2014 MVP LAW SEMINAR EMPLOYMENT LAW HANDBOOK www.mvplaw.com AUDIT KEEP CALM AND CALL MVP DALLAS JULY 17TH KANSAS CITY AUGUST 7TH ST. LOUIS SEPTEMBER 25TH
EMPLOYMENT LAW HANDBOOK AUDIT: TECHNOLOGY IN THE WORKPLACE SOCIAL MEDIA POLICY Issue: Employees comment, share, like, tweet, and snapchat every aspect of their lives. It is imperative that Employers have a social media policy which protects their company s interests without infringing on employee rights. The National Labor Relations Board (NLRB) determined many companies social media policies illegally hinder workers exercise of their rights. However, the NLRB provided guidance for employers on how to appropriately draft social media policies which protect business interests without infringing on employee rights. Please see the note below on the impact of the recent Supreme Court decision on the NLRB s authority based on the presidents recess appointments. Social media policies must not infringe on employees right to discuss working conditions online. Section 7 of the National Labor Relations Act, 29 U.S.C. 151-169, protects employees rights to engage in concerted activity that is for mutual aid and protection. Thus, employees have the right to discuss working conditions through social media networks. Social media policies must not chill the exercise of Section 7 rights. The NLRB has provided guidance on appropriate and inappropriate employer social media policies. On May 30, 2012, in an effort to provide guidance to employers regarding social media policies, the National Labor Relations Board s Acting General Counsel issued an Operations Management Memorandum focusing exclusively on the legality of social media policies. NLRB, Operations Memorandum 12-59 (May 30, 2012) ("OM 12-59"). The memo reiterated that the NLRB continues to rely on the holding of Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004). In Lutheran, reiterated that a policy is unlawful if it "reasonably tends to chill employees in the exercise of their Section 7 rights." Id. at 646. The NLRB follows a two-step inquiry to determine whether the rule unlawfully prohibits Section 7 activities. First, a rule is unlawful if it explicitly restricts activities that Section 7 of the NLRA protects. Second, "if the rule does not explicitly restrict activity protected by Section 7," it is still unlawful if "(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. "Id. at 647. Examples of social media policies the NLRB found could reasonably be construed to prohibit Section 7 activities: o Instructions that Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline. OM 12-59, at 8-9 1
This prohibits a range of communications that would include protected criticisms of the employer s labor policies or treatment of employees. Id. Specific examples would help eliminate ambiguities. Id. o Restrictions on releasing "confidential information" about coworkers and "company information," as well as restrictions on sharing confidential information with coworkers. Id. at 3-5. NLRB determined this provision may be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment as well as the conditions of their co-workers. Specific language exempting Section 7 activity or providing specific examples of what is considered confidential (i.e. trade secrets, product information, dates, or private health details) will likely be lawful. o Instructions that posts are "completely accurate and not misleading and that they do not reveal non-public company information on any public site." Id. at 6-7. o Prohibitions on posting photos, music, videos, quotes, and personal information without the owner's permission, and using the company's logo, in the absence of any explanation of the scope of those restrictions. Id. at 7. o Prohibitions against posting personal information about other employees, commenting on "legal matters," picking fights, engaging in controversial discussions, and expressing complaints online. Id. at 9-12. o Savings Clause such as, Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act) is insufficient to cure overbroad policies. Id. at 12. Employees would not understand Section 7 activities are permitted. Id. o Rule prohibiting making disparaging comments about the company through any media, including online blogs, other electronic media or through the media. Id. at 16. The NLRB found this provision was overbroad and could reasonably be construed to restrict Section 7 activity. o Provision advising employees to Think carefully about friending co-workers. Id. at 8-9. NLRB determined this provision was unlawfully overbroad because it would discourage communications among co-workers. Limiting language clarifying for employees that it does not restrict Section 7 activity would be helpful. Examples of social media policies the NLRB upheld as lawful: 2
o The NLRB approved a prohibition against inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct. Id. at 20. o Requirement that employees be "'fair and courteous' in the posting of comments, complaints, photographs or videos" where the policy lists, as examples, posts that could be "viewed as malicious, obscene, threatening or intimidating," that could amount to "harassment or bullying," or that could create a hostile or discriminatory work environment. Id. o Requirement that employees maintain the confidentiality of the employer's trade secrets and confidential information, where the employer provided examples of prohibited disclosures that did not include protected communications. Id. Conclusion: When drafting social media policies, employers should adopt social media policies that are specific rather than impose across the board prohibitions. Id. at 20. It is important to define what is appropriate through specific examples of what is covered or through limiting language that would exclude Section 7 activity. Define with specificity the types of communication the policy restricts and the business purpose for the restrictions. These policies should speak to all types of online communication, including, Snapchat, Facebook, Twitter, YouTube, Pinterest, Vine. Finally, be clear about the consequences of employee s online actions. Note: In January 2012, President Obama, frustrated with Senate inaction on NLRB nominees, used his power to make recess appointments to fill vacancies on the NLRB. The Supreme Court recently found President Obama lacked the authority to make these recess appointments. As such, the NLRB lacked a quorum when the aforementioned decisions were decided. It is unclear how the newly appointed NLRB will act once a quorum is reached. They may affirm/endorse the board decisions issued. It is important for employers to be conscious of the fact that these decisions may or may not be subject to change. PHONE ACCESS TO WORK EMAIL AFTER HOURS Issue: If an employee receives work-related emails on a work provided phone, will viewing those emails count as compensable work that counts towards overtime pay? FLSA o The FLSA governs minimum wage and hour provisions for employees. If an employer requires an employee to work more than forty hours per week, the employer must pay the employee time and a half the regular rate it pays the employee for the excess time worked. The FLSA mandates that no employer shall employ any of his employees... for a workweek longer than forty hours 3
unless such employee receives compensation for his employment in excess of the hours specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. 207(a)(1). o Employees employed in a bona fide executive, administrative, or professional capacity... or in the capacity of outside salesman are exempt from the FLSA s wage and hour requirements. 29 U.S.C. 213(a)(1). The regulations further define what constitutes a bona fide executive, administrative, professional, or outside salesman. For example, a professional is a an employee who 1) is compensated on a salary or fee basis at a rate of not less than $455 per week, 2) who primary duty is the performance of work, and 3) generally, the job requires specialized knowledge or unique talents. See 29 C.F.R. 541.300. o Employees who are covered by the FLSA s wage and hour provisions are often referred to as non-exempt employees. Employees who are not covered are often referred to as exempt employees. o However, [i]n recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. 29 C.F.R. 785.47 Litigation o In 2010, a Chicago police officer filed a lawsuit against the city claiming the city violated the FLSA s overtime and minimum wage provisions when it issued the officers Blackberry phones and required them to use the phones outside their normal working hours without compensating them for the time on the phones. Allen v. City of Chicago, 2010 WL 3281075 (N.D.Ill.) o In 2011, a United States District Court for the Northern District of Illinois denied the city s 12(b)(6) motion to dismiss the case for a failure to state upon which relief could be granted. This ruling recognized that the police officer has a legitimate claim against the city. Allen v. City of Chicago, 2011 WL 941383 (N.D.Ill.). o In 2013, the court granted the police officer s motion to bring the claim as a collective class action and invite other similarly situated employees to join the suit. Allen v. City of Chicago, 2013 WL 146389 (N.D.Ill.). Conclusion: There are few reported cases on the compensability of off-duty cell phone use. Employers should proceed cautiously with their employee cell phone policies and consider the fact that emails and other work done by employees on their smart phones may be compensable under the FLSA. 4
REGULATING CELL PHONE USE Issue: How may employers regulate employee cell phone use in the following three circumstances: 1) the employer pays for and provides the employee with the cell phone, 2) the employer gives the employee a stipend or reimburses the employee for their cell phone purchase; 3) the employee pays for and uses their own personal cell phone for work? 1) Employer provides employee with cell phone Employees seeking privacy in the use of smart phones and laptops at work are advised to use only their own equipment and to pay their own usage bills. If the phone is provided by the employer and the account paid by the employer, the likelihood of a court finding no legal right of privacy is high. If the employer provides the phone, pays the bill, and issues a clear written policy that all information on or through the phone is subject to company inspection, then it is virtually certain that personal use of the device will be without privacy protection. This even applies to emails sent by a client to their attorney. Holmes v. Petrovich Dev. Co. (2011) 191 Cal.App.4th 1047. In TBG Ins. Services Corp v. Superior Court, 96 Cal. App. 4 th 443 (2002), an employee was fired when his employer found pornography on his at-work, work provided computer. The employee had signed his employer s electronic and telephone equipment policy statement and agreed in writing that his computers could be monitored by his employers and he could be terminated for misusing his office computer. The employee also had a home computer which was paid for by his employer and was supposed to be used for business purposes only. The employee filed a wrongful termination suit, and during the discovery stage, the employer filed a motion to compel production of the employee s home computer. The court ruled in favor of the employer and granted their motion to compel discover because the employer voluntarily waived his privacy right over the home computer when he signed the employers electronic and telephone equipment policy statement. In Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15, 2004) the court held that an employee had no reasonable expectation of privacy in the Internet websites he accessed while using his work computer. In that case, the plaintiff used his work computer to access the Internet on an excessive basis, and stored sexually inappropriate emails from his web-based account. U.S. Bancorp s technology policies prohibited the use of its computer technology either to access inappropriate internet sites and/or to send emails which could be perceived as offensive. After being terminated for violation of these policies, the plaintiff sued, alleging the company had invaded his privacy by reading his private emails. The court rejected the plaintiff s claim, finding that the company accessed information readily available to it on its own company network, and that 5
plaintiff was on notice of the company s policy regarding computer use and monitoring. In Smyth v. Pillsbury Corp., 914 F. Supp. 97 (E.D. Penn 1996), an employee was terminated for sending inappropriate and unprofessional messages over the company s email system. The company had repeatedly assured its employees that email was confidential, that it would not be intercepted, and that it would not be used as a basis for discipline or discharge. From his home computer, the plaintiff retrieved email sent from his supervisor over the company s email system. The plaintiff responded with several comments concerning the sales management staff, including a threat to kill the backstabbing bastards, and a reference to an upcoming holiday party as the Jim Jones Kool-Aid affair. The company intercepted the emails and terminated the plaintiff, who turned around and sued for invasion of privacy. The court found that the plaintiff did not have a reasonable expectation of privacy in the contents of the email messages, despite the company s assurances, because the messages had been voluntarily communicated over the company s computer system. The court further held that even if the plaintiff had some reasonable expectation of privacy, that interest was outweighed by the company s legitimate interest in preventing inappropriate or unprofessional communications over its email system. In Stengart v. Loving Care Agency, 990 A.2d 650 (N.J. 2010), the Supreme Court of New Jersey held that email messages between an employee and her attorney sent via the employee s personal password-protected email account, using her employer-provided laptop computer, are protected by the attorney-client privilege, regardless of the company s computer usage policy. One of the first lawsuits over the use of GPS tracking by an employer was a Missouri case, Elgin v. St. Louis Coca-Cola Bottling Co., 2005 WL 3050633 (E.D. Mo. 2005). The bottling company installed GPS devices in their employees workissued vehicles in order to investigate a theft. Since the employees were allowed to use those vehicles while off-duty as well, one of the drivers who had been cleared of suspicion sued the employer for violating his right to privacy. The court ruled that since the company owned the vehicles and the GPS tracking did not reveal anything other than what was already public, i.e. the location of the vehicle, the act did not constitute any significant invasion of the employee s privacy. o GPS monitoring of employees vehicles or mobile devices will likely be more difficult to perform after U.S. v. Jones. 1. GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations GPS can disclose trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the 6
abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, union meeting, mosque, synagogue or church, the gay bar and on and on. U.S. v. Jones, 132 S. Ct. 945, 955 (2012) o Although Jones addressed the warrant requirement in criminal investigations under the 4 th Amendment, its rationale undercuts the rationale in Elgin. A court will less likely see GPS as merely providing information that was already public. Therefore, courts will likely treat GPS tracking with more scrutiny. 2) Employer pays for cell phone Employees seeking privacy in the use of smart phones and laptops at work are advised to use only their own equipment and to pay their own usage bills. If the phone is provided by the employer and the account paid by the employer, the likelihood of a court finding no legal right of privacy is high. If the employer provides the phone, pays the bill, and issues a clear written policy that all information on or through the phone is subject to company inspection, then it is virtually certain that personal use of the device will be without privacy protection. This even applies to emails sent by a client to their attorney. Holmes v. Petrovich Dev. Co. (2011) 191 Cal.App.4th 1047. 3) Employee s own cell phone In Garcia v. City of Laredo, Tex., 702 F.3d 788 (5th Cir. 2012), a former police officer brought action against the city after another police officer s wife took her cell phone out of her locker, accessed text messages and images on the phone, showed the messages and images to the officer s superior, who then terminated the officer because the messages and images indicated violations of the police department s rules and regulations. The officer brought her claim under the Stored Communications Act (SCA). The 5 th Circuit ruled in favor of the city, finding that text messages and pictures on a cell phone do not fit within the SCA s definition of electronic storage. 4) Public Employer In a June 2010 decision, City of Ontario v. Quon, the Supreme Court unanimously upheld the search of a police officer's personal messages on a government-owned pager, saying it did not violate his constitutional rights. The warrantless search was not an unreasonable violation of the officer s 4th Amendment rights because it was motivated by legitimate work-related purposes. The city was trying to determine whether it needed to modify its wireless contract, which imposed fees after employees exceeded character limits on text messages. City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010). 7
o The privacy issue in City of Ontario v. Quon involved a government intrusion into personal communications, that is, whether or not the 4th Amendment applied to the electronic communications of public employees. The 4th Amendment would not apply to a private employer. However, the decision could have an impact on future court decisions involving private employers. Conclusion: Bottom Line: If an employer wants to regulate an employee s work cell phone, the employer should 1) provide the phone, 2) pay for the phone, and 3) have the employee sign a written policy statement saying the employer may monitor and regulate all work-related activity on the phone. REGULATING TECHNOLOGY USE- EMPLOYEES CONTACTED ON FMLA LEAVE Issue: Whether contacting employees on family medical leave interferes with an employee s FMLA rights? In Revlon, the employee, who was given a laptop, cell phone and internet connection in her home to use while on protected FMLA leave for post-partum depression, claimed that she was forced to work and that this interfered with her leave. The court disagreed, explaining that the employer's brief, infrequent phone calls to the employee, asking questions such as where files were saved on a computer or where to find certain things, did not interfere with FMLA leave because she was not required to produce work product or complete assignments. Reilly v. Revlon, Inc. 620 F. Supp. 3d 524, 537 (S.D.N.Y. 2009). In Vess, the employee, a hospital respiratory therapist team leader, had a knee injury that required surgery. Another rehabilitation manager was assigned to cover the team leader's management duties during her FMLA leave. The employer notified the respiratory therapists who reported to the team lead to contact the replacement manager with questions while the employee was on leave. Despite this, several respiratory therapists and even the replacement manager contacted the team leader at home about various work-related matters. Vess v. Scott Medical Corporation, No. 3:11 CV 2549, 2013 WL 1100068 (N.D. Ohio Mar. 15, 2013). o Unlike the employee in Revlon, the team leader in Vess did complete assignments and turned in tangible work product, such as personnel reviews and patient data entry. In denying the employer's summary judgment motion, the Vess court explained that ordinarily [f]ielding occasional calls about one's job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee's FMLA rights. However, the court said that a reasonable jury could find that completion of significant tasks such as the type that the team leader performed here exceeds the limited scope of passing along institutional knowledge and providing closure on completed assignments. 8
Conclusion: Based on these cases, it seems that while an employee is on leave, placing rare calls seeking institutional knowledge is acceptable, but assigning that employee tangible tasks would be considered unlawful. RECORDING DEVICES IN THE WORKPLACE Issue: More and more employees are recording things in the workplace through their cell phones. May an employee be fired after secretly recording a conversation in the workplace? A bank employee went into a performance review meeting with his boss suspecting his rights may be violated. He proceeded to the meeting with his BlackBerry recording the conversation. The recording exposed the boss saying, Those dreads in your hair make you look like a thug. The man got a lawyer, threatened to release the recording to the local media, and eventually settled for six figures. David Koeppel, The Secret Spy Living in Your iphone, The Fiscal Times, July 28, 2011. This type of unannounced recording is more and more frequent in the smart phone era. Additionally, it is legal in the 38 states which allow single party consent for recording conversations. Only California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington require all parties involved to consent before one of them can record the conversation. Id. Many lawyers recommend that their corporate clients implement a strict no unauthorized audio or videotaping policy, which they say could dissuade employees from recording conversations and serve as grounds for dismissal if they do. Id. There already have been legal ramifications for companies that do not have unauthorized recording policies. In February, the NLRB ruled in favor of an employee who was fired after secretly recording a conversation with a manager at Stephens Media in Hawaii, publisher of the Hawaii Tribune-Herald. Stephens Media, LLC v. NLRB, 677 F.3d 1241, 400 U.S. App. D.C. 297 (D.C. Cir. 2012). Hawaii is a single-party consent state, and Employer did not have an unauthorized recording policy when the incident took place. o The NLRB ruled that management had violated the National Labor Relations Act by questioning employees about union activity. The employer was ordered to reinstate the employee with back pay plus interest, and benefits he would have been eligible to receive if hadn t been discharged. Stephens put a no-recording policy in place after the employee s dismissal. 9
Conclusion: Based on the foregoing, employees who reasonably believe their rights may be violated may use recording devices to document what they perceive as a potential violation of employee rights. Thus, recording under these circumstances constitutes Section 7 protect activity. Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation. 10
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