HR Roundtable, Council of PR Firms, Quarterly Legal Update 0 HR Roundtable, Council of PR Firms QUARTERLY LEGAL UPDATE September 22, 2011 Jessica Golden Cortes Senior Associate © 2011 Davis & Gilbert LLP

HR Roundtable, Council of PR Firms, Quarterly Legal Update 1 ACTIVE NLRB YES, THE NATIONAL LABOR RELATIONS ACT DOES IMPACT MY HR PRACTICE EVEN THOUGH WE DO NOT HAVE UNIONIZED EMPLOYEES AT MY AGENCY

HR Roundtable, Council of PR Firms, Quarterly Legal Update 2 NLRA – STATUTORY PROTECTIONS TO EMPLOYEES »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 3 RECENT NLRB DECISIONS »Personal attacks posted on Facebook/Twitter from a personal computer and/or outside the workplace *even including use of profanity and insults* may be protected activity under the NLRA if arguably arises out of concerted activity or terms or conditions of employment

HR Roundtable, Council of PR Firms, Quarterly Legal Update 4 RECENT NLRB DECISIONS »In early 2011, an employee of a bar and restaurant posted a comment on her Facebook page, including an expletive, expressing dissatisfaction with owing income taxes for 2010 relating to her earnings from the bar, and stating that the bar’s owners “could not even do paperwork correctly.” One of her co- workers “liked” her post, and several other co-workers commented on the post. »The bar fired the employee who made the Facebook post, and the employee who had “liked” the post, claiming that they were not loyal employees and violated the bar’s internet policy, which prohibited “inappropriate discussions.” The bar threatened to sue the employees. »Holding: protected concerted activity

HR Roundtable, Council of PR Firms, Quarterly Legal Update 5 RECENT NLRB DECISIONS »Customer service employee of a retail store operator posted Facebook comment complaining that new Assistant Manager was a tyrant, and surmising that employees would quit. Several co-workers responded to his post expressing emotional support. »Employee then wrote that Assistant Manager was being a “super mega puta” for reprimanding him for misplacing and mispricing merchandise. The Store Manager suspended the employee for one day, prepared a discipline report, and told the employee he would be fired if such behavior continued. »Holding: not protected, concerted activity, individual gripe

HR Roundtable, Council of PR Firms, Quarterly Legal Update 6 LEGAL OFF-DUTY CONDUCT LAWS »Disciplinary action for online activities may be restricted by state statutes prohibiting adverse personnel action based on legal off-duty conduct -In New York, cannot discharge, discriminate against, or refuse to hire based on participation in legal recreational activities -Unless activities create material conflict of interest related to employer’s trade secrets, proprietary information, or other business interest »California, Colorado and North Dakota have similar statutes

HR Roundtable, Council of PR Firms, Quarterly Legal Update 7 LEGAL OFF-DUTY CONDUCT LAWS »Legal off-duty conduct may include blog entries that could be embarrassing to employer -However, employer may be able to take disciplinary action based on harm to business and reputation »Policies prohibiting “friending” between employees may not be enforceable under off-duty conduct laws -However, employer may be able to invoke exception if “friending” between managers and subordinates or between employees and clients create conflicts of interest and legal risks

HR Roundtable, Council of PR Firms, Quarterly Legal Update 8 RECENT SUPREME COURT DECISIONS »“Cat’s Paw” Theory of Liability -Employer may be held liable for employment discrimination based on discriminatory animus of an employee who influenced, but did not make, ultimate employment decision -Invites additional scrutiny of underlying corrective actions that ultimately lead to termination -Independent investigation critical -Staub v. Proctor Hospital, March 2011

HR Roundtable, Council of PR Firms, Quarterly Legal Update 9 RECENT SUPREME COURT DECISIONS »Plaintiff claimed complained to supervisors about location of time clocks, making it difficult to punch in and out on time. Plaintiff received several warnings, suspension and ultimately fired for violating Company’s time-keeping policy »Plaintiff sued under the FLSA, claiming he was fired in retaliation for verbal complaints, which Company denied occurred »Holding: Oral complaint to supervisor protected by anti- retaliation provisions of the Fair Labor Standards Act - Kasten v. Saint-Gobain Performance Plastics Corp., March 2011

HR Roundtable, Council of PR Firms, Quarterly Legal Update 10 RECENT SUPREME COURT DECISIONS »Class Action Certification Denied - Female employees nationwide alleged gender discrimination in pay and promotion decisions; - Court held: the lawsuit lacked “some glue holding” its claims together, i.e., commonality of the actual reasons behind each employment decision. - Take Away: the bigger the company, the more varied and decentralized its job practices, the less likely employees could make a viable class-action claim. - Dukes v. Wal-Mart, June 2011

HR Roundtable, Council of PR Firms, Quarterly Legal Update 11 FMLA UPDATE: FAILURE TO RESPOND TO EMPLOYER DOOMED FMLA CLAIM »Employee learned that mother seriously ill and left work to care for her without contacting supervisor »Supervisor called Employee’s Company-issued cell phone numerous times that day and he did not respond. »Next day, Employee ed supervisor to say needed “the next couple of days off” to make arrangements for mother’s care and said could use vacation time or “could apply for family care act, which I do not want to do at this time.”

HR Roundtable, Council of PR Firms, Quarterly Legal Update 12 FMLA UPDATE: FAILURE TO RESPOND TO EMPLOYER DOOMED FMLA CLAIM »Supervisor called Employee 13 more times over the next week to clarify his request for time off. Employee did not respond »After 9 days of silence, Employee called Supervisor and was told to come in for a meeting, at which he was fired for violating company’s leave policy. Employee sued. »Holding: Employee’s FMLA claim failed: employers are entitled not only to notice that the FMLA may apply, but also when an employee will return to work. Employee never gave notice of his need for 9 days off and failed to comply with Company’s internal leave policies - Righi v. SMC Corp of America, 7th Cir. Feb. 2011

HR Roundtable, Council of PR Firms, Quarterly Legal Update 13 NEW YORK: WAGE THEFT PREVENTION ACT REMINDER »On or before February 1, 2012, and annually thereafter, employers must provide written notice of: -Rate of pay and basis (hourly, weekly, salary, commission): for non-exempt employees, must include regular and overtime rates -Allowances, if any, claimed as part of the minimum wage; -Regular payday -Name of the employer (including any d/b/a) -Employer’s main office physical address (and mailing address if different) and telephone number; and -Any other information Commissioner of Labor deems necessary

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