Thursday, May 31, 2012

NLRB Releases Memo on Social Media Policies

If you follow me on Twitter (@PhilipMiles) then you've known this was coming for the past two weeks - yesterday, the NLRB General Counsel's office released a memorandum covering employer's social media policies. You can download the memo here: Report of the Acting General Counsel Concerning Social Media Cases.

Frankly, it's difficult to discern any takeaways other than: "wow, these guys can find a problem with just about any policy." At one point, they take issue with a policy prohibiting "[o]ffensive, demeaning, abusive or inappropriate remarks" because it "proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees." The memo later describes a prohibition on disclosure of "confidential or proprietary" information as overbroad.

The memo also once again notes that a "savings clause" will not actually save an overly broad policy.

Other employment law bloggers are adding their commentary (and sometimes harsh criticism): Jon Hyman describes the memo as "intellectual dishonesty" and a "bungled mess" (tell us how you really feel!); Dan Schwartz claims the NLRB is "redefining" previously acceptable policies on- and off-line; and Molly DiBianca tells us she is not interested "until the General Counsel publishes a report that a lawyer of average intelligence can translate into something useful." If you have another take, please feel free to drop a comment and/or post a link to your commentary.

UPDATE: How could I have missed Eric Meyer's analysis, calling the memo a "hot tepid mess"?

The memo does include one policy that received the NLRB's blessing (see pp. 22-24 for the full blessed policy). If employers want to follow the NLRB GC's view (which employers are not necessarily bound to do) then there is at least one policy that should work.

Wednesday, May 30, 2012

Harrisburg University Social Media Summit 2012

Last week, I had the opportunity to speak at the Harrisburg University Social Media Summit. The free event featured nine panels and four workshops. You can watch videos from the event here, but may I not-so-humbly recommend Unplugged: Disconnecting from Social Networks at Home and at Work (my opening remarks appear at the 17-minute-mark). I had a great time, and the collection of videos is a nice social media resource.

Friday, May 25, 2012

Too Busty to Work Here? - COTW #93

Another day, another awesome employment law dispute. Lauren Odes claims she was fired from a lingerie company because her breasts were too distracting. I know what you're thinking . . . "I'll be the judge of that!" Go ahead and click the link to see video footage - but come back!

Back? Okay. She claims the store told her to cover up, tape her breasts down, and then made her wear a giant bathrobe. The supervisor allegedly told Odes that she could wear a sweater that went to her ankles instead. As she was shopping for one, the call came in - she was fired. Now, Odes claims religious and sexual discrimination.

The article claims Odes "filed suit against Native Intimates with the Equal Employment Opportunity Commission," which I take to mean "filed an EEOC charge," but it's not clear. Readers will no doubt be shocked to discover that Gloria Allred is on the case.

This case may remind readers of Debrahlee Lorenzana who claimed she was fired for being too hot. In another shocker, that was a Gloria Allred case too. But prepare for the ultimate shock . . . Lorenzana now claims Allred only gave her case attention to attract interest from the media! *GASP*

In theory, an employee could prevail on this "too hot" theory. For example, if a dress code (or ad hoc dress code) were implemented in a manner that discriminates against women. Or, if gender stereotyping was a factor.

Religious discrimination though? Maybe if your sincerely held religious beliefs required exposing your breasts . . . or that covering your breasts was somehow imposition of management's religious beliefs. That seems like a stretch though. Here's how Odes herself frames it:
I do not feel an employer has the right to impose their religious beliefs on me when I'm working in a business that's not a synagogue, but sells things with hearts on the female genitals and boy shorts for women that say hot in the buttocks area.
I guess we'll see how it goes.

HT: My mom via email (not kidding).

Thursday, May 24, 2012

EEOC: Confederate Flag = Hostile Work Environment?

In Dawson v. Donahoe (opinion here), the EEOC recently held that employees wearing t-shirts with Confederate flags may constitute a hostile work environment:
In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster "procrastinated in taking action on my complaint" and that he filed the complaint, in part, because of the Postmaster’s "lack of concern for my feelings associated with this matter." Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly [sic property?] and Complainant believes he might have a weapon in his car.
Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation.
While the EEOC opinion addresses the requirement that the conduct be subjectively offensive, it doesn't really touch on whether the Confederate flag is objectively offensive (aside from using the phrase "offensive t-shirts" and the implication that it must be objectively offensive if there is a valid hostile work environment claim here).

Over at Volokh Conspiracy, Eugene Volokh raises some First Amendment concerns about the ruling.

Tuesday, May 22, 2012

EEOC Releases Charge Data by State

The EEOC released a data set showing Charge Receipts by State (includes U.S. Territories) and Basis for 2011. It is a helpful tool to see how many charges were filed in your state, and what types of claims are "hot." Here in Pennsylvania, we had 4302 total charges, broken down as follows:
  • Retaliation: 37.2% (State Retaliation Charges as a Percentage of Total State Charges)
  • Disability: 31.1%
  • Sex: 30%
  • Race: 27.4%
  • Age: 27.3%
  • National Origin: 7.9%
  • Religion: 4.0%
  • Color: 1.7%
  • Genetic Information: 0.1%
For you math majors who noticed that it adds up to more than 100%, that's probably because people file multiple bases in a single charge (i.e. "I was discriminated against for age, race, and retaliation).

One thing I would not use the data set for, is state-by-state comparson... at least not without some more in depth statistical analysis. If you're wondering, Pennsylvania ranks 7th in total charges. But here's the problem with just taking the numbers at face value:
  • Size: Different states have different population sizes (not to mention different numbers of people in the workforce). Obviously Texas and California will have more charges than Wyoming and Idaho.
  • Economy: In tough economic times, employers make a higher number of "adverse employment actions," which are generally necessary for discrimination claims. Plus, if you can't find a new job, your damages for a discrimination claim may be higher (i.e. stronger incentive to file a claim).
  • Homogeneity: I'm not sure exactly how this would play out . . . but I imagine a state that is 95% white (to use race as one example) would have different race charge statistics from a state that has large numbers of white, asian, black hispanic, etc. employees. 
  • Procedure for Claims: Different states have different procedures for enforcing their state discrimination statutes. As Jon Hyman and Eric Meyer point out, Ohio and New Jersey apparently allow individuals to go to court without first filing a discrimination charge with the EEOC or its state equivalent.
I'm sure there are additional factors. Maybe some day when I have the time, I'll play around with controlling for some of these factors...

Image: EEOC logo used in commentary on the EEOC. Not official use.

Friday, May 18, 2012

Dirty Drawings and Angry Birds... at Depositions? - COTW #92

Depositions can be enlightening, interesting, and sometimes heated. However, they can also be extraordinarily boring at times. Somewhere around opposing counsel's fifty-third question about the witness's paper route from 1985 you have trouble focusing.

Attorneys have different ways of handling dry patches. Some people ask for a short break. Some people will prod opposing counsel to move along. And, apparently, some people draw pictures of male genitalia and play Angry Birds . . .what!?

Given the set-up, it's probably not surprising that these facts appear in an order addressing a motion to disqualify counsel. And, it's an FLSA class action, so we get the employment law tie-in! The full order is available online (here), but the highlight for me:
Defendants describe deplorable behavior on Celler's part that occurred in connection with the Schatt Action. Tinkler testified that during depositions he witnessed "Mr. Celler . . . drawing photos of — pictures of male genitalia and showing them to Ms. Schulman, describing Mr. Coupal. I told Mr. Coupal after that was occurring and he made mention about it." (Apr. 2, 2012 Hearing Tr. 17:2–5). Sorci testified that he observed Schulman "laugh[ing] quite a few times" at Celler’s drawings, and that on break Schulman made a comment that "this is typical Richard [Celler], this is what he does at these sort of things." (Id. 85:5–10). Tinkler further stated that "during Mr. Schatt’s deposition Mr. Celler was playing the game Angry Birds. He admitted it aloud and was bragging that he had just beaten somebody in Minnesota at the game during the deposition.” (Id. 17:6–9). Moreover, Celler would wear a t-shirt and shorts to proceedings to gain “a psychological advantage.” (Id. 17:11–15). Celler chose Dunkin’ Donuts as the site of depositions against Coupal’s wishes. According to Tinkler, the Dunkin’ Donuts had:
open glass, an open wall. You could hear the people. There was [sic] two video games right by where this gentleman is sitting. You could hear people the free Wifi video games. It’s right near Nova’s campus. There were people coming and going constantly through that area, high traffic area. They were yelling and screaming in the reception area where people were ordering their lunch and there was one bathroom that was flooded out and the door was locked constantly.
(Id. 55:12–19).
Ohhhh, "typical Richard." This particular conduct occurred outside of the Court's jurisdiction . . . but (again, this will probably not shock you), the Court was able to find other justification for disqualifying the attorney (and his whole firm).

HT: Scott Behren via Twitter (linking to Miami New Times).

Wednesday, May 16, 2012

Update: NLRB Puts New Election Rules on Hold

Just yesterday, I blogged about a recent D.C. District Court opinion striking down the NLRB's new election rule as invalid. The Court held that a 2-0 vote from a 3-member NLRB did not constitute the required 3-member quorum. Now, the NLRB announced that it has "temporarily suspended" implementation of the rule.

What about petitions that were already filed under the new rule?
About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.
As for the future of the rule . . . I suspect the current NLRB has three votes in favor of the new rules (and three votes would be both a majority and a quorum). In theory, the NLRB could just re-pass the rule. Of course, there's still that little issue about the validity of President Obama's recess appointments.

The battle rages on . . . .

Image: NLRB logo used in commentary on NLRB. Not official use.

Fired for WHAT!? - 5/16/2012

Welcome to the latest edition of Fired for WHAT!?, the spontaneously appearing segment on Lawffice Space covering the best termination stories from around the web:
  • Making students wear the "Cone of Shame" - Technically, this one is just a suspension... for now. You know those big dog collars? They're like giant cones that keep dogs from licking and picking at their wounds? Yeah, well, apparently some people feel that it's inappropriate for teachers to make high school kids wear them.
  • Mocking university Black Studies programs - The Chronicle of Higher Education fired a blogger. The blogger claims it was because she "suggested that the dissertation topics of the graduate students (in Black Studies programs) mentioned were obscure at best and 'a collection of left-wing victimization claptrap,' at worst." I guess that didn't go over well.
  • Fired for Tweeting - The CFO of Francesca (some kind of clothing store I'm not familiar with) was fired for some inappropriate tweets. One example: "Board meeting. Good numbers=Happy Board"... tweeted 6 days before they released their earnings report.
The fired CFO's Twitter handle is reportedly @theoldcfo. You can follow me at @PhilipMiles, where I will not prematurely tweet earnings, but will use the #Fired4WHAT hashtag.

Tuesday, May 15, 2012

NLRB Election Rule Held Invalid

Another day, another NLRB development. April 30, 2012 was supposed to be a big day for the NLRB. Both the poster rule and the new election rules were to take effect. After some litigation woes, the NLRB put the poster rule on ice. Now, the election rule may be in trouble.

In Chamber of Commerce v. NLRB (also embedded below), the D.C. District Court held that the election rule was invalid. Following the Supreme Court's New Process Steel decision, the NLRB needs three members to have a quorum to take official action. The NLRB adopted the election with 2 members voting in favor of the rule . . . and one member did not vote at all.

The Court's opinion opens with a colorful and succinct description of the holding:
According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.
This certainly make sense . . . but now, any time somebody is outvoted 2-1, they can just abstain and somehow the "1" beats the "2". Of course, if we keep a fully stocked 5-member NLRB, that won't be an issue (because any majority vote would necessarily be a quorum).


Image: NLRB logo used in commentary on the NLRB. Not official use.

Friday, May 11, 2012

Two Health Conditions Combine to Qualify for FMLA - COTW #91

Have you ever seen Voltron? It was this great cartoon featuring the big robot guy pictured in this post. Every episode would start with five robot lions, controlled by the main human characters, trying to defeat giant monsters ("Robeasts" if we want to get technical). Sadly, the five lions could never get the job done... but, the five lions could combine to form one giant robot: Voltron! Voltron was unstoppable and would always slay the Robeasts and save the day. What does this have to do with employment law?

That is my introduction to the employment law case of the week: Fries v. TRI Mktg. Corp., CIV. 11-1052 JNE/AJB, 2012 WL 1394410 (D. Minn. Apr. 23, 2012). An employee can qualify for FMLA leave if she has a "serious health condition." But what if she has multiple health conditions - separately they do not qualify, but combined they form Voltron a serious health condition? Let's go to the opinion:
Moreover, even if it was, in fact, interstitial cystitis that caused the majority of her symptoms on Friday and Saturday, the interstitial cystitis and herpes may be considered together when determining whether Fries' illness constituted a "serious health condition" under FMLA. "[S]everal diagnoses, if temporally linked, no one of which rises alone to the level of a serious health condition, if taken together, [can] constitute a serious health condition." Price v. City of Fort Wayne, 117 F.3d 1022, 1024–25 (7th Cir.1997) (explaining that "it is not the disease that receives leave from work; it is the person" and that "multiple illnesses" may have "a serious impact"); see also Caldwell v. Holland of Tex., Inc., 208 F.3d 671, 676 (8th Cir.2000) (citing Price and noting that "medical diseases do not afflict people in methodical and predictable ways: certain serious diseases can elude diagnosis, change in severity, and have cumulative effects on the body over time"). Here, it is reasonable to consider two diseases, which are temporally linked and affected the same organ system, together when determining whether Fries suffered from a "serious health condition."
Note that the Court did not hold that employees can combine any two conditions. Instead, the Court emphasizes that the two conditions were "temporally linked" and "affected the same organ system."

HT: @Jeffreysnowak via Twitter.

Image: Low-res screen grab; fair use in commentary on Voltron.

Thursday, May 10, 2012

Lawffice Links - Pregnant Workers Fairness Act

Here's a new batch of Lawffice Links for your reading pleasure. Nothing but Pregnant Workers Fairness Act in this one:
What's missing? The actual bill. I emailed Congressman Nadler for a copy - I'll post it when/if I get it.

Tuesday, May 8, 2012

Happy Belated Birthday Lawffice Space!

Have you ever forgotten a loved ones birthday? Imagine my horror, when I realized that yesterday was Lawffice Space's third birthday... and I completely forgot. Not to mention the difficult times it's been having, what with the "flood" and all.

This past year has been the strongest year ever for Lawffice Space. The employment law Case of the Week continues to include some of my most popular posts, and is currently at COTW #90 and counting. I also launched Lawffice Links and Fired for WHAT!?, which have been fun new entries.

Finally, May is on pace to be the sixth consecutive month of greater than 10,000 hits. March 2012 was a record-breaking month for Lawffice Space with 14,558 hits. But you know what? I think we can do even better in Lawffice Space's fourth year. Stay tuned, and thanks for reading.

3d Cir.: Simultaneous State and Federal Wage and Hour Class Actions A-OK

Welcome to an employer's worst nightmare. Does it get much worse than wage and hour litigation under the Fair Labor Standards Act (FLSA)? Well sure, it could be an FLSA collective action. Now, imagine that it gets even worse than that . . . an FLSA collective action and a state statute wage and hour class action at the same time! [Cue the thunder and lightning].

The two claims have inconsistent procedural provisions, which some have argued make simultaneous claims "inherently incompatible." The state claims would proceed under the Fed. R. Civ. P. 23 "opt-out" provisions, while the FLSA collective action proceeds under the statute's "opt-in" provisions. Some people also argue that the FLSA preempts the state provisions.

Well, Knepper v. Rite AidCorp., No. 11-1684 (3d. Cir. Mar. 27, 2012) (opinion here) was a double-whammy for employers. First:
We join the Second, Seventh, Ninth, and D.C. Circuits in ruling that this purported “inherent incompatibility” does not defeat otherwise available federal jurisdiction.
Second, the Court also held that the state laws are not preempted.

The end result? Employers here in Pennsylvania (and the rest of the Third Circuit) may face "hybrid" wage and hour class/collective actions under the FLSA and state laws. Doesn't that sound like fun?

Image: We had a flood at Lawffice Space headquarters - no one survived. By "Lawffice Space headquarters," I mean my laptop. And by "flood" I mean a glass of water.

Thursday, May 3, 2012

Facebook "Like" Not Protected by the First Amendment? - COTW #90

Public employees generally have a First Amendment right to speak on matters of public concern (which is weighed against their employer's interest in providing efficient and effective services to the public). In Bland v. Roberts (opinion here), the Eastern District of Virginia analyzed whether a public employee's Facebook "Like" receives First Amendment protection.

The plaintiffs worked in a sheriff's office. They claim the Sheriff discovered they were supporting a challenger during an election year by, among other things, "Liking" the challenger's Facebook page. After the Sheriff got reelected, he chose not to retain the plaintiffs. Does the First Amendment protect their Facebook "Likes"?

The Court held:
It is the Court's conclusion that merely "liking" a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record . . . . These illustrative cases differ markedly from the case at hand in one crucial way: Both [cases] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection.
This analysis strikes me as odd because the Court cites no precedent for the notion that the First Amendment requires a "statement," or why a Facebook "Like" is not a statement - the fact that other Facebook cases involved express statements seems irrelevant.

As Prof. Volokh points out, "liking" could be treated as verbal expression even though it requires only a mouse click (although I disagree with his assumption regarding what statement clicking "Like" makes, I agree that it conveys something). He also points out that the First Amendment protects symbolic expression (ex. flag-burning case).

Of course, this is just one district court in Virginia. But, it's tough to find any precedent on some of these social media issues so every opinion counts. I suspect other courts will find that Facebook "Likes" are protected under some circumstances.

Wednesday, May 2, 2012

Fired for WHAT!? - 5/2/2012

Welcome to the second installment of Fired for WHAT!? - the best employment termination stories from around the web.
  • Fired for giving boss a kidney? - Stephanie Thomas (The Proactive Employer) covers the details. In short: a woman donated her kidney to her boss, and then got fired. I'm sure there's more to the story . . . but from the employer's PR perspective, there had better be A LOT more! See also Chris McKinney's coverage.
  • Fired for "Liking" Gay Facebook Page - Jon Hyman brings us the story of a man who used Facebook to "Like" the "Two Dads" Facebook page. After his manager found out, the man claims his performance reviews went down the tubes, his manager made derogatory comments about his sexuality, the manager sent him religious emails, and then ultimately the guy got fired.
  • Everyone is fired via accidental Reply All - We've all seen it (maybe even done it) - you want to reply to one person via email, but you accidentally hit Reply All. Now, imagine sending a termination email intended for one person, to all 1,300 employees! Whoops. Lesson 1: Always check who you're sending emails to. Lesson 2: Don't fire people via email (not clear whether the intended recipient was already aware of his/her departure in this case or not).
Let me know if you have a great firing story. Also, I started using the #Fired4WHAT hashtag on Twitter - so, use the tag and maybe you'll get featured here.