Best of 2012: Numbers 4 and 3

Today, numbers 3 and 4 on the countdown.

4. New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

3. NLRB’s position on social media policies remains a bungled mess

Best of 2012: Numbers 6 and 5

My year-end countdown continues with the my number 5 and 6 favorite posts of the year.

6. Even terminations over “genitalia sandwiches” can generate lawsuits

5. Does your social media policy educate about being “profersonal?”

Best of 2012: Numbers 8 and 7

Let’s continue our walk through my favorite posts of the past year.

8. When defending employment cases, chasing attorneys’ fees is a snipe hunt

7. Don’t forget these 5 security issues in your BYOD policy

Best of 2012: Numbers 10 and 9

Today, I start my annual year-end countdown of the year’s top posts. In years past, I’ve done the 10 most important issues and the 10 most popular posts based on page views. This year, I ‘m simply using my 10 favorite posts from the past year. Enjoy my nostalgic walk down memory lane.

10. The 5 little words that will cause your company a huge headache

9. Firing an employee? Tell them! (don’t Milton the termination)

WIRTW #254 (the “until the end of the world” edition)

Today is December 21, 2012, which, according to the Mayans, is the day the world ends. Or, it’s the day that they simply stopping counting days on their calendar. Or, it’s entirely a coincidence.

Either way, one thing will end today for certain— my original posts for the year. As I’ve done in years past, on Monday I will start counting down my top 10 posts of the past year, two per day through December 31. I’ll be back on January 2, 2013, with fresh content. Please have a happy, healthy, and safe holiday.

---

Today is the last day to vote for the ABA Journal Blawg 100. If you’ve voted, thank you. If you haven’t, what are you waiting for?

---

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

Discrimination

• Does the law require transfers for employees seeking medical treatment? — from Eric Meyer’s The Employer Handbook Blog
• The right way to handle a request for a religious accommodation — from Warren & Associates Blog
• Can Volunteers Sue For Discrimination? — from LE Blog
• Does Ho Ho Ho = Prostitutes? — from Evil Skippy at Work
• Can You Withhold Severance To An Employee Who Files An EEOC Charge? — from Employment Discrimination Report

Social Media & Workplace Technology

• Enforcing an Unwritten Social-Media Policy — from Molly DiBianca’s Delaware Employment Law Blog
• Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line — from netWORKed Lawyers
• Fired for What!? - Defending Her Hair on Facebook — from Phil Miles’s Lawffice Space
• Twitter now has more than 200 million active monthly users — from The Verge
• The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) — from Electronic Discovery Law
• Like or dislike? Social media profiles and employer access — from Technology for HR
• 5 pitfalls to avoid when responding to rogue employees — from Ragan.com

HR & Employee Relations

• My boss says I smell bad from Evil HR Lady, Suzanne Lucas
• Would You Enforce Workplace Policy If You Had to Follow Them? — from Blogging4Jobs
• An Employer’s Opinion on How To Quit Your Job — from Lifehacker
• How to Prevent/Deal With Employee Theft in the Workplace – Part 1 — from i-Sight Investigation Software Blog
• Medical Device Industry Remains a Hotbed for NonCompete Litigation — from Trade Secrets & Non-Compete Blog
• How Not to Unwittingly Reveal Company Secrets — from Harvard Business Review
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store, Conclusion — from The Emplawyerologist
• Holidays in the workplace: Listen to Bad Santa, and do precisely the opposite — from Robin Shea’s Employment and Labor Insider
• Letter to the Editor, Cleveland Plain Dealer on Background Checks Story — from employeescreenIQ Blog

Wage & Hour

• A Recent Off-The-Clock Case Should Not Breed Complacency — from Wage and Hour Laws Blog
• Independent contractor or employee? — from EmployerLINC

Labor Relations

• Libertarians and right to work laws — from Walter Olson’s Overlawyered
• Right-to-Work or Wrong-to-Work? Why the Michigan Vote Makes Sense — from Tim Sackett at TLNT
• Hell Freezes Over: Michigan is Right-to-Work — from Labor Relations Institute

Happy Holidays.

The NLRB’s holiday gift: a Facebook firing decision

Earlier today, I suggested that the appropriate gift on the 5th day of Employment Law Christmas is 5 Facebook firings. Today, the NLRB made good on this suggestion by publishing its decision in Hispanics United of Buffalo [pdf].

Hispanics United concerned the terminations of five employees on the heels of a Facebook discussion critical of another employee’s job performance. Last year, the Administrative Law Judge ruled that the terminations violated the non-union employees’ rights to engage in the protected concerted activity.

The NLRB affirmed the earlier decision.

There should be no question that the activity engaged in by the five employees was concerted for the “purpose of mutual aid or protection” as required by Section 7. As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee’s complaint that they “don’t help our clients enough,” stated that she “about had it” with the complaints, and solicited her coworkers’ views about this criticism. By responding to this solicitation with comments of protest, Cole-Rivera’s four coworkers made common cause with her, and, together, their actions were concerted …, because they were undertaken “with … other employees.” … The actions of the five employees were also concerted … because, as the judge found, they “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.” …

The Facebook comments here fall well within the Act’s protection. The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject. As discussed, the employees were directly responding to allegations they were providing substandard service to the Respondent’s clients. Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.

This case clarifies a two key points for employers.

     1. Employees can engage in protected concerted activity even if their online conversations take place off-duty and via their own computers.

     2. The employer argued that the employees’ Facebook posts lost any protections because they were a form or harassment or bullying in violation of company policy. The Board did not buy that argument, concluding that the National Labor Relations Act trumps any workplace bullying or harassment policy. It did, however, leave open the possibility that objectively and subjectively illegal harassment (that which is on the basis of “race, color, sex, religion, national origin, age, disability, veteran status, or other prohibited basis”) would strip the employees’ comments of their protected status.

The 12 Days of Employment Law Christmas

Since the holidays are almost upon us, and the news is a little slow, I thought I’d have a little fun. So I wrote a song. For your listening pleasure (you have to sing yourself; trust me, there’s no pleasure if I do it for you), I present The 12 Days of Employment Law Christmas.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Happy holidays!