Is Your Company’s Social Media Policy Compliant with the NLRA?

In light of social media’s ever-growing societal presence, including, but far from limited to, Facebook, Twitter, and Instagram, it is common for employers to enact social media policies establishing a code of conduct governing their employees’ online social media presence.  When drafting such policies, employers must be careful to avoid running afoul of the National Labor Relations Act (the “Act ”), which applies to most private sector employers, regardless of whether the employer has a unionized workforce.

In a recent decision by the National Labor Relations Board (the “Board”), two sections of the popular restaurant Chipotle’s former social media policy were invalidated.  See Chipotle Services LLC and Pennsylvania Workers Organizing Committee.  The two provisions in question read:

  1. “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
  2. “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

The Board invalidated provision (1) above of Chipotle’s social media policy because the policy failed to define what it considered to be “confidential” information.  Specifically, while Chipotle had a valid interest in protecting its private information, it had an obligation to define what information was “confidential” for purposes of the policy.  An outright ban on postings about “confidential” information could plausibly interfere with an employee’s rights under the Act, including engaging in concerted activities for mutual aid or protection.

Regarding provision (2) above, the Board held that Chipotle could not prohibit postings that are merely false, misleading, inaccurate and incomplete statements; instead, it could only prohibit postings made with malicious intent (i.e., the employee knew the statement to be false or made the statement with reckless disregard for its truth or falsity).  The Board also found that a ban on “disparaging” statements was invalid as being overbroad because it could plausibly encompass statements protected by the Act, such as statements critical of supervisors or managers.  Notably, the Board upheld the policy’s prohibitions on “harassing or discriminatory” statements, citing prior precedent for the same.

In light of the Board’s decision in this case, employers must take great care in drafting social media policies that do not unlawfully restrict their employees’ rights under the Act.  If you would like assistance with drafting or revising a social media policy, please contact a member of the Labor/Employment Group.

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NLRB Rules Student Teaching Assistants and Research Assistants May Unionize

In a landmark decision, the National Labor Relations Board (the “Board”) held that student teaching assistants and research assistants at Columbia University have an employment relationship with the University, making them “employees” under §2(3) of the National Labor Relations Act (the “Act”) who, therefore, have the right to organize and form a union.  See The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia – GWC, UAW.  In so holding, the Board overturned a 2004 Board decision, Brown University, which held that “graduate assistants [could not] be statutory employees because they are primarily students and have a primarily educational, not economic, relationship with their university.”  The Board’s decision in Columbia University is yet another example of its activist agenda of venturing into non-traditional labor issues, including employee handbooks, workplace safety, and arbitration clauses in employment agreements.

In overturning Brown University, the Board observed that the Act’s definition of “employee” appears to have been intended to encompass the ordinary dictionary definition of employee – specifically, any “person who works for another in return for financial or other compensation.”  The Board placed further weight on the fact that in the teaching assistant/private university relationship, there is the payment of tangible compensation.  The Board further opined that payment of such compensation from the university to the teaching assistant, in conjunction with the university’s control over the teaching assistant, is enough to establish an employment relationship under the Act.

Columbia University spokeswoman Caroline Adelman expressed the University’s disapproval with the Board’s decision, stating that “the academic relationship students have with faculty members and departments as part of their studies is not the same as between employer and employee.  First and foremost, students serving as research or teaching assistants come to Columbia to gain knowledge and expertise, and we believe there are legitimate concerns about the impact of involving a non-academic third-party in this scholarly training.”  Columbia University’s concerns over the impact of the decision leaves open the possibility of an appeal in federal court in order to overturn the Board’s holding.

The Board’s decision has the potential to have a significant impact on private higher education where issues previously left to the decisions of administrators and non-student teachers, such as the academic curriculum, grading obligations, and semester schedules, will now likely be subject to change through collective bargaining with student teachers and research assistants.  Accordingly, private higher education institutions should expect to see an increase in union organizing efforts.

The Board’s decision in its entirety can be found here.

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Employers Must Act Fast and Update Their Federal Posters

At the end of July 2016, the U.S. Department of Labor (“DOL”) announced that employers must post updated versions of the Federal Minimum Wage Poster and the Federal Employee Polygraph Protection Act Poster (“EPPA Poster”) by August 1, 2016.

Every employer of employees subject to the Fair Labor Standards Act’s minimum wage provisions must post the revised Federal Minimum Wage Poster in a conspicuous place in all of their establishments.  While there are several changes to the Federal Minimum Wage Poster, the most notable are the addition of:

  • a new section regarding the rights of nursing mothers;
  • a warning against incorrectly classifying workers as independent contractors; and
  • information regarding the DOL’s ability to recover liquidated damages in addition to back wages for minimum wage or overtime violations.

Meanwhile, the EPPA Poster was updated to provide appropriate DOL contact information and remove the provision that specifies the penalty amount of $10,000 for a violation.  The EPPA Poster now generally states that the Secretary of Labor may bring a court action to assess civil penalties.

As a result of the lack of advance notice from the DOL, many employers are currently out of compliance with federal posting requirements.  While print copies are not currently available from the DOL, employers are well-advised to immediately download and post a pdf of the revised posters from the DOL’s website (links below).  Employers who utilize online job applications must also update their links to the relevant posters.

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Once An Employee Has Verbally Resigned, Should You Require the Employee to Submit a Written Letter of Resignation?

It is not uncommon for human resources professionals to receive a verbal resignation from an employee or to be informed by a manager that an employee has stated that he or she is resigning their employment.  In many instances, these verbal resignations occur in the heat of the moment, such as in the midst of a performance-based counseling or while facing the prospect of discipline for misconduct.  The knee-jerk reaction of many managers and HR personnel is to inform the employee that they require the employee to submit his or her resignation in writing.  Although it is certainly legally permissible to request a resignation in writing, it is not always advisable to do so.

By requesting a resignation in writing, you will have conveyed to the employee that the company has not yet accepted the resignation.  As a result, the employee could elect to change his or her mind and, thereby, rescind the resignation.  This often occurs when the employee “cools down” and then speaks with a lawyer or friend who advises them that a resignation will likely prevent collecting unemployment compensation benefits or may affect other claims they might have against the employer.

Unfortunately, once the employee rescinds the verbal notice of resignation, a strong argument exists that the resignation that was offered can no longer be accepted by the employer.  To avoid this situation, employers are well advised to immediately verbally accept the employee’s resignation and then to very quickly follow-up the acceptance with either an email or letter to the employee stating as follows:

“I am writing on behalf of the company to confirm that the company has accepted your voluntary resignation from employment effective today.  Thank you for your service to the company.  We wish you every success in your future endeavors.”

Once the resignation has been accepted, the employee will have a difficult time attempting to rescind the resignation or claiming that the employer misunderstood his verbal statement that he had resigned.

Acceptance of the resignation should also be confirmed through standard end-of-employment processing, such as shutting off systems access to the employee, recovering keys and/or badges, and assisting the employee with exiting the workplace following gathering of personal belongings.  Because the employment termination stems from a resignation, the employer may process final wages and payment for any accrued and unused vacation through normal payroll processing.

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Wait ‘Til Next Year?

Despite Legislative Inaction, it May Be Time to Test the Fitness of Your Non-Competes

When the clock struck midnight on August 1st, it brought the Massachusetts legislative session to a close.  It also brought to a close the latest efforts by the Great and General Court to change the landscape regarding non-compete law.  Although the proposed legislation failed due to the inability of the two houses of the legislature to agree on critical provisions, the closeness of the loss may portend that change is on the way.  In the meantime, life moves on – for employers who have employees currently signed to non-competes; and for employers who may want to have employees sign them between now and when (if?) the law does actually change.

If you are in either situation, what should you do in light of this near miss?  This post will hopefully offer some constructive advice.

First, The History.  Massachusetts has traditionally honored an employee’s right to bargain away his right to engage in certain future conduct, including conduct competitive with his present employer.  While courts have scrutinized such agreements closely, if the employer can show a protectable interest and the scope, time and geographic limits of the restrictions are reasonable, they will usually be enforced.

For nearly a decade, bills have been introduced to curtail or modify the use of non-competes.  These bills have precipitated a pitched battle between (a) the forces who sought to do away with them as a means of encouraging innovation and (b) the forces that fought to save them so that trade secrets and proprietary rights could be preserved.

Until recently, the proposed legislation gained little traction.  In this past session, however, the drive gained considerable steam and the Massachusetts House and Senate both passed separate bills that would significantly alter this landscape.  The differences between the bills proved to be too wide a gulf to be bridged in the current legislative session, but the common provisions found in both may mean change is not far off.

Horseshoes, Hand Grenades and Non-Compete Legislation?  There is a saying that “close” only counts with horseshoes, hand grenades and drive-in movies.  Despite the failure to bridge the gulf, the legislature’s near miss on non-competes may be added to that list.  Although such agreements remain valid and arguably enforceable, judges are not required to enforce them.  Judges have always had broad discretion to evaluate the equities of the specific situation (what is fair between this employee and this former employer under these circumstances?) and elect not to enforce on that basis.  Given how close passage came, some of the details of that legislative process are likely to be trotted out by an employee in the face of an employer’s effort at enforcement.

Both Houses Find a Pox (Actually Several of Them).  Both the House and Senate versions reflected a recognition that there were some common practices by employers in the use of non-competes that deserved correction.  In this regard, there was consensus in the competing bills on the following:

It was unfair for an employer to spring the requirement to sign a non-compete on an employee after she had already burned her bridge with her present employer.

  1. Agreements longer than a year exceeded the legitimate time that an employer truly needed protection (with certain limited exceptions).
  2. Too many employees were being asked to sign, including those who were paid on an hourly basis and posed no real threat to their employers.
  3. It was unfair for employers to gain such valuable protection without providing meaningful consideration to the employee who was surrendering his valuable future right to work in his chosen field.
  4. It was unfair to impose restrictions on future employment when the employer has terminated the employee without cause.

So What Should You Do?  If you have non-competes with your existing employees, you should compare them to this list to see if they run afoul of these concepts.  A simple checklist looks like this:

  • When was the employee asked to sign? Did he have a meaningful ability to refuse to sign?
  • Is the duration longer than a year? If so, why?
  • Is the employee paid on an hourly basis?
  • Was anything of value given to the employee at the time she signed? Will she be paid anything at the time she is expected to stay on the sidelines and not compete?
  • How did the employment end? Was the employee terminated without cause?

If the answers to any of those questions run afoul of the concerns recognized by the two houses, you may not be able to convince a judge that the equities warrant enforcement.  You should therefore discuss with your attorney whether a plan to revise your current agreements may be in order.

 

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Employers Take Notice: New OSHA Recording and Reporting Occupational Injuries and Illnesses Regulations Taking Effect on August 10, 2016 and January 1, 2017, Respectively.

The United States Occupational Safety and Health Administration (OSHA) recently issued a final rule revising its so-called Recordkeeping and Reporting Occupational Injuries and Illnesses regulation, 29 CFR Parts 1904 and 1902.  Most of the requirements of OSHA’s final rule will take effect on January 1, 2017.  Two sections of the final rule, however, become effective on August 10, 2016.

The Provisions Taking Effect August 10, 2016

In particular, on August 10, 2016, revised Sections 1904.35 and 1904.36 of the regulation will take effect.  OSHA, however, has decided to delay enforcement of these provisions until November 1, 2016 to allow OSHA to “provide outreach to the regulated community” so that employers can ensure they are in compliance with the new provisions when enforcement begins on November 1, 2016.

Sections 1904.35 and 1904.36 include new provisions which require that:

(1)       employers notify their employees of their right to report illnesses and injuries free from retaliation;

(2)       employer illness and injury reporting procedures must be reasonable and not have the effect of deterring or discouraging employees from reporting such illnesses or injuries; and

(3)       consistent with language already contained in the Occupational Safety and Health Act (the “OSH Act”), prohibiting employers from retaliating or discriminating against employees who report workplace illnesses or injuries.

By requiring employers to inform their employees of their right to report illnesses and injuries free from retaliation, the final rule expands the existing requirements of the regulation in an effort to “improve employee and employer understanding of their rights and responsibilities related to injury and illness reporting and thereby promote more accurate reporting.”  Employers may satisfy their notice obligation by posting the OSHA Poster, which can be accessed at https://www.osha.gov/Publications/osha3165-8514.pdf.

To the extent employers’ existing policies require employees to promptly report any work-related illnesses or injuries, they will need to be revised to make clear that employees have the right to report any such illness or injury without fear of discrimination or retaliation for doing so.

The clarification that employer illness and injury reporting procedures must be reasonable and not deter or discourage employee reporting of such illnesses or injuries is expected and intended to address the minority of employers who currently have unreasonable reporting procedures.  For example, if employer procedures for reporting illnesses and injuries include too many steps, they will likely be deemed to be unduly burdensome and, therefore not reasonable under the final rule.  Similarly, employer policies that require “rigid prompt-reporting requirements” that have resulted in employee discipline for late reporting are unreasonable, particularly as they relate to “injuries and illnesses that build up over time, have latency periods, or do not initially appear serious enough to be reportable.”

Lastly, the final rule’s prohibitions against discriminating and/or retaliating against employees for reporting work-related illnesses and injuries are already contained in the OSH Act.

The above-noted changes under the final rule are expected to have a particular impact on existing employer disciplinary policies, post-accident drug testing policies, and employee incentive programs.  Specifically, employers will no longer be able to enforce existing policies or safety rules to the extent that doing so will result in discipline or some other adverse employment action (such as not being eligible for promotion) being taken against an employee simply for reporting a work-related illness or injury or simply for being injured.  Under the final rule, OSHA will have the authority to cite “employers who discipline workers for reporting injuries and illnesses when no legitimate workplace safety rule has been violated.”

With respect to post-accident drug testing, the final rule prohibits “employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”  According to the final rule, “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” OSHA notes that it would not likely be reasonable for an employer to conduct a drug test of an employee who reported a bee sting or who suffered a repetitive strain injury.  As a result,  blanket post-accident drug testing policies would likely only deter reporting such injuries.  The final rule further states that although employers do not specifically have to suspect drug abuse before ordering a drug test, there should be a “reasonable possibility” that drug use could have been a “contributing factor” to the reported illness or injury to require drug testing.

OSHA’s final rule also provides that although they may be well-intentioned to encourage workers to practice safety in the workplace, employee incentive programs that reward employees for low illness or injury incident rates have the potential to discourage work-related illnesses and injuries without improving safety in the workplace.  As a result, employee programs that provide incentives to workers for remaining “injury free” could discourage illness and injury reporting and could be deemed to be retaliatory under the OSH Act and the final rule.  While the comments to the final rule state that the regulation is not intended to prohibit all employee incentive programs, such programs will need to be “structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.”

In light of the final rule’s employee notice and anti-discrimination and anti-retaliation provisions, employers are well advised to review their existing policies and revise them, if necessary.

The Provisions Taking Effect January 1, 2017

The recordkeeping provisions of the final rule will take effect on January 1, 2017.  Under the final rule, establishments with 250 or more employees must, on an annual basis, electronically submit to OSHA or its designee some of the information contained in the three recordkeeping forms (Forms 300, 300A, and 301) they must keep pursuant to Section 1904 of the regulations.

Second, establishments in certain designated industries (e.g., manufacturing, construction, healthcare facilities, nursing care facilities, etc.) with 20 or more but fewer than 250 employees must electronically submit information from their Form 300A to OSHA or OSHA’s designee on an annual basis.

Third, employers must, upon notification from OSHA, electronically submit information from their OSHA Forms 300, 300A, and/or 301 recordkeeping to OSHA or OSHA’s designee.

The final rule’s new electronic submission requirements do not add to or change any employer’s obligation to complete and retain injury and illness records under OSHA’s existing regulations for recording and reporting occupational injuries and illnesses.

OSHA plans to post the data submitted by employers in accordance with these new recordkeeping requirements on its website, but will not disclose any personally identifiable employee information in the process.  According to the final rule, the electronic submission of Section 1904 records will provide OSHA with “more timely, establishment-specific information about injuries and illnesses in the workplace. This information will help OSHA use its enforcement and compliance assistance resources more effectively by enabling OSHA to identify the workplaces where workers are at greatest risk.”

Although the final rule’s electronic recordkeeping requirements take effect on January 1, 2017, they will be phased in between 2017 and 2019 as follows:

 

 

 

If you have any questions about the OSHA final rule, please feel free to contact a member of our Labor, Employment, and Employee Benefits Group.Employers should begin preparing to comply with OSHA’s new recordkeeping and reporting requirements.

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Massachusetts Enacts Robust Pay Equity Act

On August 1, 2016, Governor Charlie Baker signed into law the Act to Establish Pay Equity (the “Pay Equity Act”), which will go into effect on July 1, 2018 for all Massachusetts employers.  The Pay Equity Act, which amends and strengthens Massachusetts’ existing prohibition on discrimination in wages based on gender, is being called the most robust equal pay law in the country.

The Pay Equity Act prohibits employers from discriminating on the basis of gender in the payment of wages (including benefits) or paying “any person a salary or wage rate less than the rates paid to employees of a different gender for comparable work.”  The term “comparable work” does not mean that the work must be exactly the same; rather, the term is broadly defined to mean work that is “substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.”

Variations in wages are allowed only if they are based on: (i) a bona fide system that rewards seniority (but only if time spent on leave due to a pregnancy-related condition and/or protected parental, family, and medical leave does not reduce seniority); (ii) a bona fide merit system; (iii) a bona fide system which measures earnings by quantity or quality of production or sales; (iv) the geographic location in which a job is performed; (v) education, training, or experience, if the factors are reasonably related to the job in question and consistent with business necessity; or (vi) travel, if the travel is a regular and necessary condition of the particular job.

In addition to prohibiting unequal pay based on gender, the Pay Equity Act prohibits employers from:

  • Requiring employees to refrain from inquiring about, discussing, or disclosing information about their, or any other employee’s, wages;
  • Screening job applicants based on their wage or salary histories or requiring job applicants to disclose prior wages or provide a salary history. (Massachusetts is the first state to ban employers from asking about salary histories – many employers will need to update their job application forms);
  • Seeking the salary history of any prospective employee from their former employer, unless an offer of employment with compensation has been extended to the prospective employee and the employee provides a written authorization to confirm prior wages; or
  • Discharging or retaliating against any employee for opposing any act or practice made unlawful by the Pay Equity Act, making a complaint under the Pay Equity Act, testifying, assisting, or participating in any investigation or proceeding under the Act, or disclosing information about their wages, or discussing or inquiring about the wages of any other employee.

Employees are not required to pursue a claim of discrimination with the Massachusetts Commission Against Discrimination before filing an equal pay claim in court.  Similar to the hefty violations of the Wage Act, employers found to violate the Pay Equity Act are liable for the amount of the unpaid wages (including benefits), liquidated damages, and attorneys’ fees.

Employers may protect against Pay Equity Act claims by conducting a self-evaluation of their pay practices and demonstrating that reasonable progress has been made towards eliminating compensation differentials based on gender for comparable work.  Notably, employers are not allowed to attempt to comply with the Pay Equity Act by reducing any employee’s salary or wages.

The Attorney General is authorized to issue regulations interpreting and applying the Pay Equity Law and initiate suits to enforce the Pay Equity Act.

If you have any questions about the requirements of the Pay Equity Act or would like assistance conducting a self-evaluation, please contact a member of the Labor and Employment Law Group at Mirick O’Connell.

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