Federal Decision Regarding Social Media Site Disclaimers

April 28, 2014

Last week, an Administrative Law Judge for the National Labor Relations Board (Federal) ruled that an employer cannot require its employees to post a disclaimer on the employee’s social media site. Employers in an effort to “control” certain statements by employees on such sites have given them the language to post. As an example, the employees in this case were required to post the following:

“The postings on this site are my own and do not
necessarily represent the postings, strategies
or opinions of The Kroger Co. family of stores”

The NLRB administrative law judge concluded that Kroger’s Online Communications Policy—which required that its employees post the above-quoted disclaimer along with the publishing of any work-related online content—was illegal.

The ALJ conceded that Kroger’s has a legitimate interest in limiting unauthorized communications. Nevertheless, the perceived over-breadth of the policy trumped the employer’s legitimate interest to ensure that the readers of the employee’s social media site were not the words nor the opinions of the employer.

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would never—ever—withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate speech.

Employers on a national basis need to review their policies regarding social media. There has been, and will continue to be, a high volume of litigation in this area. The legalities and illegalities in this area simply continue to evolve as employees and employers alike learn what they can do, and not do, regarding these social media outlets.

In offering an opinion, I would strongly suggest that employers stay away from trying to control their employees regarding their involvement with these sites. Furthermore, managers and supervisors should refrain from participating and fraternizing with their staff members on these sites to avoid any potential litigation in this area.

REMINDER: PODCAST topic from this past Saturday is regarding “Background Checks.” It is available on iTunes or go to http://www.pottsandassociates.com.

A California Employment Law Checklist

April 21, 2014

The statutory and regulatory requirements imposed on California employers are probably the most rigid and complex of any state in the Union – often exceeding the requirements of federal law in those areas (such as minimum wage) that they jointly regulate, and transcending the employee protections enacted in most other states. Even companies that have long done business in the state are often surprised by a California employment law or regulation that they never knew existed or had long ago forgotten about. Moreover, California appellate courts sometimes reach novel interpretations of formerly settled law in addressing employment disputes first decided in the trial courts, where in some counties one-third of dockets involve employment-related litigation. The following checklist serves as a convenient refresher and a guideline to business starting up in California or sending out-of-state employees into the state on a temporary basis.

Although the list is a working summary of issues that companies must confront, California employment law is extensive and fluid. The list is not intended to be a comprehensive guide on all of the nuances in compliance that businesses may face. Therefore, the document should be used as a starting point for further inquiry and not as a substitute for professional advice, including advice of counsel expert in the subject.

 Notice to New Employees: When hiring a new employee, an employer must, among other information, provide written notice of the rate and basis of pay, the regular payday, the location and telephone number of the employer’s office, and the name of its worker’ compensation carrier, and subsequent notice of any change to this information unless the change can be found in the pay statement.

 Mandatory Pay Statements: Pay statements must accompany pay checks or notices of automatic deposit and must include up to 9 separate current and year-to-date line items. Failure to comply subjects an employer to a maximum of $4000 per employee.

 Higher Minimum Exempt Salary: Exempt employees must be paid at least two times minimum wage, currently $33,280 per year and, starting July 1, 2014, $37,440 per year on a salary basis in order to quality as exempt.

 Computer Software Exemption: To qualify as exempt in California, computer software employees must be paid at least $36 per hour, $6250 per week and $75,000 per year. This increases to $84,130.53 per year or $7010.88 per month effective July 1, 2014.

 Written Agreements with Commissioned Employees: Employers who have employees in California who are paid on a commission basis must have a written agreement with each such employee defining the method of payment.

 Independent Contractors: Employers who willfully misclassify employees as independent contractors are subject to a civil penalty for each violation of between $5000 and $15,000 and, if a pattern and practice of misclassification is found, the civil penalty imposed for each violation ranges between $15,000 and $25,000.

 Group Health During Pregnancy Leave: Regardless of whether the employee is eligible for leave under the federal Family and Medical Leave Act, employers of 5 or more employees must continue group health coverage for pregnancy disability for up to 4 months.

 Individual Liability: California employment law imposes liability for engaging in harassment on individual supervisors and holds employers strictly liable for such conduct. Federal statutes and case law are far narrower on these subjects.

 Interactive Process: While the federal Equal Employment Opportunity Commission has issued guidelines on the interactive process between an employer and a disabled applicant or employee necessary to determine whether a reasonable accommodation to the disability is available that would allow the applicant or employee to perform the essential functions of the job, the interactive process is mandated by California law and an employer may be sued on a separate cause of action for failing to engage in the process.

The above article was written by Arthur Silbergeld | Partner Fulbright & Jaworski LLP 555 South Flower Street, Forty-First Floor, Los Angeles, California 90071, United States
Tel +1 213 892 9235 | Fax +1 213 892 9494 arthur.silbergeld@nortonrosefulbright.com

Note: The article was condensed down to its original length. The full article can be obtained by sending an email to Art at the above email address.

Can Employees “volunteer” to work overtime?

April 14, 2014

Every employer should now understand, if a non-exempt employee works more than 40 hours in a work week, or over 8 hours in a day, that employees are entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland security company learned the hard way that employees cannot volunteer to work overtime at less than the required premium rate.

Now, the employer has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. The company’s excuse for not paying overtime? The employees asked not to be paid the premium rate. The president of the company said he was being characterized as a bad guy when all he had tried to do was help out his employees.

The employer said workers kept demanding overtime hours because they needed money.…
“I have a lot of employees who don’t make a lot of money, and they have a lot of kids, so they ask for a lot of extra hours,” the president said. “I told them that I really can’t afford to pay all those extra hours, but a lot of them kept begging for hours, just begging for hours.
“I said: ‘I can’t pay the overtime. I’ll let you work at straight time,’” he said. “They were aware that I could not pay the overtime—no matter what!”

It does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, or over 8 hours in the day (depending on your jurisdiction) you must pay them overtime. Period. No exceptions. Employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all. Otherwise, you might find yourself on the receiving end of a DOL investigation or class action lawsuit.

This also includes “volunteer” hours. If you are a business that hosts charitable fundraisers or other such events, even “suggesting” that they should participate could be interpreted as a demand. Use some common sense here. They could feel under duress that they have to participate. Overtime must be paid.

“Gossiping” in the Workplace: NLRB Says, “It’s Okay!”

April 7, 2014

The National Labor Relations Board recently reminded employers of the importance of avoiding broad-based prohibitions on workplace communications.

In Hills & Dales General Hospital, the NLRB found unlawful a good portion of each of the following three provisions of the employer’s “Values and Standards of Behavior Policy.”

11. “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”

16. “We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.”

21. “We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.”

The NLRB concluded that paragraphs 11’s and 21’s prohibitions on “negative comments” and “negativity” are illegal because an employee could reasonably construe those policies “to bar them from discussing with their coworkers complaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.”

The NLRB also concluded that paragraph 16’s “requirement that employees ‘represent the employer in the community in a positive and professional manner’ is just as overbroad and ambiguous.” According to the Board, employees would reasonably view the language “as proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived as ‘positive,’” such as discouraging employees from “engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment.”

There are two points of note from this opinion:

1. There was no allegation that the employer had disciplined or terminated any employee under any of the challenged rules. Nevertheless, the Board concluded that it could still find the work rules facially invalid. Thus, this case serves as a reminder that a policy could be illegal whether or not you act on it; merely having the policy is enough for the NLRB to take action.

2. The NLRB takes no issue with paragraph 21’s prohibition on “gossip.” Indeed, in the underlying the Administrative Law Judge decision, the judge noted that paragraph 21 “would arguably be on solid ground” if limited only to a prohibition on gossip. If workplace gossip is a toxic cause of discontent in your workplace, this case may serve as a signal that a narrowly drafted no-gossip policy may pass scrutiny by the NLRB, as long as you don’t include “negativity” in your prohibition.

Unfortunately, workplace gossip can be a nightmare for employers. It is hard to control and leads to morale issues. Policies such as those noted above are permissible if written in a manner that does not seek to “muzzle” employees’ ability to complain about workplace conditions—even accidently. If you have such a policy in place be sure to have it reviewed to ensure it is not in conflict with any state or federal law.