, however, companies' workforces are not so savvy. Thus the need for the policy. But in trying to guide employers on how to draft a policy that does not restrict protected, concerted activity, the NLRB does nothing but describe arbitrary, inconsistent, and hairsplitting standards that are so context-specific as to be almost useless.

Seriously, it appears as if this document was written by different people, at different times, and that no one bothered to read the assembled Report until after it was published, if then. There are lots of nuanced examples that seem at odds with each other, if not outright contradictory.  For example, a policy that prohibits release of confidential "guest, team member, or company information" is illegal, but a policy cautioning employees to be suspicious when asked to disclose confidential information is okay. A policy that directs employees to check with the company external communications or legal department if they are unsure about the information they are about to post , is illegal. So is a policy that precludes offensive, demeaning, abusive or inappropriate remarks. But a policy that prohibits employees from "harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between coworkers online…" is okay.

There's more.  Relatively conventional guidance like this in a social media policy is improper: "think carefully about' friending' coworkers"; "report any unusual or inappropriate internal social media activity"; "you are encouraged to resolve concerns about work by speaking with coworkers, supervisors, or managers"; and "don't comment on any legal matters, including pending litigation or disputes."

If I had to pick an overall theme of the Report, it would be that context is everything.  The Report specifically encourages employers to provide as many examples as possible of prohibited activity so that their employees understand that the social media prohibitions are not to be construed to prevent them from unionizing, talking about a union, bad mouthing their bosses, or complaining about their compensation.  And so the Report blesses a policy forbidding "statements which are slanderous or detrimental to the company" because it appeared on a list of prohibited conduct that included sex or race harassment and sabotage (now there's a word I don't hear very often in employment policies).  The Report noted that such a list communicated an intent by the employer not to restrict the employees from engaging in protected, concerted activity.

When the NLRB began this campaign against social media policies, most lawyers advised their clients to put language in their policies indicating that the policies were expressly not applicable to NLRA protected rights.  But without the contextual references mentioned above, it appears from the Report that a generic savings clause will not be sufficient.

There is a sample social media policy attached to the Report that is fairly bland and generic, and probably will not be of much use to the average employer.  But for right now this represents the only guidance that we have from the Board with respect to what it will tolerate in this area. Until the courts figure out exactly how social media actually interplay with the NLRA, the smart employer will look to this guidance, and its lawyers, in drafting guidance and dealing with social media issues.