NLRB releases report on social media cases

Are you curious about how the NLRB has been handling cases that involve allegations of employees disciplined or terminated for social media activities, or allegations of overly broad social media policies that could infringe on employees rights to engage in protected concerted activities? The NLRB hears your prayers.

I just received the following email from the NLRB:

Acting General Counsel releases report on social media cases

The National Labor Relations Board’s Acting General Counsel today released a report detailing the outcome of investigations into 14 cases [pdf] involving the use of social media and employers’ social and general media policies. In releasing the document, Acting General Counsel Lafe Solomon said, “I hope that this report will be of assistance to practitioners and human resource professionals.”

Each case was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC. In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected…. 

In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

Regardless of what you think about the NLRB’s policy positions, it is refreshing to see the agency taking such a proactive approach to informing the public on an ever-evolving, important, and confounding issue. Kudos to the NLRB (words I may never again write).

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Terminating a poor performer AFTER protected conduct? Read this post.

I’ve written before about the difficulty employers face when terminating an employee for performance problems after that employee engages in some protected activity. Because of the specter of a retaliation claim, employers often feel hamstrung, and seldom take the action necessary to rid themselves of a systemic problem employee. Galeski v. City of Dearborn (6th Cir. 8/16/11) [pdf] provides welcome relief to employers facing this dilemma.

Prior to the City’s termination of Daniel Galeski, he had a seven-year history of well-documented performance problems. Two months prior to his termination, Galeski complained that his male supervisor had been sexually harassing him. In the interim, Galeski’s performance problems continued, for which he received reprimands and written warnings. After he failed to improve, and despite his harassment complaint, the City terminated him.

The court agreed with the employer that Galeski’s long history of performance problems, many of which predated his harassment complaints, were fatal to his retaliation claim:

Galeski has a history of violating the City’s policies and being insubordinate…. [I]t appears that the issues that led to Galeski’s termination were inevitable once a more strict supervisor arrived at the Theater…. [H]is job was in danger regardless of his sexual harassment complaints. In light of his repeated issues with failing to wear his uniform and his reaction to his employer revoking his privilege to use the gym, there is no indication in the record that the City of Dearborn’s legitimate reasons for discharging Galeski were pretextual or otherwise invalid.

The lessons for employers?

1. Don’t wait to terminate. Galeski did not become an insubordinate employee overnight. His performance issues predated his termination by 7 years. Yet, a history of weak and non-confrontational supervisors refused to do anything about it. I’m not saying that you should fire an employee at the first sign of trouble, but there is a line between a fair warning and years of capitulation. The former will put you in good stead defending a lawsuit. The latter could result in a judge or a jury asking why you waited so long and looking for an illegitimate reason for the late-in-the-game termination. Just because this scenario worked out for the City of Dearborn does not mean that it will work out well for every employer in every case.

2. Document, document, document. There are few terminations that can survive scrutiny without proper documentation. Your odds as an employer go down exponentially if you pair a lack of documentation with a termination on the heels of protected activity. As the Galeski case illustrates, a poor performer is a poor performer, regardless of complaints about harassment or other protected conduct. Without a legitimate paper trail, however, you will find yourself without the ammunition to do anything about it.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Do we really need a breastfeeding discrimination law?

Yesterday, the Wall Street Journal Law Blog ran a post about a teacher fired from her job, allegedly because she spent too much time lactating for her newborn child.

Heather Burgbacher, a teacher at a charter school in Jefferson County, Colorado, has filed a complaint with the Equal Employment Opportunity Commission. She alleges that while she had received consistently positive workplace reviews for years the school this year failed to renew her contract because of conflicts over her breast pumping schedule.... The teacher last year had to miss class for about 20 minutes, three times a week, to pump, during which time her students did “supervised deskwork,” according to the statement.

No doubt, breastfeeding advocates will use this story as ammunition in their fight for the passage of the Breastfeeding Promotion Act of 2011. That bill would insert "lactation" into Title VII's definition of sex.

Unless I'm missing something, aren't women the only sex that can lactate? No men are being fired for taking too many milk-pumping breaks during the workday. Moreover, the law already protects lactation rights. Title VII prohibits discrimination because of pregnancy or pregnancy-related conditions. Unless there is some bizarro employer out there that does not permit employees to take short breaks during the day for any reason, any employer that punishes a woman for lactating already will be violating Title VII. Also, the the FLSA already requires that employers provide breastfeeding women reasonable break times to lactate.

Simply, the Breastfeeding Promotion Act is a redundancy with which we do not need to burden our already overly burdened businesses.

Employment Law Blog Carnival: The Kindergarten Edition

Today, my daughter started kindergarten. To commemorate this milestone, this month’s Employment Law Blog Carnival celebrates the synergy between the simple lessons we learn early in life and the places we work later in life (with apologies to Robert Fulghum).

All I Really Need To Know About Employment Law I Learned in Kindergarten:

Share everything.

• Interns & Volunteers: Do We Really Have to Pay Them? – from Washington Workplace Law

Play fair.

• The Sordid Tale of L.A. Noire—What’s a Tech Startup to Do? – from Tim Eavenson’s Current Employment

Don’t hit people.

• What Wisconsin’s Concealed Weapon Law Means for the Workplace and Employment Law – from Randy Enoch’s Wisconsin Employment & Labor Law Blog

Put things back where you found them.

• Top 10 mistakes in employment investigations – from California Workplace Law Blog

Clean up your own mess.

• 8 Reasons Social Media Policies Backfire – from Heather Bussing at HR Examiner

Don’t take things that aren’t yours.

• Agreements To Maintain Confidential Information – from Robert Fitzpatrick’s Fitzpatrick on Employment Law

Say you’re sorry when you hurt somebody.

• To guarantee an employment lawsuit, just follow these five “worst practices” – from Robin Shea’s Employment & Labor Insider

Wash your hands before you eat.

• You’re Damned if You Don’t … Avoid Hiring Rogue Employees – from Damnedif

Flush.

• Boss Boinking Coworker, Playing Favorites? Too Bad, Say Courts – from Donna Ballman’s Screw You Guys, I’m Going Home

Warm cookies and cold milk are good for you.

• FMLA and ADA meet again at the Serious Health Condition nexus – from Heather Traver’s Human Resource Updates

Live a balanced life—learn some and think some and draw and paint and sing and dance and play and work every day some.

• Pottymouths don't usually win sexual harassment lawsuits – from Eric Meyer’s The Employer Handbook

Take a nap every afternoon.

• Reporting Sex in the Supply Closet Not Protected Activity – from Philip Miles’s Lawffice Space

When you go out into the world, watch out for traffic, hold hands, and stick together.

• Get Ready: Uncle Sam Wants Employers to Lose More Union Elections – from Reid Kelly

Wonder. Remember the little seed in the Styrofoam cup: The roots go down and the plant goes up and nobody really knows how or why, but we are all like that.

• The Benefits, and Obligations, of Unlawful Harassment Training – from CPEhr’s Small Biz HR Blog

And then remember the Dick-and-Jane books and the first word you learned—the biggest word of all—LOOK.

• Employer “Look” Policies and Religious Discrimination – from iSight Blog

Everything you need to know is in there somewhere. The Golden Rule and love and basic sanitation. Ecology and politics and equality and sane living.

• Employment Law in 1 Word – from Mark Toth’s Manpower Employment Blawg

And it is still true, no matter how old you are—when you go out into the world, it is best to hold hands and stick together.

• The recent NLRB advice memoranda: much ado about what?? – from John Holmquist’s Michigan Employment Law Connection

Heather Bussing, at HRExaminer.com, will host next month’s Employment Law Blog Carnival, on September 21. If you want to participate, email her a link to your employment-law-related blog post by September 16. If you want to host a future edition of the Carnival, email its curator, Eric Meyer.Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #190.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Controlling who is (and is not) “similarly situated” can control a discrimination case

One of the key analyses in any discrimination lawsuit is whether the plaintiff is “similarly situated” to those whom he or she claims the employer treated more favorably. If the plaintiff can establish disparate treatment of those “similarly situated,” he or she can make out a prima facie case and proceed to the bonus round, proving that the employer’s legitimate non-discriminatory reason was a pretext for discrimination. Conversely, a failure to prove “similarly situated” dooms a claim to the summary judgment scrapheap. Similarly situated, though, lies in the eyes of the beholder. How a court frames who is, and who is not, “similarly situated” often is dispositive of the issue of discrimination.

Consider, for example, Diaz v. Kraft Foods (7th Cir. 8/8/11). The trial court concluded that the plaintiff could not prove discrimination because of his race (Hispanic) because the employer ultimately filled the challenged position with another Hispanic. The appellate court, however, disagreed:

Title VII would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law. Suppose the district court’s view carried the day: a female employee suffering from discrimination on the basis of her sex would have to establish that her employer discriminated against all women in the workplace to assert a sex discrimination claim. That, sensibly, is not how Title VII operates.…

[T]he employer cannot satisfy its burden by identifying a person within the protected class who was not similarly discriminated against.

What does this mean from a practical standpoint? If you are terminating, or taking another adverse action against, an employee, you need to analyze whether you’ve treated others outside the protected class better. If you merely analyze whether you’ve treat others inside the same protected class better, you risk a court concluding that your analysis is irrelevant. It’s an apples-to-oranges analysis, not an apples-to-apples analysis.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“If I could press a button and instantly vaporize one sector of employment law?”

Today, I am empowering all of my readers with a superpower. As the saying goes, with great power comes great responsibility, so exercise this gift wisely and judiciously.

On Friday, Walter Olson, on Overlawyered, asked the following question, “If I could press a button and instantly vaporize one sector of employment law…”?

My answer—the Fair Labor Standards Act. The FLSA needs to go because compliance is impossible. Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

Readers, what employment law would you get rid of? Leave your thoughts in the comments, on Twitter, or on my Facebook Page. I’ll collate and publish them in a future post.

WIRTW #189 (the “amici” edition)

Last year, I was honored that the ABA chose to include me in its Blawg 100, the list of the top 100 legal blogs. This year, the ABA has again opened its nomination process to the public. From now until September 9, the ABA is accepting nominations via the submission of amici, or friend-of-the-blawg, briefs:

We’re working on our annual list of the 100 best legal blogs, and we'd like your advice on which blawgs you think we should include. Use the form below to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about…. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

(Mom, Dad, and Wife, please don’t nominate me; it’s against the rules)

The ABA’s blawg directory lists thousands of legal blogs. If there are several that you enjoy reading on a regular basis, please take a few minutes to fill out an amici form and submit it to the ABA for consideration. My fellow blawgers and I appreciate it.

Here’s the rest of what I read this week:

Discrimination

• Employer “Look” Policies and Religious Discrimination – from iSight Blog (featuring me)
• “Beanie Meanie” Lawsuit Dresses Down Religious Garb At Work – from Workplace Diva
• Religion in the Workplace: Avoiding Religious Discrimination Claims – from Michigan Employment Law Advisor
• Why Ban the Box Might Be Key to Allaying Discrimination Concerns – from Nick Fishman’s employeescreenIQ Blog
• Fact or Fiction: Retaliation requires job-related action (e.g., firing) – from Eric Meyer’s The Employer Handbook Blog
• 3rd Circuit: Performance Improvement Plan Not an Adverse Action – from Philip Miles’s Lawffice Space
• The Cat’s Paw Just Got a Little Smaller: New York Federal Court Limits Cat’s Paw Liability After Staub – from Employment Matters Blog
• Counter Lawsuits are not a Good Idea – from Tom Crane’s San Antonio Employment Law Blog
• Illegal drugs and the ADA: What does “current user” mean? – from HR Cafe

Social Media & Workplace Technology

• 50 Social Media Stats To Blow Your Mind – from Social Media Today
• To Tweet or Not To Tweet: Are Companies Allowing Employees to Use Social Media in the Workplace? – from Mindflash
• Twitter, Facebook And LinkedIn: Age, Ethnicity And Gender Of The Major Social Networks – from All Twitter
• Privacy is a Luxury You Don’t Have – from Harvard Business Review
• The Effect of Social Media on the Law – from Lawyerist
• A Majority of Those About to Enter the Workforce Would Rather Lose Their _____ Than Their Facebook – from Manpower Employment Blawg
• How Your Social Media History Could Hurt Your Job Hunt – from MonsterThinking
• The Rise of the Mobile Workforce – from Mashable
• The Secret Spy Living in Your iPhone – from The Fiscal Times

HR & Employee Relations

• 5 egregious errors that endanger employment investigations – from Robin Shea’s Employment and Labor Insider
• The Three Most Powerful Words in an Employment Investigation: “Tell Me About…” – from Minnesota Labor & Employment Law Blog
• Keeping up with the Law is Imperative to HR – from Kara Mignanelli at Social Axcess
• Want To Keep (And Motivate) Your Best Employees? It’s Not About The Money – from Fastcompany
• Discovery Requests Can Play Important Role In Determining Reasonableness of Non-Compete – from Legal Developments In Non-Competition Agreements
• Signs You’re About To Be Laid Off – from Consumerist
• How to Lay Off Staff? Don’t Listen to HR – from BNET

Wage & Hour

• The Myth of “Unauthorized” Overtime – from Wage & Hour Insights
• Overstaying Rest Breaks: Paid Time, Or Not? – from Wage and Hour Laws Blog
• Do We Have to Pay Employees for Checking Email Outside of Work? – from Wage & Hour Insights
• Life After Wal-Mart v. Dukes: Is the FMLA the New Breeding Ground for Class Actions? – from FMLA Insights
• Does “phone care” qualify for FMLA leave? – from Case In Point

Labor Relations

• NLRB and Facebook Firings: Employer’s Worst-Case Scenario – from Molly DiBianca’s Delaware Employment Law Blog
• The U.S. Chamber Of Commerce Echoes Many Of Our Sentiments – from Michael Schmidt’s Social Media Employment Law Blog
• Facebook Firings - Report Finds Dramatic Increase in NLRB Charge Filings Based on Facebook Retaliation Firings – from Chris McKinney’s Texas Employment Law Blog
• Social Media: NLRB Eyeing Employer Policies – from SmartHR
• The recent NLRB advice memoranda: much ado about what?? – from John Holmquist’s Michigan Employment Law Connection
• Chamber Survey Finds Social Media Policies, Firings Becoming NLRB Issues – from TLNT
• NLRB: No backpay remedy for undocumented immigrant workers – from LawMemo Employment Law Blog

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.