HR Roundtable, Council of PR Firms, Quarterly Legal Update 0 HR Roundtable, Council of PR Firms QUARTERLY LEGAL UPDATE January 30, 2012 Jessica Golden Cortes Partner © 2012 Davis & Gilbert LLP

HR Roundtable, Council of PR Firms, Quarterly Legal Update 1 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 2 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 3 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 = NY FAQs = prevention-act-faq.pdf

HR Roundtable, Council of PR Firms, Quarterly Legal Update 4 TAILORING SOCIAL MEDIA POLICIES IN LIGHT OF RECENT CASELAW AND NLRB DECISIONS

HR Roundtable, Council of PR Firms, Quarterly Legal Update 5 TWEET TWEET… UH OH »Sept. 2011, Phonedog Media sued former freelance editor for misappropriating twitter account _ Noah, changed 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 6 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 7 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 8 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 9 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?

HR Roundtable, Council of PR Firms, Quarterly Legal Update 10 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 11 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 12 RECENT NLRB DECISIONS »Gripes on social media not protected concerted activity: -Employee griped/vented on Facebook about incident with supervisor – not protected even where co- workers 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)

HR Roundtable, Council of PR Firms, Quarterly Legal Update 13 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 14 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 15 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)

HR Roundtable, Council of PR Firms, Quarterly Legal Update 16 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 17 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 18 EEOC TRENDS

HR Roundtable, Council of PR Firms, Quarterly Legal Update EEOC STATISTICS »99,947 Charges Filed in 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%

HR Roundtable, Council of PR Firms, Quarterly Legal Update 20 WHY RETALIATION IS A FAVORITE »Even if underlying complaint is not ultimately founded, if made in good faith, can still win on retaliation

HR Roundtable, Council of PR Firms, Quarterly Legal Update 21 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 22 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

HR Roundtable, Council of PR Firms, Quarterly Legal Update 23 Jessica Golden Cortes Partner © 2012 Davis & Gilbert LLP QUESTIONS?