Don’t post those new NLRB notices—finally

On Monday, I reported that a South Carolina federal court had invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act. I cautioned that until you heard otherwise, employers should assume that April 30 was still a go for the new posting.

News moves fast in the world of labor and employment law. Yesterday, the D.C. Circuit [order, pdf] enjoined the whole shebang until the issues can work their way through the appellate courts:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits.…The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

Ever gracious in defeat, NLRB Chairman Mark Gaston Pearce said, "We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."

The April 30 deadline for posting the NLRB’s employee rights notice is officially dead. It could take into next year before these issues work their way through the circuit courts, not to mention a likely appeal to the Supreme Court. By then, the NLRB could be tinted red and this whole issue could be moot. In the meantime, you’re break-room is free and clear of the NLRB’s latest mission statement.

More social media woes: employee fired for “liking” gay Facebook page

According to MSNBC, an employee has sued the Library of Congress for firing him after his manager discovered that he had “liked” the “Two Dads” page on Facebook. The employee, Peter TerVeer, claims that after his manager discovered he was gay, his performance reviews turned negative. TerVeer also claims that the manager started making derogatory statements about his sexual orientation and sending religiously motivated emails.

Let me offer three takeaways for businesses from this story:

1. Title VII, like Ohio’s anti-discrimination statute, does not protect sexual orientation. Nevertheless, courts have been known to stretch the definition of gender to include sexual orientation in certain cases. Even if TerVeer doesn’t have a sex discrimination claim, the religious overtones of the manager’s emails could provide a claim based on religion.

2. Much has been made lately about employers snooping on employees’ social media activities. According to nbclosangeles.com, however, the manager only learned about TerVeer’s Facebook activities when the manager’s daughter noticed the “like” and told her dad. This fact underscores what Lafe Solomon (the NLRB’s acting general counsel) told me when we appeared on NPR together last fall—that every social media charge filed with the NLRB started with a co-worker printing out the social media post and giving the hard copy to a manager. In other words, management as much of a hobby out of snooping on its employees as some would have you believe.

3. Despite this story’s foreboding tone, employers should not think that all employees’ off-work activities are off-limits. Nevertheless, this story underscores that employers need to tread very carefully when examining what their employees do on their own time.

Don’t post those new NLRB notices just yet (maybe)

As of this moment, April 30 is still your drop-dead date to post the NLRB’s new employee rights notice. Last Friday, however, a South Carolina federal court put that date, and the NLRB’s entire poster itself, in grave jeopardy. In Chamber of Commerce of the United States v. NLRB [pdf], the United States District Court for the District of South Carolina invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act.

According to the Court, the NLRB’s powers are reactive, not proactive. Thus, its Congressionally-mandated duty is to prevent and resolve unfair labor practice charges and to conduct representation elections—both of which must be initiated by an outside party’s filing. The NLRB’s proposed posting of employee rights, however, is proactive—it requires employers to do something without any filing by an outside party. As such, the NLRB exceeded its statutory authority.

The South Carolina court is not the first to rule on this issue. Last month, a different federal court reached the opposite conclusion and upheld the NLRB’s right to require most of the posting. The NLRB is reviewing its options as to whether it will postpone the posting requirement nationwide in light of the latest ruling. Likely, it will take some time for these issues to weave their way through the appellate courts for an ultimate resolution.

We now have two conflicting district court opinions. As an employer, what are you supposed to do? For now, and until you hear otherwise, assume that April 30 is still a go for the new posting. In the meantime, this case—which is the strongest rebuke to date of the power-grab by this administration’s agencies—is a huge victory for employers.

[Hat tip: Labor Relations Today]

WIRTW #221 (the “what’s in a name” edition)

If you don’t follow me on Twitter (what are you waiting for?), or if you missed the news as it flew by in your stream, my family is adding a dog in June. We’re super excited, but are stuck on what to name her. Do you want to help? I’m running a poll. We have it narrowed down to three choices, but are open to suggestions.  She’ll be a vizsla, if that helps. Take a few seconds to vote on one of our three choices, or add your own suggestion.

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

Discrimination

• When is the Best Time to Try and Settle Employment Litigation? — from Russell Cawyer’s Texas Employment Law Update
• Men Must be Allowed the Same Child Care Leave as Women — from Employer Defense Law Blog
• The Wrong Way to Help the Disabled — from Walter Olson’s Overlawyered
• Bipolar Disorder Disability Discrimination Lawsuit — from The Proactive Employer Blog
• Workplace pregnancy discrimination cases on the rise — from The Washington Post
• Anatomy of an EEOC Charge — from Casey Sipe’s The Employer’s Lawyer
• Is Weight Discrimination OK? — from HR Examiner with John Sumser
• Obama Won’t Order Ban on Gay Bias by Employers — from the New York Times
• Women, Money, and Bias: “The Economy Is Classist, Then Racist, Then Sexist” — from The Atlantic

Social Media & Workplace Technology

• Is Violation of Employer’s Computer Use Policy a Federal Crime? — from Phil Miles’s Lawffice Space
• Is Your Smartphone Making You Less Productive? — from Harvard Business Review
• Just One More Game ... Angry Birds, Farmville and Other Hyperaddictive ‘Stupid Games’ — from the New York Times Magazine
• Forget Facebook or Emails, Bosses Booting Employees Over Bandwidth — from FOX8.com
• Bosses’ big fear? That employees will film them — from CNET News
• Employers Aren’t Likely to Ask for Your Facebook Password — from US News and World Report’s On Careers Blog
• What Advice Should Lawyers Give Clients Who Want to Ask Prospective Employees for Their Facebook Passwords? — from Mike Maslanka at the Texas Lawyer
• What to Do When A Potential Employer Asks for Your Facebook Password — from Mashable
• The Spotlight is On Practice of Employers Requesting Access to the Social Media Accounts of Employees and Job Applicants — from Fitzpatrick on Employment Law
• Employer not allowed to search for porn on employee’s home computer — from Internet Cases

HR & Employee Relations

• Backstage Peek: Pixar Animation Studios’ “Cereal Bar” — from the disney food blog
• Dear Evil Skippy: Should I Have Been Warned for Using A T.V. Show’s Name at Work? — from Evil Skippy at Work
• Hire Slow, Fire Fast: Revisted — from Mike Haberman’s Omega HR Solutions
• Thanks for the Criticism! — from by Jim Brennan at Compensation Cafe
• Got Trade Secrets? — from The Employer’s Lawyer
• The Employee Handbook is Not Your Handbook — from Strategic HR Lawyer
• Stop being the office slob — from Suzanne Lucas at CBS Money Watch
• L.A. Firefighter Arrested For Moonlighting As MMA Brawler While Allegedly On Workman’s Comp — from Deadspin
• Physics in HR – The Petrino Principle — from The HR Introvert

Wage & Hour

• WINNER TAKES ALL: Supreme Court to Determine if Pharma Reps Should Be Classified as “Exempt”… — from The HR Capitalist, Kris Dunn
• Rebuild America Act Would Hike Tip Credit, Minimum Wage, Paid Time Off — from TLNT
• Volunteers May Be Entitled to Pay Under the Fair Labor Standards Act — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Employee Wage Misclassification Should Be Taken Seriously — from Rush Nigut’s Rush on Business

  Labor Relations

• The Pros and Cons of Joining a Labor Union — from Fox News
• Three Weeks Until NLRB Posting Rule Takes Effect — from Dan Schwartz’s Connecticut Employment Law Blog
• Do Employees Read Break Room Signage Anyway? — from Jessica Miller-Merrell’s Blogging4Jobs
• Union says right-to-work law violates free speech — from Bloomberg Businessweek

Standing up for your employees

Last night, the Philadelphia Flyers rallied from 3 goals down to take game 1 of their first round series from their cross-state rivals, the Pittsburgh Penguins. Right now, you’re all thinking to yourselves, what can this possibly have to do with employment law or employee relations?

Four months ago, Dallas Stars’ center Steve Ott delivered a hit to Flyers’ star Claude Giroux, who had just returned to the lineup from a concussion. At the end of the period, Flyers’ coach Peter Laviolette chased down Ott in the Stars’ tunnel and confronted him about what he perceived as a cheap shot. According to Philly.com, Giroux appreciated his coach’s action: “It’s good to see we have each other’s back.”

Two weeks ago, Laviolette again stood up for his players, following a fight-filled conclusion to a game against the Penguins. The fights were precipitated by what Laviolette called a “gutless” move by the Pens to put its enforcers on the ice at end of a 6-3 blowout. As all 10 players on the ice fought, Laviolette stood on the boards yelling at Pens’ assistant coach Tony Granato. After the game, Laviolette defended his tirade (via CSNPhilly.com): “Those guys hadn’t played in 12 minutes; it was a gutless move by their coach.” Again, Giroux stood up for his coach (via CSNPhilly.com): “He’s got our back…. He’s an intense coach who loves his players.”

Which brings me back to last night. The Flyers fell into a quick 0-3 hole. They needed to rally. And, they did. Don’t think for a minute that whatever motivation Laviolette used to jump-start his team had added impact because his players know that he stands up for them. He has their backs, and they responded with 4 unanswered goals and a 1-0 series lead.

Your organization is not a hockey team, but there is a lesson to learn from Peter Laviolette. If you have your employees’ backs, they will reciprocate. You never know when you’ll need your employees to rally for you (overtime, sales quotas, deadlines, etc.). Make it easier for them to go the extra mile by standing up for them when they need it. Reward good performance. Recognize star performers. Take complaints seriously. Have an open-door for your employees. Your employees will pay you back in spades.

Maryland becomes 1st state to ban requiring employees’ social media passwords

The public outcry against employers requiring the job applicants turn over their Facebook passwords has resulted in legislation. Maryland has become the first state to prohibit employers from requiring or seeking user names, passwords, or any other means to access Internet sites such as Facebook as a condition of employment. Demonstrating the outrage over this issue, the measure passed both house of Maryland’s General Assembly with 96% support.

The law—entitled, “User Name and Password Privacy Protection and Exclusions” (full text here [pdf])—prohibits Maryland employers:

• from requesting or requiring that an employee or applicant disclose any user name, password, or other means to access a personal Internet account;
• from taking, or threatening to take, disciplinary actions for an employee’s refusal to disclose certain password and related information; and
• from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information.

The law exempts employers that are conducting investigations into compliance with securities or financial laws or regulations, and investigations into the unauthorized downloading of the employer’s proprietary information or financial data to an employee’s personal website.

Eric Meyer, at The Employer Handbook blog, nicely summarizes the main critiques of this bill:

[T]he Maryland Chamber of Commerce opposed the prohibition because the bills did not acknowledge there could be legitimate issues for some employers to want to review applicants' or workers' social media messages.

What concerns me is that there are no carve-outs for public agencies that protect and serve the public. I can understand why a police department may need to fully vet its candidates by making sure that applicants and officers don’t have hate speech towards a particular protected class, for example, on their Facebook page. As I imagine that this information could be used to overturn arrests and indictments.

While I agree with Eric’s take, my critique is more about the small percentage of employers who engage in this practice:

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work? … Requiring passwords is not smart.

This law affects you only if: 1) you engage in business in Maryland; and 2) you are among what I believe is the small minority of business that are requiring applicants and employees to turn over social media logins and passwords. Nevertheless, I would expect other states to follow suit, and use the Maryland legislation as a model.

Even if few public sector employers, and fewer private sector employers, are engaging in this practice, this issue bears monitoring.

[Hat tip: The Hill]

National origin harassment depends on the national origin of the harassee

Consider the following examples, both of which come from harassment cases decided in the past two weeks by the Northern District of Ohio:

• EEOC v. Spitzer Management [pdf]: Employer denied summary judgment based on allegations that an Asian-American employee was called “slant eye” and “rice rat,” and an African-American employee was called a “jungle bunny” and a “gorilla.”
• Burrage v. FedEx Freight [pdf]: Employer granted summary judgment based on allegations that an employee was repeatedly called “Mexican” and referred to as “cheap labor.”

How do you rationalize these two seemingly incongruous decisions? The reconciliation depends on the national origin or race of the complainant. In Spitzer, an Asian-American was complaining about harassment based on his national origin, and an African-American about harassment based on his race. In FedEx, however, the complainant was not Mexican-American, or any Hispanic descent. In reality, he was half-white/half-black. As the court in Burrage v. FedEx explained:

At best, the references to Burrage as “the Mexican” and “cheap labor,” and the use of the Spanish terms “andale” and “ariba,” represent the very unfortunate employment of offensive stereotypes of Hispanics, and can be said to arise out of a misperception that Burrage was of Hispanic descent….

Burrage seems to argue that he was harassed because of physical characteristics that made him appear to be a member of a protected class of which he was not an actual member. Claims based on perceived class membership are not legally viable under Title VII, and the Court will not expand the reach of Title VII to cover that which Congress chose not to protect.

Do not take refuge in Burrage v. FedEx and use it as an excuse to condone harassment. FedEx just as easily could have gotten dinged for ignoring an employee’s four years of complaints. Regardless of whether there is synergy between the harassment and the harassed, take the complaint seriously, investigate, and deploy appropriate corrective action if necessary. Do not hang your harassment hat on a technicality, because the court hearing your case might not be so generous.