This post was contributed by Adam R. Long, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania.

In a 9-0 decision issued yesterday, the U.S. Supreme Court held that time spent by non-exempt workers waiting to undergo and undergoing security screenings before leaving their workplace at the end of their work day was not compensable hours worked under the Fair Labor Standards Act ("FLSA"). In Integrity Staffing Solutions, Inc. v. Busk, the plaintiffs were hourly warehouse employees required to submit to a security screening before leaving the warehouse at the end of each day. The plaintiffs claimed that they spent approximately 25 minutes each day waiting for and undergoing the security screening, which required them to remove their wallets, keys, and belts before passing through a metal detector.

The Portal-to-Portal Act of 1947 amended the FLSA to exempt from compensable hours worked any time spent on "activities which are preliminary to or postliminary to" an employee’s principal activity or activities. Prior Supreme Court decisions established that "principal activity or activities" included all activities that are an "integral and indispensable part of the principal activities."

Writing for a unanimous Court, Justice Thomas applied existing Court precedent to conclude that the post-shift security screenings at issue were noncompensable postliminary activities. Specifically, Justice Thomas explained that the screenings were neither the warehouse workers’ principal activity nor "integral and indispensable" to their job duties of retrieving products from shelves or packing them for shipment.

In reversing the decision of the Ninth Circuit Court of Appeals, the Court rejected the Ninth Circuit’s focus on the fact that the employer required the screenings. Instead, the proper analysis is whether the activity at issue is "tied to the productive work that the employee is employed to perform."

The Court made clear that an activity is "integral and indispensable" to an employee’s principal activities only "if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." Because post-shift security screenings do not meet that test, the plaintiffs’ FLSA claims failed.

Claims for unpaid hours worked by non-exempt employees are a growing and significant source of class-based FLSA claims. Going forward, employers can feel confident that pre-shift and post-shift security screenings will not be a source of liability. That said, employers still should ensure that their time records accurately capture all hours worked by non-exempt employees. Many sources of potential class-based liability still exist for "off-the-clock" work, including remote access to employer computer networks and e-mail, work during unpaid breaks, and travel time. While the Integrity Staffing Solutions decision is welcome news for many employers, the "off-the-clock" work issue remains a real and significant concern for the unwary employer.

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.

Pennsylvania employers can achieve positive results and realize other important gains by wisely and effectively responding to, and when appropriate, contesting unemployment compensation claims. This post is Part 3 of a 3 part series on handling UC claims and addresses best practices for appealing to the Unemployment Compensation Board of Review/Commonwealth Court, when to involve legal counsel, and mandatory electronic filings of UC quarterly reports. Part 1 can be viewed here and Part 2 can be viewed here.

Appeal to the Unemployment Compensation Board of Review (UCBR)

  • It is important that you file your appeal within 15 days from the date the Referee’s Decision/Order is issued (not the date of employer’s receipt)
  • This is a simple process and can be completed by letter or by filling out a UC Appeal petition form. You can mail, fax, or e-mail the appeal letter/petition.
  • Be sure to include the claimant’s name, UC claim number, last four digits of the claimant’s social security number, the date of the decision, and statement of the reasons for the appeal.
  • This is a paper appeal. There is no additional hearing. An additional hearing will only be ordered in very rare instances to take additional evidence if the initial hearing was not complete. The Board will consider the Referee’s hearing transcript and exhibits and will issue a Decision and Order.
  • The appealing party can request a copy of the hearing transcript and permission to submit a letter highlighting why the decision should be reversed or a more formal brief with legal authority in support of an appeal–but a supporting letter/brief is not required. Likewise, the non-appealing party can request a transcript and permission to submit a letter or brief in opposition to appeal (but neither is required).

Appeal to Commonwealth Court

  • You can appeal the decision of the UCBR to the Pennsylvania Commonwealth Court. This is more complex and costly than administrative appeals to the Referee or the UCBR.
  • A petition for appeal must be filed with the Court within 30 days of the date of the Board’s Decision/Order (not from date of employer’s receipt).
  • An appeal to the Commonwealth Court is a much more formal and has detailed procedural requirements including the provision of a reproduced record and supporting/opposing briefs. Technically you can "do it yourself" but you should have an attorney involved due to substantial procedural requirements.

When to Involve Legal Counsel in UC Cases

  • Involving legal counsel at the earliest stage, when necessary, can greatly increase an employer’s chances of success and limit exposure to more significant liability in certain cases.
  • Example of when to involve counsel include:

A) complex cases involving difficult factual or legal issues (independent contractor vs. employee classification issues, separations due to failed drug test);

B) When there is the possibility of exposure to other more significant potential liabilities, such as when a claim of discrimination has been made or is anticipated in connection with the employee separation related to the UC benefit application; or

C) When the claimant has legal counsel.

Mandatory Electronic Filing of UC Quarterly Reports

Effective with the first quarter of 2014, employers are required to electronically file quarterly UC tax and wage reports through the Unemployment Compensation Management System (UCMS). Employers will not receive and may not file paper filing forms unless a waiver has been requested and granted. Failure to electronically file as required may result in assessment of a penalty (10% of quarterly contributions for the period with a minimum $25 and maximum $250 penalty amount).

If you have any questions regarding any of the information discussed in this 3-part series or need assistance with an unemployment compensation matter, please contact any member of our Labor and Employment Law Group.

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.

Pennsylvania employers can achieve positive results and realize other important gains by wisely and effectively responding to, and when appropriate, contesting unemployment compensation claims. This post is Part 2 of a 3 part series on handling UC claims and addresses best practices for preparing for and participating in a Referee’s Hearing. Part 1 can be viewed here.

Preparing for the Referee’s Hearing

  • Know relevant facts inside and out. 
  • Review Notice of Hearing to confirm issues that will be addressed at the hearing.
  • Identify and prepare necessary witnesses. Only present witnesses with first-hand, direct knowledge of relevant facts. Avoid hearsay and second-hand testimony.
  • Timely request and serve a subpoena for any necessary adverse or other witness that is not readily available to you. Be sure to check the availability of all necessary witnesses in advance!
  • Timely request a continuance if necessary.
  • Identify, assemble, and organize relevant documents to be introduced at the hearing. Each document used at the hearing must be identified and authenticated by a proper witness (one with first hand knowledge of what the evidence is). Bring 4 copies of each document to the hearing (one each for the witness, the employer’s presenter/representative, claimant/opposing attorney, and the Referee).
  • Review the Referee’s file prior to the hearing. You can do this the day of prior to the start of the hearing or prior to the hearing date.
  • Request copies of any claimant statements or other documents that you don’t have which could be helpful to (or hurt) your case.
  • Prepare an outline and/or questions in advance to avoid missing any important points.

Telephone Testimony

  • Determine if any witness qualifies and will need to testify by telephone and if so make a prompt request. The Referee may schedule testimony by telephone when a party or witness is located at least 50 miles from the hearing location.
  • Testimony by telephone of a party or witness may also be allowed, at the request of a party, when the parties consent to the receipt of testimony by telephone or the party or witness is reasonably unable to testify in person due to a compelling employment, transportation, or health reason, or other compelling problem.
  • Special rules apply to hearings involving telephone testimony. For example, special notices must be issued by the Referee’s office well in advance of a hearing involving telephone testimony (as much as 14 days in advance). Submit a request for permission to present telephone testimony as soon as possible.
  • Documents to be used in connection with the telephone testimony must be identified, exchanged, and provided to the witness who will testify by telephone in advance. The party requesting testimony by telephone is responsible for identifying, assembling, and providing documents. The requesting party must supply the name, location, and telephone number of any witness who will testify by telephone. The witness may be questioned to confirm identity.

At the Hearing

  • Be respectful and polite to the Referee, the other side, and witnesses despite the adversarial nature of the hearing. Referees will evaluate your actions during the hearing including an assessment of your credibility. Substance/facts–neither style nor grandstanding–will carry the day.
  • Organize and present your case in a logical and clear manner. Start with relevant background, present a chronology of events, and tell the Referee what the case is about early on (e.g., the Claimant was terminated for stealing), then go back and fill in details.
  • Stick to relevant facts: Get all important facts in the record; avoid getting side tracked and distractions.
  • Object to irrelevant or improper testimony or documents. Use your judgment and common sense, if it does not seem relevant, state an objection on the record.
  • State on the record if you feel that the Referee is precluding you from presenting relevant information. This could be important if there is an appeal.

Stay tuned for Part 3 of this series. In part 3, we will provide tips for appealing a Referee’s decision, when to involve legal counsel, and filing required reports.

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.

Pennsylvania employers can achieve positive results and realize other important gains by wisely and effectively responding to, and when appropriate, contesting unemployment compensation claims. This post is Part 1 of a 3 part series on handling UC claims and addresses best practices for responding to the initial UC claim.

Responding to the Initial UC Claim

  • Prior to termination, think about possible claims. If applicable, couch the decision in terms of willful misconduct. If you issue a discharge letter, be sure to cite relevant policies.

Respond to all claims (both contested and uncontested).

  • A late 2013 amendment to PA’s UC Law provides that an employer’s UC reserve account will be charged for claimant overpayments as a result of an employer’s failure to respond or late response to information requests by UC authorities.
  • An Employer’s response will be considered inadequate if “the response misrepresents or omits facts that, if represented accurately or disclosed” would have been the basis for denying a claimant benefits. Other penalties can apply.
  • The days of not responding are over — Employers can no longer risk playing too fast and loose with responding to requests for information relating to UC benefit applications.
  • Be careful of “assisting” separating employees with obtaining UC benefits or promising not to contest benefits.

Respond timely.

  • 14 days to respond (from date on UC questionnaire form (not date of employer’s receipt).
  • Consequence of failure to respond or late response: an eligibility determination may be issued without consideration of employer’s information.

Be accurate and consistent.

  • Provide clear, first-hand information regarding reason for separation.
  • Inconsistencies, inaccuracies and exaggerations can come back to bite an employer in connection with other more significant matters! (Example – discrimination claims).

Appealing the Initial Determination

  • Simple process: can be by letter or a UC appeal petition form
  • Can mail, fax, or e-mail appeal letter/petition
  • Be sure to include the claimant’s name, UC claim number, last four digits of the claimant’s social security number, the date of the decision, and statement of the reasons for the appeal.
  • Submit timely appeals –15 days from the date of the decision (not the date of the employer’s receipt). The appeal is timely if post-marked by the appeal deadline date or otherwise upon receipt.

Stay tuned for Part 2 of this post where we will explore preparing for a referee’s hearing and what to do at the hearing!

This post was contributed by Kelley E. Kaufman, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Has your Company conducted training on the prevention of discriminatory harassment in your workforce recently? Does the Company regularly train supervisors and managers on how to recognize important employee issues and to promptly (and effectively) address them? For example, do your supervisors and managers understand the importance of wage and hour issues? Do they understand how to recognize medical leave and accommodation-related issues? Do they appreciate the necessity of candid performance evaluations, timely and concise recordkeeping, and consistent policy enforcement? Do they know when and how to get Human Resources and/or management involved? The answer to all of these questions should be "YES!"

As your Company begins planning and budgeting for 2015, don’t forget the necessity and importance of employee training – from your rank and file employee base, to your supervisors and managers, to Human Resources and Company management. Remember: a little bit of training now can go a long way towards preventing employment law claims in the future!

Our Labor & Employment Practice Group regularly works with employers to develop and provide customized labor and employment law training. Through our McNees Training Academy, we can help you build an efficient, effective training curriculum that is tailored to suit the needs of your workforce – from general labor and employment law compliance to basic Human Resources skill-building to narrowly focused, industry-specific topics. We can also design your training program to help you "train the trainer," coaching your Human Resources and management teams on how to effectively train hourly employees on selected legal issues. For a sampling of topics that can be incorporated into a training program tailor-made for your Company, click here for a copy of the MWN Training Academy brochure.

If you have any questions about the McNees Training Academy, or on considerations key to developing an effective employee training program, contact any member of our Labor & Employment Practice Group in Harrisburg (717-232-8000), Lancaster (717-291-1177), State College (814-867-8500), Scranton (570-209-7220), or Columbus, Ohio (614-469-8000).

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.

In a recent unreported decision, the Pennsylvania Commonwealth Court considered a part-time employee’s eligibility for Unemployment Compensation ("UC") benefits after she was fired for disregarding her employer’s prior directive to not work past the end of her shift after punching out. The unemployment claim yo-yoed through the administrative process: after the claimant was initially determined eligible for UC benefits, the Referee reversed that decision and determined the claimant ineligible, and then the Board of Review reversed the Referee’s decision and determined the claimant eligible for benefits.

On appeal to the Commonwealth Court, the record contained credible evidence submitted by the employer that the claimant-employee was informed during a morning meeting that working past her scheduled hours, after punching out, violated both wage and hour laws as well as the employer’s policy, and that she must stop the practice immediately. Despite this, at the end of her shift that same day, the claimant once again continued to work beyond her scheduled shift after punching out. She was terminated as a result.

Although acknowledging that her employer in fact had at least mentioned that working after punching out was in violation of wage and hour laws, the claimant downplayed that part of the discussion, claiming that the primary topic of the meeting was the claimant’s recent history of reporting to work late. The claimant further testified that because the meeting made her very upset and anxious, she simply forgot the discussion about working past her scheduled shift and therefore she did not act willfully or deliberately disregard the employer’s directive when she again worked past the end of her scheduled shift after punching out later that day.

The Commonwealth Court agreed with the Referee and found that the record "amply supported" the factual finding that the claimant simply "forgot" the discussion only a few hours earlier that morning about working off the clock hours because she was stressed and distraught. Consequently, the Court ruled, the Board of Review did not commit an error of law when it determined that the claimant’s failure to comply with the employer’s directive prohibiting working after punching out was not intentional or deliberate; meaning that, because the claimant’s separation from employment was not due to "willful misconduct," she was eligible for UC benefits under Section 402(e) of the Law.

Although the employer in this case did the right thing from a wage and hour perspective, by informing its employee that working "off the clock hours" was prohibited, its good intentions and correct approach in that respect failed to carry the day in the unemployment compensation arena. In that regard, this case is but another example of how the eligibility standards for unemployment benefits are applied very liberally in favor of employees. Although we do not view this decision as well reasoned, balancing the potential risks and liabilities, the employer nonetheless took the better approach by addressing the more significant and potentially more costly wage and hour issue in spite of, and even if doing so compromised, the unemployment eligibility outcome. One recommendation: confirm similar directives to employees in writing.

If you have any questions regarding this post or need assistance with an unemployment compensation matter, please contact any member of our Labor and Employment Practice Group.

This post was contributed by Paul D. Clouser, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Lancaster, Pennsylvania.

As a general rule, an employee is deemed not to be “in the course and scope of employment” and is therefore not entitled to workers’ compensation benefits, while commuting to and from work. This is known as the “going and coming” rule. However, if the employee is deemed to be a “traveling employee” (as opposed to a stationary employee with a fixed place of work), the scope of employment is much broader and the employee is entitled to a presumption of coverage while commuting, unless his actions at the time of injury were so foreign to and removed from his usual activities, as to constitute an abandonment of employment.

In Holler v. WCAB (Tri-Wire Engineering Solutions), the Claimant was employed as a cable technician, responsible for installing cable and network services at customers’ homes and businesses. He began each day by reporting to his employer’s facility, where he checked in, received his assignments for the day and picked up his equipment. He then spent the rest of the day traveling to and working at various customer locations. Employer allowed Claimant to take a company vehicle home each evening and then use it to return to work in the morning. Claimant was prohibited from using the vehicle for any purpose other than commuting or traveling between customer locations.

On the morning of August 13, 2010, on his usual commute to work, Claimant was seriously injured when his vehicle ran off the road and struck a utility pole. He was life-flighted to the hospital and was unable to return to work following the accident.

The WC Judge and Appeal Board both denied benefits, on the basis of the familiar “going and coming rule,” and since Section 301(c)(i) of the Act specifically states that injuries are not compensable if those “injuries [are] sustained while the employee is operating a motor vehicle provided by the employer if the employee is not otherwise in the course of employment at the time of injury.” However, the Commonwealth Court reversed and awarded benefits, noting that Claimant was more accurately described as a “traveling employee,” despite the fact that he briefly reported to the employer’s office each morning, before beginning to make his rounds. Accordingly, the “going and coming” rule was inapplicable and Claimant’s morning “commute” to the office was presumed to be part of his work and the resultant injuries compensable.

In Simko v. WCAB (U.S. Steel Corporation), the WC Judge awarded benefits for a severe brain injury sustained by Claimant, while he was commuting to the employer’s premises for a safety meeting. Claimant was a member of the safety committee and was required, on a monthly basis, to report to work one and one-half hours before the start of his regular shift. Attendance was mandatory and Claimant was paid for this time. Additionally, “stand-down” meetings were held less frequently, when serious accidents or fatalities would occur. Testimony established that on the morning of the accident, Claimant was heading into a combination monthly meeting/stand-down meeting.

The WC Judge held that although Claimant was a stationary employee and therefore subject to the “going and coming rule,” an exception to the rule exists for “special missions” that further the interests of the employer. Claimant was engaged in such a “special mission” when he left his home on the morning of the accident, to meet with management and other safety committee members for a “stand-down” meeting, prior to his regularly scheduled shift.

The Board and Commonwealth Court reversed, however, holding that meeting attendance is deemed to be a part of an employee’s regular work duties, and that traveling to or from such meetings is not a special mission. Also rejected, was Claimant’s argument that the “special circumstances” exception to the going and coming rule applied. In other words, Claimant argued that he was in fact furthering the interests of his employer by commuting to work for a meeting on workplace safety, which by definition promotes the employer’s safety goal. Once again, however, the Court noted that although attendance at such meetings may further the employer’s safety goal, it is still a part of Claimant’s regular work duties. Further, Claimant did not dispute that the safety meetings were treated as a part of his regular duties and pay, and that the meetings were held on the same premises where he performed his regular job as a strand operator.

If you have any questions or concerns as to whether an employee was truly in the “course and scope” of his or her employment, thus entitling the employee to payment of WC benefits, please contact Paul Clouser or Denise Elliott in our Lancaster office.

This post was contributed by Eric N. Athey, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Lancaster, Pennsylvania.

On January 1, 2015, employers with 100 or more "full-time equivalents" will be subject to the "Pay or Play" regulations under the Affordable Care Act ("ACA"). Over the past few years, many consultants have sought to identify loopholes in the law and lower-cost strategies for complying. Unfortunately for employers who were banking on these "workarounds," the Internal Revenue Service and the U.S. Department of Labor both issued guidance this week dismissing several of the more aggressive strategies that have garnered attention in the press.

Skinny Plans Kaput? A 2013 article in the Wall Street Journal highlighted the possibility that employers might offer low-cost "skinny plans" to avoid some or all of the "pay or play" penalties under ACA. Skinny plans typically offer little or no hospitalization benefits or physician services and only minimal preventive services. The legitimacy of skinny plans under the ACA appeared to be secure when they were not expressly addressed in final regulations governing "minimum value." In addition, many skinny plans appeared to pass muster under the "minimum value calculator" that was developed by the feds for use by employers and carriers. However, on November 4, 2014, the IRS issued Notice 2014-69 indicating that they will promptly be issuing proposed regulations stating that plans which do not offer hospitalization and/or physician service benefits do not constitute "minimum value" coverage under the ACA. The forthcoming proposed regulations will not apply to skinny plans that were in existence before November 4, 2014; however, such plans will lose their exempt status at the end of the plan year beginning no later than March 31, 2015.

The recent IRS guidance further states that employers may not issue any notices to employees suggesting that their skinny plan is considered "minimum value" under ACA or will otherwise affect an employee’s eligibility for a tax subsidy – and that any prior notices to this effect must be rescinded and clarified. The practical impact of this change is that employers who solely offer skinny plans that do not qualify as minimum value coverage may be subject to a penalty of $3000 for every full-time employee who qualifies for a tax subsidy to purchase coverage on the health insurance exchange. Notwithstanding this development, skinny plans will likely continue to qualify as "minimum essential coverage" and thereby prevent imposition of the "no coverage penalty" (i.e. $2000 for all but 30 full-time employees); however, it remains to be seen whether they will be adopted by many employers for this reason.

Reimbursing Employees For the Cost of Individual Plans. Some employers have considered dropping group coverage but reimbursing full-time employees for part or all of the premium for a policy purchased on the individual market. Doing so could constitute a valuable employee benefit and some believed it could minimize employer pay or play penalties under ACA. However, in guidance issued on November 6, 2014, the U.S. Department of Labor ("DOL") indicated that such arrangements constitute "part of a plan, fund, or other arrangement established or maintained for the purpose of providing medical care to employees." This being true, the DOL found that these payment arrangements must comply with ACA’s market reform provisions – including free preventive care requirements and no annual or lifetime limits. According to the DOL, payment arrangements of this nature cannot be "integrated" (i.e. combined) with individual market policies in order to comply with these requirements. Significantly, the DOL guidance applies to these arrangements regardless of whether the employee payments or reimbursements are handled on a pre-tax or after-tax basis.

What if an Employee is Reimbursed Via a Section 105 Plan Through a Broker or Agent? Some vendors have sought to avoid the status of "employer reimbursement plans" (discussed in the paragraph above) by setting up their own Section 105 plans through which client-employers can reimburse their employees for the cost of individual coverage. In their recent guidance, the DOL specifically pointed out that these arrangements are, in themselves, health plans and will disqualify participating employees from receiving tax subsidies on the exchange. In addition, as health plans, these arrangements will be subject to ACA requirements regarding free preventive care and annual and lifetime limits. This conclusion is consistent with prior guidance issued by the IRS. Employers that pursue such arrangements do so with substantial risk.

Paying Plan Participants with High Claims to Drop Coverage. ACA prohibits employers from discriminating against employees who qualify for a tax subsidy to purchase coverage on the exchange (which will often trigger an employer penalty). However, the Act says nothing about employers who offer cash incentives to employees to drop employer-provided coverage. Over the past year, a number of commentators argued that such employer "cash-outs" or "dumping" of high-risk or high-claim participants would save costs for employer group health plans and threaten the viability of exchange plans. Although the ACA is silent on this specific practice, the DOL’s November 6, 2014 guidance indicates that offering cash to such participants would violate HIPAA’s non-discrimination rules and may constitute a violation of Section 125 non-discrimination rules. Suffice it to say, the DOL’s reasoning is somewhat strained and does not bear repeating here; however, the guidance makes it clear that such "cash out" programs targeted at high-risk or high-claim participants are likely to be challenged by the Department.

The ACA provides ample room for employers to be creative in their compliance strategies. However, many of the "silver bullet" strategies that have been touted by some consultants over the past 18 months always seemed too good to be true and, it turns out, they are. Employers that have been considering these strategies will need to redirect their efforts or proceed with knowledge that they are likely to face a challenge if audited. Only time will tell whether the positions taken by the IRS and DOL in the recent guidance will hold up in court. Employers who prefer to stay out of court are well-advised to steer clear of these workarounds.

We are pleased to announce that U.S. News and World Report and Best Lawyers ranked the McNees “Employment Law – Management” and “Labor Law – Management” practices as Tier 1 practices in the Harrisburg metropolitan area.

The “rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.”

While we don’t want to gloat, we are also thrilled to be joined on this elite list by 15 additional McNees practice areas including Energy Law, Health Care Law, Insurance Law, Tax Law, and Trusts & Estates Law.

Thank you for being a loyal reader of the Pennsylvania Labor & Employment Blog. As always, if you have any labor or employment needs, please reach out to the McNees attorney with whom you regularly work or any one of our “Tier 1” Labor & Employment attorneys.

This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Stop me if you heard this one: the National Labor Relations Board recently reinstated employees who were discharged for comments made on their Facebook pages and found that the employer’s social media policy was unlawful.

We have covered this topic in detail before (here, here and here for example), and you can check out these posts and others in our Archive for some background information on the Board’s aggressive approach to social media issues. In Triple Play Sports Bar and Grille, the Board made clear its position that under the National Labor Relations Act, employees have the right to act together to improve the terms and conditions of their employment and to "improve their lot." The Board went on to state that this includes the right to use social media to communicate with each other and with the public for this purpose.

On the other hand, the Board also noted that online communications can implicate legitimate employer interests, including the right to maintain employee discipline. The Board noted that the competing interests of the employees and the employer must be weighed carefully (yes, you know where this is headed). In this case, not surprisingly, the Board found that the employees’ interests outweighed the employer’s interests and that the employees’ conduct did not lose the protections of the Act despite the use of some pretty offensive language.

Let’s take a look at the facts.

Continue Reading Board Continues Aggressive Policing of Employee Social Media Use