NLRB Issues Social Media Update

On January 24, 2012, the National Labor Relations Board (NLRB) Acting General Counsel, Lafe Soloman, issued a new report on unfair labor practice cases involving employee use of social media and employers’ social media policies. The report (Memorandum OM 12-31) summarizes 14 recent social media cases reviewed by the NLRB’s Division of Advice.
The report reveals that the Acting General Counsel continues to follow the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act, whereas social media use by employees to simply voice “individual gripes” does not constitute protected activity. The report also provides useful guidance for employers drafting social media policies on the type of language that the NLRB’s Division of Advice considers unlawful.
Protection for Concerted Activity
In one case, an employee working for a collections agency, upset that she had been transferred to a lower-paying position, updated her Facebook page with a post that stated that the employer had “messed up” and that she was done being a good employee. This comment included expletives.
A coworker commented on this post, indicating that he was “right behind” the employee. Another coworker commented with a similar expression of support for the employee. Additionally, several former employees also posted remarks, including one comment that called for a class action against the employer.
When the employee returned to work, the employer showed her a copy of her Facebook posts and terminated her employment due to her comments. The Acting General Counsel said that the employee’s initial Facebook statement and the discussion it generated involved complaints about working conditions and the employer’s treatment of its employees, and clearly fell within the NLRB’s definition of concerted activity. He further concluded that the employer unlawfully terminated the employee in response to her protected activity.
The NLRB’s Division of Labor also found the employer’s rule prohibiting “making disparaging comments about the company through any media” unlawful. The Acting General Counsel stated that this rule could reasonably be construed to restrict protected activity, including employee statements about unfair treatment. He further noted that the rule contained no limiting language that would clarify to employees that the rule does not restrict such protected activity.
Individual Gripes Not Protected
In contrast, the NLRB’s Division of Advice concluded that an employee’s angry Facebook update complaining about her coworkers and employer and stating that she hated people at work did not constitute protected concerted conduct because the postings merely expressed the employee’s personal anger with her coworkers and employer, were made solely on the employee’s own behalf, and did not involve the sharing of common concerns.
However, the employer’s social media policy was found to be unlawful. That policy prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with the employer’s mission. The policy further prohibited unprofessional or inappropriate communication regarding members of the employer’s community. The NLRB’s Division of Advice found this language would reasonably be construed to chill employees in the exercise of their protected rights.
Lawful Policy Language
Another case cited in the report provides an example of social media policy language considered lawful. In this case, the employer’s policy prohibited the use of social media “to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” The Acting General Counsel stated that this rule prohibiting comments about coworkers, supervisors, or the employer could not reasonably be construed to apply to protected activity as appears on a list of “plainly egregious conduct,” such as discrimination or harassment based upon protected classifications.
A full copy of the Acting General Counsel’s Memorandum OM 12-31 can be found at https://www.nlrb.gov/operations/om-memoranda-0.



Supreme Court of United States Recognizes “Ministerial Exception” to Workplace Discrimination Laws

In a decision released on January 11, 2012, the Supreme Court of the United States ruled unanimously that a “called” teacher is a “minister” covered by the ministerial exception, grounded in Religion Clauses of the First Amendment, and that the ministerial exception operated as an affirmative defense, not a jurisdictional bar, to employment discrimination claims against a religious employer.
The case, Hosanna–Tabor Evangelical Lutheran Church and School v. E.E.O.C., --- S.Ct. ----, 2012 WL 75047 (U.S.), arose out of an action brought by the Equal Employment Opportunity Commission (EEOC) against a member congregation of the Lutheran Church, alleging that a “called” teacher (a teacher who must complete certain academic requirements, including a course of theological study and is recognized as a “Minister of Religion, Commissioned”) at its school had been fired in retaliation for threatening to file an Americans with Disabilities Act (ADA) lawsuit. The teacher, Cheryl Perich, intervened, claiming unlawful retaliation under both the ADA and state law for her dismissal due to the condition of narcolepsy.  Invoking what is known as the “ministerial exception,” Hosanna–Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers.  The United States District Court for the Eastern District of Michigan granted the congregation's motion for summary judgment. The EEOC and Perich appealed. The United States Court of Appeals for the Sixth Circuit vacated the lower court’s decision and remanded the matter, finding that Perich did not qualify as a “minister” under the exception. Certiorari was then granted to the congregation.
After a review of the facts of the case and a lengthy review of the history of religious freedoms in both Britain and the United States, Chief Justice John Roberts wrote:
We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
In finding that the facts of the case supported the application of the “ministerial exception” against Perich, the Court stated: 
[t]he interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.
While this decision has been widely celebrated by religious groups and institutions as an affirmation of unfettered First Amendment rights with regard to employment decisions, the Supreme Court expressly limited its decision, holding that the “ministerial exception” only bars an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. The Court expressed no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.



Recent NLRB Ruling Prohibits Employers from Requiring Employees to Sign Arbitration Agreements that Forbid the Collective Pursuit of Employment-Related Claims

On Friday, January 6, 2012, the National Labor Relations Board (NLRB) released its ruling on the issue of “whether an employer violates Section 8(a)(1) of the National Labor Relations Act when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial.” In D.R. Horton, Inc. and Michael Cuda, Case 12-CA-25764 (January 3, 2012), the NLRB concluded that such an agreement unlawfully restricts employees’ Section 7 rights to engage in concerted activity for mutual aid or protection.   
Michael Cuda, the Charging Party, alleged that his employer, D.R. Horton, was misclassifying its superintendents (including himself) as exempt from the provisions of the Fair Labor Standards Act (FLSA). His counsel sought to have the matter certified as a nationwide class action. D.R. Horton countered that the Mutual Arbitration Agreement (MAA) – which was executed by all employees as a condition of employment – solely permitted disputes to be resolved via individual arbitration – thus prompting Mr. Cuda to file an unfair labor practice charge.
At issue in this case were the MAA’s requirements that (i) all employment-related disputes will be determined by a final and binding arbitration and (ii) the arbitrator “may hear only Employee’s individual claims,” “will not have the authority to consolidate the claims of other employees,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding.” 
In concluding that the MAA expressly restricts protected activity, the NLRB reasoned:
The MAA requires employees, as a condition of their employment, to refrain from bringing  collective or class claims in any forum: in court, because the MAA waives their right to a judicial forum; in arbitration, because the MAA provides that the arbitrator cannot consolidate claims or award collective relief. The MAA thus clearly and expressly bars employees from exercising substantive rights that have long been held protected by Section 7 of the NLRA.
As such, D.R. Horton was instructed to rescind the MAA or revise it to clarify that employees do not have to waive their right to pursue a class or collective action.
The NLRB further held that the recent United States Supreme Court ruling in AT&T Mobility v.  Concepcion, 131 S. Ct. 1740 (2011) did not require a different result because that matter was a consumer class action that involved a conflict between the Federal Arbitration Act and state law (thereby implicating the Supremacy Clause), whereas the instant case addressed two conflicting federal statutes.
In sum, the NLRB has made clear its position that class action waivers do not belong in the workplace, and requiring such a waiver as a condition of employment is an unfair labor practice. The decision, which applies both to union and non-union workforces, will most assuredly be appealed to a federal court of appeal.

Contact: Jaime A. Maurer


Employment Law: What to Expect in 2012

Employment law is a dynamic field with new legislation, new regulations, and new court decisions interpreting the laws. Here are several topics that should garner attention in 2012:
1.      Retaliation. The United States Supreme Court issued two decisions last year that are likely to increase the number of retaliation lawsuits because they expand the scope of protection. In Thompson v. North American Stainless, an employee filed an Equal Employment Opportunity Commission (EEOC) Charge of Discrimination. Shortly thereafter, her employer terminated her fiancĂ©e. The employee alleged retaliation and the Supreme Court agreed because of the close relationship between the employee who engaged in the protected activity (filed the Charge of Discrimination) and the terminated employee. The Supreme Court left open the issue of how close of a relationship will qualify for protection.
In Gasten v. Saint Gobain Performance Plastics Corp., the Supreme Court determined that oral complaints were afforded protection from retaliation under the Fair Labor Standards Act.
2.      Whistleblower lawsuits. The enactment of the Dodd-Frank Wall Street Reform Act creates causes of action for employees of businesses that offer or provide consumer financial products or services primarily for personal, family or household purposes, including banks, loan brokers, check-cashing companies, real estate settlement companies, and financial advisors. The Securities Exchange Commission’s (SEC) whistleblower regulations went into effect on August 12, 2011.
3.      The Genetic Information Nondiscrimination Act (GINA). GINA was signed into law in 2008 and the EEOC issued final regulations in November 2010. The law prohibits discrimination in employment and in group health plan coverage based on genetic information, which includes such things as family medical history. The relatively new law has not generated much litigation and generated only 201 charges of discrimination with the EEOC, but the number of lawsuits and charges of discrimination is sure to rise.
4.      Pharmaceutical Sales Representatives. The Supreme Court agreed to determine the issue of whether pharmaceutical sales representatives are exempt from the Fair Labor Standards Act. Federal courts have come down on both sides of the issue so the Supreme Court’s decision will provide needed clarification.
5.      Increased Agency Actions. The EEOC and Department of Labor (DOL) were busy last year. The EEOC experienced a record number of charges filed (99,947) in 2011 and increased the number of lawsuits it filed. The DOL increased its focus on enforcement actions related to worker safety and wage and hour issues.
The number of SEC enforcement actions increased slightly in 2011. Significantly, settlements entered into by the SEC shifted in focus with a higher number of settlements with companies as opposed to individuals.
Both the SEC and Department of Justice (DOJ) recently reiterated their commitment to aggressively enforcing the Foreign Corrupt Practices Act (FCPA). The FCPA generally makes it unlawful to make payments of anything of value to foreign government officials to obtain business. FCPA penalties may result in fines of up to $2 million for companies and $250,000 for individuals per violation and five years’ imprisonment for violations of the anti-bribery provisions, and fines of up to $25 million for companies and $5 million for individuals and 20 years’ imprisonment for willful violations of the Books and Records requirements of the FCPA.
Along those lines, the U.K. Bribery Act took effect on July 1, 2011, providing penalties against corporations who fail to prevent bribery. The Act applies to non-U.K. companies conducting business in the U.K. The penalties include a maximum 10 years’ imprisonment and an unlimited fine.
6.      ADA Claims. The Americans with Disabilities Amendment Act went into effect in January 2009. This Act significantly expands the definition of “disability” that results in broader coverage. Since the Act became effective, the number of ADA claims filed with the EEOC have increased by 17%.

Contact: Jon Secrest