Update: The NLRB Seesaws on Social Media Bad-Mouthing

By Stearns Weaver Miller on August 12, 2011 Posted in Employee Handbooks & Policies, Labor Law

In the middle of the NLRB’s campaign to protect employees from disciplinary action for posting complaints about their employers on social media (see earlier post, NLRB OKs Employee Bad-Mouthing on Social Media), the NLRB has said that not all complaints are protected, even job-related complaints. The NLRB issued three memoranda in July stating that employers did not violate the law by terminating or disciplining employees based on inappropriate Facebook activity.

In the first memorandum, JT’s Porch Saloon & Eatery, Ltd., a Chicago restaurant had a policy that wait staff were not required to share tips with bartenders. A bartender was fired for posting messages on his Facebook page including offensive remarks about customers and complaints about the restaurant’s tipping policy directed to his stepsister. The NLRB said that the restaurant did not violate the law because the conversation did not grow out of complaints between co-workers.

Similarly, the NLRB said that no law was violated in Martin House. A mental health facility fired an employee for having an online conversation on Facebook with friends (not co-workers) that it was “spooky” working at night in a “mental institution” and making comments about the facility’s patients. The employee authored some of the Facebook posts during work time. The NLRB found that the employee’s “Facebook posts did not mention any terms or conditions of employment” and never discussed the posts with co-workers.

In the third memorandum, Wal-Mart, a customer service employee was suspended for posting on Facebook the comment, “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” Two coworkers posted comments in response to the post – one stated “hang in there” – and the employee made additional comments that he was “chewed out” for putting merchandise in the wrong place and that he was going to have the Store Manager “kiss my royal white ass.” The NLRB said that the Facebook posts were “an expression of an individual gripe. They contain no language suggesting the Charging Party sought to initiate or induce co-workers to engage in group action; rather they express only his frustration” with a particular manager over a particular situation.

The take-away: an employee’s individual grievances or gripes about work are not protected activity. However, complaints among co-workers about working conditions and an individual complaint to a governmental agency about work conditions, is protected.

What Do OSHA and Oprah Have in Common?

By Glenn Rissman on July 27, 2011 Posted in Employee Handbooks & Policies, Employment Contracts & Corporate Issues

For years, Oprah Winfrey has asked guests to sign a pledge promising not to text while driving. The Occupational Safety & Health Administration (OSHA) has taken up the calling. OSHA has dedicated an entire portion of its website to Distracted Driving and is encouraging employers to help solve the problem of texting while driving. According to OSHA:

More workers are killed every year in motor vehicle crashes than any other cause

Distracted driving crashes killed more than 5,400 people in 2009

Texting while driving claimed more than 16,000 lives from 2001 to 2007

Reaction time is delayed for a driver talking on a cell phone as much as it is for a driver who is legally drunk

Drivers who are texting take their eyes off the road 400% more than when they are not texting

OSHA is using the “general duty clause” of the Occupational Safety and Health Act to compel employers to safeguard drivers at work. The general duty clause, 29 USC §654(a), requires an employer to furnish each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees. OSHA is committed to issuing citations and penalties to employers that require texting while driving or that organize work duties so that texting while driving is a practical necessity.

All employers should adopt policies that prohibit employees from using hand held cell phones and from texting and emailing while operating a motor vehicle. The policy should apply whether or not the employee is using a company vehicle and whether or not the employee is using a company issued or subsidized cell phone or smart phone. If an employee needs to make or receive a telephone call, the employee should be required to use a hands-free device, or preferably, should be required to pull over to a safe place to use the cell phone. For employees who must submit data to their employers while travelling, the reporting system should be designed so that the employee may transmit the data or information while not operating a vehicle. Employers may also wish to consider purchasing applications that disable cell phones when travelling over a specified speed limit.

Apart from OSHA’s mandate, employers should also be mindful of common law tort liability for accidents caused by employees distracted by their cell phones. Even if the employee is not driving in the course and scope of his or her duties, if the distracting telephone conversation, text message, or email relates to company business, an enterprising victim will undoubtedly seek to hold the employer liable. Lastly, many states have passed laws limiting the use of cell phone while driving. Here is a link to a website summarizing laws restricting cell phone and texting use: www.iihs.org/laws/cellphonelaws.aspx.

Federal Appeals Court Agrees with NLRB That a Confidentiality Provision in an Employment Agreement Violated the Law

By Stearns Weaver Miller on July 26, 2011 Posted in Employee Handbooks & Policies, Labor Law, Wage & Hour/Employee Classification

As discussed in an earlier post (NLRB OKs Employee Bad-Mouthing on Social Media), the National Labor Relations Board is not just in the business of regulating union activity. According to law, two or more employees (regardless of union affiliation) are protected in acting together to improve the conditions of their employment, including wages and hours.

This is exactly the law that Jamison Dupuy claimed was violated when he was terminated by Northeastern Land Services, Ltd. (“NLS”), a temporary employment placement agency, for violating the confidentiality provision of his employment agreement by sharing the details of his compensation with a third party. The Board and, subsequently, the Court of Appeals for the First Circuit (Boston) agreed. See NLRB v. Northeastern Land Servs., Ltd., No. 10-2156 (1st Cir. June 22, 2011).

Before being placed with companies by NLS, NLS required Dupuy to sign a temporary employment contract which said, in relevant part:

Employee…understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.

The Board and the appeals court held that the confidentiality provision had a “chilling effect” on Dupuy’s right to engage in concerted activity (i.e., protest his wages and pay).

Over the past year, we have observed the Board take an aggressive stance on “protected activity” in the context of social media use and social media policies. With a federal appeals court now in tow, it would not be surprising for the Board to place confidentiality provisions regarding wages and pay on its agenda right next to social media.

Employers Should Reflect on Two Recent Supreme Court Class Action Decisions

By Stearns Weaver Miller on July 13, 2011 Posted in Discrimination & Harassment, Employment Litigation

The U.S. Supreme Court ended its term this week. As the Justices start their three-month vacation, employers should reflect on two important decisions from the Court’s last term dealing with class actions. What are the takeaways?

(1) One-size-fits-all class actions for discrimination cases won’t cut it.

This year’s blockbuster case, Dukes v. Wal-Mart, was a big win for employers. Betty Dukes, a 54-year-old and six-year employee of Wal-Mart, sued the company for discrimination when she found out that she did not receive the same opportunities for promotion as her male colleagues did. Dukes’ lawsuit was brought on behalf of herself and others “similarly situated” (i.e., other women claiming to be discriminated against in their pay and promotions by Wal-Mart). To be exact, Dukes proposed a class of plaintiffs that included every woman who had ever worked at any Wal-Mart store in the entire county within the last 13 years – this encompassed 1.5 million women!

The Court said no dice and held that nationwide certification of a class of female employees for a discrimination case was not consistent with the federal rules. The rules require that a party seeking class certification prove that the class of plaintiffs has common “questions of law or fact.” Dukes’ theory that Wal-Mart had uniformly discriminated against all women in the proposed class in the same way, to the same degree, over the same period of time, and for the same reason just didn’t fit within the scope of the rules.

For employers, this case has several takeaways. First, the level of decision-making authority of local management is important. Employers should continue to have centralized anti-discrimination and anti-harassment policies as well as enable local managerial discretion in personnel decisions with centralized oversight.

Second, the federal rule on class actions has meaning. Employers now have a better chance defending class certification by showing lack of “significant proof” of a single common issue among potential plaintiffs.

Third, no, the employment class action is not dead. Future class litigation will just require more focused facts and to be brought by employees under similar management.

(2) Class action arbitration clauses are a must.

In AT&T Mobility LLC v. Concepcion, the Court said that the Federal Arbitration Act (“FAA”) preempts state law and court rulings that have been used in the past to invalidate class action waivers in arbitration agreements. For example, state law, like that in California, says that unconscionability could be a basis for invalidating class action waivers in consumer contracts. That is what Liza and Vincent Concepcion (and fellow class plaintiffs) argued when trying to get around the class action waiver in their cellular telephone service contracts with AT&T after being charged sales tax on the retail value of phones they were provided for “free” under the contracts.

The Court disagreed. It said the FAA, the law that permits private dispute resolution through arbitration, controls. The Court based its conclusion on its long-standing recognition that the FAA reflects a “liberal federal policy favoring arbitration” and that the FAA should be interpreted based on the “fundamental principle that arbitration is a matter of contract.”

Following this ruling, every employer big enough to face significant class action litigation risk can now have employees sign an agreement to arbitrate as a condition of employment and require that any claim brought in arbitration be an individual one. While there are pros and cons to arbitration, an employer who already institutes a mandatory arbitration agreement for employees, can now use the agreement to avoid class action liability.

Employers Beware: Tort Claim Against Supervisor Revived on Appeal

By Stearns Weaver Miller on July 12, 2011 Posted in Discrimination & Harassment, Employment Litigation

A Florida appellate court (Alexis v. Ventura, Fla. 3d DCA June 29, 2011) has revived an employee’s tortious interference against her former supervisor. Ketlyne Alexis originally sued her former employer, Arbor E & T, for harassment and discrimination. Alexis then added Lilliam Ventura, her immediate supervisor, as a defendant to a tortious interference claim in the same lawsuit.

According to Alexis’ complaint, Ventura and other unnamed employees acted with the discriminatory purpose of undermining [Alexis’] job performance and with the intention of causing [Alexis] to be fired. Alexis also claimed that Ventura told other employees, “I am the boss and I am in charge and I’m going to make that Haitian Bitch know it.”

One of the requirements for tortious interference with an advantageous business relationship under Florida law is that the interfering party is a “third party” to the relationship between the plaintiff and his or her employer. Because managerial and supervisory employees typically are considered parties to the employment relationship between their employer and the employees they manage or supervise, as a general rule, they usually cannot be sued as third parties. Based on this logic, the trial court dismissed the claim against Ventura and dismissed Ventura as a party to the lawsuit.

Alexis appealed arguing that this logic did not apply to Ventura who was acting with a “sole ulterior purpose” detrimental to Arbor’s interest. The court agreed. The court relied on earlier cases stating that there is an exception to the general rule that a co-employee cannot be sued for tortious interference. Bottom line, the court said, “an allegation that the defendant was not acting on the employer’s behalf or was acting to its detriment satisfies the ‘third party’ requirement.”

One of the earlier cases cited by the court, O.E. Smith’s Son, Inc. v. George, Fla. 1^st DCA 1989, dealt with a similar issue during the summary judgment phase of the case. The trial court found that the plaintiff, a septic tank company, failed to establish that the defendant, vice president of a construction company, was not a party to the business relationship with plaintiff and the construction company, and granted summary judgment for the defendant. The appeals court disagreed and said there was an issue of fact on whether the defendant had acted in good faith and on behalf of his employer, the construction company, when he began doing business with another septic tank company.

These cases teach employers that they will have to show that their managers’ actions were made in good faith and for the benefit of their employer to win.

Court Says $2.5 Million Discrimination Case Should Have Never Gone to the Jury

By Stearns Weaver Miller on July 11, 2011 Posted in Discrimination & Harassment, Employment Litigation

Florida’s Third District Court of Appeal recently reversed a hefty jury verdict in favor of the employee and directed the trial court to enter final judgment in favor of Florida International University (“FIU “). See St. Louis v. FIU, Third District Court of Appeal, No. 3D08-2316, March 30, 2011. The case was a big win for employers, particularly those involved in litigation in state court in Miami-Dade County, because the appeals court found that the case should have never gone to the jury.

In 2004, FIU eliminated a department that the employee, Sean St. Louis, a Black male, managed. FIU created a new department and invited employees from the eliminated department to apply for the new positions. Mr. St. Louis interviewed for a newly-created managerial position. He was not selected for the position. In fact, no one was selected and the position remained vacant for 19 months. Eventually, FIU promoted a non-Black employee to the managerial position.

Mr. St. Louis said that the elimination of his department was motivated by his race. He also said that he did not get the new position in retaliation for him expressing his feelings about being discriminated against. At trial, there was no evidence of any racial remarks being made about Mr. St. Louis. Rather, Mr. St. Louis focused on the non-Black employee being hired for the new position. The jury awarded Mr. St. Louis $72,241 in lost wages and benefits, and $2.5 million in damages for pain and suffering.

FIU appealed the jury verdict because Mr. St. Louis had failed to prove that he was discriminated or retaliated against. A unanimous appellate court agreed. The court said that “[e]vidence of a person outside the employee’s protected class being hired for the same position approximately nineteen months after Plaintiff applied for the position and approximately eighteen months after Plaintiff resigned from FIU does not, without more, create an inference of discriminatory intent.” The court also said that the Mr. St. Louis did not show that any of the decision-makers knew of his past complaint of discrimination when considering his application for the new position.

This opinion is one of the few decisions from our Florida state appellate courts on the issues of discrimination and retaliation. Given the rising tide of employment claims filed in our state courts, we are hopeful this opinion will help assist trial courts (and Florida employers) when analyzing whether claims are supported by adequate evidence.

Changes to the Fair Credit Reporting Act Take Effect July 21

By Glenn Rissman on July 11, 2011 Posted in Hiring/Termination, Legislation & Regulations

The Fair Credit Reporting Act (FCRA), the federal statute that places limits on an employer’s ability to use background checks on employees and potential hires, will soon add a new requirement. Employers’ use of background checks, and credit history checks in particular, has come under scrutiny. The Equal Employment Opportunity Commission has pursued disparate impact claims against employers that rely on credit checks as part of the employment process on the theory that the recent economic downtown has impacted minorities and women more severely, and as a result, employer screening based on credit history has a disparate impact on minorities and women. Several states have placed limits on the use of background checks and there was talk in Congress about similar restrictions.

In such an environment, it should not be a surprise that Congress amended the FCRA with respect to credit scores. The amendment was part of the Dodd-Frank Wall Street Reform and Consumer Protection Act and received little fanfare. The change in the FCRA affects the disclosure that an employer must make if it takes an adverse action against an employee or potential employee based in whole or in part on the results of a “consumer report.” A consumer report includes a variety of background checks, including checks of credit, driving history, and criminal records. When an employer takes adverse action against an employee or prospective employee based in whole or in part on the results of a consumer report, the employer must provide the individual with oral, written or electronic notice of:

(1) The adverse action;

(2) The contact information for the consumer reporting agency that provided the report to the employer;

(3) The fact that the consumer reporting agency did not make the decision and is unable to provide the individual with the specific reasons for the decision;

(4) The individual’s right to obtain a free copy of the consumer report in question; and

(5) The individual’s right to dispute with the consumer reporting agency the information in the consumer report.

Beginning July 21, if an employer takes an adverse action against an employee or prospective employee based on the individual’s numerical credit score, in addition to the disclosures required above, the employer must provide the individual with additional written or electronic notice of:

(1) The numerical credit score the employer used when taking the adverse action;

(2) The range of possible credit scores under the credit scoring model used;

(3) The date on which the credit score was created;

(4) The name of the person or entity that provided the credit score or the credit file used to create the credit score; and

(5) The key factors, listed in order of importance, which adversely affected the consumer’s credit score in the credit score model used.

These additional disclosure requirements only apply if the employer makes the adverse employment decision based in whole or in part on the individual’s numerical credit score.

Whether an applicant’s or employee’s numerical credit score is a relevant factor in determining the individual’s qualification for employment or continued employment will depend on a variety of factors. If an employer chooses to rely on such data when taking adverse action after July 21, it should make sure to provide the additional disclosures mandated by the amended Fair Credit Reporting Act.

Reminder: An Office Romance May Be the Root of Retaliation Claim

By Stearns Weaver Miller on July 10, 2011 Posted in Discrimination & Harassment, Employee Handbooks & Policies

This year, the Supreme Court allowed an employee to sue his employer for retaliation based on his fiancée’s discrimination complaint. See Thompson v. North American Stainless, LP 131 S.Ct. 864 (2011). North American Stainless fired Eric Thompson just three weeks after receiving notice of a charge of discrimination filed by his co-worker and fiancé Mariam Regalado. Mr. Thompson filed his own charge of discrimination and later sued the company, claiming that he had been fired in retaliation for his fiancée’s original discrimination complaint. The Court did not identify the specific relationships which could form the basis for a retaliation claim but said that firing a close family member will almost always rise to that level, “while a milder reprisal on a mere acquaintance will almost never do so.”

After the Thompson decision, an appellate court in Texas (Zamora v. Houston, 5th Cir., No. 10-20625, unpublished opinion 5/12/11), reversed the dismissal of Christopher Zamora’s retaliation claim against his employer that relied on his co-worker father’s discrimination charge as the basis for his firing. The Thompson opinion had not been issued at the time of the dismissal ruling. Now, the appellate court said that Mr. Zamora’s claim falls within the “close family member” language.

Still unclear is who is a “close family member” and will have the right to sue. A charging party’s son/daughter may be covered. Thompson illustrates that a charging party’s fiancé is covered. How about employees who are dating?

In light of these cases, employers should review their policies and procedures regarding treatment of spouses, fiancés, partners, close friends, etc. Employers may want to consider making a note of employees’ inter-company familial or romantic relationships so that it can fully assess the risks when reviewing a proposed disciplinary or termination action against an employee.

NLRB OKs Employee Bad-Mouthing on Social Media

By Stearns Weaver Miller on July 9, 2011 Posted in Employee Handbooks & Policies, Labor Law

If you think you can fire an employee who bad mouths your company, think again. The National Labor Relations Board (“Board”) says it is ok for an employee to bad mouth an employer on social media web sites.

Back in October 2010, the Board accused American Medical Response of Connecticut, Inc. (“AMR”) of wrongfully terminating an employee for posting disparaging remarks about her supervisor on Facebook. The employee, upset her supervisor, posted on the social media web site, “love how the company allows a 17 to become a supervisor.” Seventeen is medical lingo for a psychiatric patient. Co-workers joined in on Facebook with supportive comments.

The Board said that the posts on Facebook were “protected concerted activity,” meaning that, under the law, workers may discuss terms and conditions of their employment without fear of reprisal. On February 7, 2011, the Board and AMR reached a financial settlement and AMR agreed to substantially revise its Internet policy.

Since the settlement with AMR, the Board has taken legal action against several other companies, both union and non-union, for disciplining or discharging an employee for social media bad-mouthing. The Board threatened to sue Thomson Reuters for reprimanding a reporter for posting a message on Twitter criticizing management. The reporter, who also happened to be the head of the union at Reuters, tweeted, “One way to make this the best place to work is to deal honestly with Guild [union] members.” The union settled with Reuters just hours before the Board was going to file the complaint.

In May 2011, the Board filed a complaint against a nonprofit for firing five employees who had harassed a co-worker on Facebook. The co-worker griped on Facebook that employees were not doing enough to help the nonprofit’s clients. The five employees attacked the co-worker’s original comment and criticized working conditions, including work-load and staffing issues. The Board says these back-and-forth Facebook postings by the other five employees were protected under the law. Most recently, the Board took legal action against a car dealership that fired an employee for posting photos and comments on Facebook that were critical of the dealership.

In the wake of these Board complaints, employers should review their social media policies and take care when drafting social media policies that discipline employees for bad-mouthing. An overly broad policy and action taken to enforce it may violate the law.

The good news is that the Board has said that not all social media use by employees to criticize employers is ok. A reporter fired by the Arizona Daily Star for posting inappropriate tweets did not have his rights violated according to the Board. The reporter criticized the paper’s headlines, co-workers and a local television station in tweets. After the criticized television station complained, the reporter was fired. The Board said that the reporter’s firing did not violate the law because his tweets were not complaints about work conditions; rather, the reporter had been terminated for making inappropriate and offensive Twitter postings that were banned under company policy.