NLRB's General Counsel Issues Another Memo on Social Media Cases

The Acting General Counsel of the NLRB announced today that he has issued a second memo regarding the interaction of social media policies and the National Labor Relations Act.  According to the Board, the General Counsel's memo is intended "[t]o help provide further guidance to practitioners and human resource professionals" regarding the lawful limits of social media policies.

According to the Board's press release (available here), "The report underscores two main points made in an earlier compilation of cases: 

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."

The Memo discusses 14 cases, seven of which involve questions about employer social media policies. The Board found that five of the seven policies were unlawfully broad, and only one was found to be lawful after it was revised.  It is clear that the Board is taking a narrow view of what social media policies may prohibit. 

For example, in one case, an employer maintained a policy prohibiting employees from "disparaging" the employer in any media. After an employee was notified that she was being transferred to a less desirable position, she "posted a status update on her Facebook page . . . [u]sing expletives, she stated the Employer had messed up and that she was done with being a good employee." The employer discovered the comments and terminated the employee pursuant to its social media Policy. The Board found that the policy and the employee's termination were unlawful.

The General Counsel's Memo suggests that the Board will apply its traditional standards for employee protected activity to employee activity on social media sites.  However, the traditional standards for employee's "water cooler talk" ignores the difference between private, oral communications in the workplace, from written statements available to the general public on the Internet, which can be significantly different from the employer's point of view.  It remains to be seen whether the Board will modify its standards to take into account the differences between social media and in-person conversations.  Until it does, employers should review their social media policies to ensure the policy does not run afoul of the Board's current interpretation of the NLRA.

Tennessee Department of Labor Issues E-Verify Guidlines

The Department of Labor and Workforce Development released guidelines today to govern implementation of the Tennessee Lawful Employment Act.  The TLEA requires Tennessee's employers to use the state's new E-Verify system to confirm that they are hiring and employing individuals who are legally permitted to work in the United States.   In connection with the release of the new guidelines, DOL Commissioner Karla Davis said "[t]his online verification process is designed to be convenient for employers and only takes a few minutes to complete."  

The Tennessee Department of Labor oulined the law's provisions as follows:

Signed into law by Governor Bill Haslam on June 7, 2011, the Tennessee Lawful Employment Act requires verifying the employment eligibility of all newly hired employees through the online E-Verify program (www.uscis.gov/everify), or requesting all newly hired employees to provide one of the following identity and employment authorization documents as required:

• A valid Tennessee driver's license or photo identification
• A valid driver's license or photo identification from another state where the license requirements are at least as strict as those in Tennessee
• A birth certificate issued by a U.S. state, jurisdiction or territory
• A U.S. government issued certified birth certificate
• A valid, unexpired U.S. passport
• A U.S. certificate of birth abroad
• A report of birth abroad or a citizen of the U.S.
• A certificate of citizenship
• A certificate of naturalization
• A U.S. citizen identification card
• A lawful permanent resident card

The law also requires employers to obtain and maintain a copy of one of the above listed identity/employment authorization documents for all non-employees as well. A “non-employee” is defined as any individual, other than an employee, paid directly by the employer in exchange for the individual’s labor or services.

The employment verification provisions referenced above will be phased in as follows:

• All state and local government agencies must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than January 1, 2012
• All private employers with 500 or more employees must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than January 1, 2012
• All private employers with 200 to 499 employees must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than July 1, 2012
• All private employers with six to 199 employees must register and utilize E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than July 1, 2013

The Tennessee Department of Labor does have the authority to impose penalties for non compliance. For a first violation, $500 for each employee or non-employee not verified, for a second violation, $1,000 for each employee or non-employee not verified, and $2,500 for a third violation.

The private employer must submit evidence of compliance within 60 days of the final order. If the employer fails to submit such documentation, then the commissioner has the authority to suspend the private employer's license until the employer remedies the violation.

Any lawful resident of Tennessee or any employee of a federal agency may file a complaint alleging a violation of the employment verification provisions of the Act. If there is satisfactory evidence of a violation, the Commissioner of the Tennessee Department of Labor and Workforce Development will conduct an investigation.

 

The Tennessee Department of Labor's website with this information is available here.

Holidays Were No Vacation At NLRB

Happy New Year!  The National Labor Relations Board was very busy at the end of the year, despite the holiday season.  And judging from the Board's gift to employers (in the form of a rule for expedited union elections), it appears the Board believes that employers have been naughty, not nice.  Here is a brief recap of what has been happening at the Board while many were enjoying egg nog and a warm fire.

On December 21, 2011, the Board approved on a 2-1 vote, a sweeping new rule changing its election procedures.  According to the Board, the new election procedures will "reduce unnecessary litigation and delays."  Chairman Mark Gaston Pearce and Member Craig Becker, both Democrats, voted in favor of the rule.  Republican Member Brian Hayes dissented.  The final rule was published in the December 22, 2011 Federal Register, just before the Christmas weekend.  The Board was pressured to act before the end of 2011 when Member Becker's recess appointment ended and the Board lost its 3-member quorum necessary to take official actions.  The expedited election procedures will become effective on April 30, 2012.  The new procedures are expected to make it easier for unions to organize employees and will representation elections.

Meanwhile, the Senate attempted to avoid a recess that would permit the Obama Administration from making further recess appointments to the Board.  Undeterred, on January 4, 2012, President Obama announced three recess appoints to the Board: two Democrats and one Republican. Democrat Sharon Block was serving as the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Democrat Richard Griffin was most recently employed as General Counsel for International Union of Operating Engineers (IUOE). According to the Board's press release, Griffin also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.  The Republican appointee, Terrence F. Flynn currently serves as Chief Counsel to Republican Board Member Brian Hayes.

These recess appointments are sure to face a legal as critics of the appointments argue that they violate the advice and consent clause of the U.S. Constitution because the Senate was not in recess when the appointments were made.  The Republican contingent in the Senate made it clear that they would not approve President Obama's appointments and took steps to prevent recess appointments by keeping the Senate in pro forma session over the holiday break, which limited any recess to two days.  Traditionally, the President has not made recess appointments during recesses of less than ten days. If the recess appointments stand, the Board could operate with a quorum through the remainder of 2012.

NLRB Postpones Deadline To Post Notice Of Rights

The National Labor Relations Board has again postponed the effective date of its new rule requiring covered employers to post notices informing employees of their rights under the National Labor Relations Act.  The effective date of the rule is now April 30, 2012. 

The Board previously postponed the effective date of the notice posting requirement from November 14, 2011 to January 31, 2012 "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." (See Board's Press Release here.)

The most recent delay of the effective date to April 30, 2012 is the direct result of a lawsuit filed by the National Association of Manufacturing and other employer groups that challenges the validity of the new rule.  During oral argument in the case, the judge asked the Board to delay implementation of the requirement to allow her time to rule in the case before the requirement went into effect.  According to a press release from the Board (available here), the Board "has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule."

As it currently stands, most all private sector employers will be required to post the notice on by April 30th, unless the rule is invalidated by the court before that time.  We will continue to monitor the Board's actions and the litigation seeking to invalidate the posting requirement.