NLRB Administrative Law Judge splits the baby in ruling on a social media policy

Anytime any piece of the NLRB takes action with regard to an employer’s social media policy, it’s newsworthy (even if you’re getting tired of reading about it). Such is the case with G4S Secure Solutions (USA) Inc. (3/29/12) [pdf], decided by an administrative law judge.

At issue in G4S Secure Solutions were the following two provisions of the employer’s social media policy:

• Do not comment on work-related legal matters without express permission of the Legal Department.
• Photographs, images and videos of G4S employees in uniform, (whether yourself or a colleague) or at a G4S place of work, must not be placed on any social networking site, unless express permission has been given by G4S Secure Solutions (USA) Inc.

The ALJ agreed with the NLRB’s General Counsel that the “no comment on work-related legal matters” provision was overly restrictive of employees’ rights to engage in protected concerted activity:

I find the rule is reasonably interpreted to prevent employees from discussing working conditions and other terms and conditions of employment, particularly where the discussions concern potential legal action or complaints employees may have filed…. The rule at issue here would reasonably be read to prohibit two employees … from sending messages to each other about their issues at work … via a social networking site. Likewise, it would reasonably prohibit a discussion group among concerned employees on a social networking site.

Conversely, however, the ALJ concluded that the “no photograph” provision was lawful:

Respondent clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites. Starting with the worksite, Respondent does have patient privacy concerns for the EMT services it provides. Moreover, Respondent serves a variety of clients on a national basis. The various businesses and government agencies where its employees work can be presumed to have their own rules centered on privacy and legal concerns. I find the rule at issue here is reasonably construed as protecting Respondent’s clients. To read it as a prohibition on Section 7 activity strikes me a stretch, particularly considering the rule does not ban photographs but merely prohibits employees from posting them on social networking sites.

I’ll leave you with two observations:

1. The NLRB’s Acting General Counsel does not have the last word on these issues. Many (including me) were up in arms when the NLRB’s Office of General Counsel issued its latest report on social media in the workplace, which opined that almost all workplace policies that could potentially regulate social media violate the NLRA. G4S Secure Solutions disagreed with the General Counsel, and concluded that an employer’s reasonable and legitimate reason to regulate employees’ use of social media trumps a potential and tangential effect on employees’ protected, concerted activity.

2. These issues remain very unsettled. One opinion from an ALJ is nowhere close to a conclusive proclamation of the law. This case will head to Washington for consideration by the NLRB, which could reach an opposite conclusion on the “no photographs” policy. Ultimately, the federal circuit courts, and the Supreme Court, will have to weigh-in on these issues. But, that guidance is years away. Until then, move very cautiously, and only with the advice of counsel well-versed on these issues, if trying to regulate social media in your workplace.

Dealing drugs disqualifies an employee from collecting workers’ comp

Ever heard of the phrase “sustained remunerative employment?” In the world of workers’ compensation, it means that if you are earning money, or capable of earning money, you cannot be eligible for an award of PTD (permanent total disability) for a workplace injury. Seems like common sense, right? What, if, however, the evidence of sustained remunerative employment is illegal activity? Last week, the Ohio Supreme Court weighed-in with an answer.

Donald McNea was a police officer the city of Parma. In 2004, the state awarded him PTD compensation for alleged on-the-job injuries. As it turns out, at the same time McNea was receiving PTD payments, he was being investigated for the illegal sale of narcotics. Ultimately, he was arrested, indicted, pleaded guilty, and sentenced to three years in prison. The Industrial Commission terminated McNea’s PTD benefits as of the date of his incarceration. It also concluded that McNea’s side business selling narcotics was “sustained remunerative employment,” and as a result declared that all compensation paid after his first confirmed drug sale constituted an overpayment.

McNea appealed the determination of the overpayment all the way to the Ohio Supreme Court, where—in State ex rel. McNea v. Industrial Commission (3/29/12) [pdf]—common sense prevailed:

In this case, the evidence established an ongoing pattern of phone calls and other sales-related activity that culminated in the four recorded sales that McNea made between October and December 2005. The commission characterized this sales activity as sustained remunerative employment, and we decline to disturb that finding.

It is unlikely that you will ever face the situation of having to seek disqualification of an employee from collecting workers’ comp benefits because he’s dealing drugs. Nevertheless, this case holds an important lesson. Despite all of the laws technicalities and nuances, when you rip most cases down to their cores, ligation is a morality play. If you can show that an employee did something that offends our idea of what is right versus what is wrong (dealing drugs, stealing, other dishonesty, etc.), you will place yourself in a very good position to win your case.

An good example of an overly broad social media policy

Reuters is reporting that a union representing employees at a New York grocery chain has asked the NLRB to investigate whether the store’s social media policy is violates employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

According to the article, the policy in question “forbids employees from disclosing confidential information—including salaries—on social networking sites like Facebook or Twitter, and from discrediting the store’s practices or products.” For its part, the employer commented that “the store’s policy is meant simply to remind employees to use ‘reasonable guidelines’ when posting to social media sites.”

The employer’s goal is commendable, and reminiscent of my four word social media policy, “Think before you click.” But, if the article is correctly reporting the scope of the challenged policy, it goes well beyond reasonable. The clearest example of protected, concerted activity is conversations about wages. You cannot have a policy that prohibits employees from talking about how much they make, and that rule doesn’t change whether the conversations are at the water cooler, in the break room, or over the Internet. If I was the company’s lawyer, I’d be telling them to change the policy ASAP, before the NLRB orders them to do so.

[Hat tip: Delaware Employment Law Blog]

WIRTW #219 (the “recap” edition)

The Labor & Employment blawgosphere nearly blew itself up this week, with Facebook passwords and the Supreme Court’s healthcare argument dominating the headlines. In case you were under a rock this week, here’s my 140 character summary, fit for you to copy and paste into Twitter: “Requiring Facebook passwords from job applicants is bad, but, it looks like S Ct might think individual health insurance mandates are worse.”

Looking for more details?

Facebook Passwords

• Don’t Demand Facebook Passwords — from Manpower Employment Blawg
• Requiring Social Media Information Is a Bad Idea — from Workplace Privacy Counsel
• What Could Go Wrong? Facebook Passwords — from LaborRelated
• Leave Facebook out of your hiring decisions — from HR Cafe
• Password Protected - Proposed Social Media Privacy Legislation — from Labor Employment Law Blog
• Facebook Controversy Spawns Legislation — from New Jersey Employment Law Blog
• Facebook Policy Against Sharing Passwords to Block Employers — from Texas Employer Handbook
• Employers Requesting Facebook Access May Face Federal Consequences — from LE Blog
• Think Twice Before Asking Applicants for Facebook Passwords — from Dan Schwartz’s Connecticut Employment Law Blog
• Relax! Businesses don’t want employee Facebook passwords. — from Eric Meyer’s The Employer Handbook Blog
• UPDATE - Still Trending On Password Demands — from Social Media Employment Law Blog
• Facebook Finally Takes a Position on Screening! — from employeescreenIQ Blog
• Is Social Media Legislation Coming Your Way? — from Rob Radcliff’s Smooth Transitions

Health Care Law Oral Argument

• SCOTUSblog, health care, and a few things you might have missed — from SCOTUSblog (with links to all of SCOTUSblog’s amazing coverage)
• In Plain English: Is half a loaf better than no loaf? — from SCOTUSblog
• “A Moment of Silence for Obamacare: Prayers, depression, and Latin phrases. Obamacare looks to have had another very bad day.” — from Howard Bashman’s How Appealing
• As health care arguments close, fate of law seems uncertain — from Law.com
• Oral Arguments Close With Severability, Medicaid Expansion Issues — from Joe’s HR and Benefits Blog
• Supreme Court Hears Final Day of Oral Argument on Severability, Medicaid Expansion — from Washington D.C. Employment Law Update
• SCOTUS on ACA, Day 1: Supreme Court Signals Reluctance to Postpone ACA Decision on Procedural Grounds — from E is for ERISA

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

Discrimination

• ENDA “Lite” On the Way? — from Michael Fox’s Jottings By An Employer’s Lawyer
• March Madness and Employment Litigation – It’s All About the Numbers … and a Little Luck — from Jason Shinn’s Michigan Employment Law Advisor
• Reasonable accommodation: Shifting tasks among employees — from HR Cafe
• Discriminating Against the Long-term Unemployed: Tips to Avoid This Practice — from Mike Haberman’s Omega HR Solutions
• Fourth Circuit Allows Sex Discrimination in Severance go Forward — from Maryland Employment Law Developments
• If your job makes you want to kill yourself, you may (or may not) be an ADA “direct threat” — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• 10.5 billion minutes spent on Facebook daily, excluding mobile — from Friending Facebook Blog
• What Should Go Into a Social Media Policy? — from Lindsay Walker at i-Sight Investigation Software Blog
• A (Hopefully Needless) Reminder That Skype Conversations On Your Work Computer Aren’t Very Private — from Kashmir Hill’s The Not-So Private Parts
• My So-Called (Double) Life … On Facebook — from Fistful of Talent
• Why Pin(interest)? — from Social Axcess

HR & Employee Relations

• The Real Leadership Lessons of Steve Jobs — from Harvard Business Review
• Rogue Employees of the Week – Saints Coach Sean Payton and Defensive Coordinator Gregg Williams — from damnedif
• Stupid (beep) People Say — from Cost of Work
• Victoria Hospital Won’t Hire Very Obese Workers — from The Texas Tribute
• The How and Why of Employee Background Screening — from Stephanie Thomas’s Proactive Employer Blog

Wage & Hour

• Don’t Let Your Babies Grow Up To Be Interns — from Dan Schwartz’s Connecticut Employment Law Blog
• 6 keys to keeping unpaid internships from becoming a hot wage & hour mess — from Eric Meyer’s The Employer Handbook Blog
• HR clueless on Family and Medical Leave — from CareerDiva
• When FMLA Intermittent Leave Leads to Suspicious Attendance Patterns — from HR Hero Line
• Court Clarifies Timing Calculation for FMLA Retaliation Claims — from Minnesota Employment Law Report

Labor Relations

• Fired for Wearing Orange and Orange Employees Strike Back — from Phil Miles’s Lawffice Space
• Posting Rule Update: Brace for Concerted Activity! — from Labor Relations Institute
• Target to temporarily close store in union fight — from Michael VanDervort’s The Human Race Horses

What’s on your tombstone?

At his Work Matters blog, Mike Maslanka asked the following question: “What will be on your tombstone?” Don’t get me wrong. I love my job and would not trade what I do for a living for any other profession. But, please kill me again if my tombstone is work-related. I’d much prefer, “He was a great husband and dad,” or, “He loved his family,” to, “He could write a great brief,” or, “He could oral argue with the best of them.”

That’s my tombstone, but what about yours? A tombstone is your legacy. It’s a phrase that is supposed define you for all eternity. That’s why it's etched in stone. So, if you could pre-write your own tombstone as an employer, what would it say? How does this sound? “A company that treated everyone fairly.” Or, “Employees loved to work there.” So, what does your tombstone say? Leave me a comment below, or, post on Twitter with the hashtag #HRtombstone.

Courts are finally starting to apply ADAAA—and it ain’t pretty

It’s taken awhile for courts to start applying the ADAAA—the January 1, 2009, amendments to the Americans with Disabilities Act that rendered everyone with a medical condition disabled for purposes of the disability discrimination law. With one glaring exception, courts have concluded that the amendments are not retroactive, and only apply to personnel decisions taken on or after January 1, 2009. After a bit of a waiting period, courts are now starting to weigh-in on disability cases under the ADAAA, and, as expected, for employers it is not pretty.

Consider Wells v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 2/15/12). Elizabeth Wells, a nurse at Cincinnati Children’s, suffered from gastrointestinal problems. When she returned to work following gall bladder surgery and FMLA leave, she committed various errors (e.g., pulling morphine for a patient that had no orders for it) that called into question her fitness to work as a nurse in a Critical Airway Transplant Surgery unit. The hospital believed the errors were related to her post-surgical medicine, Lotronex, which can cause confusion, sedation, and equilibrium disorders. The hospital placed Wells on administrative leave and referred to her its employee assistance program. The hospital refused to reinstate Wells to the transplant unit after her doctor cleared her to return to work. Ultimately, it found her a position in a bone marrow transplant unit, albeit at reduced hours and with a pay cut.

The trial court concluded that Wells’s disability discrimination claim relating to the hospital’s failure to reinstate her to her old position should go to a jury. Notably, the court pointed out that she need only prove that the hospital “regarded her as having an impairment,” and, in contrast to the pre-amendment ADA, under the ADAAA’s “regarded as” prong, “a plaintiff … only has to prove the existence of an impairment…; she no longer is required to prove that the employer regarded her impairment as substantially limiting a major life activity.” In other words, as long as Wells could prove that the hospital believed she was impaired, the ADA covers her. That burden was easy for her to meet: “The gastrointestinal problems which caused Plaintiff nausea, vomiting, and diarrhea clearly qualify as a physiological disorder. Moreover, to the extent that the side effects of Plaintiff’s proper use of prescription medication adversely affected her ability to work, it would contribute to a finding that she was disabled.” Because the hospital essentially demoted her following her leave, her ADA claim survived.

The hospital’s only sin was that it did not want a nurse who blacks out and becomes confused when treating and administering narcotics to critically ill children. Perhaps, however, the hospital doomed itself by re-employing Wells at all. Because the bone marrow transplant unit also involved critically ill children, the court was skeptical of the employer’s rationale.

The ADA has become one of the most dangerous statutes for employers to administer. It covers virtually any medical condition, actual or perceived. Any time you are making an employment decision concerning any employee about whom you know, or believe, to have a medical condition, you will be best served to take a step back, take a deep breath, and take a few minutes to consult with your counsel. You do not want to shoot first and have to answer questions later.

I (usually) hate unemployment challenges

As an advocate for businesses, you might assume that I stand behind an employer’s decision to challenge an ex-employee’s claim for unemployment compensation. You’d be wrong. In fact, I believe that employers are better served not challenging the unemployment compensation claims of most ex-employees. Just because an employer can win an unemployment challenge doesn’t mean it should file the challenge in the first place. In most cases, employers should simply chalk unemployment up to the cost of doing business, and having to hire (and fire) employees.

Of course, for every rule there exists the exception. Some employees lose their jobs for misconduct that cannot be tolerated and must be challenged. Case in point: Clucas v. Rt. 80 Express, Inc. (Ohio Ct. App. 3/26/12) [pdf]. Rt. 80 fired Clucas, a truck driver, after he tested positive for marijuana following a minor accident. Needless to say, the court of appeals upheld the denial of his unemployment.

Clucas is a great example of when an employer should challenge an employee’s unemployment claim. A business cannot have truck drivers under the influence while on duty. Other examples of when it’s appropriate to challenge unemployment are egregious intentional misconduct such as theft, harassment or other discriminatory conduct, or assault. Unemployment is another example of the maxim I discussed a few weeks ago—just because you have a legal right to do something doesn’t mean it’s the right business or HR decision. The legality of an action is one factor in the decision-making calculus, but not the only one.