Nolo's Employment Law Blog

"It is your responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving. Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job."

Last week, the National Labor Relations Board (NLRB) filed a complaint against the American Medical Response Company. The NLRB charged that the company committed an unfair labor practice by firing a union employee, Dawnmarie Souza, for criticizing her supervisor on her Facebook page, and by adopting policies regarding blogs and other posted content that improperly restricted employee rights to communicate about their working conditions.

Souza was upset because she had been asked to respond to a customer's complaint about her work, and the company wouldn't allow a representative from her union -- the Teamsters -- to help her prepare the response. That same day, Souza posted negative statements about her supervisor on her Facebook page from her computer at home. Her initial post compared her supervisor to a psychiatric patient; other employees chimed in, and Souza posted more critical comments.  

The NLRB complaint (a copy is available here, at the Labor Relations Today blog) alleges that firing Souza for these posts is an unfair labor practice because it violates her right to engage in protected concerted activity: to communicate with other employees about the terms and conditions of employment. (Although Souza is a union member, this right exists whether a workplace is unionized or not.) And the NLRB isn't just challenging the decision to fire Souza: It also alleges that the company's policies on blogging and Internet posts, standards of conduct, and solicitation violate the law, because they improperly interfere with employees' rights to communicate with each other. Those policies prohibit, among other things, "rude or discourteous behavior"; and "disparaging, discriminatory, or defamatory comments" about the company, coworkers, or customers.

According to the New York Times, this is the NLRB's first complaint involving worker posts on social networking sites, but it isn't the first time the agency has considered the issue. In May of this year, the NLRB issued an advice memorandum -- in another dispute involving a medical transport company, oddly -- in which it found legal an employer's decision to discipline employees for Facebook posts suggesting they might withhold care from patients who personally offended them. Although it would have been illegal for the employer to act based on posts about ongoing labor disputes or the terms and conditions of employment, the employer had the right to act on posts indicating that employees would compromise the quality of patient care.

This case is just the next step in the rules on protected activity, which have continued to evolve so they address all of the places -- actual and virtual -- where employees might communicate. The NLRB previously decided cases about signs posted -- with thumbtacks -- on the company bulletin board, discussions in the locker or lunch room, and meetings on company property. In the past decade, it has had to decide cases on email, electronic bulletin boards, and posts to public websites. Social networking is simply the most recent popular spot for employee discussions.  

This case could also signal the beginning of a big change in the way many employers deal with employees' online activity. While some employers either place no restrictions on employee posts or impose only broad, business-related guidelines (for example, use a disclaimer when you discuss the company, don't reveal trade secrets, and so on), others go much further to prohibit employees from talking about the company at all. If the NLRB prevails, these employers will have to take another look at their policies to make sure they don't infringe on employee rights to discuss the terms and conditions of employment.

To learn more about employees' rights when it comes to posting job-related information on social network sites, check out Nolo's articles Fired for Blogging and Employee Posts on Facebook, MySpace, Twitter, and Blogs.

Today, the Equal Employment Opportunity Commission released final regulations interpreting the Genetic Information Nondiscrimination Act (GINA). The employment provisions of GINA (covered in Title II of the law) prohibit employers from discriminating on the basis of genetic information, prohibit employers from requiring or requesting genetic information from employees or family members, and require employers to keep genetic information confidential.

The final regs largely adopt the interim regs published more than a year ago, but there are some important changes and additions as well. The new material deals mostly with the exceptions to the law: situations in which employers may acquire genetic information without violating GINA. Here are some of the more important changes and clarifications:

Online searches. Employers may obtain genetic information on an employee without breaking the law if the information is acquired inadvertently or through information that is publicly and commercially available (for example, from an article in a newspaper). The final regulations clarify that these exceptions don't apply if the employer acts deliberately, including by searching for genetic information online. For example, the inadvertent exception protects an employer if a manager is Facebook friends with an employee who posts personal genetic information. It doesn't protect an employer that conducts an Internet search that is likely to yield genetic information (such as a Google search for the employee's name and a genetic disease or disorder). Similarly, an employer that acquires genetic information from commercially and publicly available sources hasn't violated the law, but an employer that accesses these sources with the intent to gather genetic information (for example, by visiting sites about genetic testing) isn't protected by the exception.

Safe harbor for employers who give warnings. The final regulations note that an employer may receive genetic information even if it doesn't request it, particularly if the employer legitimately requests medical information. For example, an employer that asks an employee to submit a medical certification for FMLA leave or documentation of a disability and need for reasonable accommodation under the ADA may also receive genetic information. In these situations, an employer's acquisition of genetic information will be considered inadvertent -- and won't violate the law -- if the employer tells the employee or health care provider not to provide genetic information. The regulations provide sample language employers can use to give this notice, in writing or orally.

Incentives for wellness programs. An exception applies to employers who offer health or genetic services as part of a wellness program, as long as employee participation is knowing and voluntary (among other things). The final regulations address what "voluntary" participation means when an employer offers incentives to participate in the program (for example, a payment for completing a health risk assessment). In this circumstance, the employer will be covered by the exception if employees are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered.

Cleaning up personnel files. The final regulations provide that genetic information placed in employee personnel files before the effective date of GINA (November 21, 2009) does not have to be removed. However, GINA's prohibitions on employer use and disclosure of genetic information applies to all such information, whether the employer acquired it before or after the law went into effect. As a practical matter, this means that employers should review personnel files, remove any genetic information contained in them, and create separate, confidential medical files for this information. (Most employers will already have confidential medical files to comply with the ADA, so this shouldn't pose much of a burden.) 

Last year, the Federal Trade Commission issued regulations about online product endorsements, including reviews, blog posts, and comments on social media pages. These regs, known as the "blogger rules," extended the FTC's existing product endorsement rules (last revised in 1980, when we were all communicating via typewriters and telephones) into cyberspace. The basic requirement is simple, and tough to argue with: If you are being paid to endorse a product, you must make that clear to consumers.

The rules are intended to make sure consumers understand the relationship between the person making the endorsement and the product, so they can make informed decisions about how much weight to give the endorser's statement. A statement by an actor or a paid spokesperson probably isn't as credible as a statement by an actual user of the product, for example. 

So how does this translate into the world of Web 2.0? Here are some examples:

• Bloggers who are paid by a company to endorse its products must reveal that fact when they talk about the products. And, bloggers who receive free products must say so when discussing them. For example, the writer of a popular blog on cell phone applications might receive free apps from companies that hope to get a good review; in this situation, the blogger is required to disclose that an app was free when writing about it.
• Employees and others working for a company (such as independent contractors or public relations firms) must reveal their affiliation when posting about the company's products. The FTC rules use the example of an employee who posts messages promoting his employer's products to an online message board popular with consumers of that type of product. Because the credibility others give to the employee's posts would probably be affected if they knew the identity of his employer, he must reveal it.
• Employees and others affiliated with a company who post online reviews of the company's products must also reveal that affiliation. This includes not only positive comments on message boards and Facebook pages, but also reviews designated as such on Amazon or iTunes, for example.

The "employees posing as customers" problem was the basis of the first charges the FTC brought under the new rules, settled last week. The agency charged Reverb Communications, a PR company, with deceptive advertising for having its employees post positive reviews of its clients' games in the iTunes store, without revealing that they were being paid to do so. According to an article in the New York Times, the company agreed to take down all reviews that "appeared to have been written by ordinary people but were actually written by employees of the company," and to refrain from these practices in the future. (To read one consumer's account of trying to uncover the corporate shill in Amazon reviews for espresso makers, check out this entry in Russ Taylor's blog.)