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NLRB Issues Report on Social Media Cases

The General Counsel for the National Labor Relations Board (“Board”) has issued a report on social media cases addressed by the Board in the past year.

The introduction to the report noted that recent developments in the Office of the General Counsel have presented “emerging issues” concerning the protected and/or concerted nature of employees’ social media activities, the coercive impact of social media activities, and the lawfulness of employers’ rules and policies on social media.  In the report itself, the General Counsel discussed several different cases and scenarios where employees were disciplined for posting statements through social media outlets – which were usually on Facebook or Twitter.

In each of these cases, the Board focused on whether the activity in question was “protected and concerted.”  Protected activity includes discussions that relate to an employee’s terms and conditions of employment.  Concerted activity needs to involve more than just one employee.  Thus, in many of the cases discussed in the report, the Board did not find that a disciplinary action taken against an employee violated the National Labor Relations Act (“Act”), because the employee had not engaged in “concerted” activity.  More specifically, those employees made statements on Facebook or Twitter, but such actions did not involve discussions with other employees. Therefore, such statements did not constitute “protected and concerted” activities.  Rather, they were simply considered to be “individual gripes.”  In other cases, however, the Board found that the employer violated the Act when it disciplined employees for engaging in “protected and concerted” activities.

Another series of cases dealt with employers who had “overbroad” social media policies.  Such polices were deemed to be unlawful, because “employees could reasonably construe them to prohibit protected conduct.”  In those cases, the employers were required to amend their social media policies.  Additionally, any disciplinary actions implemented under such overbroad policies were invalidated.

You can read a full copy of the report here.

New Employment Laws in Hawaii – 2011

The 2011 Legislative session was certainly not what I would call “employer-friendly,” to put it lightly.  This was the first time in over 8 years that both the legislature and governor’s office were controlled by the Democratic party.  Therefore, it was not surprising to see that many laws passed this year favored the rights of employees and labor unions, over the rights of employers.

For example, there were several changes to Hawaii’s anti-discrimination laws, which now make it unlawful for employers to discriminate against employees (a) for taking sick leave, (b) for their gender identity or expression, or (c) for their status as a victim of sexual or domestic violence.  In addition, another significant change to the law is that it now constitutes a criminal offense for an employer to not pay wages to their employees.

With the exception of the “domestic violence victim discrimination law,” all of these laws have already become effective.  Employers are advised to update their policies and handbooks accordingly.  These laws, and some others, are as follows:

Sick Leave Discrimination (Act 118, SB 1076) – This new law amends HRS 378-32, and prohibits employers who have (a) 100 or more employees and (b) a collective bargaining agreement with those employees, from barring, discharging from employment, withholding pay, or demoting an employee who uses accrued and available sick leave.

You can read my thoughts on this new law in a previous blog post here, and a copy of SB 1076 here.

Gender Identity Discrimination (Act 34, HB 546) – This new law amends HRS 378-2, and prohibits employers from discriminating against employees on the basis of “gender identity or expression.”  The way the law is written, discrimination based on “gender identity or expression” is considered a form of sex discrimination.

The legislature defined “gender identity or expression as “a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression, is different from that traditionally associated with the person’s sex at birth.”

You can read a copy of HB 546 here.

Domestic Violence Victim Discrimination (Act 206, SB 229) – This new law also amends HRS 378-2 and prohibits employers from discriminating against employees or applicants who are the victims of sexual or domestic violence, if the victim notifies the employer of such status or the employer has actual knowledge of such status.

This new law also re-titles Hawaii’s “Victim Leave” law to “Victim Protections” and requires employers to make “reasonable accommodations in the workplace” for victims of domestic violence, such as changing the contact information of the employee, screening phone calls for the employee, restructuring the job functions of the employee, changing the work location of the employee, installing locks and other security devices, and allowing the employee to work flexible hours, unless providing such an accommodation would cause “undue hardship” on the work operations of the employer.

You can read a copy of SB 229 here.  (Note:  this law takes effect January 1, 2012)

Labor Trafficking and Nonpayment of Wages (Act 146, HB 141) – This new law provides new and specific penalties for labor trafficking offenses.

The part of this new that will have the most significant impact on most employers, however, is that it is now makes it a criminal offense not to pay wages owed to an employee.  Specifically, the new law states that a person commits the offense of “nonpayment of wages” if the person, acting in the capacity as an employer, intentionally or knowingly or with intent to defraud fails or refuses to pay wages to an employee. There is an exception to this rule, where an employer is required to make deductions from an employees wages under federal or state law, or court order.

A failure to pay wages of $2,000 or more constitutes a Class C felony.  In addition, it will also be a Class C felony if a person convicted of nonpayment of wages falsely denies the amount or validity of the wages owed.  A failure to pay wages of under $2,000 constitutes a Misdemeanor.  Finally, the law provides that each missed pay period will constitute a separate offense.

You can read a copy of HB 141 here.

Workers’ Compensation for Partnerships, LLC’s, etc. (Act 196, HB 519) – This new law provides that the following individuals are exempt from workers’ compensation coverage:  (a) a partner of a partnership, (b) a partner of an LLP who has 50% or more interest in the LLP, (c) a member of an LLC who has 50% or more interest in the LLC, and (d) sole proprietors.  You can read a copy of HB 519 here.

Partial Unemployment (Act 165, SB 1088) – This new law repealed the sunset provisions on partial unemployment benefits and removed the prior 8 week limitation on partial unemployment status.  In addition, this new law also established conditions for which an individual who has established eligibility based on full-time employment may be found to have good cause for voluntarily separating from subsequent part-time employment.  You can read a copy of SB 1088 here.

Increased HOSH Penalties (Act 123, SB 1040) – This new law imposes a 10% increase on monetary penalties for violations of the Hawaii Occupational Safety and Health Law.  You can read a copy of SB 104 here.

Throwing a Holiday Party? Some Things to Consider

‘Tis the season for company-sponsored holiday parties.

Holiday parties are an excellent way for employers to boost employee morale, build camaraderie, and celebrate a successful year of business.  At the same time, however, employers should be cautious about the pitfalls that throwing a holiday party can bring.

Alcohol Issues

Employers should take caution when serving alcohol at a company-sponsored holiday party.  First and foremost, employers should make sure that somebody is checking the ID’s of anybody who consumes alcohol.  The purpose of checking ID’s is to avoid serving alcohol to a minor.

Second, employers should also make sure that any individual who is visibly intoxicated is not served any more alcohol.  The purpose of this is to avoid “dramshop” type liability for anybody who drinks at a company-sponsored party and then attempts to drive afterward.  It is also a good idea to provide several non-alcoholic drink options, so guests don’t feel like alcoholic drinks are their only option.

Third, employers should also provide guests with alternative forms of transportation if they are unable to drive, such as cab rides or designated drivers.

Fourth, in order to avoid some of the problems mentioned above, employers should remind employees (and their guests) to drink responsibly.

Finally, employers should also review their insurance policies to determine if they can serve alcohol at a company-sponsored party in the first place.

Sexual Harassment Issues

Oftentimes, when employees attend company-sponsored parties, they forget they are still in a work-related setting.  Once you add some alcohol into the mix, there is a potential that employees may engage in conduct that would violate a company’s anti-sexual harassment policy.  Therefore, employers should make sure to remind employees that the party is work-related, and that all workplace rules still apply at the party.

For example, while it may be festive to have somebody dressed in a Santa Claus suit during the event, employees should not be “sitting on Santa’s lap” because such behavior could be deemed inappropriate under Hawaii and Federal sexual harassment laws.  As another example, employees should be reminded to dress appropriately, so that they don’t dress in a manner that could be deemed inappropriate for a work-related event.

Other Issues

Employees should be reminded that the holiday parties are completely voluntary, and therefore, they are not required to attend the event.

Finally, employers should weigh the pros and cons of having a holiday party on a weekday versus the weekend.  If the party is on a weekday, the employees might not drink as much alcohol or get too rowdy, which alleviates some of the concerns above.  On the other hand, if employees do drink too much alcohol or stay up late, they might be unproductive at work the next day.  If the party is on a weekend, employers do not have to worry about employees’ loss of productivity on the day after the party, but there is a high likelihood the employees will consume more alcohol than they would on a weekday.

Search Of Police Officer’s Text Messages Reasonable

The United States Supreme Court just issued its decision in Quon v. Arch Wireless (S.Ct. June 17, 2010), which dealt with the issue of whether the City of Ontario could search the text messages on alphanumeric pagers it provided to its police officers.  As I predicted in this earlier post, the high Court reversed the decision of the Ninth Circuit, and ruled that the search of the police officer’s text messages was reasonable and did not violate the Fourth Amendment of the Constitution.

For purposes of its decision, the Court assumed arguendo that the police officer had a reasonable expectation of privacy in his text messages; that the search of his text messages constituted a Fourth Amendment search; and the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere.

The Court then noted that the search was motivated by a legitimate work-related purposes, and was not excessive in scope.  Therefore, the search was reasonable and did not violate the police officer’s right to privacy.  The Court explained there were reasonable grounds to ensure that employees were using the alphanumeric pagers for work-related purposes.

The Court also noted that its holding could be applied to the private-employer context.  Specifically, the Court stated that the search, as conducted in this case, was not motivated by a legitimate work-related purposes and was not excessive in scope.  Therefore, the search could be “regarded as reasonable and normal in the private-employer context.”

At the same time, employers should take caution in how they apply the holding in this case to searches they wish to conduct in their own workplaces.  This is because the Court noted that it wanted to avoid establishing “far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices.”  Therefore, the Court carefully issued its decision on “narrow grounds” and based it on the assumptions, used for the sake of argument, that are noted above.

A copy of the decision can be viewed here.  You can review prior posts on this case here and here.

U.S. Supreme Court Hears Oral Arguments In Text Messaging Case

Just yesterday, the United States Supreme Court heard oral arguments in the Quon text-messaging case.  Interestingly, the Supreme Court may have turned what was formerly a “invasion of privacy” into a “search and seizure” case.

Prior rulings in this case have focused on whether a police officer had a “reasonable expectation of privacy” in text messages he sent from a government issued pager.  The police department had a formal policy stating that it could search the police officer’s text messages, but a (non-policymaking) lieutenant announced an informal policy that the department would not review the text messages as long as the officers paid for any overage charges. The lieutenant later changed his mind and searched the police officer’s text messages.

The Ninth Circuit Court of Appeals ruled that the police officer had a reasonable expectation of privacy in his text messages.  The court reasoned that the lieutenant’s informal policy created a reasonable expectation of privacy for the text messages.

During oral arguments before the Supreme Court, however, the issue seemed to turn to whether the search of the text messages was “reasonable” in light of the Fourth Amendment to the United States Constitution.  A copy of the transcript of the hearing can be viewed here.

When the Supreme Court accepted certiorari in this case, it raised a lot of speculation as to why the Supreme Court wanted to hear the case.  On the one hand, the Ninth Circuit Court of Appeals is the governing court for all federal courts within the Ninth Circuit court system.  Logically, it would not make sense for the Supreme Court to accept certiorari in the case just to affirm the Ninth Circuit’s decision.

As noted in prior entries about this case, the High Court’s ruling may have far reaching effects on employer’s rights to search company-issued equipment used by employees.  On the other hand, if the Court focuses heavily on the Fourth Amendment issues, there is a chance the Quon ruling is limited to government employees.   We’ll just have to wait for the Court to issue it’s decision, which is expected by Summer 2010.