EMPLOYEE BENEFITS BLOG
EMPLOYEE BENEFITS BLOG
Insights on Employee Benefits and Executive Compensation
EMPLOYEE BENEFITS BLOG
Insights on Employee Benefits and Executive Compensation
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Acting General Counsel of the NLRB Issues Second Report on Social Media

by | Jan 27, 2012 | , ,

by Heather Egan Sussman, Linda Doyle and Sabrina Dunlap

On Wednesday, January 25, 2012, National Labor Relations Board (NLRB) acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office. The report (Operations Management Memo) addresses 14 cases related to social media and employer social media policies. 

Many of the cases reviewed involved employees who had been discharged after they posted comments on Facebook. The general counsel found that a number of the terminations were improper because employees had engaged in protected activity and their terminations arose from unlawful employer policies. However, the general counsel upheld several terminations – despite overly broad employer policies – where the employees involved were not engaged in protected activity and had merely posted general complaints or individual gripes unrelated to working conditions or wages.

The report emphasizes two key points made in an earlier report in August 2011: 1) Employer policies should not be so broad that they prohibit activity protected by federal labor law, such as the discussion of wages or working conditions; and 2) an employee’s comments on social media sites will generally not be protected if they are simply complaints unrelated to working conditions or wages that impact a group of employees.

There are three cases involving social media questions currently pending before the NLRB and those decisions will likely give further guidance on acceptable employer social media policies. 

In addition, McDermott partner Heather Egan Sussman will be speaking with Lafe Solomon, and Edward Loughlin (EEOC) on this topic at the International Association of Privacy Professionals (IAPP) Global Privacy Summit, Wednesday, March 7, 2012.



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Workplace Violence

by | Dec 19, 2011 | ,

by Heather Egan Sussman, Arthur G. Sapper and Bethany K. Hatef

During the holiday season, stress can run high.  Holidays can bring less sleep, increased pressures and even family tension.  This can affect the workplace and increase the risk of confrontation or even violence.  The Occupational Safety and Health Administration (OSHA) recently issued its first guidance directive regarding how OSHA will enforce the Occupational Safety and Health Act against workplace violence hazards. 

Over the past 15 years, OSHA notes, workplace violence has remained among the top four causes of occupational death.  According to the Bureau of Labor Statistics, workplace homicide was responsible for more than 3,000 occupational deaths between 2006-2010.

The directive defines “workplace violence” as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.”  OSHA states that it will inspect workplaces based on whether there are known risk factors for workplace violence.  OSHA will focus on industries with high rates of workplace violence, particularly the healthcare and social services industries and late-night retail establishments.

Although OSHA has no regulations on workplace violence, OSHA may cite employers for workplace violence hazards under the general duty clause [Section 5(a)(1) of the Occupational Safety and Health Act], and will require employers to consider workplace violence when complying with OSHA regulations governing the availability of medical services and first aid, and in writing emergency action plans.

As a result, employers, particularly those in high-risk industries, should ensure that they have a strong written workplace violence prevention program that includes training on violence prevention, and periodic auditing of measures designed to detect and prevent workplace violence.

To mitigate the risk of violence in your workplace, consider these tips:

  • Find ways to help employees manage stress during the holiday season.
  • Remind employees of Employee Assistance Program (EAP) benefits.
  • Have procedures in place to quickly respond to and defuse incidents. 
  • Ensure employees feel comfortable reporting workplace violence incidents.



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Transit Pass and Vanpool Benefits to Shrink to $125 Per Month in 2012

by | Dec 7, 2011 |

by Ira B. Mirsky and Ralph DeJong

Millions of people across the United States will experience a significant increase in the cost of their daily commute to work, and many employers will suffer a corresponding increase in payroll taxes for 2012 and beyond, unless U.S. Congress acts before the end of 2011.  The reduction will also restore a significant gap between the exclusion limit for employer-provided transit pass or vanpool benefits and qualified parking benefits, and creates an unintended economic subsidy that may influence some commuters’ choice to drive themselves to work over using mass transit. 

To read the full article, click here.



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Employee Benefits & Compensation: What You Should Do Before Year End

by | Nov 7, 2011 | , , , , , ,

Friday, November 18, 2011
10:00 – 11:00 am CST

As the year draws to a close, please join us for a focused and concise update on the most important employee benefit issues. 

Mark your calendars
McDermott Will & Emery will present a 60-minute complimentary webcast, hosted by the leaders of our employee benefits and compensation practice, that will highlight key year-end considerations for:

  • Health and welfare benefits
  • Qualified and non-qualified retirement plan
  • Plan fiduciary and investment management
  • Executive compensation
  • Fringe benefits
  • Domestic partner benefits

Who should attend
All vice presidents of human resources, in-house counsel, compensation and benefits directors, chief financial officers and others responsible for overseeing corporate or executive benefits and/or retirement plans.

To register, please click here. 

For more information, please contact McDermott Events.



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Massachusetts Wage Act: New Warning to Employers Everywhere

by | Oct 31, 2011 |

by Andrew Liazos, Heather Egan Sussman and Sabrina Dunlap

Massachusetts Wage Act May Extend to Employees Living and Working Elsewhere — Out-of-State Employees May Sue Officers Personally for Mandatory Triple Damages, Attorneys Fees and Costs

A Massachusetts Superior Court judge recently extended the reach of the Massachusetts Wage Act – including its provisions for officer liability, mandatory triple damages, attorneys fees and costs – to an employee who lives and works in Florida. The judge found that the employee had “sufficient contacts” with Massachusetts during his employment, and was thus entitled to protection of its Wage Act. 

In Dow v. Casale, a former sales employee of a small, failed Massachusetts company sued three former executives personally in Massachusetts, alleging they owed him more than $100,000 in commissions he earned prior to the company’s failure. The executives argued that Massachusetts law did not apply because the employee lived and worked in Florida. The court disagreed and held that the Wage Act “was designed to regulate the actions of Massachusetts employers, regardless of where their employees work.” 

The judge found the following activities established “more than sufficient contacts” with the Commonwealth to afford the employee the protection of the its Wage Act:

  • The salesman conducted his business largely via the internet, which was paid for by the Massachusetts employer
  • His business cards listed the company’s Massachusetts address, phone number and fax number
  • He had customers in Massachusetts and visited them about 20 times over two years
  • He was in daily contact with his supervisor in Massachusetts
  • All sales paperwork was generated in Massachusetts
  • All customer purchase orders were sent to Massachusetts, invoices were then sent to customers from Massachusetts and customers sent their payments to Massachusetts 

In light of this decision, out of state employers may want to consider taking steps to avoid the type of “sufficient contacts” with Massachusetts that might expose them and their officers to unfavorable liabilities and penalties under the Massachusetts Wage Act.



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ALJ Finds Employee’s Facebook Comments Unrelated to Working Conditions are not Protected Under the NLRA

by | Oct 17, 2011 | ,

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap

Two weeks ago, we wrote about a decision from an Administrative Law Judge (ALJ) (available here) finding that the National Labor Relations Act (NLRA) protected an employee’s Facebook comments made about his employer.  Last week, an ALJ issued another decision involving social media and the NLRA, finding that an employee had engaged in some protected activity, but that he was ultimately fired for other, unprotected activity.  In Karl Knauz Motors, a former salesperson claimed that he was fired after he posted pictures and comments on Facebook criticizing his employer’s choice of serving hot dogs at a sales event introducing the new BMW 5-series.  The National Labor Relations Board (NLRB) recently issued a report related to social media (found here), in which it noted the employee’s posts in the BMW case were protected activity because they related to the terms and conditions of employment.

While the ALJ agreed that the employee had engaged in protected activity in discussing the sales event, the Judge held that the employer actually terminated the employee for his other Facebook posts, which mocked a co-worker for allowing a teenager to test drive a Land Rover, who ultimately drove the car into a nearby pond.  The Judge found that the NLRA did not protect such a posting because it had no connection to the terms and conditions of employment, and was posted solely by the employee, not as part of a discussion with other employees.  Therefore the employer did not violate the NLRA when it fired the employee.

In addition to the Facebook postings, the Judge also considered whether four provisions of the employer’s handbook violated Section 7 of the NLRA.  The Judge dismissed the complaint regarding a provision that encouraged employees to have a good attitude at work, because it could be read to protect the relationship between the dealer and its customers, rather than to restrict employees’ Section 7 rights.  However, the Judge held that the three remaining provisions, which each limited employees’ right to speak about employment, violated the NLRA because they all could be read as curtailing employees’ Section 7 rights, and if employees complied with these restrictions, they would not be able to discuss working conditions with union representatives or lawyers.

Based on this ALJ decision, employers should continue to exercise caution when making employment decisions based on social media comments.  There continues to be a fine line between protected activity and unprotected activity when it comes to employees’ social media comments about their employers.  In addition, employers should review and possibly revise their handbooks to ensure they cannot be read as restricting employees’ Section 7 rights.



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Domestic Partner Developments- A Breakfast Discussion Sponsored by WEB Network

by | Oct 7, 2011 | ,

Tuesday, October 25, 2011 (7:30am breakfast and networking, 8:00am program)

Since June 1, 2011, Illinois has recognizee civil unions, and insured employee benefits plans in Illinois must offer a civil union partner the same benefits as offered to an opposite-sex married partner. Other states, like New York, have recently gone further, and offer full recognition of same-sex marriages. Although federal law defines marriage as between only a man and a woman under the Defense of Marriage Act, the federal government now has refused to defend this law, and efforts are underway to repeal this legislation. In the midst of all these changes, what is the status of these developments? What are the market trends and best benefit practices for same-sex partners and domestic partners? Come hear the answers from Todd Solomon, the expert who literally wrote the book on this topic, and from a national employer who has implemented a comprehensive domestic partner benefits strategy and domestic partner tax gross ups.

Speakers:

  • Todd Solomon – Partner, McDermott, Will & Emery, and author Domestic Partner Benefits: An Employer’s Guide.
  • Cathy van Heukelum – Senior Manager, North America HR Operations, Bain & Company, Inc.

Cost Members: $30 Non-members: $50

Contact: Lynne McEvoy
Email: lynne.mcevoy@mcgladrey.com
Phone: 312.634.4490
Website: www.webnetwork.org
UBS Tower
One North Wacker Drive
2nd floor, Mighigan II ballroom
Chicago, IL 60606



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Administrative Law Judge Finds Employer Unlawfully Discharged Employees Based on Facebook Posts

by | Sep 22, 2011 | ,

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap

In a first of its kind ruling, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) found that an employer unlawfully terminated five employees because they posted comments on Facebook related to working conditions.  This is a landmark decision because, up to this point, employers have only been able to rely on the prosecution trends of the General Counsel’s office, including a recently issued report on the topic, and not actual decisions by the adjudicative body of the NLRB.

This landmark case involved an employee of Hispanics United of Buffalo (HUB) (a nonunionized organization), who posted a message on Facebook sharing critical comments made by a coworker concerning employees’ poor job performance and asking for the employees’ reactions.  Five employees commented on the post, defending their job performance and criticizing the critical employee and their working conditions, including work load and staffing problems.  HUB later discharged the Facebook poster and the employees who responded to the post, stating that their comments constituted harassment of the critical coworker.

Based on an unfair labor practice charge filed by one of the employees, the NLRB’s Buffalo Regional Director issued a complaint in May 2011. The ALJ heard the case in July and, on September 2, issued a written decision finding that the employees’ Facebook posts were protected concerted activity under Section 7 of the National Labor Relations Act (NLRA) because they concerned a conversation among coworkers about the terms and conditions of employment and the employees’ conduct was not sufficiently inappropriate as to lose the protection of the NLRA.  The ALJ awarded the employees back pay and ordered HUB to reinstate the five employees.  The ALJ also ordered HUB to post a notice at its Buffalo facility explaining to employees their rights under the NLRA and committing not to violate those rights in the future.

While NLRB complaints related to social media have been on the rise, this is the first ALJ decision specifically addressing employees’ use of Facebook.  As a result, employers are wise to consider the ALJ’s decision when disciplining employees based on social media activity.



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NLRB Releases Report on Social Media Decisions

by | Sep 20, 2011 | ,

by Sabrina E. Dunlap, Stephen D. Erf and Heather Egan Sussman

In April 2011, we issued a blog post outlining some of the National Labor Relations Board’s (NLRB) decisions regarding employee use of social media (the post can be accessed here). In an effort to provide guidance on the issue, the Acting General Counsel of the NLRB (General Counsel) recently issued a report (found here) addressing cases from the past year arising in the context of social media use. The report uses 14 cases to illustrate how the General Counsel’s office determines that use of social media qualifies as protected concerted activity, and when the mere contents of an employer’s social media policy can give rise to liability under the National Labor Relations Act (NLRA), even when an employer’s employees are not represented by a union.

While the distinction between protected and unprotected activity on social media sites is not always obvious, several trends emerge from the illustrative cases, providing guidance on when the General Counsel’s office (the prosecution arm of the NLRB) will conclude that activity is protected. For example, in cases where the employee discussed his or her social media posts with other employees, or had discussions with coworkers and subsequently drafted a post based on such discussions, the General Counsel’s office tended to deem this “protected concerted activity” such that an employee could not be disciplined for the conduct. By contrast, when employees did not discuss posts with coworkers, or where an employee’s posts were merely “individual gripes” containing no language suggesting an attempt to engage other employees into group action, the General Counsel’s office generally concluded there was not protected activity, and the resulting disciplinary action did not violate the law. One case involving inappropriate and offensive “tweets” by an employee about his employer did not involve protected concerted activity because the tweets did not relate to the terms and conditions of employment, and again, did not seek to involve other coworkers in issues related to employment. 

As for the content of workplace social media policies, the key takeaway from the report is that employers should avoid using overbroad terms that could be construed to prohibit protected concerted activity. For example, the General Counsel’s office has taken issue with policies barring comments compromising the “privacy or confidentiality” of a coworker or that could “damage the reputation” of the employer, or that could “put your job in jeopardy,” because the terms were not defined in the policies. As a result, the General Counsel’s office concluded that the undefined terms could “reasonably be interpreted as prohibiting protected employee discussion” of the terms and conditions of employment, which would be unlawful.

However, the General Counsel’s office declined to prosecute an employer based on its policy that prohibited employees from “pressuring” coworkers  to connect or communicate via social media, finding that this restriction could not be reasonably read to restrict protected activity.  Similarly, the General Counsel’s office concluded that policies limiting employee contact with the media in an effort to ensure a [...]

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