Archive for May, 2012

Just when you thought it was safe to write a social media policy?

It’s almost summertime.  The kids are getting out of school and coming to work for you.  So you were probably thinking, time to update that social media policy to keep up with all of those multi-tasking wonder kids looking for summer jobs.  After all, we don’t want the Facebook generation to give away all of our company secrets, do we?  Well, the good old NLRB must have been thinking the same thing.  And they don’t seem to want you to write a new policy, in fact they don’t seem to want you to have your old policy.  On May 30, 2012, the Acting General Counsel of the NLRB issued a third report on social media cases.  This one focuses on  policies.

Here is the NLRB announcement in full:

NLRB Acting General Counsel Lafe Solomon today issued a third report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees.

The Operations Management Memo details seven cases involving such policies. In six cases, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful. In the seventh case, the entire policy was found to be lawful.

Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.

‘I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,’ Mr. Solomon said in releasing the memo. Two previous memos on social media cases, which involved discharges based on Facebook posts, issued in January 2012 and in August 2011.

The emphasis is mine, and the links should be live if you want to read the report.

Now, what that little announcement does not tell you is that the Acting General Counsel has, in my opinion, gone way over the line.  You see that red print up there?  He looked at seven policies and INVALIDATED AT LEAST PART OF ALL BUT ONE OF THEM.   Incredible.  Here is one highlight to get you started . . . and by started, I of course mean started banging your head against a wall. The NLRB has determined that an employer policy that says in part:

You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers.  [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet.  [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.

Dealing with this specific provision, the Acting General Counsel stated:

 We found that this rule encouraging employees “to resolve concerns about work by speaking with co-workers, supervisors, or managers” is unlawful. An employer may reasonably suggest that employees try to work out concerns over working conditions through internal procedures. However, by telling employees that they should use internal resources rather than airing their grievances online, we found that this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.

Again, the emphasis is mine, mostly because I just can’t believe that they said this.

Opportunities Missed

We don’t do this very often, but today we have a guest blogger.  Andrea Bernard is highly respected and talented partner at WNJ.  She spends a good deal of her time doing employment litigation.  You can read more about her at the end of this post or you can find Andrea’s bio here.  This post first appeared on our sister blog at Ahead of the Curve.

Every day, in state and federal courts throughout Michigan, companies are sued by plaintiffs who allege that their current or former employer discriminated against them because of a “protected characteristic” (age, sex, race, religion, handicap, etc.); retaliated against them for some “protected activity;” failed to honor their protected rights under a state or federal statute (e.g., FMLA); wrongfully discharged them or otherwise breached a contract of some sort; etc., etc.  It seems at times as though the list could go on indefinitely, and is limited only by the creativity of the plaintiffs’ bar.  And, every day, employers miss the opportunity to potentially limit their exposure to these myriad claims with a simple clause that can be included in an application for employment, an employment contract, or appropriate new hire paperwork: a contractual limitations period.

Every claim, cause of action, or lawsuit that can be filed against an employer is subject to a “statute of limitations.”  This is a legal deadline by which a plaintiff must file his or her lawsuit, or lose it forever.  Some statutes of limitation are long (e.g., claims for breach of contract in Michigan are subject to a six year statute of limitations).  Others are short (e.g., claims under the Michigan Whistleblower Protection Act must be filed within 90 days after the alleged retaliation occurs).  In between, statutes range from 300 days (to file a charge of discrimination with the EEOC, a mandatory administrative precursor to a Title VII claim in federal court) to three years (to file a claim of discrimination under Michigan’s Elliot Larsen Civil Rights Act).  Just keeping track of the various statutes can seem like a full time job some days!  But, in most cases, these statutory limitations periods can be adjusted by written agreement to a single, enforceable limitation period for all claims.  Federal courts in Michigan apply a “reasonableness” test to the agreed limitation period, holding that the time must still provide the employee “sufficient opportunity to investigate and file an action” and must not “work a practical abrogation” of the employee’s rights.  Michigan state courts will enforce a contractual limitation period unless some other traditional contract defense, such as fraud, duress, or waiver applies.  In most instances, however, courts have ruled that a six-month contractual limitation period is reasonable and enforceable.

As with all “rules” there are exceptions.  For example, at least one federal court in Michigan recently ruled that a contractual limitation period was not effective to bar claims filed by the EEOC on behalf of an employee, and did not prevent the intervenor employee’s participation in the lawsuit that the EEOC filed.  EEOC v. Ranir, 2012 WL 381339 (Feb 6, 2012).  Some federal courts have also held that waivers under the FLSA must be approved by the Department of Labor or a federal court to be enforceable.  And, of course, a claim that is filed within the six-month agreement would not be barred.  But in that instance, a primary objective of having the shortened period – preventing stale claims long after the employee has left and potential evidence and witnesses gone – is satisfied nonetheless.  So, although not a “silver bullet” to kill all claims, an employer can effectively limit its exposure for many claims for the cost of less than a silver bullet.

Andrea is a litigator who, since 1993, has represented manufacturers, contractors, financial institutions and others involved in employment, commercial and construction disputes. Always open to a new challenge, Andrea learned at a young age how to assert her position and negotiate solutions. “Growing up number 8 in a family of 11 children played a large role in forming my personality and my competitive nature. Long before I was born, my parents adopted a policy of not interfering in disputes among the kids. Left to our own devices, we kids solved a few of our disputes with fist fights, but more often with diplomacy. I learned very early how to hold my own in either forum,” she says. Andrea also serves as the firm’s Associate General Counsel.