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May 3, 2011

Twitter Dispute at Reuters Is Resolved

A few days ago, Thomson Reuters reached a tentative contract with the Newspaper Guild (the union that represents hundreds of its employees). According to an article by Steven Greenhouse in the New York Times, the deal finally came -- settling a dispute that's gone on for more than two years -- at the end of a 21-hour negotiating session. The deal settles a number of contested issues, including raises, payments to employees to cover wages lost while there was no contract, benefits, and scheduling. 

And then there's that Twitter complaint: As I posted last month, the National Labor Relations Board confirmed that it was considering bringing a complaint against Reuters over many issues in the ongoing dispute, including the company's apparent reprimand of an employee for Tweeting a criticism of its dealings with the union. This was just the latest indication of the NLRB's interest in social media -- and more particularly, whether employer efforts to police what employees say online about the company are violating employee rights to communicate and act collectively. 

As part of the tentative deal, Reuters has agreed to negotiate a new policy on social media, which will explicitly protect the rights of employees to engage in protected concerted activities: to speak about, and take action regarding, the terms and conditions of their jobs. Reuters has its current policy and guidelines for reporters on use of social media (part of its Handbook of Journalism) posted on its website. I really hope the company also posts its new policy, once it's available. That would be a huge help to employers trying to navigate this developing area of law and commerce. 
April 14, 2011

Labor Department Regulations on Tip Credits and More

Last week, the federal Department of Labor (DOL) issued its final "clean-up" regulations, tweaking a number of existing rules to bring them in line with laws that have passed and court cases that were decided since the regulations were last reviewed. Although the proposed regulations (issued during the Bush Administration) included several changes that generated a lot of discussion, the final regulations are more scaled back. 

The most significant discussion in the final regulations involves tip credits. Under the Fair Labor Standards Act (FLSA), employers may pay tipped employees less than the minimum wage -- down to a floor of $2.13 an hour -- as long as employees make enough in tips to bring their earnings up to at least the minimum hourly wage. If there is a shortfall, the employer must make up the difference. (Some states do not allow employers to take a tip credit; in these states, which include California, employers must pay service employees the full minimum wage for every hour worked.) This has long been the law, but the final regulations clarify a few points:

  • Whether or not an employer takes a tip credit, all tips an employee earns belong to that employee, except for any amount the employee is required to "tip out" (contribute to a legitimate tip pool). Employers aren't entitled to any part of the tip pool. At least one court had held that an employer who doesn't take a tip credit need not let employees keep their tips, as long as the employees were left with at least the minimum wage. The regulations specifically dispute the holding of this case. 
  • Only employees who regularly and customarily receive tips can participate in the tip pool -- and again, this rule applies whether or not the employer takes a tip credit. Employees who don't typically receive tips, such as cooks and dishwashers, may not participate in the pool. The final regulations don't set a limit on how much of their tips employees may be required to put in the pool; in fact, they state explicitly that the law "does not impose a maximum contribution percentage." Previous guidance documents and opinion letters from the DOL had put a maximum on the amount employees could be required to contribute, or said that employees could not be required to contribute more than was customary in their industry, but these limits did not make it into the final regulations. Once the employer comes up with an amount, however, it is required to notify employees how much they will be required to contribute to the pool.
  • Employees are entitled to notice if the employer will take a tip credit. This notice must include: (1) the hourly cash wage the employer will pay the employee; (2) the amount of tips that the employer will take as a tip credit (that is, the employer will count that amount toward the employee's wages, to meet the minimum wage requirement); (3) that the employee is entitled to retain all tips received except any amount the employee is required to contribute to a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and (4) that the tip credit shall not apply to any employee who has not been informed of these requirements. The final regulations do not require this notice to be in writing; employers may inform employees orally, if they wish. As a practical matter, however, employers who plan to take a tip credit should provide written notice, so they can later prove that they properly notified employees, if necessary. 
Some other changes included in the final regulations exclude stock options from an employee's regular rate of pay (used to determine overtime), clarify the exemptions for firefighters and salesmen, partsmen, and mechanics of certain vehicles; exclude volunteers at private nonprofit food banks from the definition of an "employee" covered by the FLSA, even if those volunteers receive groceries from the bank; and clarify that time an employee spends commuting in a company car doesn't count as compensable work time. 

The biggest change the regulations ultimately didn't make had to do with fluctuating workweeks, in which a nonexempt employee receives a fixed salary that is understood to compensate the employee for all hours worked during the week. If the employee works more than 40 hours in a week, the salary is divided by the number of hours worked that week to come up with an hourly wage, and the employee is entitled to half of that amount for every hour worked over 40 as an overtime premium. The proposed regulations sought to explicitly allow employers to pay these employees bonuses, commissions, and other types of compensation in addition to their set salary, without running afoul of the rule and without having to count those amounts toward the employee's hourly pay. Ultimately, the final regulations didn't allow this; in its comments, the DOL reasoned that this would give employers an incentive to reduce set salaries and move that money to bonuses and other types of excluded compensation, to minimize their overtime obligations. 

April 8, 2011

Twitter Post Reprimand May Lead to Labor Complaint

A reporter for Thomson Reuters says that she was reprimanded for a Tweet -- and the National Labor Relations Board (NLRB) is ready to make a federal case out of it. According to the New York Times, a supervisor at Reuters invited employees to send posts to a company Twitter address, giving their views on how to make Reuters the best place to work. Deborah Zabarenko, an environmental reporter and the head of the Newspaper Guild at Reuters, sent this post: "One way to make this the best place to work is to deal honestly with Guild members." (The Guild is the union that represents journalists at Reuters.)

Apparently the company didn't intend for employees to be quite so frank. Zabarenko said that her bureau chief called her at home the next day and informed her that "Reuters had a policy that we were not supposed to say something that would damage the reputation of Reuters News or Thomson Reuters." 

The NLRB apparently plans to file a complaint against the company, alleging that it violated employees' rights to engage in protected, concerted activity to improve the terms and conditions of employment -- in other words, that it committed an unfair labor practice. Based on the Times article, Reuters sounds fairly surprised by the allegation, partly because its social media policies are similar to those at many other companies.

But the NLRB action isn't such a surprise, given the agency's apparent interest in employee use of social media to air complaints about their employers. Just a few months ago, the NLRB filed its first complaint involving social media, against a company that fired a worker for criticizing her supervisor on Facebook. In that case, the agency's complaint went further than the treatment of the employee to allege that the company's policies on blogging and Internet posts were improper, because they were so broad as to prohibit protected employee activity. (The case settled, and the company agreed to revise its policies to make sure employees wouldn't be disciplined for protected posts.) 

It seems more than a little strange that Reuters would invite comments on how the company could improve if it didn't expect to hear any criticism. And Zabarenko's comment, though it implies that the company isn't dealing fairly with the union, is at least polite and restrained, more than can be said for much of what ends up on social networking pages. Ultimately, if a company reprimands an employee for expressing support for a union and criticizing the way management is dealing with that union, it should probably not be that surprised to hear from the NLRB. 

February 15, 2011

Attorney-Client Privilege and Company Email

Last month, the California Court of Appeals ruled against an employee (Gina Holmes) who claimed that she was harassed because of her pregnancy; subjected to emotional distress and invasion of privacy when her boss (Paul Petrovich) shared information about her pregnancy with others at the company; and constructively discharged. Based on the information in the Court's decision, each party had some facts in its favor. Petrovich, apparently feeling that Holmes had been less than honest about the length and timing of her planned pregnancy leave, made some inappropriate comments; Holmes rushed out the door on her way to a constructive discharge claim, having not yet suffered the kind of offense necessary to support her case. 

So far, nothing new. What makes the case interesting is all of the email. Petrovich's comments to Holmes took place via email, he shared what she told him about her pregnancy with others via email, and Holmes contacted and communicated with a lawyer about suing the company . . . using the company's email system. Her lawyer told her to delete the messages, but we all know how effective that is. The company found them while preparing for trial and used them as evidence, over Holmes's objections that they were protected by the attorney-client privilege. 

The company had a written policy stating that its email system was for business use only, that employee messages could be monitored at any time, and that employee messages were not private. Holmes argued that her communications with her attorney were nonetheless privileged because she wasn't aware of the company ever actually reading employee email. In other words, although the company reserved the right to monitor, she didn't know of any instance in which it had actually done so. The court didn't find this persuasive, however. Because she was on notice that her email messages weren't private, she couldn't prove that she had communicated with her attorney in a confidential manner. The court compared her email exchanges to consulting with her attorney "in her employer's conference room, in a loud voice, with the door open." In other words, given the company's policy, she should have known that her conversation could be disclosed. 

This isn't the first case that has ruled against the privilege-claiming employee. For example, one New York court found that a doctor who sent email to his lawyer on his employer's system had waived the attorney-client privilege because the employer's policy prohibited personal use of the system and told employees that it monitored employee email. (Scott v. Beth Israel Medical Center, 847 N.Y.S. 3d 436 (N.Y. Sup. 2007).) On the other hand, several courts have found that an employee who uses a personal email account for legal correspondence, even if using a company computer, has not waived the privilege, regardless of the employer's monitoring practices and policies. (Stengart v. Loving Care Agency Inc., 990 A.2d 650 (2010); Curto v. Medical World Communications, Inc., 2006 WL 1318387 (E.D. NY 2006).

Here are a couple of takeaways from this case: 
  • Policies are important. Employees, read your company's policies and act accordingly. If your company prohibits personal use of the email system, just don't do it. Don't get lulled into a false sense of security by lax enforcement, because you can bet that the company will enforce that policy once it has a reason to. Employers, if you ever anticipate you might have to read employee email, adopt a policy, ask employees to sign a form acknowledging that they have received and read it, and enforce it consistently.
  • Take a deep breath and count to ten. You can send an email message in a moment, but that doesn't mean you should. A little patience would have served everyone well in this case, including: (1) Petrovich, who responded to Holmes's message about her pregnancy leave "a short time later" with the comment, "I need some honesty. How pregnant were you when you interviewed with me?" (2) Holmes, who began her email reply to this message by saying that she thought the conversation should be conducted in person, "but here it goes anyway . . . " (3) Holmes again, who first emailed her attorney, from work, at 3:30 in the afternoon. You couldn't wait a couple of hours and email from home, or maybe just call her on your cell phone? 

February 9, 2011

Facebook Firing Case Settles

A few months ago, the National Labor Relations Board (NLRB) filed an unfair labor practice complaint against American Medical Response, challenging its decision to fire an employee based on her Facebook comments criticizing a supervisor. (My previous post about the case is here.) After she was denied the right to have a union representative help her respond to a customer complaint, Dawnmarie Souza went home, logged on to her Facebook page, and compared her supervisor to a psychiatric patient. Other employee responded, and Souza posted additional critical comments. Then she was fired. 

The NLRB's complaint challenged not only the company's decision to fire Souza but also its policies on blogging and Internet posts, which prohibit "disparaging, discriminatory, or defamatory comments" about the company, coworkers, or customers. (It also challenged the company's refusal to allow her union representation.) The NLRB alleged that these policies were too broad, and infringed on employees' rights to engage in protected concerted activity by communicating with each other about the terms and conditions of employment. 

From the sound of the official release about the settlement, the NLRB got what it wanted: The company "agreed to revise its overly broad rules" to make sure that employees are not prevented from discussing the terms and conditions of employment and to refrain from disciplining employees for such discussions going forward. The company also agreed to grant employee requests for union representation in the future. (Ms. Souza's future at the company isn't clear; the press release indicates that her claims against the company were settled in a separate, private agreement.)
December 13, 2010

Linking to WikiLeaks Could Cost You a Job, Universities Warn Students

Last week, the federal government warned its employees that the trove of diplomatic cables and other intelligence documents posted on WikiLeaks are still considered classified until they are officially declassified by an appropriate government agency. Employees and contractors who do business with the federal government were told that accessing this information on their work computers, personal computers, or portable devices was forbidden. When asked whether this meant employees would be fired for viewing the documents, a spokesperson for the Office of Management and Budget (OMB) ominously told CNN that such "breaches of protocols governing access to classified material are subject to applicable sanctions under long-standing and existing law."

The OMB warning didn't tell agencies to block employee access to the WikiLeaks site or other sites that posted the documents. But the Library of Congress did so anyway: Neither its employees nor its patrons may access the WikiLeaks site, according to the New York Times

Now, the warning has been extended to those who aren't federal employees or contractors, but one day hope to be: Students at the Columbia School of International and Public Affairs, for example, were sent an email message from the career counseling office, informing that that an alumnus working in the State Department recommended "that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government." (Check the whole message out here.) According to CNN, students at Georgetown and Boston University received similar messages.

These warnings have led to a lot of lively online discussion about free speech and the importance of allowing open debate of ideas, particularly in an academic setting. They've also led to some talk about how private employers might treat the same issue, particularly whether an employer might be legally justified in firing or refusing to hire someone who posted links to WikiLeaks or supported the group's policies on social networking sites. 

My two cents is that even though such a rule might be legal, it's tough to see why a company would want to go this route, given the resulting bad publicity and poor morale that would almost certainly result. Contrary to popular belief, the First Amendment protects us from governmental action or restriction only: It doesn't prohibit private employers from putting limits on speech. Other laws might, however. As I posted recently, the NLRB has said that private employers can't restrict employees from communicating with each other about the terms and conditions of employment, even if that communication takes place on a public website. And some states prohibit employers from taking action against employees based on their political beliefs, or on any legal activities they choose to engage in during their private time. In these states, a "no posting about WikiLeaks" rule wouldn't pass legal muster.  

December 3, 2010

OSHA Says Texting While Driving Is a Workplace Hazard

Texting while driving has emerged recently as a major public safety issue. Just a few years ago, only a handful of states banned the practice. Now, more than half of the states prohibit all drivers from texting while driving; some states impose a ban only on certain drivers (younger drivers or bus drivers, for example; you can find a frequently updated chart of state laws on texting and using cell phones while driving here, at the website of the National Conference of State Legislatures). 

And it's no wonder why: According to the Virginia Tech Transportation Institute, texting while driving increases the risk of a crash or accident by 23 times, a much greater danger than any of the other activities studied (such as dialing or using a cell phone). Texting resulted in drivers taking their eyes off the road for the longest period as well. How long? Long enough to travel the length of a football field at 55 mph, according to the study. (Check it out here.) 

Recently, OSHA decided that enough facts were in to officially declare texting while driving a workplace hazard and an OSHA violation. On its new "Distracted Driving" page, OSHA tells employers that requiring, encouraging, or condoning texting while driving for work is prohibited:
"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."

The agency goes on to tell employers that it will investigate complaints that an employer requires or encourages texting while driving, and will issue citations and impose penalties on those who fail to comply. 

And now a word from our shameless commerce division: If your company is searching for one of those "clear, unequivocal" policies prohibiting texting while driving, pick up a copy of my book, Smart Policies for Workplace Technologies.
November 16, 2010

NLRB Sues Employer for Firing Employee Over Facebook Post

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.

November 9, 2010

Final GINA Regulations Address Online Searches, Wellness Programs, and More

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.) 

September 3, 2010

When Employees Pretend to be Customers: FTC Enforces Rules for Online Reviews

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.)