Tuesday, May 31, 2011

Clinton County Added to Pennsylvania Courthouses Photo Album

I added the Clinton County Courthouse to the Pennsylvania Courthouses Photo Album. I took the pictures back in January when I was in Lock Haven for an unemployment compensation hearing (held at the CareerLink down the street). The building has an interesting asymmetrical design with the clock tower higher than the tower on the other side. Another great Pennsylvania courthouse.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, May 30, 2011

LinkedIn: The New Social Media Law Journal

Remember when there was almost no reason to go to LinkedIn? You posted your online resume and forgot about it. Then, they added status updates… which no one really updated (except for linking Twitter feeds which... well, I read on Twitter). Maybe you had some discussions in your groups. But now, they’ve added some truly great content and an excellent reason to actually visit the site: LinkedIn Today.

LinkedIn Today shows you “The most shared news on LinkedIn,” powered by LinkedIn and Twitter. It also has a specific section for law, called Law Today. Law Today shows you the most shared news by people in the law industry! LinkedIn, of course, knows which industries its users are in, creating a powerful social media law journal.

In a way, this is similar to Twitter trending topics, but the trends are powered by legal professionals. By comparison, Twitter trends are powered by… how to put this nicely… people whose favorite “artist” is Justin Bieber and who think it’s funny to tell you that Bill Cosby died (for the fifth time this month). You can also see which people in your LinkedIn network shared the popular news items (including your extended network, i.e. 2nd and 3rd tier connections).

I think this is a great source for identifying the big stories in our profession on any given day. I hope LinkedIn has plans to drill down even further in the future by creating pages for more specific fields… ya know, like employment law.

I guess now is also a good time to point out that I have added the LinkedIn Share button to every Lawffice Space post on the website. Now, you can easily share my posts with your LinkedIn network, and help create the Law Today!

Sidenote: I also replaced the tweetmeme retweet button with the official Twitter button for a few reasons: more accurate counts, the URL shortener displays part of the real URL when there’s space, and it even matches the color scheme a little better.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Memorial Day History and Law

On the last Monday in May, we celebrate Memorial Day. Over two dozen towns claim to be the birthplace of the holiday. Of course, only one is correct: Boalsburg, Pa. OK, I may be a little biased, having grown up (and now living) minutes from the town. But here's part of the story from Albrecht Powell at About.com:
The Boalsburg Memorial Day story begins in October 1864 when three residents -- Emma Hunter, Sophie Keller and Elizabeth Myers -- met at the cemetery adjacent to the Zion Lutheran Church [to place flowers on graves of loved ones who died in the Civil War]. . . . [B]efore the two women [Emma Hunter & Elizabeth Meyer] left each other that Sunday in October, 1864, they had agreed to meet again on the same day the following year in order to honor not only their own two loved ones, but others who now might have no one left to kneel at their lonely graves. During the weeks and months that followed, the two women discussed their little plan with friends and neighbors and all heard it with enthusiasm. The report was that on July 4, 1865 -- the appointed day -- what had been planned as a little informal meeting of two women turned into a community service. All Boalsburg was gathered there . . . and every grave in the little cemetery was decorated with flowers and flags; not a single one was neglected.
Other towns have their own stories of how the holiday began.

On May 5, 1868, the holiday was formally recognized in General Order No. 11 from Union General John Logan. Originally, the holiday was called "Decoration Day." In a concurring opinion in the Supreme Court flag-burning case (Texas v. Johnson), Justice Kennedy recognized that: "Countless flags are placed by the graves of loved ones each year on what was first called Decoration Day, and is now called Memorial Day." The Uniform Monday Holiday Act officially declared nine federal holidays (MLK Day and Inauguration Day were later added) and declared that Memorial Day shall be celebrated on the last Monday in May. 5 U.S.C. § 6103.

President Lyndon Johnson issued a proclamation in 1966 recognizing Waterloo, NY as the birthplace of Memorial Day:
Congress has officially recognized that the patriotic tradition of observing Memorial Day began one hundred years ago in Waterloo, New York. In conformity with the request contained in that concurrent resolution, it is my privilege to call attention to the centennial observance of Memorial Day in Waterloo, New York, on May 30, 1966.
Of course, as a loyal Pennsylvanian, I'll point out that 1866 is two years AFTER the Boalsburg story in 1864.

Image: Honor the Brave, Memorial Day, May 30, 1917 from Library of Congress. No known restrictions on reproduction.

This article originally appeared on Lawffice Space on May 30, 2010. Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Friday, May 27, 2011

Another Pennsylvania Court Holds: Hand Over Your Facebook Password - COTW #42

My home state of Pennsylvania has become a hotbed of social media discovery activity! The latest Case of the Week comes from Northumberland County and it's Zimmerman v. Weis Markets. The Plaintiff sought damages for a workplace forklift accident. His employer sought his MySpace and Facebook passwords as part of discovery.

The employer had good reasons to want access to his social media information. For example, he claimed his health had been "seriously and permanently impaired" but his Facebook and MySpace pages listed his interests as "ridin" and "bike stunts," and had pictures of his motorcycle. Plaintiff also claimed in deposition that he was too embarrassed to ever wear shorts because the forklift accident gave him a scar on his leg. Well, you probably guessed it... pictures of him in shorts with scar clearly visible on his social media pages.

Plaintiff predictably argued that his privacy interests outweigh the need for discovery materials. I think I've heard this one before... the Court relied in part on a previous Pennsylvania case, McMillen v. Hummingbird Speedway in which the court ordered the plaintiff to hand over his Facebook and MySpace passwords. Here, the Court agreed with McMillen and also relied on a Canadian ruling:
To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.
Obviously, Canadian law is not binding in Pennsylvania, but sound logic has universal jurisdiction.

Any guesses on how this story ends? Yup:
AND NOW, this 19th day of May, 2011, it is hereby ORDERED that Plaintiff shall provide all passwords, user names and log-in names for any and all MySpace and Facebook accounts to Defendant within twenty (20) days from the date hereof. It is FURTHER ORDERED that Plaintiff shall not take steps to delete or alter existing information and posts of his MySpace or Facebook accounts.
HT: The Legal Intelligencer, Social Media Discovery Evovlving in Pennsylvania. A copy of the opinion and order is available here, courtesy of Eric Meyer's TheEmployerHandbook blog entry: A new HELLA GOOD social-media-discovery ruling for employers.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, May 25, 2011

Yet Another NLRB Facebook Case

This is not a repeat. Last week's post was Another NLRB Facebook Case... this post is Yet Another NLRB Facebook Case. And, if I had to guess, by the end of the summer I'll be writing Still Yet Another Other Additional Different NLRB Facebook Case.

Yup, they're at it again. According to this NLRB press release, they issued a Complaint last Friday against a Chicago BMW dealership. Per the Complaint:
[A] salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers (at a sales event promoting a new BMW model).
The following week, the dealership terminated the salesman. The press release indicates only that "[o]ther employees had access to the Facebook page." There is no indication that any of them actually participated in the allegedly concerted activity. It would also be interesting to know if the co-workers were "friends" on Facebook or if the salesman's page was just publicly accessible.

The NLRB social media cases are starting to pile up. As the resolutions of these cases start rolling in, employers should get a better feel for how the NLRB expects them to handle social media. Employers may wish to consult an attorney regarding social media policies and prior to taking adverse employment actions based on social media activities.

Here is a copy of the Complaint. Hat tip to Molly DiBianca who had a blog entry up before the NLRB even made the announcement: Another Day, Another NLRB Complaint Over Facebook Firing.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, May 24, 2011

Friendly Reminder: ADAAA Regs Take Effect Today

Today is May 24, 2011... and do you know what that means? Zero points if you cheated and looked at the title first - The ADAAA Final Regulations are effective as of today. A copy of the final regulations is available here. For those with a shorter attention span (or better things to do than read hundreds of pages of regulations...), here's a Fact Sheet prepared by the EEOC.

Still too long? Let's cut to the chase then. The ADAAA broadens the coverage of the ADA to shift the focus away from the determination of whether an individual has a disability. As the regulations make clear:
[T]he "primary object of attention" in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations. As noted above, this means, for example, examining whether an employer has discriminated against an employee, including whether an employer has fulfilled its obligations with respect to providing a "reasonable accommodation" to an individual with a disability; or whether an employee has met his or her responsibilities under the ADA with respect to engaging in the reasonable accommodation "interactive process."
This marks a shift from the old practice of litigating over whether the individual qualified for protection under the ADA. The new focus is on whether the person was discriminated against, or whether the employer met its obligation to engage in the interactive process to identify reasonable accommodations.

I think the ADAAA made this pretty clear even without the new regs. But, as of today, that purpose is made even clearer.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, May 23, 2011

UPDATE: School Responds to Same Sex Partner Benefits Discrimination Claim

In last week's Case of the Week, I blogged about a lawsuit filed against the State College Area School District alleging unconstitutional discrimination against same sex domestic partners. In short, the school provides certain benefits to unmarried opposite-sex domestic partners, but expressly excludes same-sex partners. The Centre Daily Times reports that the school district has issued a response.

In an email, a spokesperson explains that the "policy" is a result of "collective bargaining between the board and the State College Area Educational Association." Accordingly, the district cannot unilaterally change this term for individual members. If the association brings it to the bargaining table, the district will consider it.

Thursday, May 19, 2011

Same Sex Partner Benefits and the Constitution - COTW #41

A close-to-home employment law Case of the Week, here in State College, PA: Wiessman v. State College Area School District (SCASD)(complaint). Two women filed the lawsuit on Tuesday (with a little help from the ACLU and local counsel), alleging that the school district was violating the U.S. and Pennsylvania Constitutions by not giving medical benefits to its employees' same-sex partners. One plaintiff is a school district employee, and the other is her partner.

One thing that I find particularly interesting about this case, is that (according to the Complaint) the school district's policy expressly discriminates on the basis of sexual orientation (and arguably gender). It provides benefits to "domestic partners" who can provide certain documentation. For example, the plaintiffs would qualify because they own a home together, have joint credit accounts, executed mutually beneficial wills, etc. Except the plaintiffs don't qualify because the policy expressly provides that "Domestic partners cannot be the same gender."

Thus, the District can't argue that it is depending on state marriage laws (same-sex marriage is not allowed in Pennsylvania currently). To the extent it attempts to justify the policy on the basis of fraud prevention, the extensive documentation requirements at least weaken that argument. It will be interesting to see the District's Answer and arguments.

The Plaintiffs raise four claims:

  1. Sexual orientation discrimination in violation of the U.S. Constitution's Equal Protection Clause (14th Amendment);
  2. Sex discrimination in violation of the U.S. Constitution's Equal Protection Clause (14th Amendment);
  3. Violation of the Pennsylvania Constitution's Equal Rights Amendment (Art. I, s. 28, commonly called "PERA"); and
  4. Violation of the right to intimate association (U.S. Const. 1st Amendment, incorporated via the 14th Amendment).

It will be interesting to see how this thing plays out...

Side-note: I attended SCASD schools for grades 1-12 and my child (coming in August, if you haven't heard) will likely attend as well. SCASD was also involved in a noteworthy 1st Amendment case from the Third Circuit, with an opinion authored by now-Justice Alito: Saxe v. SCASD.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

UPDATE: Copy of NLRB Facebook Complaint

Earlier today, I posted Another NLRB Facebook Case featuring discussion of some recent NLRB social media cases. Eric Meyer, author of The Employer Handbook, has posted a copy of the Complaint here: Hispanics United of Buffalo, Inc. and Carlos Ortiz, Case 3-CA-27872.

Another NLRB Facebook Case

Another day, another NLRB social media complaint. Yesterday, the NLRB issued this press release announcing a complaint against Hispanics United of Buffalo. Here's the fact pattern:
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.
Section 7 of the National Labor Relations Act (NLRA) protects employees' rights to engage in concerted activity addressing wages and working conditions.

This is just the latest NLRB complaint addressing social media. Last month, the NLRB Office of General Counsel issued this advice memorandum addressing a Twitter firing. The memo explained in that case, that even if the employer had an overly broad social media rule:
[I]f the Employer implemented an unlawful rule, the Charging Party was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. for engaging in misconduct.
Therefore, firing an employee who made inappropriate comments was OK. For more on the Twitter case, read Proof that a Twitter Firing can Withstand NLRB Scrutiny from Eric Meyer on The Employer Handbook.

You can also see my earlier coverage of another NLRB Facebook case: Is Facebook a Protected Activity and NLRB Settles Facebook Case.

So, what are some take-aways? Well, there are two NLRB targets right now: Social Media Policy and Enforcement. Policies should make clear that NLRA rights are still protected. It's not yet clear how best to accomplish this. A disclaimer is one option... something that clarifies employees can engage in concerted activity pertaining to terms and conditions of employment. As for enforcement, employers need to stop and think before firing an employee for social media activity: Is this employee raising issues with the terms and conditions of employment? Also, watch out for co-workers "chiming in" with comments/responses... concerted activity is always a stronger argument when, ya know, there are multiple employees acting in concert.

This whole NLRB social media push is just starting to play out. Hopefully, more guidance is on the way. For now, employers need to recognize that social media is just another form of communication and the NLRB will enforce employee rights to organize and raise workplace concerns.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, May 18, 2011

EEOC Files Suit Against Starbucks for Firing Dwarf Barista

The EEOC filed a lawsuit on Monday against an El Paso Starbucks for firing a barista with dwarfism. In a press release, the EEOC claims the dwarf barista was fired after only three days. She requested a stepladder to assist her in preparing orders and serving customers at the counter. Starbucks allegedly ignored the requests and instead fired her.

The lawsuit is based on the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against qualified individuals with disabilities. It also requires employers to provide "reasonable accommodations" so long as they do not impose an undue hardship. A request for accommodation should prompt an interactive process. However, the EEOC claims Starbucks instead flatly refused the request and fired her.

Starbucks claimed the little barista could pose a danger to customers and employees. I couldn't find anything directly related to this case on the Starbucks website, but they do have a page dedicated to career diversity. The page asserts that "The Disability Rights Legal Center has honored us for nurturing an environment of respect and sensitivity to people with disabilities."

The big name (Starbucks), the EEOC involvement, and the simple but interesting fact pattern suggest that this case will receive some media attention moving forward. I will be keeping a eye on it.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, May 13, 2011

The Accused – Discriminatory Workplace Investigations - COTW #40

A woman complains to HR that she was sexually harassed by a male co-worker. HR conducts an investigation, and then terminates the alleged harasser. Now, the employer is facing a discrimination lawsuit… from the accused. The case is Lucchesi v. Day and Zimmerman Group, and it’s the employment law Case of the Week.

The male and female co-worker had a consensual sexual relationship. Apparently, the relationship turned sour because the woman complained the man sent her text messages and emails to her personal phone and account, and made her “uncomfortable”. Two HR officers “interrogated” the male co-worker, claiming two officers were necessary because the man was “intimidating.” Meanwhile only one HR person interviewed the female.

The man complained that the employer appeared to credit the woman’s allegations over his version of the story “without any reason for doing so other than sex discrimination.” Then, the employer fired him, because he might “walk past [the woman’s] cube, and this possibility of future interaction . . . created a ‘gray area.’” As the Court describes it:
The basis of [the male employee’s] gender discrimination claim can be reduced to the alleged fact that [the employer], presented with a female employee's harassment complaint against [him], conducted a superficial and unfair investigation, which resulted in [his] unwarranted termination.
The Court held that the employee had properly pled discrimination and retaliation claims, and denied the employer’s motion to dismiss.

One state retaliation claim was dismissed for failure to exhaust administrative remedies.

Case Citation: Lucchesi v. Day & Zimmerman Group, CIV.A. 10-4164, 2011 WL 1540385 (E.D. Pa. Apr. 21, 2011).

HT: The Legal Intelligencer - Accused of Harassment, Fired Employee States Viable Bias Claim.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, May 11, 2011

DOL Wage and Hour App - A Test Drive

The United States Department of Labor recently launched its DOL-Timesheet app for iPhone to assist users with wage and hour issues. As my readers know, I firmly believe that smartphones increase productivity, so I was immediately intrigued by the app. You can read the DOL's press release here.

But enough of the intro... what's this thing actually do? Well, it's a free download for starters. Step one is creating an employer. Easy enough, you just type in the name. I used the fictional "McQB" (any similarity to actual employer purely coincidental). Then the app requests your hourly wage for this employer. I put in $2.50 and was on my.... wait! A pop-up informs me that the federal minimum wage is $7.25. I'll have to talk to someone about that.

Next, you can track your time using your iPhone. This is easy enough; you just touch "start work" and the clock is running. When you're done, touch "stop work" and the phone will automatically create an entry on your summary. Or, you can manually enter start and stop times to create entries.

The app also allows you to take breaks by touching "start break" after you've started work for the day. I took a break and... wait! A pop-up tells me "Rest periods of short duration, usually 20 minutes or less, are common in industry and are customarily paid for as working time. These short periods must be counted as hours worked." However, the app deducts break time from your actual timesheet (raising the question: if the time must be counted... why doesn't the app count it?).

After you've created your time entries, you can view a summary by day (pictured), or week, or month. Weekly and monthly summaries automatically calculate overtime pay when appropriate. You can email a report by just touching "email" and entering in a recipient, like yourself, your boss... or your attorney and the DOL.

Other functions include a glossary of terms used in the app, and a "contact us" screen. Contact options include phone, email, find the office nearest you, and visit the DOL's Wage and Hour Division's website.

There's nothing too flashy here. It's a nice little app to easily track your time and inform you of a few basic rights. It doesn't seem to mind that I worked 44 hours in two days, but it did calculate my overtime for me. Of course, if you have questions about your legal rights you should contact an attorney and not rely solely on an iPhone app.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, May 10, 2011

Six-Figure Hispanic Slurs

Last Friday, the EEOC issued this press release about the resolution of a national origin harassment case brought against a suburban Chicago Hilton. "[T]he EEOC charged that the hotel’s executive chef regularly referred to Hispanic employees as 's--cs' and 'wetbacks'." Title VII prohibits discrimination and harassment on the basis of national origin so this is clearly a no-no (of course, it would also be offensive even if technically lawful).

The case was resolved by a "three-year consent decree . . . provid[ing] $195,000 in monetary relief, which includes attorney’s fees, [to] be distributed among two employees who filed charges of discrimination with EEOC and another additional employee." The decree also mandates remedial training for all employees and "personal anti-discrimination training" for the name-calling chef.

The case is a reminder to employers that ethnic and racial slurs can come with a hefty price tag if left unchecked.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Saturday, May 7, 2011

Happy Birthday to Lawffice Space!

Awww, they grow up so fast don't they? Lawffice Space turns two years old today. Relive old memories with the first post, which continues to serve as my statement of purpose and disclaimer, here. I hope the "terrible twos" aren't too terrible. In fact, I'm looking forward to the coming year.

This blog has been a big part of my social media strategy to learn and connect. OK, I was going for a little bit of exposure too. In any event, now is a good time to reflect on some of the opportunities I've had as a result of my online presence. I went from being a fan of HR Hero to a presenter for one of its audio seminars, Curses, Sued Again: Avoid Legal Pitfalls with Swearing and Bullying. I have been quoted in numerous articles in publications like Business Insurance and LawyersUSA. I have had publishing opportunities, including an article in the ABA's Law Practice Today, Fostering an Entrepreneurial Spirit in Associates. And now (quite literally now, as I rapidly approach a deadline), I am working on a chapter for the upcoming book, HR and Social Media: Practical and Legal Guidance. All of these opportunities arose as a direct result of Lawffice Space and Twitter.

Who knows what the future holds? But when I look back at how far this blog has come over the past two years (OK, it's not exactly at Perez Hilton levels yet), I get motivated to push it even further. Thank you to everyone for reading over the past two years!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, May 6, 2011

Pin-Ups Pose Problem for Employer - COTW #39

The latest Case of the Week is a warning regarding inappropriate materials in the workplace. In Hoyle v. Freightliner LLC, 2011 WL 1206658 (April 1, 2011), the Fourth Circuit sent a hostile work environment claim back to the district court for trial, based largely on a pervasive environment of pictures of scantily clad women.

The plaintiff, a female employee at a truck assembly plant, reported the following:
  • "[P]hotos of scantily-clad women in G-strings taped to the lid of a company-issued toolbox."
  • "[S]exually provocative calendars" of women in bathing suits (including one taped to a toolbox... see a pattern here?).
  • "[O]ther photos that male employees had on the outside and inside of their company toolboxes."
  • One employee had a "picture of his wife in a G-string kind of like bent over" (seriously?)
  • A screensaver featuring a picture of a nude woman
  • There was also an incident in which someone put a tampon on a key ring
Wow, these guys sure do like their pin-ups. Now, swimsuit calendars and pictures of women in g-strings aren't exactly hardcore pornography... but they're not appropriate for the workplace either. The Court noted past precedent:
[V]arious incidents and displays "that consistently painted women in a sexually subservient and demeaning light were sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and to create an abusive work environment."
Accordingly, the plaintiff's hostile work environment claim was sent back to the district court for trial.

The opinion noted that some of the male employees made comments to the effect that nobody can tell them what to put in their toolboxes. Employers often strive to give employees "ownership" of certain spaces... whether its their own office, their own cubicle, their own computer, or their own toolbox. That's a great idea, but employees also need to know that any space at the workplace is subject to the rules of the workplace, including the anti-harassment policy.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, May 5, 2011

Boeing Fires Back on NLRB Complaint

I previously blogged about a complaint filed by the NLRB that sought to dictate where Boeing could open a second manufacturing line for its 787 Dreamliner aircraft. In short, Boeing wanted to open it in South Carolina, a non-union shop, and the complaint seeks to direct them to operate the line in Washington's unionized facility. The complaint claims Boeing is trying to open the line in South Carolina as unlawful retaliation against the union for its lawful strikes and protected concerted activity.

Well, I mentioned that the NLRB's complaint was controversial. In fact, they took so much heat that they posted a Fact Check to correct "common misperceptions and errors of fact." Specifically, they have not ordered that Boeing close its South Carolina plant (only that they can't operate the aforementioned second 787 line there), and the NLRB hasn't even heard the case yet, let alone ruled on it yet (in fact, it goes to an administrative law judge first).

Now, Boeing has struck back with its own version of a fact check. In a May 3, 2011 letter, Boeing told the NLRB's acting General Counsel, Lafe Solomon:
A number of these statements [in the complaint], which are crucial to your case against Boeing, fundamentally misquote or mischaracterize statements by Boeing executives and actions taken by the company . . . . [Y]ou have filed a complaint based upon these misstatements that cannot be credibly maintained under law.
The letter went on to explain their position and request that the complaint be withdrawn.

This isn't the first letter attacking the complaint. Earlier, several state attorneys general likewise blasted the complaint in a letter to Solomon. They claim the "action seriously undermines our citizens’ right to work as well as their ability to compete globally."

This one is already getting a little testy. I'll keep an eye on it...

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, May 3, 2011

Unemployment Compensation Meets Cell Phone and Social Media Policies

In Pennsylvania, employees who get involuntarily terminated are generally eligible for unemployment compensation (UC)... unless they were terminated for willful misconduct. In Chapman v. UCBR, the Commonwealth Court affirmed a decision denying UC to an employee found in violation of her employer's Internet and cell phone policies. Eric Meyer has a nice post on this case at his blog, The Employer Handbook: No Unemployment Benefits for Woman Fired for Facebooking at Work.

The employee in question used her cell phone, while on duty, to "post comments on her Facebook page about a coworker who had accidentally soiled her pants at work." She was later fired and then filed for UC. Mr. Meyer provides some takeaways in his blog post: develop a social media policy, promulgate it, enforce it. He's right, and I just want to touch on how workplace policies on any subject can help employers in UC cases.

In UC cases involving a workplace policy, the Court applies this analysis:
[A] violation of an employer’s work rules and policies may constitute willful misconduct. An employer must establish the existence of the work rule and its violation by the employee. If the employer proves the existence of the rule, the reasonableness of the rule, and the fact of its violation, the burden of proof shifts to the employee to prove that she had good cause for her actions.
In short, employers just need to show that an employee broke an established (and reasonable) rule and then the burden is on the employee to explain why. That's a low bar to clear.

Otherwise, the employer has the burden of establishing the employee's:
wanton and wilful disregard of the employer's interest . . . the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design . . . or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.
Geisinger Health Plan v. UCBR, 964 A.2d 970, 973-74 (Pa. Commw. Ct. 2009). This often involves gray areas in which subjective calls must be made by the referee, UCBR, or Court. Why wade into these murky waters when you can just throw your rule on the table and then establish the employee's violation of it?

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.