Employment Law Newsletter: 3rd Quarter 2011

Are Your Social Media and Internet Policies Violating Labor Laws? Take notice, lest you face the wrath of the National Labor Relations Board (NLRB)

With the prevalence of social media sites and other forums for electronic communications, many employers have policies restricting the information about the company that employees can post on-line. Similarly, many companies have taken to perusing social media sites to investigate current employees to determine if they engage in behavior disfavored by the company. However, recent actions by the NLRB have cast a shadow over these practices and should cause employers to revisit their current policies regarding electronic communications and social media use by their employees.

The National Labor Relations Act (NLRA) gives workers a federally protected right to form unions, and prohibits employers from punishing two or more workers — whether union or non-union — for discussing working conditions or unionization (termed “concerted activity”). The NLRB recently accused a company of illegally firing an employee in violation of the NLRA after she criticized her supervisor on her FaceBook page. These comments were viewed by several co-workers, some of whom offered supporting comments. The NLRB took the position that the employee’s comments about her supervisor were concerted activity protected under the NLRB.

This is the first case in which the NLRB has argued that workers’ criticisms of their bosses or companies on a social networking site are concerted activity, and that employers would be violating the law with policies prohibiting workers from making those statements. However, not all employee criticisms are protected. For example, if the employee was not communicating with co-workers, was discussing something unrelated to work, or was making untrue and defamatory statements, then that would not likely be protected under the law. However, a broad company rule that says one cannot make disparaging comments about supervisors is clearly illegal under the NLRA. Likewise, a policy prohibiting an employee from making any comments about their employer on social networking sites would also violate the NLRA.

Three Quick Tips

Review your Internet policy to make sure your employees can discuss legitimate concerns about their employment.

Make sure employees are not being disciplined for posting comments on social media sites about the terms and conditions of their employment.

You can still prohibit employees from making false and defamatory statements about your company, your customers, and your employees.

The U.S. Supreme Court Expands Retaliation Protections for Employees

In Thompson v. North American Stainless, LP, the U.S. Supreme Court held that third parties could, in some instances, bring a claim of retaliation under Title VII. Thompson and his fiancé worked for the same employer. Thompson’s fiancé filed a complaint with the EEOC, claiming the employer was discriminating against her because of her gender. Thompson was fired less than one month later, supposedly because of his job performance. Thompson sued, claiming he was fired in retaliation for his fiancé’s complaint.

Even though Thompson was not the person making the complaint, the Supreme Court said he could still sue the employer for retaliation because he fell within the “zone of interests” protected by Title VII. The Court declined to specify exactly what relationships would bring an employee within this “zone of interest.” The only guidance offered was, “We expect that firing a close family member will almost always meet the test,” while “inflicting a milder reprisal on a mere acquaintance will almost never do so.”

This case serves as a good rem reminder that terminating an employee closely after a complaint by the employee or someone close to them will be scrutinized by the court and will likely get in front of a jury. Therefore, it is imperative that performance deficiencies and other work-related issues be consistently and regularly documented uniformly across the workforce. That way, the employer has evidence of performance issues predating any protected activity, which can be used to contest any inference that timing may offer in support of the employee’s retaliation claim

Document Oral Complaints to Minimize Risk in Retaliation Claims

Employees often bring lawsuits alleging they were retaliated against for making oral complaints that are protected by law. Often the employer disputes the contents of the complaint or that a complaint was ever made. The outcome of these cases then hinges on which witnesses a jury finds credible, which is a gamble employers don’t want to take. To minimize risk, you should establish clear, uniformly applied policies for receiving, documenting, & investigating oral complaints, regardless of the nature of the complaint. You should write down the details of the complaint and, if possible, have the employee sign the writing to attest to its accuracy. Likewise, interviews conducted during an investigation into the complaint should be recorded in writing and signed by the witness being interviewed. At the very least, all conversations should be recorded contemporaneously in writing, identifying the parties involved, the date, time, and location of the conversation, the nature of the complaint, if any, and other important details. This way, you can have a paper trail to present to a judge or jury that would show exactly what the employee was complaining about, if he or she complained at all.

Oregon Employers Need To Understand the Difference Between Sexual Orientation, Gender Identity, and Gender Expression

In Oregon, the law prohibiting discrimination because of a person’s sexual orientation also includes a person’s gender identity and gender expression. While these terms apply to every person, they are not interchangeable. They reflect the reality that a person’s gender expression and identity is unique and cannot, and must not, be measured by stereotypes. It is important that you and your employees understand the distinctions between a person’s sexual orientation, gender identity, and gender expression, not just because these classifications are protected by law, but because it promotes and fosters a diverse workforce. Thus, your employment policies and employee training should be updated to include these classifications and explain the differences.

A person’s sexual orientation is “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality, or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s assigned sex at birth.” Gender identity and gender expression are not dependent upon the person’s sexual orientation. A person’s gender identity is the gender that person identifies themselves with, whether or not that identity differs from their gender at birth. This includes persons who identify themselves as transgender or androgynous. A person’s gender expression is how that person expresses their gender, such as through their mannerism and the way they dress or speak, regardless of whether their expression differs from that traditionally associated with a particular gender.

What Is The Cost Of Paying Lip Service To Diversity?

Many employers throughout the U.S. fail to recognize the need for a diverse workforce. For good reason, diversity training has become an eight billion dollar industry. A token woman or person of color upon whom responsibility has been conferred will not pass muster. Great strides simply have not been made in equalizing the number of women and persons of color who hold chief executive, operating or financial officer positions, or who control opportunities for revenue generation. Diversity trainers themselves sometimes meet head on with listeners who feel the topic only makes an issue out of what the listener views as a non-issue, or who feel that personal characteristics are being used as an excuse for not achieving the same success they have achieved.

The EEOC, Oregon’s Bureau of Labor & Industries, and the Judges of this great state do not share these views. The frequency of charges and investigations of discrimination based on gender, race and national origin are on the rise and only promise to continue to rise as our economy falters. So, while the wheels of justice sometimes turn slowly, turn they will, with the commitment of those who are empowered to recognize, recruit, advance and retain workers who are different from themselves.

Legal Update

Legislature Relaxes Restrictions On Employee Arbitration Agreements

Currently, employers must notify new employees at least two weeks before starting work that they will need to sign an arbitration agreement. As of January 1, 2012, the mandatory notice period will be shortened to 72 hours. Notice of course must still be in a written employment offer. As for your existing employees, if you wish to present them an arbitration agreement to sign, then the agreement must be accompanied at the same time with a pay increase and a significant increase in responsibilities or job duties – in other words – a bona fide advancement within the entity.

Quick Q & A For Employers

Question:What Is GINA?

Answer: GINA is the federal Genetic Information Nondiscrimination Act. It became law on May 21, 2008. GINA, in part, prohibits making employment decisions based on an employee’s genetic information. What employers need to know is that GINA’s definition of genetic information includes merely any “family medical history.” Violating GINA can be costly, as it allows employees to recover back pay and front pay, compensatory and punitive damages,and costs and attorney fees.