Social Networking

NEWS FEED TOP NEWS MOST RECENT

Courtney Bru

The NLRB continues to file complaints regarding social networking activities.

In January and March, we discussed the fact that the current National Labor Relations Board ("NLRB") has adopted the position that discussion of workplace issues on social networking sites such as Facebook or MySpace constitutes "concerted activity" under the National Labor Relations Act. Section 7 of the Act provides, in part, that "[e]mployees shall have the right...to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...." 29 U.S.C. § 157.

On April 12, 2011, the Acting General Counsel of the NLRB released a memorandum describing certain items that must be submitted to the Division of Advice "because there is no governing precedent," or because they "involve a policy issue in which I am particularly interested." Among these items are "[c]ases involving employee rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter." The NLRB continues to take the position that social networking activities are the equivalent of traditional speech for the purposes of Section 7.

The NLRB has since filed two complaints against employers regarding this issue. The first complaint was filed on May 9, 2011 against Hispanics United of Buffalo, a nonprofit organization providing social services to low-income clients. The complaint alleges that an employee "engaged in concerted activities with other employees...by concertedly complaining on her Facebook page regarding...working conditions." According to the NLRB, an employee posted on Facebook, "in advance of a meeting with management about working conditions," that "employees did not do enough to help the organization's clients." Other employees responded to the post and defended their job performance, instead criticizing "work load and staffing issues." The employees involved were terminated three days later, allegedly because of their social networking activities and allegedly in violation of Section 7 of th e Act.

The second complaint was filed on May 27, 2011 against Knauz BMW in Illinois. The NLRB alleges "unlawful termination of an employee for posting photos and comments on Facebook that were critical of the dealership," specifically expressions of unhappiness "with the quality of food and beverages at a dealership event promoting a new BMW model." A salesman posted photos of the available hot dogs and bottled water, along with his opinion of the same, on his Facebook page. Some of his coworkers had access to that page. The following week he was asked to remove the posts, and did so. However, he was later terminated for the posting. Hearings have been scheduled on both complaints.

Interestingly, the NLRB decided not to file a complaint against the Arizona Daily Star for disciplining a reporter who posted Tweets criticizing the performance of the newspaper and its copy editors. An example of the many posts: "The Arizona Daily Star's copy editors are the most witty and creative people in the world. Or at least they think they are." The employee was terminated and filed a charge with the NLRB alleging violation of his Section 7 rights. The NLRB declined to file a complaint, finding the employee's "inappropriate and offensive" Twitter postings "did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment."

Employers should continue to ensure that any social networking or blogging policies are neutral in terms of the subject matter or the content they prohibit. In addition, employers should consider inclusion of language within these policies that they are not intended to restrict or interfere with employees' rights to engage in concerted activity under the Act.

Employers are strongly encouraged to seek competent legal advice before terminating an employee for his or her social networking activities.

By Courtney Bru, cbru@dsda.com

ADA

LEAVE AS A REASONABLE ACCOMMODATION UNDER THE ADA

Compliance with the Americans with Disabilities Act has always been a moving target for employers. The Americans with Disabilities Act Amendments Act (ADAAA), and the regulations recently issued under that Act, only made matters worse. As we have described in past issues, the ADAAA shifted an employer's focus from trying to determine if an employee is a qualified individual with a disability, to working with the employee to find a reasonable accommodation for a condition which the ADAAA defines as a disability. Unfortunately, the ADAAA and its regulations provide little guidance on what constitutes a reasonable accommodation. This creates an especially difficult problem when an employee requests leave as a reasonable accommodation.

Most employers recognize that unpaid leave for medical treatment, recovery, or training to use an adaptive device is an important accommodation under the ADA. Many employers, however, have a "no fault" leave policy which requires termination of an employee after a specified period of time away from the job. The EEOC has long taken the position that these types of policies must be modified as a reasonable accommodation if an employee with a disability needs additional leave. And, they have had some success with this position in recent litigation over inflexible policies, entering into multi-million dollar consent decrees with Sears and SuperValue.

The real challenge lies with trying to figure out what limitations an employer may place on the leave it offers, and the extent of the duty to hold an employee's job open during the leave. Earlier this summer, the EEOC held a meeting on this topic. They invited experts representing employees and employers, as well as their own in-house experts. Although there were few agreements on what constituted a reasonable extended leave, all agreed that the EEOC must provide more guidance on this issue, including examples of times when additional leave will be deemed necessary and when it will not. When the guidance is published, we'll let you know.

Until then, carefully consider any termination as a matter of policy of an employee on medical leave.

By Rebecca M. Fowler, rfowler@dsda.com

Background Checks

EEOC PROVIDES GUIDANCE TO PUBLIC EMPLOYERS WHICH PROVIDES INSIGHT FOR PRIVATE EMPLOYERS

Most employers use some type of pre-hire screening, whether it be simply calling references or an elaborate background check conducted by a third party vendor. Recently, the United States Office of Personnel Management received "comments" from the EEOC regarding proposed changes to pre-hire questionnaires. Here are the highlights from the EEOC's perspective.

Drugs and Alcohol. The EEOC recognizes that current illegal use of drugs is not protected, so questions asking whether an applicant is currently using illegal drugs is fine. However, questions about past illegal use of drugs may elicit information that the applicant is a recovering or recovered addict - both of which are protected under the Americans with Disabilities Act. Therefore, questions about past drug use are prohibited. The same is true for alcohol.

Criminal Record. There is no law which prohibits an employer from inquiring as to a person's criminal record. However, you should proceed with caution both in asking the question and in what subsequent actions you take.

In the recent letter by the EEOC, it again took the opportunity to explain its concerns that criminal background checks may have a disparate impact on minorities. The EEOC wrote:

Excluding individuals from employment because they have conviction or arrest records may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby causing a disparate impact. . . . Additionally, OPM should educate federal agency employers about how to assess suitability for federal or contract employment when evaluating an applicant's police record. This assessment should not result in excluding everyone with a police record from employment. Such a "blanket" exclusion would almost always fall short of satisfying Title VII.

For more information on criminal background checks, see our January 2011 e-newsletter.

Financial Record. The EEOC points out that "excluding individuals on the basis of negative financial information may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby creating a disparate impact". It cautions that such inquiries should only be made if job related and consistent with business necessity. NOTE: The EEOC's letter did not address the requirements of the Fair Credit Reporting Act and its impact on financial inquiries. To read more about an employer's obligations under the Fair Credit Reporting Act, see our article in the December 2010 e-newsletter.

By Kristen L. Brightmire, kbrightmire@dsda.com

What's New

ANNOUNCEMENTS

DOERNER SAUNDERS SPONSORS UPCOMING TAHRA GOLF TOURNAMENT

The Tulsa Area Human Resources Association (TAHRA) is hosting its 2011 Annual Golf Tournament on September 22, 2011, at Battle Creek Golf Course. Doerner Saunders is a proud sponsor of this event. For more information, including registration, visit TAHRA's website.

DOERNER SAUNDERS ATTORNEY QUOTED IN HEALTH CARE PUBLICATION

Healthcare attorney, David J. Hyman, was quoted in the cover article in the July 20 issue of BNA's Health Law Reporter. David discussed the laws requiring supervision by physicians of mid-level providers and the potential liability of supervising physicians for failing to carry out required supervision.

Dates to Remember

Calendar of notable events

August 4, 2011

Lance Bryan will speak at the National Business Institute seminar, Boot Camp: Foreclosure and Loan Workout Procedures, at the Renaissance Tulsa Hotel & Conference Center. Mr. Bryan will be conducting a step-by-step workshop on the foreclosure process and its legal considerations, forbearance agreements, and receiverships. To register for the seminar, click here. For more information, please contact Lance Bryan, lbryan@dsda.com, 918-591-5256.

September 22

TAHRA Annual Golf Tournament at Battle Creek Golf Course. To register, click here.