Tuesday, August 19, 2014

An Unconstitutional Workplace Social Media Policy?

Can an employer's social media policy be unconstitutional? Maybe - if it's a public employer. We may get some insight into the constitutional boundaries of public employer social media policies in a new lawsuit filed against a sheriff's office in Texas.

The case is Pittman v. Garcia. You can read the Complaint (including the challenged social media policy as an exhibit) here.

The Houston Press has a concise summary of the policy, including some extraordinarily broad provisions:
Under the new policy, HCSO employees risk disciplinary action if their Facebook or Twitter posts "cause undue embarrassment or damage the reputation of and/or erode the public's confidence" in the sheriff's office. Posts containing any HCSO logos, badges, or personal photographs that show employees in HCSO garb or uniform are prohibited without prior approval from a chief. Also: "speech containing crude, blasphemy (sic), negative, or untrue claims about the HCSO and/or any HCSO personnel is forbidden and therefore will be grounds for disciplinary action." Similarly, HCSO employees now face disciplinary action for any comments on social media that "negatively affect the public perception of the HCSO."
HT to my Mason Law classmate, Josh Blackman, for the links.

Public employees enjoy some First Amendment free speech protections. Generally, they maintain the right to speak as citizens on matters of public concern, which must be balanced against the public employer's right to operate efficiently and effectively. The Supreme Court created a notable exception in Garcetti v. Ceballos in that employees speaking in their official capacities are generally not protected.

Friday, August 15, 2014

3d Cir.: Availability of Classwide Arbitration is for the Court

I'm not gonna lie - posts about the technical procedure for interpreting arbitration agreements are not exactly my most popular. But these issues are important, and often employment-law-related.

The Third Circuit recently issued a precedential decision in this area in Opalinski v. Robert Half International, Inc. (opinion here).Thank you to Judge Ambro for the concise intro, including the issue and holding (it makes my life as a blogger so much easier):
We consider whether a district court, rather than an arbitrator, should decide if an agreement to arbitrate disputes between the parties to that agreement also authorizes classwide arbitration. Because of the fundamental differences between classwide and individual arbitration, and the consequences of proceeding with one rather than the other, we hold that the availability of classwide arbitration is a substantive “question of arbitrability” to be decided by a court absent clear agreement otherwise.
This was a FLSA case, so employers take note. Also, if your arbitration agreements are - in the words of the Court - "absent clear agreement" regarding classwide arbitration, then you may wish to rectify the situation.

Wednesday, August 13, 2014

Can a Pennsylvania Employer Force Employees to Pay for Medical Examinations as a Condition of Employment?

Can a Pennsylvania employer make an employee (or applicant) pay for their own medical examination as a condition of employment?

Short answer: No.

Long answer: See "Employer to Pay Employment medical Examination Fee" Act of 1961, P.L. 453, No. 225:
Requiring employers to pay for medical examination fee where such examination is a condition for employment, and providing a penalty. 
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: 
Section 1. As used in this act -- 
(1) "Employer" means an individual, partnership, association or corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company, doing business in or operating within the Commonwealth. 
(2) "Employe" includes every person who may be permitted, required or directed by any employer, as defined in section 2, in consideration of direct or indirect, gain or profit, to engage in any employment. 
Section 2. It shall be unlawful for any employer to require any employe or applicant for employment to pay the cost of a medical examination, or the cost of furnishing any medical records, required by the employer as a condition of employment, if the applicant or employe works for the employer for one work week: Provided, That the provisions of this act shall not apply where medical examination is required by law as a condition of employment. 
Section 3. Any employer violating the provisions of this act shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine of not less than ten dollars ($10) nor more than one hundred dollars ($100). It shall be the duty of the Department of Labor and Industry to enforce the provisions of this act. 
Section 4. This act shall take effect immediately.
And now you know. And yes, in Pennsylvania we spell "employe" with one 'e' on the end. I'm sure there's a perfectly good explanation - but I don't know what it is.

Saturday, August 9, 2014

New Adventure: Teaching Employment Law at Penn State

In about two weeks, I embark on a new adventure. I will be teaching Employment Relationship: Law and Policy (LER201) at the greatest university on the planet - Penn State. Don't worry, I will still be working full-time at McQuaide Blasko and blogging here.

From time-to-time, I'm sure we'll cover something in class that I deem blog-worthy. So, stay tuned for some old school employment law posts (really old school - we're covering Lochner and Schechter Poultry in the first two weeks), and some modern stuff as well. I'll also be posting some of the course materials on my Google Drive folder, PSU LER201. You can check out the syllabus here. We'll be using David Walsh's Employment Law for Human Resource Practice for the textbook (although much of the class will be based on case law)

Feedback welcome - if you have thoughts on the syllabus, drop a comment. I'm looking forward to the semester!

Note for students: Do NOT rely on Google Drive for course materials - use ANGEL.

Friday, August 8, 2014

3d Cir.: Mailing FMLA Notice Not Enough for Summary Judgment?

Sometimes the most mundane tasks can make or break your case. Here's something I never thought I'd say: Big decision from the Third Circuit about how to mail FMLA notices! Read the opinion in Lupyan v. Corinthian Colleges, Inc. (for my Pennsylvania readers, the Third Circuit is our jurisdiction).

Sometimes when employees take leave, employers classify that leave as FMLA leave. However, when the employer does that, it must give the employee notice that the leave will be classified as FMLA leave.

In Lupyan, the employer mailed just such notice to the employee. Now, if you went to law school, you no doubt remember the "mailbox rule." If you mail something, "it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed" (because we all know that almost nothing ever goes wrong at the Post Office). So, the employer should be safe here, right?

Not so fast! The mailbox rule creates a presumption . . . but it is a rebuttable presumption. Here, the employee denies that she ever received the notice. Is that it? Is that all it takes? Well, apparently that's all it takes to defeat the presumption on summary judgment (I believe at trial a jury may still conclude that she actually did receive notice).

The Third Circuit summarizes:
In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.
Although the Court mentions modern technology as an appropriate alternative, don't forget about the old-fashioned way: hand delivery (with signature).

HT: Eric Meyer Here's the wrong way to deliver FMLA notices to employees.

Wednesday, August 6, 2014

Obama Signs "Fair Pay and Safe Workplaces" Executive Order

Last week, President Obama signed the latest in a series of executive orders addressing employment law for federal contractors. This one is a little complicated, so I'll direct you to the full Fair Pay and Safe Workplaces Executive Order here. I'll just touch on a few highlights.

Contractors bidding on federal contracts in excess of $500,000 must now disclose:
[W]hether there has been any administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor, rendered against the offeror within the preceding 3-year period for violations of any of the following labor laws and Executive Orders (labor laws) . . .
. . . followed by a laundry list of laws, including the FLSA, OSHA, NLRA, FMLA, Title VII, ADA, ADEA, and more.

With regard to contracts in excess of $1 million:
[C]ontractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise.
The key part of that being that the arbitration agreement can only be made after such disputes arise. Now, more than ever (at least to my recollection), federal contractors are operating under their own set of rules.

Tuesday, August 5, 2014

NLRB Ratifies Actions of Noel Canning-Era Board

Remember when the Supreme Court held that President Obama's "recess appointments" to the NLRB were actually not recess appointments and therefore unconstitutional (i.e. Noel Canning)? Well, now the NLRB has some cleaning up to do.

Yesterday, the NLRB issued a press release explaining that it has ratified a number of actions from the time period in which the board was comprised of unconstitutional appointees.

The ratified actions include the NLRB's appointment of a few Regional Directors. Those Regional Directors then "ratified all actions taken by them or on their behalf from the dates of their initial appointments and July 18, 2014. These ratifications include all personnel and administrative decisions, all actions in representation case matters, and all actions in unfair labor practice cases."

Sounds like an easy fix for the personnel actions. However, many of the Board's case decisions from that time period remain up in the air.