Category Archives: employee handbook

Facebook Comments and “Likes“ Protected Activity?

Social Media keyboard

Is commenting on a Facebook post protected, concerted activity under the National Labor Relations Act?  What about hitting the “Like” button on a post?  The Second Circuit recently agreed with the National Labor Relations Board that they are.

In a decision last year, the Board ruled that a sports bar had unlawfully terminated two employees for their activity on Facebook.  The first employee had commented on a status update of a co-worker stating that the bar’s owners “couldn’t even do the tax paperwork correctly” and that someone should do the owners “a favor” and purchase the business from them.  The employee’s comment stated that she “owed too,” and referred to one of the owners as an “asshole.”  The second employee “liked” the first employee’s status update.  The Board held that both employees’ had engaged in protected, concerted activity under the Act, and that the bar had violated the Act when it terminated their employment.

Last month, the Second Circuit (Connecticut, New York, and Vermont) affirmed the Board’s decision.  The court held that the employees’ actions amounted to a group of employees discussing labor issues and were protected by the Act.  The bar argued that the Facebook comment and “like” were meant to defame the bar – with the use of profanity – and thus brought it outside the protections of the Act.  However, the court reasoned that the Facebook activity at issue was different from obscenities voiced by employees in earshot of customers in a crowded shop (even though customers could view the comments on Facebook).  The court also noted that the bar’s internet and blogging policy could be read as prohibiting employees from protected activity under the Act.

The take-away here?  It’s a good time for employers to review their social media policies.  As we have warned in the past, these policies as written and as enforced must not “chill” employees from engaging in protected, concerted activity.  There is often a fine-line between lawfully prohibiting certain types of activities on the internet and unlawfully interfering with employees’ protected activity.  It’s a good idea to check with counsel on how to best craft the wording of these policies to protect the employer’s interests while not interfering with employees’ rights.

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EEOC Affirms: Sexual Orientation Is Prohibited Under Title VII

EEOC LOGOThe EEOC has confirmed its position that Title VII prohibits discrimination against employees based on sexual orientation.  The EEOC’s statement followed on its prior determination that Title VII protects individuals against discrimination based on transgender status, gender identity, and an employee’s transitioning between genders. According to the EEOC, sexual orientation bias is “associational discrimination on the basis of sex.” Thus, employees who work for an employer with 15 or more employees can file a charge of sex discrimination with the EEOC if the employee has been discriminated against because of sexual orientation or gender identity or expression.

Notwithstanding the EEOC’s position, there is still no federal law that explicitly protects individuals from employment discrimination based on sexual orientation and gender identity. However, 22 states (including Illinois), Washington, D.C., and Puerto Rico, have state-based employment nondiscrimination laws that cover sexual orientation and/or gender identity that apply to both private and public sector employers.

With so much recent attention, employers should be particularly attentive to issues relating to sexual orientation and gender identity. We suggest updating any employment policies and practices to include prohibitions on discrimination and harassment based on sexual orientation and gender identity to help protect employers against EEOC and state-law challenges.

What Does The Supreme Court’s Same-Sex Marriage Ruling Mean For You?

On June 26th, in a ground-breGay_flag_svgaking decision, the Supreme Court ruled that same-sex couples have a constitutional right to marry. Full text of the Court’s decision in Obergefell, et al. v. Hodges, et al. can be found here.

But beyond the general public response, employers need to consider how the ruling will impact employment policies and practices — especially in states that previously have not recognized same-sex marriages.  Following are some of the areas where employers might see Obergefell’s impact:

Employee Benefit Plans

If you offer any employee benefit plans through a separate insurance company, all “spousal” benefits must now be extended equally to same-sex spouses as they are to opposite-sex spouses. You may not be under the same restraints if you are self-insured, but if you deny benefits to same-sex spouses in this instance, you run a high risk of discrimination lawsuits.

It’s a good time to review your employee benefit plans and the costs associated with these plans. You should anticipate that the Court’s ruling may add some new couples — and associated costs — to your plans, especially if you did not previously offer benefits to domestic partners or same-sex spouses.

Equal Employment Opportunity

Marital status is a protected class under many state and local laws. These laws now protect all married people, including those in same-sex marriages.

Family and Medical Leave Act

As we discussed in a previous post, the FMLA has recently been amended to include same-sex spouses in the definition of “spouse.” Given the heightened publicity of the Court’s ruling, be sure to review your FMLA policies and practices to ensure that same-sex spouses are included.

Additional Policies and Practices

We recommend reviewing your employee handbook and any other employment policies to make sure that the policies as written – and in practice – apply equally to employees in same-sex marriages or rely on a qualification other than marriage.

SEC Takes Aim at Confidentiality Agreements

We – and the SEC – think it’s a good time to review your confidentiality agreements.confidentiality-agreement (2)

It’s no secret that the Securities and Exchange Commission (SEC) has had employee confidentiality agreements on its mind for some time now. In the eyes of the SEC, confidentiality agreements, if overly-broad, may prevent or discourage would-be whistleblowers.

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 amended the Securities Exchange Act to include protections and incentives for individuals who come forward with allegations of wrongdoing. Rule 21F-17(a) explicitly prohibits employers from taking action that would “impede” an employee from “communicating directly” with the SEC about a “possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement.”

On April 1, 2015, the SEC announced that it had settled its first enforcement action involving an overly-restrictive confidentiality provision under Rule 21F-17(a). The action primarily focused on a confidentiality statement that employees were required to sign in connection with the company’s internal investigation procedures. The statement read:

I understand that in order to protect the integrity of this review, I am prohibited from discussing any particulars regarding this interview and the subject matter discussed during the interview, without prior authorization of the Law Department. I understand that the unauthorized disclosure of information may be grounds for disciplinary action up to and including termination of employment.

The SEC determined that this statement violated the whistleblower protections under Rule 21F-17(a), even though there was no evidence that any employee was prevented or discouraged from communicating with the SEC because of the language. The company agreed to resolve the matter by: (i) paying a penalty; (ii) agreeing to cease and desist from any future violations, (iii) amending the language of the provision; and (iv) agreeing to make reasonable efforts to contact employees who had already signed the agreement to inform them that they did not need to gain permission from anyone to contact governmental agencies. The SEC approved the following amended language:

Nothing in this Confidentiality Statement prohibits me from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. I do not need the prior authorization of the Law Department to make any such reports or disclosures and I am not required to notify the company that I have made such reports or disclosures.

In light of this ruling (and the NLRB’s activity in this area that we discussed in our post yesterday), we recommend that you review all agreements containing confidentiality clauses – including employment agreements, severance agreements, employee handbooks, settlement agreements, nondisclosure agreements and any other similar agreements. If necessary, these clauses should be revised to include an express statement that nothing in the agreement discourages and/or prevents any individual from communicating with any government agency, including the SEC.

“Spring Cleaning” Item: Review Your Employee Handbook

You may want to include a review of your employee handbook in your “spring cleaning” this year.

National Labor Relations Board Building Sign

Employee handbooks and work policies have been at the forefront of the National Labor Relations Board’s mind recently. The Board has held that a work rule may violate Section 8(a)(1) of the National Labor Relations Act if the rule has a “chilling effect” on employees’ Section 7 activity – whether it be union activity or simply discussing the terms and conditions of employment with one another. According to the Board, a work rule not only violates the Act if it explicitly restricts this protected activity, but also if it: (1) can be reasonably construed by its language to prohibit protected activity; (2) was promulgated in response to union or other protected activity; or (3) was actually applied to restrict the exercise of the protected rights.

Earlier this spring, the Board’s General Counsel issued a detailed report providing examples of unlawful policies as well as their lawful counterparts. The report discusses:

  • Confidentiality Rules
  • Rules Regarding Employee Conduct toward the Company and Supervisors
  • Rules Regulating Conduct Towards Fellow Employees
  • Rules Regarding Employee Interactions with Third Parties
  • Rules Restricting Use of Company Logos, Copyrights, and Trademarks
  • Rules Restricting Photography and Recording
  • Rules Restricting Employees from Leaving Work
  • Conflict-of-Interest Rules

The full text of the report can be found at: http://www.nlrb.gov/reports-guidance/general-counsel-memos.

In light of this report, we recommend that you carefully review all of your policies, with particular emphasis on the ones listed above.