Wednesday, July 31, 2013

Guess Who's Back? NLRB Returns to Full Power

On Tuesday, the Senate confirmed five - yes five - NLRB members. According to The Hill:
On Tuesday, the Senate voted to clear all five nominees — Harry Johnson III, Philip Miscimarra, Nancy Schiffer, Kent Hirozawa and Mark Pearce . . . . Hirozawa and Schiffer were confirmed on 54-44 votes, Pearce was reconfirmed on a 59-38 vote, Johnson and Miscimarra were confirmed on voice-vote.
Johnson and Miscimarra are Republicans and the other three are Democrats.

Prior to their confirmations, it was not clear whether the NLRB had any authority to act given that President Obama's "recess" appointments have been declared unconstitutional by three circuit courts. The Supreme Court will likely still decide whether the appointments were constitutional. But, it becomes less important given that we now have a full, five-member, constitutionally confirmed, NLRB.

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

Tuesday, July 30, 2013

Third Circuit Rejects Corporate Free Exercise Under the First Amendment

A Pennsylvania for-profit corporation sought an injunction, arguing that Obamacare regulations infringed upon its First Amendment right to the free exercise of religion (also raising an issue under the Religious Freedom Restoration Act (RFRA)). The regulations in question "require group health plans and health insurance issuers to provide coverage for contraceptives."

On Friday, the Third Circuit issued its opinion in Conestoga Wood Specialties Corp. v. Sec. of U.S. H.H.S., concluding: "[F]or-profit, secular corporations cannot engage in religious exercise." This creates a circuit split with the Tenth Circuit (a messy splintered en banc opinion remanding to the district court - but generally recognizing that corporations can exercise religion under the RFRA).

Will this circuit split lead to SCOTUS? We'll see. How would SCOTUS decide the issue? Well, we know the high court has already recognized that corporations have First Amendment rights in Citizens United. And we know that SCOTUS has recognized a ministerial exception under the ADA in Hosanna-Tabor (recognizing organizational free exercise rights under the First Amendment). So, I have to think the smart money is on SCOTUS recognizing a corporate First Amendment free exercise right (or at least a statutory right under the RFRA). We'll see though.

Image: Third Circuit seal used in commentary on Third Circuit decision. Not official use.

Friday, July 26, 2013

Federal Court Denies Social Media Discovery Request - COTW #153

Today's Case of the Week addresses social media discovery in an FLSA collective action.

The case:
Jewell v. Aaron's, Inc., 2013 WL 3770837 (N.D. Ga. July 19, 2013).

The discovery request:
Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron's store.
The problem:
The case involved meal breaks, and the social media evidence requested may not even be relevant. "The Court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19."

The defendant did provide some examples, including a Facebook post from an employee who expressly stated that he was "on lunch." The defendant also hoped that it could cobble together 30 minutes of break time based on social media posts provided in response to their request.

It was not enough for the Court though. The Court noted:
[T]he burden of requiring all 87 opt-ins to review all of their postings on potentially multiple social networking sites over a four year period and match that information to their work schedules would be an extremely onerous and time-consuming task. Defendant acknowledges that the lunch hour of any sample opt-in is a potentially moving target.
The holding:
The Court denied Defendant's motion to approve its request for production.

See also: Court Denies Employer's Access to Social Media Posts in FLSA Collective Action and Sends Warning: If You Want Access to Social Media, Come with Both Barrels Loaded ... Leave the Water Gun at Home, by Sara Hutchins Jodka at Porter Wright. HT: Brian Hall via Twitter.

Wednesday, July 24, 2013

Same Old Social Media Lessons - Carlos Danger Edition

Two years ago, I posted a blog entry called Weiner and the Same Old Social Media Lessons:
Social media disasters seem to teach the same lessons over and over (and over) again. But apparently, some guys never learn.
Well, as Forrest Gump's mama used to say, "stupid is as stupid does." News broke yesterday that Anthony Weiner continued his cyber-sexting ways under the handle Carlos Danger (you just can't make this stuff up).

By pure coincidence, earlier in the day I had exchanged some tweets with employment law bloggers, Jon Hyman and Dan Schwartz, about video-based social media problems (like Vine, and Instagram's new video service). Dan has been providing some nice coverage of these issues (and so has Jon, here).

Jon shared a particularly awesome Vine video with me. It is publicly accessible and features two young women explaining why they are late to work. To use their own hashtag:  #wakeandbake - complete with footage of what sure looks an awful lot like a packed marijuana pipe (aka "bowl").

Let's recap my four-part lesson from two years ago:

1. Don't engage in inappropriate conduct online;
2. Check the Recipients;
3. NOTHING IS PRIVATE ON THE INTERNET; and
4. Lying only makes it worse.

Come to think of it, Weiner sort of came clean yesterday and bypassed the lying . . . maybe he IS learning!

Tuesday, July 23, 2013

Zimmerman Trial Leads to Whistleblower Lawsuit

Apparently, we can never have too much commentary about the George Zimmerman trial. Poor me, I've been stuck on the sidelines because I don't practice criminal law, let alone Florida criminal law. But, against all odds, the criminal trial of a neighborhood watchman who killed a teenager has somehow led to . . . employment law!

The information technology director for Florida state attorney Angela Corey announced that he will be filing a whistleblower lawsuit:
Ben Kruidbos, Corey's former director of information technology, was fired after testifying at a pre-trial hearing on June 6 that prosecutors failed to turn over potentially embarrassing evidence extracted from Martin's cell phone to the defense, as required by evidence-sharing laws. "We will be filing a whistleblower action in (Florida's Fourth Judicial District) Circuit Court," said Kruidbos' attorney Wesley White.
I haven't seen the Complaint yet, but would like to follow this case and provide some updates and analysis.

Of course, George Zimmerman was found not guilty. One of his attorneys, Don West, (in?)famously called the prosecution "disgraceful" after the trial.

Image: George Zimmerman's Florida mug shot, public domain.

Friday, July 19, 2013

NLRB: Social Media Policy is a Mandatory Subject of Bargaining - COTW #152

The latest Case of the Week comes in the form of an NLRB advice memorandum regarding Giant Food LLC. While these NLRB social media memos have lost some of their mystique as more have been released, they still include some interesting tidbits.

One interesting aspect of this memo is its application to the NLRA's collective bargaining requirements:
Initially, we note that the social media guidelines are a mandatory subject of bargaining that the Employer was required to bargain over before implementation. The Board has long held that work rules that could be grounds for discipline are mandatory subjects of bargaining. Further, as the social media guidelines impose a new independent basis for discipline, there was a "material, substantial and significant" impact upon bargaining unit employees' terms and conditions of employment. Thus, the Employer was required to bargain over the policy.
Readers will no doubt be *shocked* to learn that the NLRB also found some substantive problems with the policy itself.

HT: Reed Smith Employment Law Watch via Eric Meyer on Twitter.

Thursday, July 18, 2013

Obama's NLRB - Recess Appointments Take Another Hit but Deal Made on New Appointees

President Obama finally got some good news regarding his National Labor Relations Board (NLRB) this week. Republicans agreed to confirm a slate of executive branch nominees, including NLRB nominees Nancy Shiffer and Kent Hirozawa (replacing former nominees Sharon Block and Richard Griffin).

While that's great news for the future of the NLRB, its past took another hit yesterday. The Fourth Circuit became the third federal appellate court to rule that Obama's prior recess appointments were unconstitutional (opinion here). If the recess appointments were in fact unconstitutional, it calls into question the legitimacy of over 1,000 NLRB rulings.

Now, you may be wondering . . . when the new nominees are confirmed, we undoubtedly have a legitimate NLRB - so is the recess appointments case at the Supreme Court (Noel Canning) moot? John Elwood has the answer at SCOTUSblog, concluding it will not "because the NLRB lost jurisdiction over the Noel Canning matter when it was appealed to the D.C. Circuit."

That's good news for people like me who find the constitutional question interesting.

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

Monday, July 15, 2013

Court Resists "Irresistible" Employee's Lawsuit... Again

We've been following the saga of the "irresistible" employee for awhile now. The Iowa Supreme Court originally rejected her sex discrimination claim. But, the Court just couldn't resist giving her another look... err, I mean giving her claim another look.

On Friday, we got the new opinion:
Can a male employer terminate a long-time female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee? This is the question we are required to answer today. For the reasons stated herein, we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act
Same result - affirming summary judgment for the employer.

Now, I know what you're thinking - How can the United States Supreme Court resist her on appeal? Well, the decision is based on Iowa law so this is probably the last stop.

Friday, July 12, 2013

Employer Sues Ex-Employee for Not Updating LinkedIn Profile - COTW #151

Recently, an employer took a shot at suing an ex-employee for fraudulent misrepresentation over his failure to update his social media accounts. The employer claimed he "falsely represented on social media outlets, such as LinkedIn, that he held the position as JAVS' International Managing Director after his date of termination." Jefferson Audio Visual Sys., Inc. v. Gunnar Light, 3:12-CV-00019-H, 2013 WL 1947625 (W.D. Ky. May 9, 2013).

Unfortunately for the employer, this claim was dismissed. The employer admitted that it had not relied on the representation, a necessary element of the cause of action. The Court was apparently unimpressed by the employer's theory that the ex-employee had defrauded "the world."

So, what can employers do? Well, they can send a bunch of demand letters (which this employer did . . . and it ultimately worked). But what about causes of action? I'm not an IP guy, but maybe there's an IP issue here (using company trademarks?)? If the employer incurred actual damages, like losing customers, it could raise an interference with contractual/economic relations issue. It almost sounds like an invasion of privacy - false light issue, but I'm pretty sure (don't quote me on this) that corporations lack standing to bring such claims. Defamation maybe?

Drop a comment if you have an idea!

Update: One option is to have employees sign contracts to update their social media profiles upon termination. The employers would have a breach of contract cause of action then. Sounds pretty burdensome though.

Thursday, July 11, 2013

In Review: The Employer Bill of Rights

It's every blogger's dream: write a blog post, it gets a bajillion hits, and it becomes a book (hit movie on the way?). That's more or less the story of Jon Hyman's new book, The Employer Bill of Rights: A Manager's Guide to Workplace Law. You can see the blog post that started it all right here.

I think part of the post's popularity is the framing of the issues. In a world of cannot-dos, Jon drafted a list of can-dos. Employers have the "right to hire on qualifications" and the "right to fire on performance" to name just two.
What about the book itself? This is the book I wish someone had handed me when I first started learning about employment law (had it existed). It covers a lot of legal ground, but unlike legal resource materials it's . . . wait for it . . . readable! I actually enjoyed reading it. Jon sprinkles the sometimes necessarily dry legal issues with interesting examples and stories (probably accumulated over his years of blogging). It covers all of the most common employer-issues in an enjoyable ~250 pages.

Also, the book is written from an employer's perspective, not an attorney's perspective. That means the book addresses practical issues and not just legal technicalities. It stops on each issue just long enough to explain the general idea but then moves on without getting bogged down.

Oh, one more thing that differentiates this book from other employment law resource manuals . . . it's only $18! Employment law resources often run in the hundreds of dollars, so the price is right for this one. If you're looking for a high-level overview of employment law issues, The Employer Bill of Rights does the job.

Conflict watch: Jon and I collaborated with other employment law bloggers on Think Before You Click: Strategies for Managing Social Media in the Workplace. I was provided no compensation for this review - not even a review copy of the book - I just really enjoyed it and wanted to spread the word.

Wednesday, July 10, 2013

Miles on Supreme Court's DOMA Decision and Pennsylvania Employers

Straight from the Shameless Self-Promotion Department, my latest article in the Reading Eagle Business Weekly is now available online: DOMA Ruling Means HR Work for PA Employers.

The Supreme Court's DOMA ruling will have a narrow impact on Pennsylvania employers because same-sex marriages are not legally recognized in Pennsylvania. However, employers may need to address issues involving employees who entered into legal same-sex marriages in other states.

And then, of course, there's the lingering possibility that Pennsylvania will legalize same-sex marriages. Same-sex marriage proponents are now advancing their cause in the Pennsylvania legislature and in the courts. If those efforts are successful, then Pennsylvania employers will have a whole host of issues to work through.

Tuesday, July 9, 2013

"Job Sharing" Around Obamacare's Employer Mandate

It goes without saying, but I'll say it anyways: Obamacare is complicated. But the general premise of the employer mandate is simple: Large employers must either provide healthcare to their full-time employees or pay a fine.

Under the Affordable Care Act (aka "Obamacare"), a full-time employee is generally defined as someone who works over 30 hours per week. Some employers have started cutting employees' hours to get below that magic threshhold.

CNN Money has an interesting article about employers who already took steps to exclude employees from the mandate:
Some Fatburger owners even began "job sharing" with other businesses, teaming up to share a higher number of employees all working fewer hours. Someone could work 25 hours at one Fatburger, 25 at another one with a different franchise owner, and still not be a full-time worker under Obamacare rules.
This allows employers to provide full-time hours for their employees, but still excludes them from the mandate. Of course, as the article points out, the mandate is on hold until 2015.

Friday, July 5, 2013

No Brazilian Wax, No Job - COTW #150

Sometimes, the complaint really does a nice job of laying the facts bare to support the claims with more than just naked allegations. OK, I planned on a pun-laden post here, but most of the puns I could come up with seemed horribly inappropriate (even for this blog).

The plaintiff was a trainee at a spa. Let's just check out the complaint (via Eric Meyer):
2. On October 1, 2012, Finley attended her first day of “training,” which was run by an EWC Corporate representative. The corporate trainer announced that, as part of this “training” program, Finley and her co -workers were required to perform “Brazilian - style” waxes on each other the following day. A “Brazilian” is a method and style of public hair removal, in which one applies a heated adhesive wax to the pubic hair on or near another’s anus and genitalia, and then forcibly removes that wax and hair by “tearing” the adhesive from the person’s skin. 
3. Finley refused to comply with this “training,” because it was humiliating, painful, embarrassing, and discriminatory. Moreover, Finley was scheduled to begin menstruating on the same day she was expected to have the Brazilian wax, and expected to be extremely sensitive in the most private region of her body.
4. When Finley explained her opposition to the mandatory “Brazilian” waxing, and explained that receiving a “Brazilian” wax would be extremely painful and humiliating because of her menstruation, the corporate trainer responded that she should “put in a fresh tampon and take and ibuprofen and you’ll be fine.” 
5. Finley promptly approached the owner of the Wexford Spa, and explained to him that she refused to submit to a “Brazilian” wax performed on her by her co-workers, and that the Employers could not require her to do so. Finley was terminated immediately.
And, in case it wasn't clear:
22. Finley objected to the Brazilian wax portion of the training because it is often an extremely painful experience, because she did not want to expose her anus and genitalia to her co-workers, because she did not want her co-workers to touch her anus and genitalia, and because she simply did not want to have her anus and pubic hair removed.
Well, that's something I think a lot of people can relate to. The complaint includes claims for sex discrimination, sexual harassment, and retaliation. It also includes a creative claim for wrongful termination in violation of public privacy. What's the public policy? Invasion of privacy torts and the sexual battery statute.

Not surprisingly, this case has received some media attention - like this Huffington Post article - for the important employment law issues, I'm sure (HT: Mike Chittenden via email).

Wednesday, July 3, 2013

Obamacare: Ready, Set . . . WAIT!!

In case you missed it, the Obama administration announced yesterday that it will delay implementation of the employer-mandate under the Affordable Care Act (aka "Obamacare"). As the announcement concedes, there are pending reporting rules that still haven't been published.

Employers will still have the opportunity to voluntarily participate in 2014. The administration hopes this will provide a year's worth of "[r]eal-world testing of reporting systems."

Food for thought: If President Obama can just pick parts of Obamacare and decide, "nah, we're just not gonna do that part this year" - then what's to stop a subsequent president (perhaps a Republican, for example) from deciding, "nah, we're just not gonna do any of it, ever"? This creates unwelcome uncertainty for employers.

Tuesday, July 2, 2013

Iowa Supreme Court to Reconsider "Irresistible" Firing

Guess who's back? In the first Lawffice Space Case of the Week for 2013, I covered the Iowa Supreme Court ruling that an employee "may be lawfully terminated simply because the boss views the employee as an irresistible attraction."

Well, I guess the Court couldn't resist her either. The Iowa Supreme Court is reconsidering the case, relying on previously submitted evidence and briefs. According to this Des Moines Register article, this is only the fifth case in the last decade to get such a review.

If you're wondering what the woman in question has been up to since the Court's decision - you can start with this Tosh.0 web redemption (Warning: It's Daniel Tosh, so it may be offensive, inappropriate, NSFW . . . but always hard-hitting legal analysis).

For more coverage of this case, check out Eric Meyer's post on The Employer Handbook.