UPDATE: Still No Love for No Gossip Policy

We previously reported that a National Labor Relations Board Administrative Law Judge found that an employer violated the National Labor Relations Act by implementing a "no gossip" policy and firing an employee who violated the policy.

Not surprisingly, the Board has affirmed that decision (pdf).  We say it's not surprising because the Board's assault on employer policies has been ongoing and highly publicized over the past few years.

Suffice to say, employers must be sure to carefully craft policies to ensure compliance with the Act. In addition, employee disciplinary decisions should be closely scrutinized to ensure claims under the Act are not triggered.

Facebook Discussion About "Street People" Protected

In a recent decision involving employee social media activity, the National Labor Relations Board held that a high-end clothing boutique in San Francisco violated the National Labor Relations Act when it terminated employees who complained on Facebook about working late at night in an unsafe neighborhood. The Board also found that a policy in the employer's handbook prohibiting disclosure of wage and compensation information was unlawful.

The employees at issue in Bettie Page Clothing (pdf) raised concerns to the store manager and others about the store's hours, which required that the employees close the store after dark. The employees were concerned about being harassed by "street people" after closing up. When the employees' internal complaints were not successful in having the store hours changed, the employees criticized the store manager during multiple discussions on Facebook. Shortly after the posts, the employees were terminated.

The employees filed a complaint with the Board challenging their terminations. The Board affirmed the decision of an Administrative Law Judge (ALJ), holding that the employees' complaints and sarcastic remarks about the store manager on Facebook were a discussion about the terms and conditions of employment. The Board stated that the discussions about the manager's refusal to address their concerns over store hours were "classic" concerted protected activities, and therefore, the employees' terminations based on those discussions were unlawful. The Board ordered the employees reinstated.

In addition, the Board affirmed the decision of the ALJ finding that the policy in the employer's handbook that prohibited the disclosure of wage and compensation information violated Section 7 of the Act. The Board ordered the employer to rescind the policy.

As we have discussed in the past, the Board continues to take a hard line when it comes to employee discipline for social media activity. The Board has made clear its position that discussions on Facebook are the equivalent to discussions around the water cooler, but I am not sure I agree. For example, discussions around the water cooler typically do not create electronic records and have a worldwide audience. Only time will tell whether the Board's decisions in this area will be affirmed by the courts.

Please also keep in mind that it appears that the Board has been reviewing employer policies with increased scrutiny. If you haven't done so already, it is a good time to proactively review your policies to ensure compliance with the Act.

Second Verse: Worse Than the First!

This post was contributed by Jennifer E. Will, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Practice Group.

You may recall a prior entry on this site detailing the National Labor Relations Board's Acting General Counsel's first social media report. The Acting General Counsel's second report was issued just six months later, which highlights how quickly the issues surrounding social media in the workplace are developing. It is important for private sector employers to remember that the National Labor Relations Act ("Act") applies, whether or not employees are represented by a union.

According to the new report, the following common policy provisions may be unlawful because they "chill" employees' rights under Section 7 of the Act:

  • Employees are prohibited from making disparaging comments about the company through any media, including online blogs, other electronic media or through the media.
  • Employees should generally avoid identifying themselves as the company's employees, unless there is a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.
  • Insubordination or other disrespectful conduct and inappropriate conversations are subject to disciplinary action.
  • Employees are prohibited from using social media to engage in unprofessional communications that could negatively impact the company's reputation or interfere with the company's mission or unprofessional/inappropriate communications regarding members of the company's community.
  • Employees are prohibited from disclosing or communicating information of a confidential, sensitive, or non-public nature concerning the company to anyone outside the company without prior approval of senior management or the law department.
  • Employees are prohibited from using the company's name or service marks (trademark, copyright, logo, etc.) outside the course of business without prior approval of the law department.
  • Employees who identify themselves as employees of the company must expressly state that their comments are their personal opinions and do not necessarily reflect the company's opinions.

We have discussed this many times before in the last year, but it is worth repeating: now is the time to review and narrowly tailor your policies to ensure compliance with rapidly-developing Board case law. With carefully crafted policies, you can still protect the your organization's reputation and intellectual property; enforce attendance and harassment policies; and do so, without infringing on employees' right to engage in protected concerted activity.

Even with a state-of-the-art social media policy, you should still think twice before firing that employee who takes to Facebook to solicit her coworkers' sympathy about her supervisor, job responsibilities, lost promotion, etc.

EEOC Targets Employers' Leave of Absence and Attendance Policies

Does your company’s leave policy call for an employee’s termination following the expiration of his or her leave entitlement?  Does your company charge “attendance points” against employees regardless of the reason for the absence?  Does your company require employees to be released to work without restrictions before they are permitted to return from a medical leave?  If so, beware: “inflexible” leave of absence and attendance policies are being targeted by the Equal Employment Opportunity Commission (“EEOC”) and plaintiffs under the Americans with Disabilities Act (“ADA”). 

Recently, McNees Wallace & Nurick LLC's Labor and Employment Group developed and distributed an Employer Alert warning employers about the risks in these areas and providing valuable guidance.  To read the Employer Alert click here

NLRB Administrative Law Judge Issues Another Social Media Decision

On September 28, 2011, a National Labor Relations Board (Board) Administrative Law Judge (ALJ) found that an employee who was discharged for posts he made on his Facebook page was not discharged in violation of the National Labor Relations Act (NLRA). In Knauz Motors, Inc., Case No. 13-CA-46452 (pdf), the ALJ found that the employee's Facebook posts contained both protected and non-protected activity, but that the employee was terminated for only the non-protected activity. As a result, the ALJ refused to find that the employee's discharge was unlawful.

The decision involved two different threads on the employee's Facebook page. The first included "mocking and sarcastic" pictures and comments about a sales event at the car dealership where the employee worked. The employee was dissatisfied with the food selection for the event, which included hotdogs among other things. The employee expressed his displeasure about the food selection at a meeting prior to the event, and another employee voiced a similar complaint. The ALJ found that since more than one employee complained about the food, the complaints constituted "concerted" activity.

The employee later testified that he believed that the food selection would impact his compensation, a term and condition of employment, because the dealership was a luxury car dealership and serving hotdogs might offend customers. However, the employee never mentioned any connection to compensation in his complaint during the meeting or on Facebook. Nonetheless, the ALJ found that the food selection at the event, even though "not likely," could have had an effect on compensation. As such, the ALJ concluded that the employee's complaints and the Facebook pictures and comments about the sales event constituted protected activity under the NLRA.

However, the second Facebook thread, which contained pictures and comments regarding an accident at a related dealership, was not protected activity.

The accident occurred when a salesperson at the related dealership let a 13-year-old boy sit in the driver seat of a new vehicle, and the vehicle eventually began moving and crashed into a pond. The employee took pictures of the accident and posted the pictures on Facebook with commentary. The ALJ found that these posts did not constitute concerted protected activity because there was no discussion with other employees about the accident and no connection to the employee's terms and conditions of employment.

Even though the employee argued that he was terminated due to his protected activity with regard to the sales event, the ALJ concluded that the employee's termination was lawful because he was terminated for the posts regarding the accident, and not the posts regarding the sales event.

Interestingly, when the terminated employee was confronted by management with the Facebook posts, the employee reacted as many employees may react. He stated that his Facebook page was "none of [their] business." However, while the Board may go to great lengths to protect employee social media activity, as with the posts regarding the sales event, not all employee social media activity is protected by the NLRA. Some posts may, in fact, be an employer's business.

The ALJ also evaluated four of the employer's policies, which the Board's General Counsel argued were overly broad in violation of the NLRA. The ALJ found that two of the policies, Unauthorized Interviews and Outside Inquiries Concerning Employees, restricted NLRA protected activity on their face and therefore, were unlawful. The ALJ found that a third policy, titled Courtesy, which stated that "[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership," could reasonably be construed by employees as restricting their rights under the NLRA. The ALJ found that the fourth policy, titled Bad Attitude, could not reasonably be construed to prohibit NLRA protected activity and therefore, was lawful. This part of the ALJ's analysis is a reminder that employers must be careful that their policies, and not just their social media policies, do not restrict protected activity.

Pennsylvania Act Protects Employees Who Report Crimes to Police

This post was contributed by Jodi M. Frankel, Esq. a new Associate in McNees Wallace & Nurick LLC's Labor and Employment Group.

Earlier this year the Superior Court of Pennsylvania held that a worker who was fired after he informed his employer that he was proceeding with legal action against a co-worker may maintain an action against the employer under Pennsylvania's Crime Victims' Employment Protection Act.

In Rodgers v. Lorenz (pdf), Rodgers—an employee of Carload Express—alleged that he was subject to repeated acts of verbal and physical harassment by a co-worker. After Rodgers reported to management that the co-worker threatened him on numerous occasions and, on one occasion, choked him, Rodgers was moved to a different job site. A few months later, Rodgers and the co-worker were assigned to the same site, but on different shifts. Thereafter, Rodgers alleged that the co-worker began to harass him during shift changes. Rodgers informed management of his intent to report the co-worker's conduct to the police. Despite the Company's request that he not call the police, Rodgers filed a complaint with the local authorities against his co-worker for harassment and assault. Carload Express fired Rodgers later that same day.

Rodgers filed a complaint alleging that Carload Express wrongfully terminated him for instituting criminal proceedings against his co-worker.

Rodgers brought his claim pursuant to the Crime Victims' Employment Protection Act (Act), which provides:

An employer shall not deprive an employee of his employment, seniority position, or benefits, or threaten to otherwise coerce him with respect thereto, because the employee attends court by reason of being a victim of, or a witness to, a crime or a member of such victim's family. Nothing in this section shall be construed to require the employer to compensate the employee for employment time lost because of such court attendance.

The Act provides a civil remedy, permitting recovery of lost wages and reinstatement for any employee penalized in violation of the Act. (Rodgers also brought a claim against Carload Express for negligent supervision; however, the court found that this claim was preempted by the Pennsylvania Workers' Compensation Act).

The Superior Court found that Rodgers could proceed to litigate his claim under the Act. The Court accepted Rodgers' claim that, after he informed management of his intent to file a police report, it was understood he would attend future criminal hearings. Such conduct, according to the Court, was protected under the Act. In so holding, the Court rejected Carload Express's argument that the Act protects those employees who have been victims of retaliatory action after attending court, but does not protect those who only have filed a police report and not yet attended a court hearing.

Specifically, the Superior Court noted that the Act was intended to ensure that crime victims could attend court proceedings without concern that their employment will be jeopardized. The Court reasoned that "it would be absurd…to prohibit an employer from terminating a crime victims' employment after he has attended court proceedings but to permit termination provided the employer acts preemptively." Put simply, the Act protects the employment of both crime victims who have attended court proceedings and crime victims who express an intent to attend future court proceedings related to a reported crime.

This decision may come as a surprise to many Pennsylvania employers who were not even aware of the Act. The most common application of the Act is to protect employees who were subject to discipline because they missed work due to a court proceeding involving a crime to which they were a victim or a witness, or where a member of their immediate family was the victim. Now, given the interpretation of the Act in the Rodgers case, an employer must be careful when an employee informs it that he/she has been the victim of a crime, intends to report the crime to the police, and will attend court to pursue legal action.

To be sure, the Act does not require that an employer provide paid time off so an employee can pursue legal action or otherwise compensate him/her for any lost time on account of court attendance. But an employer who takes disciplinary against an employee following such a criminal report may soon find itself facing its own legal action under the Act.

Curbing FMLA Abuse: Policies Restricting an Employee's Travel While on Paid Sick Leave

This post was contributed by Jodi Frankel, a new Associate in McNees Wallace & Nurick LLC's Labor and Employment Group.  Jodi graduated from the University of Virginia School of Law in May 2011 and sat for the Pennsylvania bar exam in July 2011

So your employee recently posted photos of herself lounging poolside with margarita in hand while out on FMLA leave. Can you do something more than just compliment her nice tan?

Earlier this year, in the case of Pellegrino v. Communications Workers of America (PDF), a Pennsylvania federal court answered yes. The court upheld the termination of an employee for violating a work rule that restricted employee travel outside the immediate vicinity while on FMLA leave.

Under a policy in its employee handbook, CWA provided sick pay to eligible employees on approved medical leave. Such wage replacement, however, was subject to certain restrictions. Specifically, employees were required to remain in the immediate vicinity of their homes while on sick leave unless they were seeking treatment or attending to ordinary and necessary personal or family needs. Employees also were permitted to leave the immediate vicinity if they received express permission from CWA.

Denise Pellegrino, a CWA employee, was out on approved FMLA leave following surgery. She also received sick leave pay under the CWA policy. While out on leave, Pellegrino took an unapproved week-long vacation to Cancun, Mexico. CWA learned of Pellegrino's travels and fired her; at the time of her termination, Pellegrino had yet to return from FMLA leave. Pellegrino sued claiming that CWA had unlawfully interfered with her right to take FMLA leave. CWA claimed that her termination was unrelated to her status under the FMLA, but rather because she violated its leave policies. CWA said it would have terminated Pellegrino regardless of whether or not she was on FMLA leave.

While the court agreed that Pellegrino was entitled to unpaid leave under the FMLA, it found no evidence that CWA's sick leave policy or its decision to terminate her employment while she was still out on leave improperly interfered with her rights under the FMLA. In fact, the court noted that to the extent the CWA policy provided a wage supplement, it might have actually encouraged employees to take advantage of their rights under the FMLA.

In its ruling, the court noted that "the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave." Similarly, companies have the right to create and enforce leave polices, including policies designed to rein in FMLA abuse, so long as such policies do not abridge an employee's rights under the FMLA. Where a sick leave policy has been adopted, the employer has the discretion to enforce it through means such as termination. The court further noted that, even in the absence of an explicit policy limiting employee travel while out on FMLA leave, an employer might reasonably terminate an employee for taking a vacation while receiving sick leave pay.

Sick leave policies similar to CWA's were previously upheld by courts in Pennsylvania. Such policies have included requirements that employees absent on sick leave stay at home during working hours, that employees obtain medical authorization and employer permission to leave the home, and that employees be subject to calls or visits by their employer.

The Pellegrino case underscores the court's growing concern with FMLA abuse and provides precedent for restrictive sick leave policies. However, an employer who suspects that an employee is abusing FMLA should conduct a thorough investigation and allow the employee to explain his/her conduct before taking immediate employment action.

First NLRB Administrative Law Judge Opinion On Employee Discipline For Social Media Use

On September 6, 2011, the National Labor Relations Board (Board) announced that a Board Administrative Law Judge (ALJ) had issued the first decision involving employee social media use. We previously reported that the Board has been very active in this area, issuing complaints and guidance, but this is the first actual decision from a Board ALJ. In the decision, Hispanics United of Buffalo (PDF), the ALJ ruled that the non-profit employer unlawfully discharged five employees after the employees posted comments on Facebook.

The ALJ first found that the small non-profit organization (which after the terminations at issue had only 25 employees) was covered by the National Labor Relations Act (NLRA), even though the organization operated only in the Buffalo, New York area. The ALJ went on to hold that the employees' Facebook comments amounted to concerted protected activity under the NLRA, and as such, their comments were shielded from discipline.  The ALJ concluded that the terminations were therefore unlawful, and ordered the employees reinstated with back pay.  

The facts are as follows:

An employee of Hispanics United of Buffalo, Inc. (HUB), who we will call the “Targeted Employee,” was repeatedly critical of her coworkers, because she believed that the coworkers did not provide adequate services to HUB’s clients. In October 2010, one of the criticized employees complained about the Targeted Employee on Facebook, and several of her coworkers commented on the post, which used the Targeted Employee’s name. Different people will likely have different views of the Facebook posts, but there is no dispute that the comments included vulgar language, sarcasm, and in my opinion, inappropriate comments that were critical of HUB’s clients.

The Targeted Employee sent a text message to HUB’s Executive Director complaining about the Facebook posts, which she believed constituted “cyber-bullying.” A few days later, the Executive Director terminated the five employees that were involved in the Facebook discussion. The Executive Director determined that the comments violated the HUB’s harassment policy.

After a hearing, the ALJ concluded that the Facebook discussion was concerted protected activity under the NLRA. The ALJ found that the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels (even though there was no mention of inadequate staffing and none of the employees claimed that they actually performed their jobs satisfactorily).

The ALJ also found that the vulgar language and sarcastic remarks were not sufficiently inappropriate to lose the protection of the NLRA. The ALJ held that the some of the employees did not use the Targeted Employee’s name, that the posts were not made from HUB computers, and that the comments were not really in violation of the HUB harassment policy.

The ALJ commented that “regardless of whether the comments and actions of the five terminated employees took place on Facebook, or ‘around the water cooler’ the result would be the same.”  But interestingly, the ALJ held that because the comments were not made in the workplace, even though they were viewed by several coworkers and a member of HUB’s board of directors, they were less egregious. Some might argue that posts on the Internet can be far more detrimental to an organization than passing comments “around the water cooler,” since the posts may be viewed by anyone, such as clients, customers, and board members, and the posts may remain available for viewing for a long period of time.

Nonetheless, the ALJ concluded that the employees were unlawfully terminated for engaging in concerted protected activity, and therefore, he ordered all five employees reinstated with back pay and interest.

This first ALJ decision is important because it serves as a reminder that the Board has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.  All employers, whether unionized or not, must be sure to conduct a thorough investigation before issuing disciplinary action, particularly if that disciplinary action will be based on an employee’s social media use. The investigation should document exactly what was said, who said it, when it was said, who may have viewed the posts, and whether or not the comments involved "terms and conditions of employment." As this case illustrates, that phrase may be interpreted broadly.

What Employers Should Know About Weather Related Absences

This post was contributed by Rick L. Etter, Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Group.

Given the increase in major weather events that have impacted Pennsylvania recently, including high winds and substantial flooding, employers should consider the following issues that may arise when closings, delays, and absences are caused by inclement weather.

Must employees be paid when the business is closed because of inclement weather?

Nonexempt employees need not be paid for time when they do not work because the business is closed. Exempt employees must be paid their salary for the week regardless of the business closing. An employer may require exempt employees to use accrued paid time off.

Must employees be paid if they don’t report to work due to inclement weather when the business is open?

Nonexempt employees need not be paid for the time they are absent from work. Exempt employees need not be paid for a whole day absence taken due to inclement weather. An exempt employee absent for part of a day may be required to use accrued paid time off. However, if the exempt employee has no accrued paid time off, his or her salary may not be docked for a partial day absence.

May an employee be disciplined or discharged for failing to report to work due to weather conditions when the business is open?

An employer may generally apply its normal attendance policy to weather related absences. However, there is one major exception. Under Pennsylvania law, an employer may not discipline or discharge an employee who fails to report to work due to the closure of the roads in the county of the employer's place of business or the county of the employee's residency, if the road closure is the result of a state of emergency. The law does not apply to the following jobs: drivers of emergency vehicles, essential corrections personnel, police, emergency service personnel, hospital and nursing home staffs, pharmacists, essential health care professionals, public utility personnel, employees of radio or television stations engaged in the gathering and dissemination of news, road crews and oil and milk delivery personnel.

National Labor Relations Board Issues Social Media Report

Recently, the Acting General Counsel of the National Labor Relations Board (Board) released a report, basically a score card, detailing the Board’s actions on 14 cases involving social media. Employee social media use has been a hot topic for the Board, for both union and non-union employers, and for us.

The Acting General Counsel’s report (PDF) is insightful and it covers a wide range of issues, including when employee social media use is protected by the National Labor Relations Act (NLRA), the permissible scope of employer social media policies, and how unions can get in trouble when using social media.

The report’s discussion of cases involving employee discipline confirms things we have previously discussed: the NLRA protects employees who engage in concerted activity from discipline, but there are limits to that protection and certain activity will lose the protection. Based on a review of the report, it seems that the Board is willing to stretch the definition of protected activity to shield employee social media activity. For example, the report indicates that the Board has found protected activity where an employee called a supervisor an “a—hole” and were an employee referred to a supervisor as a “scumbag.” It seems that the home team is getting the calls.

The report also details when employer social media policies end up out of bounds, which apparently, is quite frequently. The Board did not approve of any of the employer social policies reviewed, and found only one provision of one policy acceptable. The Board found that all of the policies were overly broad and not narrowly drawn; and therefore, in violation of the NLRA.

The report provides valuable insight into the Board’s view of social media in the workplace, and the odds that will face employers, both unionized and non-union employers alike, if employees file charges related to social media use.

United States Supreme Court Clarifies Public Employee Petition Clause Protections

This post was contributed by James Welch, a Summer Associate with McNees Wallace and Nurick LLC. Mr. Welch will begin his third year of law school at William & Mary School of Law in the fall, and he expects to earn his J.D. in May 2012.

In Borough of Duryea v. Guarnieri, 113 S.Ct. 2488 (2011) (PDF), the United States Supreme Court clarified that, although the Petition Clause of the First Amendment of the United States Constitution provides public employees separate and distinct protections, those protections are essentially the same as those afforded by the Free Speech Clause of the First Amendment.  This is good news for public sector employers, who already face a slew of additional concerns in the area of employee discipline. 

The Petition Clause has been trendy for public employees lately, but its contours have been somewhat unclear.  Generally, the Petition Clause protects the rights of individuals to petition the government to seek redress of grievances.  The courts have held that this provision protects public employees who file grievances against their employers.  In other words, public employers are prohibited from retaliating against an employee who has filed a grievance or other complaint. 

However, like other protections afforded to employees, there are limits to the protections afforded by the Petition Clause.  The issue in Guarnieri was, what types of grievances/complaints are protected? 

The Court held that the protections afforded by the Petition Clause are the same as those afforded by the Free Speech Clause.  Generally, the Free Speech Clause protects public employees who speak as citizens on matters of public concern, unless the speech infringes on the governmental employer's operations.  In Guarnieri, the Court clarified that, under both the Petition Clause and the Free Speech Clause, complaints about merely personal issues are not shielded from discipline.  Essentially, public employees are not protected when they advance merely personal issues, including grievances that related to personal matters. 

This decision was good news for employers, because even though it may be difficult to determine whether a particular complaint is protected, the Court declined to adopt a more expansive view of the protections afforded by the Petition Clause.  The decision allows public employers to rely on the rules they already know when evaluating the protections afforded to public employees by the First Amendment. 

The Guarnieri decision is also a good reminder to public employers to review policies that may implicate employees' constitutional rights, such as social media policies, to ensure compliance. 

Another Update on Social Media and Employee Discipline

We previously reported, the National Labor Relations Board (Board) has been very active in the area of employee social media use.  Recently, the Board's Office of General Counsel issued three (3) Advice Memorandums directing the dismissal of charges, which challenged discipline issued to employees based on the employees’ social media activity. This latest action, or inaction, by the Board offers us an opportunity to provide another update on social media and employee discipline. 

The National Labor Relations Act (NLRA) protects employees who engage in concerted activity from discipline. Board precedent defines concerted activity as (1) group action or action on behalf of other employees; (2) activity seeking to initiate or prepare for group activity, or (3) bringing a group complaint to the attention of management.  The recent announcements by the Board's Office of General Counsel shed light on the limits of the protections afforded to employees by the NLRA.

For example, in a July 7, 2011 Advice Memorandum, the Associate General Counsel (AGC) directed dismissal of a charge involving a bartender discharged via Facebook message! That’s right, the bar owner actually discharged the employee via Facebook message. The bartender had complained to his step-sister on Facebook about the fact that he had not received a pay raise and about the bar’s tipping policy. The bartender also made derogatory comments about the bar’s customers. The AGC found that the bartender had not engaged in concerted activity because while the post did address the terms and conditions of his employment, the bartender was not discussing these issues with his coworkers and there was no attempt to initiate group action.

In another case, the AGC directed dismissal of a case involving the discipline of a Wal-Mart employee who posted negative comments about his supervisor because the supervisor had criticized his work performance. Even though the employee’s post was commented on by his coworkers, the AGC found that the employee was merely griping, which is not concerted activity.

In a July 19, 2011 Advice Memorandum, the AGC directed dismissal of a charge challenging the discharge of an employee who made comments on Facebook, while at work, that mocked the mentally ill patients to whom the employee was supposed to be providing care. The AGC found no concerted activity because the employee was not communicating with coworkers, she was not discussing the terms and conditions of employment, and because she was merely having a personal conversation with a friend.

These decisions reflect that the NLRA does have limits and it will not shield all employee social media activity from discipline. Furthermore, it is important to note that in some cases, employee activity may be so inappropriate that it loses the protection of the NLRA, even if it was protected concerted activity. The Advice Memorandums summarized above did not have to address this issue because the social media activity was not protected.

While these decisions do provide some clarification for employers, they also highlight the fact-intensive nature of the analysis used to determine whether an employee has engaged in protected activity under the NLRA. Therefore, employers are still advised to seek counsel when considering possible disciplinary action for an employee based on the employee’s social media activity.

An Update on Social Media and Employee Discipline

A few months back, we reported that the National Labor Relations Board (Board) had issued a complaint against a company for disciplining an employee because she posted insulting remarks about her supervisor on her Facebook page. We subsequently reported that the complaint was settled. Since that time, the Board has remained very active in the the social media area, and has demonstrated an apparent desire to actively police that space.  The Board has issued several complaints, which send a strong message that the Board is interested in protecting the social media space for employees.

Before we move forward to discuss the Board's activity, lets first take a step back and remember that the rules of the game have not changed too much. The only difference is, the game is being played in a new arena. Since the enactment of the National Labor Relations Act (Act), employees have had the right to engage in concerted activity and to discuss the terms and conditions of employment without retribution from their employers. The right to discuss the terms and conditions of employment, includes the right to discuss wages, benefits, working hours and working conditions, and under the Board's precedent, also includes the right to complain about supervisors and managers in some cases. The Act prohibits covered employers from disciplining employees who exercise these rights.

While these employee rights have not changed, they are now being exercised in a new forum. Employees, and unions, have flocked to social media. Unions are using social media to help organizing campaigns, and employees are using social media for just about everything. As a result, conversations that used to occur in the break room and bar room now take place on Facebook or via Twitter. In the past, employers were probably not even aware that employees were discussing the terms and conditions of employment, but now these conversations on posted on the Internet, and in some cases, have a very wide audience.

When these discussions are offensive or disparaging, employers often want to take action. Understandably, employers may wish to discipline employees whose comments demonstrate a lack of professionalism or violate employer policies. However, the Board has been quick to step in and issue a complaint if, in the opinion of the Board, the employer's action has violated the Act.

The Board has issued complaints involving Facebook and Twitter, complaints involving negative comments about individual supervisors and the employer as a whole, and complaints against both union and non-union employers. As the Board's first widely publicized social media complaint demonstrates, it does not matter what the forum is, employers cannot discipline an employee for discussing the terms and conditions of employment, and social media policies cannot prohibit employees from exercising their rights under the Act. The Board seems intent on protecting employee use of social media. Importantly, however, the Board's authority ends at the outer limits of the Act. Recently, the Board dismissed a complaint involving an employee termination because the employee's inappropriate tweets did not involve the terms and conditions of employment and therefore, were not "protected activity" under the Act.

The Board's activity highlights some key points. 

First, the Board is not afraid to step into the social media fray, even though many employers themselves have not yet entered that space. Also, employers need to remember that if they are covered by the Act, whether or not they are a union or non-union workplace, they must comply with the Act's requirements. In addition, employers should have social media policies in place, but those policies cannot prohibit employees from engaging in protected activity. Finally, only certain activity is protected by the Act, not all employee social media activity is protected.

Generally speaking, these rules are not new. What is new is that employers must develop and implement a social media policy if they have not done so already. All employers need to have social media policies in place to ensure that they are not caught flat footed when the first social media issue pops up. And, if that has not happened already, it soon will. A good social media policy is written using plain language, reflects the employer's risk tolerance and culture, and provides employees guidance on appropriately using social media.

Finally, employers covered by the Act must be sure to take appropriate precautions before disciplining an employee based on content posted on a social media site. As we have seen, the Board will not hesitate to step in and issue a complaint.


Court Issues Ruling Restricting Ability to Suspend Police Officers Pending Investigation

In a recent precedent-setting opinion, the Third Circuit Court of Appeals significantly restricted the ability of police departments to suspend police officers pending investigation in Pennsylvania. The decision in Schmidt v. Creedon, __ F.3d __ (3rd Cir. 2011) (pdf) makes clear that absent extraordinary circumstances, prior to suspending a police officer for any reason, a police department must provide the officer with notice and a hearing.

In Schmidt, the plaintiff, a police officer, was suspended and ultimately terminated after he entered criminal charges against his superior officers into a criminal record data base. According to the employer, following a dispute, the officer left his duty area, entered information that there was probable cause to arrest some of his superiors officers, and failed to report these allegations through his chain of command. After the department conducted a brief investigation into the incident, the plaintiff was suspended pending further investigation. The officer was suspended three days after the incident occurred, and was not questioned or interviewed before he was suspended. The officer was eventually terminated, but reinstated by an arbitrator with no back pay.

The plaintiff filed suit against the department and some of his superior officers, alleging that they violated the 14th Amendment of the United States Constitution by suspending him without providing him with notice of the charges against him or a hearing. Under the 14th Amendment, a government actor cannot deprive an individual of life, liberty or property without due process. In the employment context, the courts have held that if another statute, such as a civil service statute, provides employees with protection from suspension or termination, then such employees have a property interest that cannot be taken away without due process. Interestingly, the court relied on a provision in the Borough Code to find that the plaintiff had a property interest in his job because the Borough Code provides that police officers may not be suspended or terminated without just cause.

The court concluded that the plaintiff was deprived of his rights under the 14th Amendment because he was not afforded due process before he was suspended pending investigation. The court held that, except for extraordinary circumstances, under Pennsylvania law, notice of the charges and a brief and informal pre-suspension hearing is necessary, even if the officer has access to a collectively bargained grievance procedure or other appeal process.

Only a brief and informal hearing is necessary in this context, and it appears that departments can satisfy these requirements by stating, verbally or in writing, the nature of the investigation, the nature of evidence currently available, and by allowing the officer to provide a statement. In addition to interviewing the officer before suspending him or her pending investigation, which has always been a good practice, departments should be sure to issue a written suspension notification.

The court made clear that there is an exception to the pre-suspension hearing requirement for "extraordinary circumstances," and further defined that term to include those situations in which some valid government interest is at stake that justifies postponing the hearing until after the suspension. However, the court did not determine whether such circumstances existed in this case, and provided no further explanation or guidance as to what may constitute extraordinary circumstances. Importantly, waiting a few days to suspend an officer while additional information is gathered may undermine a claim that an important interest existed that required immediate suspension without a hearing. The court also noted that the United States Supreme Court has held, in Gilbert v. Homar, 520 U.S. 924 (1997), that if a third party has determined probable cause existed to believe that a serious crime occurred, such as when an officer has been arrested and charged with a crime, a department may suspend an officer without a hearing.

The court appeared to go to great lengths to limit its decision in this case, and to provide departments with as much guidance as possible. For example, the court noted that if an officer is suspended with pay, the analysis would have very likely been different. However, while the court's decision appears to be limited to police officers, the due process requirements would apply to any public employee who is protected by statute from being suspended or terminated without good cause, unless the statute provides an exception or one of the exceptions noted above applies. Therefore, in addition to police departments, all public sector employers in Pennsylvania should be sure to review their suspension procedures to ensure compliance with this decision.

This decision will require some police departments to change their practices regarding suspensions pending investigation, and may hamper a department's ability to take immediate action in certain cases.

Switching to a Paid Time Off Program (PTO) has Practical and Legal Implications

Traditional leave programs segregate time off into categories like vacation, sick time and personal time requiring HR professionals to track both the time off and the reason it is being taken. Sick time abuses are addressed by tightly monitoring the reasons for sickness-related absences and disciplining employees for excessive absenteeism. Many employers have decided to get away from policing the circumstances of an employee's absence by just creating a bank of paid time off that can be used for any reason. Once PTO is exhausted, time off is unpaid and subject to the attendance discipline policy. This certainly sounds like a great idea, but here are some practical and legal considerations in converting from a traditional sick pay program to a PTO plan:

Timing the Change Over to PTO:

Changes in leave policies should be coordinated with either the end of the leave year period or some other workplace change like moving to a four-day workweek. The obvious choice is converting to PTO bank at the end of the year, since most employers administer their time off programs on a calendar/fiscal year. For employers using anniversary date leave years, it is too difficult administratively to run dual programs, so they should pick a date and change over for everyone.

Effect on Four-Day Workweeks

Employers need to remember that a change in workweek from five eight days to four day ten hour days also affects time off policies. A handbook or CBA may describe time off (PTO, vacation, holidays, personal and sick time) in terms of “days”. However,

a workday, which used to be an 8-hour day, is now a 10-hour day. The 8-hour day was 20% or the workweek, but the 10-hour-workday is 25% of the workweek. If a day expands to 10 hours, employees are getting more time off and, as a result, the company is losing 5% productivity. If a day stays at 8 hours then employees can’t cover the whole day off. Converting the whole PTO bank to hours can address this situation. (see Energy Expenses And Gas Prices Motivate Employers To Move To Four Day Workweek: What Are The Legal Issues?)

Addressing the Perception of a "Take Away":

Converting to PTO means combining vacation, sick days, personal days, and other time off into one bank. Employers almost never credit the entire amount of sick time to PTO banks. Therefore, employers need to address the perception that employees are losing sick time. I have found that referring to the statistic mentioned in the prior posting (average 8 sick days, use 5) makes some sense. Based on this ratio, I convert 60% of sick days to PTO and couple it with an explanation about trade offs.

Dealing with Accumulated Sick Time:

Some employers allow the accumulation of unused sick time as an incentive not to use it. (This practice drives accountants crazy). The accumulated time may be used in some of the following ways: to satisfy a waiting period for STD/LTD; as a pay out upon separation, typically at a reduced percentage (50%); or it is simply forfeited. Employers may seize the opportunity to clean up their balance sheet and pay out a portion of the accumulated time or convert it to PTO. This approach softens the blow of the perceived take away mentioned above. However, an employer's flexibility in dealing with accumulated sick time depends on its written policy and practice with regard to payouts. Be careful not to create a claim for unpaid fringe benefits under the Pennsylvania Wage Payment and Collection Law.

Exhausting PTO:

Employees who use all of their PTO are unpaid for additional absences and are subject to discipline under the attendance policy. Some traps for the unwary include: the prohibition on salary docking for exempt employees; additional unpaid leave as an accommodation under the ADA, and discrimination claims under the ADA.

Administering FMLA:

FMLA administration becomes more challenging in a PTO program since the employer is not necessarily aware of the reason for an absence. A serious health condition under the FMLA triggers an obligation to notify an employee of his or her FMLA rights and starts the counting of the time against the 12 weeks of leave. Employers must also address the concurrent use of PTO and FMLA leave in their policies.

Integrating STD and other Leave Programs:

Some sick leave policies were designed to integrate with the waiting period for STD benefits. A move to PTO creates a disconnect. The disconnect can be mitigated by allowing an employee with accumulated sick time to use it to satisfy the waiting period if he or she becomes eligible for STD benefits. Otherwise, PTO or unpaid time is used during the waiting period. Employers might address hardships by creating a PTO donation program where employees may donate unused PTO to a fellow worker who needs additional time.

Contesting Unemployment Claims:

 An employer's proof of willful misconduct to deny unemployment benefits will generally look at the incident that gave rise to the discharge. If the reason is a violation of employer's attendance policy, the employee can show that the violation was not his or her fault. An employee who is fired for excessive absences after "squandering" PTO, may still be eligible for unemployment if the absence that gave rise to termination was for a legitimate illness.

Drafting a Policy:

A written policy on PTO is strongly suggested and it should address at least the following areas:

  • Accrual Basis or Award Basis
  • Notice of Absence
  • Unused PTO carryover or forfeiture
  • Concurrent use of FMLA and PTO
  • Consequences of Exhausting PTO
  • Discipline/Discharge