mind the gap: new laws affecting hr professionals

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Lauren Dixon Associate Editor Workforce magazine

Mind the Gap: New Laws Affecting HR Professionals

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Heather Jackson Partner Ta+ Law


Cary Donham Partner Ta+ Law

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Cary Donham, Partner Heather Jackson, Partner

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Agenda

•  Social Media Policies and Section 8(a)(1) of the National Labor Relations Act

•  Pre-Hire Considerations •  Federal Fair Labor Standards Act – Updated

Overtime Rule

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Social Media Policies and Section 8(a)(1) of the

National Labor Relations Act

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National Labor Relations Act RIGHTS OF EMPLOYEES Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

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National Labor Relations Act

UNFAIR LABOR PRACTICES Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer-- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title];

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What is “Concerted Activity?”

All of these could be: •  Two employees discussing their salaries on

Facebook •  Employees posting photos of employees

working in allegedly unsafe conditions •  Employees criticizing their supervisors on a

public message board •  Employees using company email to plan a

meeting to jointly ask for a raise

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Can’t an Employer Simply Forbid Employees from Discussing

Company Business on Social Media?

Not according to the NLRB.

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Triple Play NLRB Decision

In Three D, LLC (Triple Play), 361 NLRB No. 31 (2014), the NLRB provides useful guidance for employers on drafting a social media policy without raising a red flag for the NLRB. The following is an excerpt of a conversation in which two employees were fired for alleged disloyalty after posts on Facebook were critical of the owners.

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Posts - Conversation Sanzone, Spinella, and LaFrance, who left the Respondent's employ in November 2010, have Facebook accounts. On January 31, LaFrance posted the following “status update” to her Facebook page •  Former employee Jamie LaFrance: Maybe someone should do the owners

of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money... Wtf!!!!

•  Ken DeSantis (a Facebook “friend” of LaFrance's and a customer): “You owe them money... that's fucked up.”

•  Danielle Marie Parent (Triple Play employee): “I FUCKING OWE MONEY TOO!”

•  LaFrance: “The state. Not Triple Play. I would never give that place a penny of my money. Ralph [DelBuono] fucked up the paperwork...as per usual.”

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Facebook Posts – Conversation Con’t

•  LaFrance: “It's all Ralph's fault. He didn't do the paperwork right. I'm calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

•  (At this juncture, employee Spinella selected the “Like” option under LaFrance's initial status update. The discussion continued as follows.)

•  Parent: “Let me know what the board says because I owe $323 and ive never owed.”

•  LaFrance: “I'm already getting my 2000 after writing to the labor board and them investigating but now I find out he fucked up my taxes and I owe the state a bunch. Grrr.

•  LaFrance: “Hahahaha he's such a shady little man. He prolly pocketed it all from all our paychecks. I've never owed a penny in my life till I worked for him. Thank goodness I got outta there.”

•  Sanzone: “I owe too. Such an asshole.”

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Poll: Can the Company Legally Fire Spinella + Sanzone?

q  Yes q  No

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Can the Company Legally Fire Spinella & Sanzone? Answer: No. A.  Statements were not defamatory.

1.  “I owe taxes” was true. 2.  Company did not prove that employees knew

statements were false and with reckless disregard that they were false.

B.  Facebook conversations were “concerted activity.”

1.  Multiple current employees 2.  Involves working conditions - income tax withholdings.

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Example of NLRB Approach Triple Play Sports Social Media Policy The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.…In the event state or federal law precludes this policy, then it is of no force or effect.

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Poll: Is the Company’s Policy Legal?

q  Yes q  No

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Is the Company’s Policy Legal?

Answer: No. Issue: Would employees reasonably construe the language to prohibit concerted activity among employees regarding working conditions or issues? Board: Employees would reasonably see the rule as prohibiting any discussions about their terms and conditions of employment that management deems “inappropriate,” which is “sufficiently imprecise” to encompass Section 7 concerted activity.

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Unacceptable and Acceptable Social Media

Policies from NLRB Settlement with Wendy’s

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Wendy’s Original Social Media Policy - Unacceptable

Refrain from commenting on the company's business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advance approval of your supervisor, Human Resources and Communications Departments. Anything you say or post may be construed as representing the Company's opinion or point of view (when it does not), or it may reflect negatively on the Company. If you wish to make a complaint or report a complaint or troubling behavior, please follow the complaint procedure in the applicable Company policy (e.g., Speak Out).

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Wendy’s Revised Social Media Policy - Acceptable

•  Do not comment on trade secrets and proprietary Company information (business, financial and marketing strategies) without the advance approval of your supervisor, Human Resources and Communications Departments.

•  Do not make negative comments about our customers in any social media.

•  Use of social media on Company equipment during working time is permitted, if your use is for legitimate, preapproved Company business. Please discuss the nature of your anticipated business use and the content of your message with your supervisor and Human Resources. Obtain their approval prior to such use.

•  Respect copyright, trademark and similar laws and use such protected information in compliance with applicable legal standards.

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Internal Use of Company Owned Media – Do’s and Don’ts

Don’t - prohibit only discussions about unions or wages or working conditions and allow discussion or solicitation on other subjects. Do - A ban on all non-work related use of the company’s email is acceptable.

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Don’t - Have an email/ messaging policy that bars nonwork use of an employee’s email that “may be disruptive” or “offensive” or “harmful to morale,” but allows other nonwork email. Such communications could be understood to include criticism of working conditions.

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Don’t - Use phrases such as •  “language the Company deems appropriate” or •  “that may violate Company policies” or •  “not in the Company’s best interests.” The NLRB will view these as reasonably leading an employee to believe that discussing wages or working conditions is not allowed.

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Do - •  Be Precise! •  Be Careful!

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Pre-Hire Considerations

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Have you ever been arrested? Have you ever

been convicted?

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•  Estimated that 1 in 3 adults would have to answer “yes” to one of these questions

•  Could be as many as 70 million people in this country

•  Answers to these questions affect employability •  American Journal of Sociology: criminal record

decreases the likelihood of a callback by 50%

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Ban the Box

•  Over 100 cities and counties have adopted so-called “ban the box” legislation. Generally, this makes it illegal to ask about criminal history on a job application.

•  24 states have adopted policies. Many of these policies apply specifically to public employers, as well as their vendors.

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Nine states have mandated the removal of conviction history questions from job applications for private employers: •  Connecticut •  Hawaii •  Illinois •  Massachusetts •  Minnesota

That means, in these states, job applications

cannot ask “the question!”

•  New Jersey •  Oregon •  Rhode Island •  Vermont

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Localities also have extended coverage

•  Austin •  Baltimore •  Buffalo •  Chicago •  Columbia, MO •  District of Columbia

•  New York City •  Philadelphia •  Portland, OR •  Rochester •  San Francisco •  Seattle

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Patchwork of laws for multi-state employers

Varies by Jurisdiction

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Does it apply to me? •  Am I a public or private employer? •  Where are my employees? •  Other qualifications

–  Size o  Illinois: private employers with 15 employees or more o  Chicago: all private employers o  District of Columbia: employer with 11 or more employees

–  Am I a vendor to or do I have a contract with any states or counties?

•  Exceptions –  Public safety positions, required licensure and conviction

prevents licensure, cash-handling/asset management positions only

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When can I ask?

•  Only after determining applicant meets the basic qualifications for the position

•  Only after selected for an interview •  Only after interview has been conducted •  Only after conditional offer is extended •  Only after finalists selected

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Job Related Screening

•  “Direct relationship” between conviction and job •  Consider the nature of offense and job •  Bears a “rational relationship” to position •  EEOC factors

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Can I include information regarding disqualification for a conviction on a

job posting?

It depends!

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What other information is limited by ban the box laws?

•  Arrests •  Impounded •  Sealed •  Expunged •  Time limit (10 years)

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Notification requirements

•  Notification of reason for denial •  Copy of record •  Appeal rights/opportunity to explain or correct

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Background checks only for some positions

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Penalties

•  Monetary •  License Discipline •  Often no Private Right of Action

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Tips •  Compliance with State and local law or policy

that complies with multiple jurisdictions •  Remove the box on all applications •  Wait to ask •  If you find something, be fair and conduct an

individualized assessment per the EEOC factors, considering how the offense relates to the job

•  Allow applicants to review the results, and to explain

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Other Potential Hiring Pitfalls

•  Credit reports •  Using third party consumer reporting agencies to

conduct background evaluations •  Drug testing •  Right to Privacy in the Workplace: Prohibited

inquiries and considerations

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Other Potential Hiring Pitfalls

•  Use of social media •  Use of written or physical abilities testing for

positions •  Interviewing •  Medical examination

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Federal Fair Labor Standards Act

Updated Overtime Rule Effective December 1, 2016

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Exempt Classifications

1.  Salary Basis 2.  Primary Duties

i.  Executive ii.  Professional iii.  Administrative

3.  Minimum Salary

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Salary Basis

Salary not subject to reduction based on quality or quantity of work

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Primary Duties Refresher

Executive •  Managing an enterprise or recognized

department •  Managing at least 2 other employees

or •  Significant weight in hiring, firing,

promotions, etc.

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Primary Duties Refresher Con’t

Professional •  Learned professionals

–  Primarily perform work that requires a college degree; teachers, doctors, accountants, attorneys

•  Creative professionals –  Requires invention, imagination, originality,

talent in an artistic or creative field

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Primary Duties Refresher Con’t

Administrative •  Office or non-manual work directly related to

management or general business operations of the employer or employer’s customers

and •  Includes exercise of discretion and independent

judgment with respect to significant matters

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Salary Basis

•  Minimum salary paid every working week regardless of hours worked

•  Can dock salary for ½ day absence

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Minimum Salary – New Rule

•  Currently: $455/week ($23,660/year) •  December 1, 2016: $913/week (47,476/year)

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•  Pay overtime on occasion •  U.S. Dept. of Labor estimates 60% of employees

affected by the new minimum salary rule don’t usually work overtime. –  20% regularly work overtime –  20% occasionally work overtime

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Employer Strategies for Exempt Employees Now Making < $47,476/year

•  Your employee Paula is making $40,000 a year now. She is an administrative employee. She manages the linen department of a department store. She supervises five employees, manages their schedules, and is involved in the physical layout and display of the department.

•  How should Paula be paid starting December 1, 2016?

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1.  Do nothing –  Based on the DOL data, the new rule won’t affect

60% of affected employees, but make sure to track hours and institute a “no overtime” policy.

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2.  Raise salaries ‒  If an exempt employee is making close to $47,476/

year, increase salary to keep exempt status

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3A. Pay overtime above a salary o  Regular Salary 1st 40 hours o  Hourly rate = weekly salary/40 o  Overtime rate = 1.5 x hourly rate

Example A: Paula usually works 40 hours a week and earns a salary of $40,000 or $769 a week. One week due to a store emergency she works 5 hours of overtime. Her regular hourly rate is $769/40 = $19.23. Her overtime pay would be 5 x 19.23 x 1.5 = $144.23 as opposed to straight time pay of $96.15,


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3B. Pay overtime above a salary If employee usually works more than 40 hour, pay straight time salary for usual work week

o  Hourly rate = regular salary/hours in work week o  Overtime rate = 1.5 x hourly rate

Example B: Ahmed regularly works 50 hours a week as a manager of Beef-fil-et, a fast food restaurant and is receiving $40,000 per year or $769 per week. The company decides to keep the $40,000 salary + the 50 hours per week. Ahmed’s hourly rate is $769/50 = $15.38. This would cover straight overtime pay for 50 hours. In a normal week, the employee would have to pay the half time premium for ten hours or $7.69 x 10 = $79.60

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4. Work backwards, recalculate hourly rate plus time + one half to keep salary effectively the same. For Paula:

40 (hr. rate) + 10 (hr. rate x 1.5) = $769 40 (hr. rate) + 15 (hr. rate) = $769 55 (hr. rate) = $769 (hr. rate) = 769/55 = $13.98

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Questions?

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Additional Information

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Examples of Unacceptable

and Acceptable Policies

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Unacceptable Policies •  “You must not disclose proprietary or confidential

information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer's] associates was obtained in violation of law or lawful Company policy).”

•  “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.... Do not discuss work matters in public places.”

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Acceptable Policies

•  No unauthorized disclosure of “business 'secrets' or other confidential information.”

•  “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”

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Examples of Unacceptable and Acceptable Rules Regarding Employee Conduct Toward the

Employer

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Unacceptable Rules •  No “[d]efamatory, libelous, slanderous or discriminatory

comments about [the Company], its customers and/or competitors, its employees or management.”

•  “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”

•  “Refrain from any action that would harm persons or property or cause damage to the Company's business or reputation.”

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Acceptable Rules •  “Each employee is expected to work in a cooperative

manner with management/supervision, coworkers, customers and vendors.”

•  “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.”

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Examples of Unacceptable and Acceptable Rules Regarding Employee

Conduct Toward Fellow Employees

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Unacceptable Rules •  Do not make “insulting, embarrassing, hurtful or

abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”

•  “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail . ...”

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Acceptable Rules •  Any logos or graphics worn by employees “must

not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”

•  “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”

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Wendy’s Revised Social Media Policy

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Wendy’s Revised Social Media Policy Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment /discrimination policy), protection of proprietary recipes and preparation techniques, Crew Members may not take, distribute, or post pictures, videos, or audio recordings while on working time. Crew Members also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.

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Wendy’s Revised Policy Con’t •  Use the Company's (or any of its affiliated entities) logos,

marks or other protected information or property for any business/commercial venture without the Legal Department's express written authorization.

•  Make knowingly false representations about your credentials or your work.

•  Create a blog or online group related to Wendy's (not including blogs or discussions involving wages, benefits, or other terms and conditions of employment, or protected concerted activity) without the advance approval of the Legal and Communications Departments. If a blog or online group is approved, it must contain a disclaimer approved by the Legal Department.

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Wendy’s Revised Policy Con’t Do Not Violate the Law and Related Company Policies: Be thoughtful in all your communications and dealings with others, including email and social media. Never harass (as defined by our anti-harassment policy), threaten, libel or defame fellow professionals, employees, clients, competitors or anyone else. In general, it is always wise to remember that what you say in social media can often be seen by anyone. Accordingly, harassing comments, obscenities or similar conduct that would violate Company policies is discouraged in general and is never allowed while using Wendy's equipment or during your working time.

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Wendy’s Revised Policy Con’t Discipline: All employees are expected to know and follow this policy. Nothing in this policy is, however, intended to prevent employees from engaging in concerted activity protected by law. If you have any questions regarding this policy, please ask your supervisor and Human Resources before acting. Any violations of this policy are grounds for disciplinary action, up to and including immediate termination of employment.

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