Jennifer E. Will, a Member in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania was recently featured on WGAL News Channel 8 in a feature regarding employers’ rights to discipline employees testing positive for marijuana. Ms. Will commented on, among other things, an employer’s right to take action against an employee, even if marijuana use was legal. such as legal recreational use in states like Colorado.
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A National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) recently concluded that an employer violated the National Labor Relations Act (Act) by implementing a "no gossip policy" and by firing an employee who violated the policy. The case, Laurus Technical Institute, involved a non-union employer. As we have reported before, the NLRB’s jurisdiction

In the last several years, there has been an explosion in the number of workers who use their own personal mobile devices to perform work functions (commonly referred to as “Bring Your Own Device” or “BYOD”). In fact, according to a study conducted last year by tech giant Cisco, approximately 90% of all workers say they use their own personal smartphones, tablets or laptops in some work-related capacity, whether the practice is officially endorsed by their employers or not.

Whether or not you believe that the benefits outweigh the risks, it does not appear BYOD is going anywhere in the near future. Accordingly, employers should adopt comprehensive BYOD plans to mitigate potential security risks and legal liability that naturally comes along with employees utilizing personal mobile devices to perform work tasks. At a minimum, every BYOD plan should address three core components.
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We have been getting a lot of questions from employers about how employees’ legal use of marijuana impacts an employer’s ability to enforce its drug testing policy. Colorado and Washington recently became the first states to approve the recreational use of marijuana, but numerous other states have legalized the use of marijuana for medical purposes for several years. Now employers are asking: what happens if an employee tests positive for marijuana under our workplace drug and alcohol policy, but says that he or she used marijuana legally either for medicinal purposes or while in a state that has legalized marijuana for all purposes?
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The National Labor Relations Board’s (“NLRB”) Acting General Counsel (“AGC”) released yet another social media report recently (pdf), the third report in the last nine months. The report summarizes the AGC’s view on seven social media policies’ compliance with Sections 7 and 8 of the National Labor Relations Act (“NLRA”). This latest report, unlike the last two reports, does provide some guidance to employers on how to craft a social media policy that the AGC would deem lawful under the NLRA.
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You may recall a prior entry on our blog 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 applies, whether or not employees are represented by a union.
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Recently, members of McNees Wallace & Nurick LLC’s Transportation, Distribution & Logistics Group issued an Alert containing two articles that will certainly be of interest to many employers.
The first article, by Barbara A. Darkes, summarizes Pennsylvania’s implementation of the new medical certification requirements for individuals holding Commercial Drivers Licenses.

The second article, by James J. Franklin, summarizes a new law that bans texting while driving on all Pennsylvania roadways effective March 9, 2012. Employers should review these developments carefully and revise their policies as necessary.
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Recently, 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. In Knauz Motors, Inc., 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.

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 it may appear that the Board will go to great lengths to protect employee social media activity, not all employee social media activity is protected by the National Labor Relations Act. Some employee posts may, in fact, be an employer’s business.
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