Transcript prcouncil.net

HR Roundtable, Council of PR Firms
QUARTERLY LEGAL UPDATE
January 30, 2012
Jessica Golden Cortes
Partner
212.468.4808
[email protected]
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
© 2012 Davis & Gilbert LLP
WTPA REMINDER: NY AND CA
»It’s not just NY anymore
»Key Differences:
- NY: to all employees upon hire, on or before
Feb. 1 annually, and upon change in
compensation (particularly reduction)
- CA: to non-exempt employees only, upon hire
and within 7 days of change in compensation,
have to include information about company’s
worker’s compensation insurance carrier
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
WTPA SPECIFICS: NY AND CA
»Notices given in language employer normally uses to
communicate employment-related information to
employee (in NY, only if DOL provides it in that
language, otherwise, English)
»Employers can develop their own notices
»Can be given electronically, as long as mechanism for
employee to acknowledge receipt and print out a copy
»If employee refuses to sign, employer should note
worker’s refusal
»Cannot retaliate against an employee for complaining
to company or government entity about alleged WTPA
failure
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
WTPA SPECIFICS: NY AND CA
»CA employers must now maintain payroll records for 3
years (previously it was only 2 years)
»CA Employees may recover liquidated damages in a
Labor Commission hearing for failure to pay minimum
wage (previously they were only available in court)
»Employer has to keep notices for 6 years in NY
»What about out of state employees who report in to NY
or CA offices?
CA FAQs = https://www.dir.ca.gov/dlse/FAQs-NoticeToEmployee.html
NY FAQs = http://www.labor.ny.gov/workerprotection/laborstandards/PDFs/wage-theftprevention-act-faq.pdf
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
TAILORING SOCIAL MEDIA
POLICIES IN LIGHT OF RECENT
CASELAW AND NLRB
DECISIONS
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
TWEET TWEET… UH OH
»Sept. 2011, Phonedog Media sued former freelance
editor for misappropriating twitter account
»Handle: @Phonedog _ Noah, changed to:
@Noahkravitz and took all 17,000 followers
»Trade secret misappropriation (the password and
compilation of subscribers), and unlawful conversion
of company property
»Started publishing for competing publishers using
same twitter handle
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
TWEET TWEET… UH OH
»Phonedog emphasized that it invested a lot of
money in editor and sent him to trade shows and
conferences to increase exposure to Company
and grow Company’s social media following
»Damages: alleged $2.50 per twitter follower
»Survived a motion to dismiss – waiting to see what
happens
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
DOES LINKED IN = LAWSUIT?
»Co-Founder established Linkedin account to
promote Company and develop her professional
reputation and network
»Company administration assisted and knew
password
»Co-Founder fired upon Company purchase.
Company changed password and account profile
to display name and photo of new CEO
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
DOES LINKED IN = LAWSUIT?
»Co-Founder sued alleging Computer Fraud and
Abuse Act violations and identity misappropriation/
theft. Company alleged the account was company
property
»Outcome may turn on who helped to create and
maintain the site - the Company property defense
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
DOES LINKED IN = LAWSUIT?
»How many of your employees are “linked” to clients
via Linkedin?
»How many of your employees are “linked” to fellow
employees via Linkedin?
»Would you expect/require an individual to give up his
or her Linkedin account upon departure from your
Company?
»Does your Company monitor former employees’
social media use?
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
STILL ACTIVE NLRB
»January 25, 2012, Acting General Counsel of the
NLRB issued a second report on employee use of
social media
- Key Take Aways:
• Policies should not be so overbroad that they
prohibit activity protected by federal labor law
• An employee’s comments on social media are
generally not protected if they are mere gripes
not made in relation to group activity among
employees
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
NLRA – EMPLOYEE PROTECTIONS
»Section 7 of the National Labor Relations Act (NLRA)
protects the rights of most non-supervisory
employees to act together to improve their working
terms and conditions, including communicating about
their pay, benefits and other work-related issues
»This is called “concerted activity” and is protected
whether or not the employees are unionized
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
RECENT NLRB DECISIONS
»Gripes on social media not protected concerted activity:
- Employee griped/vented on Facebook about incident
with supervisor – not protected even where coworkers responded, because it was not a group
concern, just an individual issue faced by the
employee
- Complaining about not liking a co-worker’s habit
(sucking teeth)
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
RECENT NLRB DECISIONS
»Overbroad Social Media Policy:
- Policy stating that employees should generally
avoid identifying themselves as the employer’s
employees unless discussing terms and conditions
of employment in an appropriate manner. The
prohibition on “inappropriate” terms and conditions”
could reasonably be interpreted to preclude
protected activity
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
RECENT NLRB DECISIONS
»Overbroad Social Media Policy:
- Policy prohibiting employees from using social
media to engage in unprofessional communication
that could negatively impact the employer’s
reputation or interfere with that employer’s mission
or unprofessional/inappropriate communication
regarding members of the employer’s community –
could reasonably be construed to chill employee’s
exercise of their Section 7 rights
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
RECENT NLRB DECISIONS
»Lawful Social Media Policy:
- Employees confine social networking to matters
unrelated to the Company if necessary to ensure
compliance with securities regulations/laws
- Prohibit employees from using or disclosing
confidential and/or proprietary information
- Employer could require that while engaging in
social networking activities for personal purposes,
employees must indicate that their views were their
own, not employer (FTC obligations)
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
TIPS FOR UPDATING YOUR
SOCIAL MEDIA POLICY
»Policies can’t be overbroad or construed so as to chill
or prevent employees from exercising Section 7 rights
»Policies must clearly spell out which employees/
independent contractors are permitted to tweet, post or
blog on a Company website, twitter account, Facebook
page, LinkedIn profile, etc.
»Policy must clearly spell out that such accounts, even if
maintained by a particular employee, are company
property and must be returned to employer upon
departure of individual from employment/engagement
»Must go in all independent contractor agreements too
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
TIPS FOR UPDATING YOUR
SOCIAL MEDIA POLICY
»Company must pre-approve any post – must be a
real-time pre-approval mechanism in place
»Revise restrictive covenant provisions to expressly
state that forms of informal solicitation expressly
reference use of social media mechanisms to
communicate with clients and former employees
»Instruct employees that while engaging in personal
social networking, must indicate that views were their
own and do not reflect those of employer. (FTC
implications)
»Discourage supervisors from “friending,” linking in” to
or recommending subordinates
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
EEOC TRENDS
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
2011 EEOC STATISTICS
» 99,947 Charges Filed in 2011
- Retaliation – 37.4%
- Race – 35.4%
- Sex – 28.5%
- Disability – 25.8%
- Age – 23.5%
- National Origin – 11.8%
- Religion – 4.2%
- Color – 2.8%
- Equal Pay Act – 0.9%
- GINA – 0.2%
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
WHY RETALIATION IS A FAVORITE
»Even if underlying complaint is not ultimately
founded, if made in good faith, can still win on
retaliation
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
THIRD-PARTY RETALIATION UPDATE
(Thompson v. N. Am. Stainless)
»Female employee made a complaint of sex
discrimination and her fiancé fired three weeks later
»Supreme Court held:
- Employer discriminated against female employee by
terminating her fiancé in retaliation for her complaint
- Fiancé also had a cause of action for retaliation even
though he had not engaged in the protected activity
- Title VII’s anti-retaliation provision covers those who
fall with the “zone of interests” sought to be protected
by the statute
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
THIRD-PARTY RETALIATION UPDATE
(Thompson v. N. Am. Stainless)
»Who is in your “zone of interests” at work? So far,
courts have held:
- Spouses
- Siblings
- Significant others
- Children/parents
- Best friend
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
QUESTIONS?
Jessica Golden Cortes
Partner
212.468.4808
[email protected]
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HR Roundtable, Council of PR Firms, Quarterly Legal Update
© 2012 Davis & Gilbert LLP