New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

The Division of Advice noted that the test for concerted activity is whether the activity is “engaged in with or on the authority of other employees.” In addition, activity may be deemed concerted when it is the “logical outgrowth of concerns expressed by the employees collectively.” In this case, however, there was no evidence of concerted activity because the posting involved a discussion between the bartender and a non-employee, and there had been no employee meetings over the issues of tipping and raises. Nor did the Facebook communication grow out of any prior communication between employees at the establishment.

In another Advice Memorandum, the Division of Advice concluded that a non-profit residential home lawfully terminated an employee who posted several comments on her Facebook Wall about her work and her patients. According to the Advice memorandum, the employee commented that it was “spooky” working at night in a “mental institution” and that she was unsure if a resident was hearing voices. The Division of Advice found no concerted activity in the postings because they were made solely to non-employees. Moreover, they did not involve any terms and conditions of employment. Rather, the employee was merely communicating to non-employees about what was occurring at work.

Finally, the Division of Advice also issued a Memorandum in a case involving Wal-Mart. According to the memorandum, the employee posted the comment “Wuck Falmart” on her Facebook page. She also commented about “tyranny” in the store, including complaints about an Assistant Manager. Several co-workers responded to the complaints. For example, one thought the comments were humorous and another could not understand why the employee was so “wound up.” The employee received a one day suspension for the posting. The Division of Advice recommended the Board not issue a complaint because the employee was only airing an individual gripe as opposed to a complaint on behalf of others. Because the comments were limited to one person’s issues, there was no group action that could be considered protected concerted activity.

These cases stand in contrast to two cases we reported on earlier where complaints were issued. In those cases, the employees posted critical comments about working conditions, and the complaints involved communication with other employees who shared or supported the substance of the comments.
 

2.  Exempt Status. With Fair Labor Standards Act litigation outpacing discrimination suits, and New York’s recently enacted Wage Theft Prevention Act taking effect in April 2011, overtime compliance is essential.

What To Do: Before classifying a position as exempt, employers must insure the duties test, salary basis test and salary level test are satisfied. Because many employers give little thought to exempt classifications, employers should review all positions currently classified as exempt and insure these tests are satisfied. If an employer discovers it has misclassified a position as exempt, legal counsel should be sought.

3.  Other Wage and Hour Concerns. Employers must also be mindful of limits on deductions from wages (e.g., overpayment of wages, debts to the employer), the need to pay nonexempt employees for all hours worked, including those worked remotely (e.g., via Blackberry or other mobile device), and the proper way to calculate regular rate of pay for overtime purposes.

What To Do: Employers should review their wage and hour practices and work with legal counsel to develop appropriate guidance on each of these subjects.

4.  Misclassification of Workers. The United States Department of Labor has identified combating employee misclassification as a priority in 2011 and with a recent study finding 1 in 10 private sector New York employers having not properly classified workers, the potential exposure is clear. Misclassification of an employee as an independent contractor carries with it a broad range of liability, including: unemployment insurance, workers’ compensation, social security, tax withholding, temporary disability, and minimum wage and overtime.

What To Do: Employers should review their relationship with any worker identified as an independent contractor. In doing so, particular attention should be paid to whether the individual is in the business of providing these services, the duties performed, the control exercised over the work performed, the method of payment, and how payments are reported. These relationships should be memorialized in a written agreement (while understanding that labeling an individual an independent contractor does not end the analysis) that has been reviewed by counsel and accurately reflects the relationship between the parties.

5.  Reasonable Accommodations/Leaves. With the recently adopted Americans with Disabilities Act Amendment Act (ADAAA) and employers still working toward complying with the last round of regulatory changes to the Family Medical Leave Act (FMLA), reasonable accommodations and leaves will remain a focal point in 2011.

What To Do: Covered employers should review their FMLA policy and forms and, if necessary, update them. Employers should also adopt a policy detailing the reasonable accommodation obligation and the procedure for requesting accommodation, and insure supervisors can identify accommodation requests. Finally, employers must be aware that an employee requiring leave for a medical condition may not be limited to the 12-week FMLA entitlement given the availability of leave as a reasonable accommodation under the ADA and New York Human Rights Law.

6.  Caregiver Discrimination. As women now outnumber men in the U.S. workforce and mothers of young children are twice as likely to be employed as their counterparts 30 years ago, caregiver discrimination has gained greater attention and, in 2010, was described as an issue that would be “front and center” for the EEOC.

What To Do: Employers should educate supervisory personnel on what constitutes caregiver discrimination and insure those involved in the hiring process know what can and cannot be asked about caregiving responsibilities. In addition, parental/caregiving leave policies should be reviewed to ensure they do not discriminate on the basis of gender.

7.  Harassment. While harassment has been a long standing concern for employers, recent statistics demonstrate that workplace harassment is evolving - with more than 50% of harassment claims based on a protected status other than gender (e.g., disability, race, national origin) and sexual harassment charges filed by men increasing significantly.

What To Do: Employers should review their harassment policy to ensure it covers to all forms of harassment, describes/provides examples of what constitutes harassment, references conduct outside the work environment (including on social media), provides multiple avenues of complaint (directing victim to someone other than the harasser), presents an overview of the complaint procedure, and insures that the parties will be notified of the outcome of investigations. Employers should also train all those identified as avenues of complaint, as well as supervisors and managers, and should consider training all personnel.

8.  Retaliation. With EEOC charges alleging retaliation increasing 45% from 2006 to 2009 and retaliation now tied with race as the most common form of discrimination alleged, concerns related to retaliation are self-evident.

What To Do: Employers should develop or review their policy on retaliation and insure it accurately reflects recent legal developments and provides a complaint mechanism. Employers should educate supervisors on what constitutes retaliation and, when a complaint of harassment or discrimination or other violation of law is received, employers should address retaliation concerns with the source of the complaint, the person about whom the complaint was made, and any witnesses. Employers should also show sensitivity to the timing of adverse actions in relation to employee complaints and involve human resources and/or legal counsel in decisions impacting employees who recently engaged in protected activity.

9.  Employee Relations. While the Employee Free Choice Act (“EFCA”) appears to be dead, the underlying goal of EFCA – to increase unionization of the private sector workforce - will be advanced through National Labor Relations Board decisions and regulatory action. These potential changes -- commonly referred to as “EFCA 2.0” -- include narrowing the National Labor Relation Act’s definition of supervisor, expanding the protection of employee use of employer provided e-mail to solicit support for unionization, accelerating the speed of union elections, expand union access to employer property, and banning “captive audience” employee meetings.

What To Do: Given the likelihood at least some of these changes will be implemented, employers should pro-actively take steps to assess and, if necessary, improve employee relations. Employers should confirm that their supervisors satisfy the NLRA’s definition of supervisor (and are therefore excluded from NLRA protection and cannot unionize), educate supervisory personnel on the importance of open communication and positive employee relations and give supervisors the tools to succeed in this area. Employers should also take steps to address employee concerns that might otherwise lead to widespread employee dissatisfaction.

10.  Technology-Related Issues. With technology evolving at an unprecedented pace and social media use expanding rapidly, technology-related concerns are vast and problematic. While not every technology-related concern can be anticipated, let alone avoided, there are common sense steps employers can take to limit potential exposure.

What To Do: Employers should adopt, and distribute a policy concerning the use of the employer’s technological resources, and obtain employee consent to accessing, intercepting and monitoring of their use thereof. Employers should also adopting a policy addressing social media use, both at and outside work, and ensure that social media concerns are addressed in other non-technology policies (e.g., workplace harassment, references). Finally, employers should determine if and how they will use social media in the hiring process and put policies and procedures in place to ensure hiring managers do not inadvertently gain access to applicants’ protected status (e.g. age, national origin) in the process.

A version of this post was previously published in the Saratoga Business Journal.

Just as important, employers should be mindful that they may learn things about applicants that cannot legally be used to make hiring decisions, even though the information is publicly available. For example, employers all know that it is illegal to make a hiring decision based on an individual’s race, religion, disability, sexual orientation, or other protected characteristic. In fact, in New York, an employer cannot ask an applicant for those types of information. But it is nearly impossible to visit a job applicant’s MySpace or Facebook page without also accessing those types of information. For example, in addition to the general information contained in an individual’s Facebook profile, which may list gender, marital status, religion, and age, an individual’s profile picture will reveal his/her ethnicity and, if not already disclosed in the profile, the individual’s sex. Most of this information will be revealed even if the individual takes advantage of the sites’ privacy features that limit who can become a “friend” or a member of the individual’s network.

In addition, most Facebook users post pictures of their family and friends on their pages, which may reveal a lot about their personal lives. This too can present an employer with information it may not want to have. For example, an employer might find pictures of a job applicant’s baby shower on her Facebook page. Of course, an employer cannot legally refuse to hire the applicant because she is pregnant, but once it has the information it has increased the risk of having to defend such a claim.

In addition to containing information about an applicant’s membership in classifications protected under the equal employment opportunity laws, an individual’s union activity or affiliation may also be readily discoverable. In addition to general “union organizing” pages, many unions have developed Facebook pages. In using social media screening, an employer might discover that a particular job applicant is a “fan” of a union that has been attempting to organize the company at which the applicant has applied. It would be unlawful for an employer to discriminate against an applicant based on such union activity or affiliation.

And employers cannot assume that their online searches will remain secret. Today, electronic discovery is sought in most discrimination lawsuits and may include records of online searches of social networking sites

So what can employers do to minimize the risk that this valuable tool will lead to liability? At a minimum, employers who use online searches should develop a fair and uniform policy and procedure for online searches. Employers should determine if social networking checks will be conducted, for what job categories or positions, the scope of such searches, and the types of information to be obtained and documented. The policy should also address the time during the hiring process when such screening will occur, preferably later in the hiring process to limit the number of applicants affected. Most importantly, the individual conducting the screening should not be a decisionmaker, should report only relevant information, and should not record or report any information which an employer could not lawfully solicit on an employment application. If using a third-party to conduct such screening, compliance with federal and state fair credit reporting obligations is required.

As with all steps in the hiring process, the information obtained and relied upon should be documented and retained with other hiring records. By using a policy to define the criteria or information to be sought in the screening, employers can more easily manage the documentation task by retaining only information which meets the designated search criteria. Finally, once it has been determined what job categories or positions will be subject to screening, employers should be consistent in conducting searches only when filling those positions.
 

While the FTC has indicated that it is not necessarily going to take enforcement action against an employer for the statements of a single “rogue” employee, employers should nonetheless take proactive steps to help protect against potential liability by ensuring that their technology usage policies cover all electronic communications, employee blogging and use of social networking sites (e.g., Facebook, Twitter, MySpace, LinkedIn). The policy should also clearly inform employees whether they are permitted to discuss the employer’s products and/or services online. There are advantages and disadvantages to authorizing such discussions. Permitting employees to do so may well serve the interests of the employer by providing increased exposure through positive word-of-mouth. However, it could also yield negative statements about the employer or its products which are seemingly authorized by the policy. Where an employer elects to allow employees to discuss its products/services, the policy should state that employees who engage in such discussions are required to clearly and conspicuously disclose their relationship with the employer. The policy should also require employees to include a disclaimer within any online discussion of the employer’s products/services, such as, “any opinion stated is that of the employee, and is not authorized by the employer.”