Disability discrimination law in Ohio is a mess:
http://www.ohioemployerlawblog.com/2012/01/disability-discrimination-law-in-ohio.html
See also Courts are finally starting to apply ADAAA—and it ain’t pretty:
http://www.ohioemployerlawblog.com/2012/03/courts-are-finally-starting-to-apply.html
“Friending” co-workers depends on your level of organizational risk tolerance:
http://www.ohioemployerlawblog.com/2012/01/friending-co-workers-depends-on-your.html
See also Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data:
http://www.ohioemployerlawblog.com/2012/02/latest-stats-about-supervisors-being.html
Trying to make sense of the NLRB’s lastest social media missive? Good luck:
http://www.ohioemployerlawblog.com/2012/01/trying-to-make-sense-of-nlrbs-lastest.html
Where were you in 1983? I was in the 5th grade at Loesche Elementary School in Northeast Philly. I’ll get back to 1983 in a second.
Today is my daughter’s last day of kindergarten. Her (amazing) teacher (see #13 below) assigned the class a time capsule project. Each child had to answer 14 questions, which, along with a letter from mom and dad, will be sealed in a time capsule, to be opened at their graduation in 2024. Here’s my daughter’s submission:
When I posted this photo to Facebook, one of my grade school classmates reminded me of the time capsule our 5th grade class buried in 1983. He even had the article from The Jewish Times discussing the project (page 1 / page 2). For the record, I sacrificed the instruction manual from our Smurfs ColecoVision game. I’m not sure what’s more shocking, that I’m admitting to owning a Smurfs game, or that people paid $569.99 for a VCR (check out the Sound Odyssey ad at the bottom of page 2, and bonus points to anyone who can name any other store that was in the Leo Mall).
I am taking a much needed vacation next week. Enjoy some of my greatest hits spanning the past 6 months. I’ll be back on June 11 with brand new content.
Thanks to Tom Mighell for featuring me on Wednesday as the Blawg of the Day at Inter Alia. Tom’s blawg is one of the originals, dating all the way back to 2002. It’s always nice to be recognized by one of the trailblazers.
Here’s the rest of what I read this week:
Discrimination
Litigation
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
Oh! what a tangled web we weave
When first we practice to deceive!
– Walter Scott, Marmion, Canto VI, Stanza 17 (1808)
Yesterday, NLRB Acting General Counsel Lafe Solomon issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” If you read the employment law blogs today, my guess is that you will find a whole bunch of management-side employment bloggers critical of Mr. Solomon (Molly DiBianca, Eric Meyer, and Dan Schwartz, for starters). Allow me to add my name to the mix. I apologize in advance for my treatise-length post.
As you might recall, I was very critical of Mr. Solomon’s 2nd report in its treatment of employer policies. Has the Acting GC solved any conundrums for employers with his latest missive? Can a company draft a social media policy with any teeth that the NLRB will conclude passes muster? Don’t count on it. In fact, Mr. Solomon's latest missive is as galling of a piece of legal analysis I have ever read. It's nothing short of intellectual dishonesty masquerading as hair splitting. How else can you explain the following razor-thin distinctions?
Other baffling illegal policies?
Mr. Solomon also invalidated various “savings clauses,” including one that provided:
This policy is for the mutual protection of the company and our employees, and we respect an individual’s rights to self-expression and concerted activity. This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.
This unlawful policy is not all that different from the workplace posting that the NLRB wanted to have in every break room in America, yet it’s not good enough for any employer’s social media policy? Where is the logic and consistency? This is the exact breed of intellectual relativism that makes me furious.
Here’s the kicker. If challenged, Mr. Solomon would have to take issue with his own agency’s internal social media policy. Thanks to Mike VanDervort’s The Human Race Horses and Human Resources Executive Online, we can take a peek at the NLRB’s own social media policy, which prohibits: “Comments that the NLRB Office of Public Affairs deems inappropriate.” How is the NLRB’s own policy substantively different than any of the policies Mr. Solomon thinks are overly restrictive of employees’ rights to engage in protected concerted activity?
So, what’s the takeaway? The NLRB’s position on social media policies remains an absolute mess. If anything, it’s more confusing now than before Mr. Solomon issued his 3rd report. Employers need to be able to adopt bright line rules to guide their employees towards proper conduct. Yet, this report puts employers in the dangerous position of being fearful of drawing even the simplest of lines. The result, I’m afraid, is that businesses won’t adopt any rules, creating online anarchy among their employees.
As a emerging communication tool, social media is unstructured enough. Do we really want to create unnecessary legal impediments to disincentivize employers from drafting the rules their employees desperately need?
Perhaps the answer for employers lies in this policy, which Mr. Solomon concluded was lawful:
Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate [Employer] policies, and with outside individuals and/or entities. If you’re about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it.
Think before you click? My four-word social media policy might be a whole lot closer to reality.
Epilogue: If you scroll down to the last 3 pages of Mr. Solomon’s report, you will find a form social media policy on which the NLRB signed off. If you want to err on the side of abundant caution, this policy is the one you should be using (with the input of your attorney). Until the federal courts weigh in on this issue, however, we will have to live in world of uncertainty over the permissible scope, reach, and breadth of social media and other workplace communication policies.
Hot off the presses, NLRB Acting General Counsel Lafe Solomon has issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” I am digesting the report and will share my thoughts first thing tomorrow morning. Here’s a preview: if you are holding your breath for a sign that the NLRB will allow employers to draw lines to guide employees about what’s right and wrong (or permissible and impermissible), you will suffocate.
Acordia of Ohio, L.L.C. v. Fishel [pdf], decided last week by the Ohio Supreme Court, is a pretty straight-forward case. In this case, four ex-employees claimed that Acordia could not enforce their non-competition agreements. They argued that the under the plain language of their covenants, the agreements were limited to the predecessor employer, and that there were no allowances in the agreements for a successor entity such as Acordia, which had acquired the original employer.
The Supreme Court agreed:
The agreements defined the “Company” only as “Frederick Rauh & Company,” the predecessor employer. Because the agreements did not extend the definition of “Company” to include successor entities, Acordia could not enforce them. Simply, the agreements lacked any language that specifically assigned rights to the new company….
The noncompete agreements between the employees and their original employers specified that they applied only to the specific companies that had originally hired each employee. Because the agreements made no provision for the continuation of the agreement upon any acquisition of the original company by another company, the agreements are not enforceable by the L.L.C. according to the agreements’ original terms past the two-year noncompete period agreed to by the employees and their original employers.
In other words, if have any current non-competition agreements that operate under Ohio law, you need to review them to ensure that they allow for successor entities. Otherwise, even a simple change in corporate structure could render your agreement unenforceable.
Going forward, non-competition agreements should:
Luckily for employers, Ohio law provides that continued employment is sufficient consideration to support a non-competition agreement. In other words, you should be contacting your counsel to review all non-competition agreements for compliance with the Acordia case, and redrafting and reissuing to employees where necessary.