Employer’s Termination for Facebook Posts Violated Federal Law

December 31, 2012

In another decision that affects non-union as well as union employers, the National Labor Relations Board recently ruled that comments posted on Facebook are protected in the same manner and to the same extent as comments made at the “water cooler.” In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the Board found that a non-union employer’s termination of five employees for Facebook postings was unlawful, awarding the employees full reinstatement and back pay.
The controversy began when one employee criticized the work of five of her co-workers. One of the criticized employees sent a message from her personal computer at home to the other four employees complaining about the comment that had been posted about them. The co-workers responded on Facebook to the original comment and obviously were not kind in their comments directed toward the original employee. In response, the original co-worker ((who had initially complained about the other five) demanded that the others stop talking about her.

The co-worker then complained to her supervisor that the postings violated the employer’s “zero tolerance” policy against “bullying and harassment.” The employer investigated and, agreeing with her that its policy had been violated, fired the five co-workers.
The NLRB upheld an administrative law judge’s decision that the terminations violated the National Labor Relations Act (the “Act”), even though no union was involved. The Board concluded that whether the comments were made on line, by way of social media, or “around the water cooler” was irrelevant to the analysis. Instead, the Board focused on whether the postings were:

• “Concerted” activity under the Act;
• Known to be concerted by the employer’s supervisor, who was shown the postings;
• “Protected” under the Act; and
• The motivation for the terminations.

The second and fourth elements were undisputed. On the first and third elements, the Board, with one dissenting, found against the employer. The postings were concerted, the Board concluded, because it was “implicitly manifest” that the co-workers’ postings had the “clear ‘mutual aid’ objective of preparing the co-workers for a group defense to original complaints.” As to the third element, the Board considered the postings protected because they related to the employees’ job performance and objectively could not be considered “bullying” or “harassing.” The dissent objected to the majority’s reasoning, finding there was “insufficient evidence that either the original posting or the views expressed in response to it were for mutual aid or protection.” Specifically, he emphasized, “the mere fact that the subject of discussion involved an aspect of employment—i.e., job performance—is not enough to find concerted activity for mutual aid and protection. There is a meaningful distinction between sharing a common viewpoint and joining in a common cause.”

A first key lesson to be learned from this and other recent cases is the importance for all employers, whether union or non-union, of reviewing all employee-related social media policies. Second, all employers should be cautious when basing employment decisions on Facebook or other social media postings. In addition to the issues raised in this case, there are privacy issues that can arise. Despite the potential for social media “discussions” to be played and replayed to an extremely wide audience, the NLRB will analyze their protected nature the same way that it analyzes a whispered conversation in the employee lunch room or parking lot.

Finally, whenever employer discipline or other adverse employment actions are based on employee communications, employers should consult counsel to make certain the speech is not “concerted, protected” speech under the Act.

Odor Sensibilities-Do You Have to Accommodate?

December 24, 2012

On occasion we receive calls asking about workplace odor sensitivities when one employee is either offended by, or allergic to, a fragrance worn by a co-worker. A recent decision may help shed some light on this “sensitive” issue.

An employee filed a claim under the Americans with Disabilities Act who had an alleged sensitivity to Bath and Body Works’s Japanese Cherry Blossom scent.

“Eeeek! Don’t you dare come near me with those Japanese cherry blossoms!”

Some interesting points from the court’s decision:

This plaintiff’s allegations spanned a period of a couple of years. The court found that the plaintiff’s only alleged problem was asthma triggered by Japanese Cherry Blossom perfume — and apparently only when worn by her co-workers but not by anyone else!

The court avoided making any finding as to whether she had a disability under the ADA but take heed, this case should be a warning to employers that these “fragrance sensitivities” really can be considered “disabilities” under the ADA. Therefore, they need to be taken seriously. In essence, the court found that the ADA “disability” question was moot because her employer had tried to make reasonable accommodations anyway (another good lesson for employers) and also that the plaintiff had been unreasonable when the employer tried to accommodate her.

How-to on reasonable accommodation. The court was complimentary of the employer’s attempts to make reasonable accommodations to the plaintiff’s sensitivity, noting that it offered to ask co-workers to refrain from wearing Japanese Cherry Blossom, tried to consult with the plaintiff’s health care provider, offered the plaintiff more-frequent breaks, and made all kinds of other offers to help her out. According to the court, the plaintiff was essentially uncooperative and insisted on two “unreasonable” accommodations (discussed below) or nothing. The court found the employer had engaged in the interactive process and had met all of its legal obligations to try to accommodate her.

How-not-to on reasonable accommodation. Under the ADA, an employee who fails to cooperate in the reasonable accommodation process or refuses a reasonable accommodation loses the protection of the Act. The two accommodations the plaintiff insisted upon were (1) a 100 percent fragrance-free workplace, and (2) being allowed to telecommute. The court found that neither of these accommodations was reasonable and as a result the employer did not have to make them.
On the 100 percent fragrance free workplace, the court recognized that this was a very drastic measure and in any event that there was no evidence that the plaintiff had a serious problem with any fragrance other than Bath and Body Works’ Japanese Cherry Blossom perfume. (She did allege that she got headaches and congestion from other scents, but not asthma.)

So, the court essentially said in so many words, why ban Irish Spring soap, lemon/lime scented shaving cream, lavender-scented Aveeno hand lotion, and the millions of other products with “scents” that people use every day? And, if she’s really that sensitive (which she never claimed to be), would the employer also have to ban customers or clients who’d had a smoke before coming inside the building or employees from microwaving their lunches, or would it have to rip out the coffee machine? After all, cigarettes, food, and coffee smell, too.

But let me get to the accommodation that you’re really wondering about — telecommuting. There is no question that telecommuting can be a reasonable accommodation if the job lends itself to that. But this lady was a social worker for a county “job and family services” office. You know, one of those places where people go to apply for government help (people with limited transportation options, who probably have to take the city bus, which may not even come to the plaintiff’s neighborhood). And her job duties included meeting with them in person, and helping them get through the system. The court correctly said there is no way this type of job could be done from home.Meanwhile, the plaintiff either refused or failed to respond to offers of reasonable accommodation. So she essentially lost her protection under the ADA, and her employer won the case.

So that’s the end of the Japanese Cherry Blossom story, for now. I’ll keep you up to date on all Japanese-Cherry-Blossom-fragrance-sensitivity-related news if there is an appeal and an adverse decision.

Holiday Party Tips! Bah Humbug!

December 17, 2012

It is important not to require employee attendance at holiday parties and that pressure to attend is properly managed. Mandatory attendance at company-sponsored functions, like holiday parties, can result in workers’ compensation claims if an attending employee is injured. It can also mean that the employee is entitled to be compensated for his or her time spent at the event pursuant to the Fair Labor Standards Act (“FLSA”).

For workers’ compensation liability, if the employee is required to attend a company-sponsored event, or there is significant business that takes place at the event that essentially makes attendance mandatory, then the employee will be considered to have been acting in the course of his or her employment and the same rules that apply to typical workers’ compensation claims apply to injuries the employee suffers while at the holiday party.
The timing of the event is important for determining if and when workers’ compensation laws may come into play. For example, if the event is held during normal working hours, then employee’s attendance will likely be considered as “in the course and scope of their employment” though courts will also typically look at:

• The extent to which the employer expects/ requires employees to attend;
• The extent to which the employer benefits from the event, e.g., will clients be present and/or will work be done;
• The degree of participation by the employer;
• Whether the activity takes place on the employer’s premises or off-site; and
• When the event takes place in relation to the employee’s normal work hours.

Several courts have recognized that an employee’s voluntary attendance at a social event sponsored by his employer off the employer’s premises and outside normal working hours cannot reasonably be viewed as conduct within the scope of his/her employment.

To help make your company holiday event festive while reducing your liability, keep the following tips in mind:

• Make Attendance Optional: Make it clear to employees that attendance at a company-sponsored events is purely optional, not mandatory. This also means keep the event social, not work related. Keep work-related events, like handing out of bonuses or awards, for another day.
• Pony Up the Pay: If attendance is required or the event is during work-time, compensate your employees, including overtime pay if their hours for the week exceed 40.


Two New Laws: Minimum Wage & Another Change in Pregnancy Leave

December 10, 2012

Minimum Wage Going Up

On the first day of this year’s California Legislative session, Assembly member Luis Alejo introduced a bill that would significantly raise California’s minimum wage starting in 2014.  If enacted in its current form, the California minimum wage would go to $8.25 in 2014, $8.75 in 2015 and $9.25 in 2016.  Starting in 2017, the minimum wage would be automatically adjusted based on inflation indexes. With the Democrats holding supermajority status in the Assembly and State Senate, we expect many pro-employee bills to be introduced in the coming months.  We will track them for you throughout the Legislative session.

New Pregnancy Leave in California Effective 12/30/12

California’s Fair Employment and Housing Commission recently proposed new pregnancy disability regulations.  These proposed regulations underwent rounds of public comment and revision, but were recently finalized and approved by California’s Office of Administrative Law.  As such, the new regulations take effect December 30, 2012.   California employers with 5 or more employees are required to provide up to 4 months of pregnancy disability leave to employees disabled by pregnancy or related conditions and there is no length of service requirement to be eligible for this leave.  The new regulations detail the process an employer is required to follow in accommodating such leave requests, from initial certification through reinstatement.  The regulations also clarify how “four months” is calculated for purposes of identifying the maximum amount of leave available to full-time and part-time employees.  The regulations further make clear (based on a recently enacted California law) that employers are required to maintain group health benefits under the same terms as if the employee was actively reporting to work for up to 4 months, and that this requirement is in addition to any additional obligation to maintain health benefits during an additionally approved FMLA/CFRA leave of up to 12 weeks.  The new regulations contain a great amount of detail and guidance for employers trying to manage this leave process.  Employers are advised to review the rules and their policies and practices to ensure compliance.

State and Federal Agencies Are Doing Surprise Audits!

December 4, 2012

A number of our regular clients and non-clients have been hit with surprise audits both on the state and federal levels seeking among other things whether or not the employer has misclassified employees as independent contractors. The IRS and the U.S. Department of Labor are continuing to work together to “improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections.”

Although misclassifying workers as independent contractors can result in violations of numerous laws, including the tax code and wage and hour laws, the various government agencies charged with enforcing those laws have historically not shared information or coordinated their enforcement efforts. That now appears to be coming to an end, as the DOL becomes more aggressive in its enforcement efforts and state and federal governments look for opportunities to enhance their revenues.

At the same time, the IRS has a new “Voluntary Classification Settlement Program” to encourage employers who have misclassified workers in the past to “get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit.” To be eligible for this program, applicant employers must (1) consistently have treated the workers as non-employees, (2) have filed all required 1099s for the workers for the prior three years, and (3) not currently be under audit by the IRS, DOL, or a state agency concerning the classification of the affected workers. Employers accepted into the program will be required to pay an amount “effectively equaling just over one percent of the wages paid to the reclassified workers for the past year.” No penalties or interest will be assessed, but for the first three years under the program, the employers must agree to an extended statute of limitations for the IRS to pursue payroll tax violations. Unfortunately for employers, the IRS program would not provide any amnesty for violations of other laws, such as state or federal overtime laws or state tax violations. The IRS announcement also makes no mention of whether the agency will share information from the settlement program with the Department of Labor or other agencies. 

Because misclassification violations implicate a wide range of laws and frequently involve multiple workers, they can represent a significant liability for employers, particularly for small and midsize businesses without significant financial reserves to defend or settle these claims. Given the risks and the spotlight that the DOL is shining on this issue, businesses that use independent contractors should act now to ensure that their workers are properly classified. Among other things, this means making sure that when you classify a worker as an “independent contractor,” you are prepared to prove that your classification decision is warranted under all of the relevant laws, including but not limited to the Fair Labor Standards Act, state wage and hour laws, workers’ compensation statutes, and the state and federal tax codes.

As you all know, I have been pushing this issue over the last few years and yet we still get the calls because a client has been “caught up.” This is not going to get any better. The state and federal governments need money and this is an area that continues to bring them revenue. If you have any doubts about a classification of an independent contractor please call.