Archive for May, 2011

“TWEET!” You’re Fired.

Remember back in February when we were talking about the National Labor Relations Board’s view of protected concerted activity and social media?  What do you mean you don’t remember?  See it here: http://zomichiganemploymentlaw.wnj.com/?p=316. Anyway, to remind you – back in February the NLRB settled a complaint it had filed against a Connecticut ambulance company that had fired an employee, basically for calling her boss a psych patient on her Facebook page.  In its Press Release on the settlement the Board said:

“An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and Internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

Not much help if you are trying to draft a policy, is it?  Well, we recently got a bit more help. In an Advice Memo issued on April 21, 2011, the NLRB opined that it was legal for the Arizona Daily Star to fire a reporter who posted “inappropriate and offensive Twitter postings that did not involve protected concerted activity.” The memo also had some important things to say about social media policies.

You see, the reporter did not dispute that he actually posted the Tweets or even that they were offensive. Instead, he claimed that the Daily Star’s social media policy was unlawfully overly broad. What did the policy say?  See, that is the confusing part – the Daily Star had no written policy. Instead, the reporter claimed that during disciplinary meetings leading up to his termination he was told by various management officials to “stop making inappropriate comments” and “stop airing his grievances or commenting about the employer in any public forum.” He was told that he was “not allowed to Tweet about anything work related,” and that he should “refrain from using derogatory comments in any social media forums that may damage  the goodwill of the company.”

The NLRB ultimately held that these statements did not amount to an oral “policy,” and even if they did, the reporter was fired for making offensive comments and not engaging in protected concerted activity – but again, so what?

What is important and instructive about this particular Advice Memo is that the NLRB acknowledged that “in warning the [reporter] to cease his inappropriate Tweets . . . the Employer made statements that could be interpreted to prohibit activities protected by Section 7.”  That’s right, what the Advice Memo basically says is, if your social media policy contains any of the prohibitions above it is an unlawful restriction and violates the NLRA.

So go check your policy.  See any of those restrictions?  Do you prohibit commenting in a public forum?  Tell people they can’t comment on work on social media sites?  If so, let’s take a look and if necessary get them changed before the NLRB does it for you.

Want to File a Complaint Against your Employer with the DOL? There is an app for that.

Think the DOL is not serious about making sure that employees have all the “tools” they need to file a wage/hour complaint against you?  Think again.  The United States Department of Labor announced yesterday that it has produced a free “app” that will “help ensure workers receive all wages earned.”  The application, which is available in both English and Spanish and is currently compatible only with the iPhone and iPod Touch (DOL is working on apps for other platforms like Blackberry) will allow workers to track “regular work hours, break time and any overtime hours for one or more employers.”  The “app” also contains a “Glossary, contact information and materials about wage laws that are easily accessible through links to the Web pages of the department’s Wage and Hour Division.”

Secretary of Labor Hilda Solis, commenting on the new “app,” stated:  “I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled . . . . This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.”

Don’t have an iPhone or iPod Touch?  That’s okay, the DOL is also providing printable work calendars in both English and Spanish to “track rate of pay, work start and stop times, and arrival and departure times.”  The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint.

You can see the press release at  http://www.dol.gov/opa/media/press/whd/WHD20110686.htm.

Want to download the app and see what it looks like yourself?  Find it at http://www.dol.gov/whd.

Want to talk to someone about wage/hour compliance issues?  We don’t have an app for that, but we can help.