You may have heard about new overtime rules from the Department of Labor. It’s not all about bathroom laws. Michael Kelsheimer, author of the Employer Handbook, broke down the new rules in Federal Changes to Overtime Exemptions Alert.

In a gross over-simplification, employees that oversee others, i.e, manager, were exempt from overtime if they earned more than $23,660 year. Come December 1, that amount is increased to $47,476 per year.

So that means anyone earning less than that can no longer be exempt no matter how many employees they oversee and will be entitled to overtime pay if they work more than 40 hours per week.

Does your account lead that oversees a team make less than that? Do they work more than 40 hours per week? What about the lead developer?  Or customer service team leader?

We know many of you use independent contractors as opposed to employees and these rules would not apply if the person is truly an independent contractor.  But, classifying someone as an independent contractor is harder than you think.  Luckily, Michael has written about that, too in Are you an Employee or an Independent Contractor?

 

 

 

 

I don’t often make predictions on legal outcomes, so when I do and I get it right, it’s worth sharing.  In May, we talked about whether “liking” a candidate would constitute protected speech under the First Amendment.  A district judge in Virginia ruled it was not.  The Fourth Circuit Court of Appeals recently reversed in Bland v. Roberts.

In that case, a jailer in Virginia liked his boss’s opposition during a campaign for sheriff. The incumbent won and the plaintiff was fired. The sheriff said it was for competency issues, but the plaintiff said retaliation was the motivating factor for the termination.

I wrote back then that “it seems like a slam dunk case for our fired jailer,” before describing the district court’s dismissal based on the judge’s opinion that “liking” something on Facebook did not amount to a “substantive statement” worthy of protection.  Both the lunacy of the idea of liking a candidate on Facebook not being considered “substantive” enough to warrant protection and the questions asked during the appeal according to this Bloomberg report, I wrote, “I would put my money on a reversal.”

Winner, Winner Chicken Dinner! 

Reversing, the Fourth Circuit compared liking on Facebook to putting a campaign sign in your yard.  “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”

It is not likely your “like” will get you fired and set up a Supreme Court case. The lesson, however, is to be careful of making employment decisions based on what you see on Facebook.  The issue is more problematic for public employers, but as we have discussed before even non-union private employers need to make sure their social media policies and employment decisions do not upset the NLRB. ”Liking” a complaint from a co-worker about working conditions cannot be the basis of a termination.  In some states, it is illegal to fire someone for engaging in protected speech.  ”Liking” Coke when you work at Pepsi in an at will state, like Texas, can still probably get you fired.

Is liking something expressive activity protected by the First Amendment?  Does being a Facebook “friend” create the appearance of impropriety requiring the judge to recuse himself from the case?  Leave it to Facebook to make us answer these questions.

You don’t like me, you just want my coupon . . .

The Fourth Circuit Court of Appeals is wrestling with the question of whether liking something on Facebook is protected First Amendment activity in the case of Bland v. Roberts.  A jailer in Virginia liked his boss’s opposition during a campaign for sheriff.  The incumbent won and the plaintiff was fired.  The sheriff said it was for competency issues, but the plaintiff said retaliation was the motivating factor for the termination.

Public employers, and some private employers in some states, cannot retaliate against an employee for taking part in Constitutionally protected activity that does not interfere with work.  In other words, you can’t fire a public employee just because they spoke out on a issue or supported a candidate.

So, it seems like a slam dunk case for our fired jailer.  The district court dismissed his case because the court ruled “liking” something on Facebook did not amount to a “substantive statement” worthy of protection.  The court determined that without more, the simple act of making one-click on Facebook does not reveal that someone is engaging in protected speech.  While it is true half of the people on Facebook would like Osama bin Laden to get a 15% discount at Target, “liking” a candidate or a cause is political speech.

It’s dangerous to predict the outcome of an appeal based on oral argument, but according to this report from Bloomberg, I would put my money on a reversal.

“Carter clicked the Like because he liked something,” U.S. Circuit Judge Stephanie Thacker said to a lawyer for Hampton Sheriff B.J. Roberts during the 40 minute hearing. “How is that any different than perhaps putting a sign in the yard saying ‘I Like Ike’?” she asked.

Facebook, which got a few minutes at the hearing to argue for a reversal, made similar arguments.

The opinion should be issued in a few months and will tell us whether the over 3 billion “likes” a day on Facebook are entitled to First Amendment protection.

It is not likely your “like” will make its way to the Supreme Court.  The lesson is to be careful of making employment decisions based on what you see on Facebook.  The issue is more problematic for public employers, but as we have discussed before even non-union private employers need to make sure their social media policies and employment decisions do not upset the NLRB.  “Liking” a complaint from a co-worker about working conditions cannot be the basis of a termination.  “Liking” Coke when you work at Pepsi in an at will state probably can be.

MAKING “FRIENDS” WITH THE JUDGE

Meanwhile, the court of appeals here in Texas held that being “friends” with a judge on Facebook should not be the basis of a criminal conviction reversal.

In Youkers v . Texas, the criminal defendant was accused of violating the terms of his parole supervision which sent him to jail for eight years.  On appeal, Youkers argued the father of the victim in the underlying crime was Facebook friends with the judge and sent the judge a Facebook message.  Therefore, the defendant argued, there was an improper bias and the conviction should be overturned.

The Facebook message

When you only hear part of the story, things look bad.  Yes, there was an ex parte Facebook message from the victim’s father to the judge.  The message, however, sought leniency for the defendant.  The judge also disclosed the message to everyone without any objection and warned the father not to do it again.

The Facebook “friendship”

The more interesting question is whether merely being friends with a judge on Facebook provides even an appearance of impropriety.  I’ve had interesting discussions about this topic at various ethics CLE’s with judges and private practitioners.  And, yes, I am Facebook friends with several judges.

The court of appeals ruled judges are not prohibited from using social media.  In Texas, unfortunately, we elect our judges.  The court realized the judges need to be on social media.

As pointed out in Professor Goldman’s Technology and Marketing Law Blog:

Merely designating someone as a “friend” on Facebook “does not show the degree or intensity of a judge’s relationship with a person.” ABA Op. 462. One cannot say, based on this designation alone, whether the judge and the “friend” have met; are acquaintances that have met only once; are former business acquaintances; or have some deeper, more meaningful relationship. Thus, the designation, standing alone, provides no insight into the nature of the relationship.

Without more, the defendant could not prove there was an improper evidence.

The ABA cautions judges to use social media within the existing ethical rules (endorsing political candidates is a tough one) and this case should give lawyers here in Texas a little more comfort about friending judges.  The practicing bar has a little more freedom.  Yet, the existing ethical rules still apply to our social media use.  For instance, we cannot imply we hold any sway with a particular jurist and a simple Facebook friendship does not do that – particularly when the elected judge is friends with hundreds of lawyers.

A lot of the judges are our friends.  Before they got on the bench, they were our colleagues.  Once on the bench, they are still our neighbors, our kids’ coaches and friends.  We socialize with them outside the courthouse.  With Facebook, there is just a record.

No one likes to be sued.  It may make you mad enough that you want to scream and holler on the Internet.  There is a reason, however, a lot of lawyers recommend not commenting on personnel issues and pending litigation.

Take a lesson from Coyote Ugly that does not involve dancing on the bar.  The lesson is — don’t go to the Internet to rail on your former employees when they file a Fair Labor Standards Act minimum wage case against you.

About a month after a group of employees filed suit against the Coyote Ugly Saloons, the president of the chain of Coyote Ugly Saloons went to her “Lil Spill” blog and wrote:

This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft. I have to believe in my heart that[,] somewhere down the road, bad people end up facing bad circumstances!

I have been reading the basics of Buddhism[,] and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously, I am still a very new Buddhist[,] cause my thoughts are “[f***k] that [b**ch.]” Let me do my breathing exercises and see if any of my thoughts change. Lol .

A slightly different take then, say, Warren Buffet may have taken.  The subject of the post had already been reinstated by the time the blog post was published.

To add to the fire, a supervisor allegedly posted on Facebook when drunk about another plaintiff who was still employed but had joined the suit:  “Dear God, please don’t let me kill the girl that is suing me . . . . that is all . . . .”

The result of these diatribes was a retaliation claim in addition the underlying minimum wage claims.  The federal district court in Tennessee recently allowed both claims to continue.  You can read the opinion here.

I am not an employment lawyer, but I know enough to warn clients you can almost get into more trouble for retaliating against an employee for making an overtime, workers’ compensation, minimum wage, harassment or discrimination complaint than you can for the underlying complaint.  My colleague Michael Kelsheimer has written on retaliation on his Employer’s Handbook blog.

The emedia law lessons seem almost too obvious.  I’ve never thought to add “don’t let your supervisors post to about your employees while drunk” to my social media policies.  The real lesson is to train your employees and have policies.  Considering the founder was the first to take to the Internet, I’m not sure there was much respect for policies or compliance.  Your business, I am guessing, is probably different.  You should have policies and plans in place regarding who can say what about pending claims and what is and is not appropriate to do on the Internet.

Democratic Texas State Representative Helen Giddings filed a bill prohibiting employers in Texas from asking for social media passwords from applicants and current employees.  Texas joins a long list of states that have either passed or proposed similar legislation. 

On December 21, 2012, HB 318 was pre-filed.  Democratic State Senator Chuy Hinojosa filed the exact bill with the Senate as SB 118.  The bills read: 

(b) An employer commits an unlawful employment practice if the employer requires or requests that an employee or applicant for employment disclose a user name, password, or other means for accessing a personal account of the employee or applicant, including a personal e-mail account or a social networking website account or profile, through an electronic communication device.

(c) This section does not prohibit an employer from:

(1) maintaining lawful workplace policies governing:

(A) employee usage of employer-provided electronic communication devices, including employee access to personal accounts on those devices; or

(B) employee usage of personal electronic communication devices during working hours;

(2) monitoring employee usage of employer-provided electronic communication devices or employer-provided e-mail accounts; or

(3) obtaining information about an employee or applicant for employment that is in the public domain or that is otherwise lawfully obtained.

Six states already have similar laws and many others are considering similar legislation.  The National Conference of State Legislatures has a good resource that tracks what all of the states are doing in this area. 

Here are a couple of issues I see with the Texas version.

1.  There is no exemption for employers to investigate wrongdoing.

For example, Michigan lays out some exceptions that exclude “Disciplining or discharging an employee for transferring the employer’s proprietary or confidential information or financial data to an employee’s personal internet account without the employer’s authorization”; and “conducting an investigation or requiring an employee to cooperate in an investigation . . .”   

2.  There is no exemption for highly-regulated industries like securities.

The Michigan law exempts employers “if there is specific information about activity on the employee’s personal internet account, for the purpose of ensuring compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct.”

3.   What about shoulder-surfing?

The statute forbids employers from using “other means for accessing a personal account” but there is a qualifier at the end that seems to limit the employer’s access to the account “through an electronic communication device.”  So, can an employer tell an applicant or employee to log-in to Facebook while I look over your shoulder?  It is certainly not clear.  Other states take a more direct approach.    The California law expressly forbids requiring an employee to “access personal social media in the presence of the employer” which would prevent shoulder surfing.

4.  Immunity for employers who can no longer access social media accounts.

 I normally advise companies not to use social media to screen applicants unless you have and follow a specific plan.  I could foresee, however, that a mishap could happen at work and a creative plaintiff’s lawyer could argue negligent hiring because a social media search would have revealed the employee was racist, sexist, violent, etc.  It would make sense then that if employers are prohibited from doing thorough social media research, they should not be held liable for failing to do so if something went wrong.  Michigan has addressed this in its version by stating:

Sec. 7. (1) This act does not create a duty for an employer or educational institution to search or monitor the activity of a personal internet account.

(2) An employer or educational institution is not liable under this act for failure to request or require that an employee, a student, an applicant for employment, or a prospective student grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s, student’s, applicant for employment’s, or prospective student’s personal internet account.

5.  What about students?

Many of the bills apply the same rules to secondary school, colleges and universities.  If we care about privacy, shouldn’t we apply it to them as well.

These are just a few issues and I still question whether this a fix in search of a problem.  Yes, there have been one or two publicized incidents of employers demanding access to social media accounts.  But, I’m not the only one that questions whether laws forbidding requests for social media accounts are necessary.  As the economy recovers, I would think this is something the market will handle.  Besides, I see certain positions where such requests would be encouraged such as youth camp counselors or mental health providers, security personnel and employees for religious institutions. 

This is the second part of our Texas Leg Watch 2013.  The Texas Legislature meets every odd year, so we will monitor any bills of interest to the online media, marketing and start-up community.  Our first post looked at a proposal that would allow civil lawsuits to be brought against internet online advertisements that resulted in human trafficking perhaps usurping the federal Communications Decency Act protections.

Federal agencies are not shy about enforcing alleged violations of their policies after the fact.  From these enforcement actions, lawyers are supposed interpret the results to advise their clients on how to avoid the same fate. 

In the past, the NLRB even summarized some of the cases for us in its second report on social media in the workplace.  This week, the NLRB went a step further and actually told us what we should and should not include in social media policies.  You can read the NLRB’s third report issued on May 30, 2012, here.

According to the report, companies need to consider whether their social media policies “would reasonably be construed to chill” the employees’ rights to discuss with each other their working conditions.  

What not to include

The NLRB believes this broad right, applicable to union and non-union employees alike, makes certain run of the mill social media provisions overly broad such as a policy that forbids employs from sharing “confidential guest, team member or company information.”

The NLRB also frowns upon policies that require the employees to only include information that is “completely accurate and not misleading and that they do not reveal non-public information on any public site.”

You also should not include language in your policy that prohibits employees from posting “offensive, demeaning, abusive or inappropriate remarks.”

Warnings to “think carefully” before connecting with colleagues is overly broad.  

To my chagrin, the NLRB even frowned upon policies that restricted employees from discussing the company’s legal matters. 

All of these no-no’s could be construed to prevent employees from discussing the terms and conditions of their employment with each other which is unlawful.  

So, what can I have in a policy?

Here are some of the acceptable examples:

“You are solely responsible for what you post online.”

“Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance,…may result in disciplinary action up to and including termination.”

What we use

For informational purposes only and not specific legal advice that you can rely upon or that establishes a lawyer-client relationship because each situation is unique (aren’t lawyers fun people to hang out with?), here is the language we usually start with:

You are responsible for any information you post online.  Any online behavior, including that done during non-work hours, that unnecessarily casts the Company in a negative light or that adversely impacts the Company environment of teamwork will ultimately be your responsibility and may be the basis for discipline by the Company.  Some examples include, but are not limited to, any vulgar, obscene or disparaging comments about the Company, its employees or customers that do not address the terms and conditions of your employment. 

Hopefully, this starting point passes muster and success means it will never be tested.

[Updated 6-4-2012] Is the NLRB going too far?

Not everyone agrees with the NLRB’s position suggesting the NLRB is addressing conduct outside of its purview.  Looper Reed employment law attorney and The Employer Handbook creator Michael Kelsheimer says, “after chastising and punishing businesses for their social media policies over the last several years, the NLRB has finally provided some guidance to businesses on what is acceptable for a social media policy. Unfortunately, the NLRB’s guidance severely cuts into an employer’s ability to stop conduct that really is not protected by the NLRA and could violate other laws such as Title VII.”

The Houston Chronicle reported today the CFO of Francesca’s was canned because he posted information about the company on Twitter and Facebook.

Francesca's CollectionsWe have discussed the legality of firing employees for their social media conduct in detail (part one and part two).  In short, in at will state like Texas, you can fire someone for a good reason, a bad reason or no reason at all except generally in three circumstances: (1) in violation of a contract; (2) in a discriminatory fashion against a protected class; or (3) in retaliation of an employee discussing their work activities with other employees. 

It was not clear in the article if the CFO had a contract.  It does appear, however, he was not engaging in protected activity.  Instead the company claimed in a release the CFO was terminated because he “improperly communicated company information through social media.”

The article sites the following:

On March 7, six days before Francesca’s announced its quarterly earnings, he wrote: “Board meeting. Good numbers=Happy Board.”

. . .

Before an earnings call last December, Morphis posted on Facebook: “Cramming for earnings call like a final. I thought I had outgrown that.” In January, he boasted to his friends: “Roadshow completed. Sold $275 million of secondary shares. Earned my pay this week.”

Francesca’s, a women’s clothing and accessory retailer, is a publicly-traded company which means the CFO does not have free reign to say whatever he wants. 

“The rules generally in regards to sharing of material, nonpublic information have not changed even in the age of social media,” Looper Reed & McGraw, P.C. securities lawyer Jeff Hopkins said.  “If a public company hasn’t filed information with the Securities and Exchange Commission to make it generally available, its management and employees should recognize that any disclosure to a select audience (even if that audience is a large Twitter following) is in violation of the rules.”

You can read more from the Wall Street Journal here.

 

In the last post, we talked about whether you could fire someone for their Facebook posts.  We used the NLRB’s recent social media memorandum discussing 14 cases as a guideline. 

Today, we discuss social media policies.  Why should I have one and what should I have so they don’t get me in more trouble?

Why Have One?

I previously wrote an entire post answering why you should have a social media policy

In short, you can reduce your risk by showing that you are taking reasonable steps to prevent the mishaps that come along with employees engaging in social media.  It’s better to go into court or respond to a governmental inquiry explaining that you had a policy that you shared with your employees to prevent the mishap, but this one employee simply violated it.  In other words, “we tried” is better than we simply, “ummmm, I don’t know.”   

It could help you in an employment law dispute as well.  Better than that, however, it’s also good business to explain to your employees what you expect from them.

So, what should my social media policy say — or not say?

The legal risk is not so much what to include, but what NOT to include.  The law prohibits employers from implementing rules that “would reasonably tend to chill employees in the exercise” of their rights to discuss their working conditions with their co-workers.  Those rights are discussed in more detail in part one of this series.   A discharge based on an overly broad rule is illegal if the employee engaged in the protected activity.

Blanket restrictions prohibiting employees from discussing working conditions is considered illegal.  For example, the NLRB has ruled the employer went to far with its rule that prohibited the employee from “making disparaging comments about the company through any media.” 

Even more ambiguous policies can run into trouble if employees would reasonably construe the language to prohibit protected activity.  In one case, the policy stated employees should generally avoid identifying themselves as employees [LinkedIn becomes useless] unless discussing the terms and conditions of employment in an appropriate manner.   The NLRB said the difficulty in determining what was appropriate or inappropriate would chill the employees’ right to disucs working conditions. 

The NLRB also frowned upon:

* prohibiting “disrespectful conduct” or “inappropriate conversations.”   

* prohibiting “unprofessional communication that would negatively impact the Company’s reputation or interfere with the Company’s mission”

* prohibting “unprofessional/inappropriate communication regarding members of the Company’s community.”

* blanket prohibitions on the dissemination of non-public information concerning the company with anyone outside the company without more guidance or examples as to what type of information the company is trying to protect.

* prohibiting the publishing of any representation about the comapny without prior approval.

* requiring social media posts to be done in “an honest, professional and appropriate manner, without defamatory or inflammatory comments regarding the employer.”

* requiring all employees to identify that all comments are their personal opinions and not those of the company because it would prevent employees from acting collectively and burden them when exercising their rights.

* prohibiting the use of the company’s names or marks  without the prior approval of legal because complaining about working conditions could be a fair use of the company logo.

* prohibiting employees from making “discriminatory, defamatory, or harassing entries about specific employees, work environment, or work-related issues.”

On the other hand, the NLRB pointed to these allowed policy statements:

* the use of social media to post comments about coworkers or supervisors that are vulgar, obscene, threatening, intimitating, harassing, or a violation of workplace discrimination policies.

* requesting employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws.  The policy then cited examples such as confidential or proprietary information, personal health information and launch and release dates of products for the pharmaceutical company.  The NLRB said the extra examples made it clear to the employees that talking about working conditions would not be covered.

But my policy is smart and says we aren’t violating the law!

I thought of that, too.  It’s called a savings clause.  Such a clause would say something to the effect of “this policy will not be interpreted or applied so as to interfere with an employee’s right to self-organize, form, join or assist labor organizations, to bargian collectively, or to engage in other concerted activities  for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”  Is that clear to you?  The NLRB did not think so either and said it did not provide any guidance to the employees and would therefore discourage employees from exercising their rights.

 Is it too late?

You can amend your policy today.  But, if you stumbled upon this post with a problem employee and an outdated overly broad policy in place, you may not be out of luck.  The NLRB’s memo states:  “An employer will not be liable for discipline imposed pursuant to an overbroad rule if it can establish that the employee’s conduct actually interfered with the employee’s own work or that of other employees or otherwise actually interfered with the employer’s operations, and that the interference was the reason for the discipline.” 

Good Examples

As you probably detect by now, you should probably stay away from blanket prohibitions.  At the same time, there is nothing wrong with warning the employees, they can be responsible for stupid behavior.  I’ve cited to Coca-Cola’s “Online Social Media Principles” before.  It states:

You are responsible for your actions. Anything you post that can potentially tarnish the Company’s image will ultimately be your responsibility. We do encourage you to participate in the online social media space, but urge you to do so properly, exercising sound judgment and common sense.

It does not prohibit the employee from speaking, but warns of possible consequences.  Our law firm’s is a little different with a similar theme.  If you would like to see it, send me an email.