Can Your Boss Determine What You Can and Cannot Post?

With laptops, tablets and smart phones at our fingertips, the presence of social media in our lives is ever growing. In a previous post (http://goo.gl/d7eC9e), I discussed what employers could and could not access in regards to their employees’ social media posts. Keeping our clients up to date on such policies helps them to avoid costly legal issues.

Do your Employee Social Media Policies Violate the National Labor Relations Act?

Accessing employee social media posts and information is not the only issue at hand, when it comes to social media. As demonstrated by two recent court cases, UPMC, et al v. SEIU Healthcare Pennsylvania and  World Color Corp. v. Graphic Communications Conference of the Internal Brotherhood of Teamsters, there are other potential legal issues restricting what employees can and cannot do through internet communication. Furthermore, disciplining employees for social media use may also open the door to civil litigation.

The National Labor Relations Board is currently examining social media policies of many businesses. The NLRB is enforcing the right of both unionized and non-unionized employees to “engage in concerted activities for the purpose of . . . mutual aid or protection.” In doing so, the NLRB hopes to deter employers from scaring employees out of excising their rights.

Be Clear, Be precise and Give examples.

While examining such policies the NLRB looks for ambiguous or overly broad employer rules and policy language.  Such rules and policies are in violation of the National Labor Relations Act. In the first case mentioned above, an NLRB Administrative Law Judge reviewed an employer’s electronic mail and messaging policy. It was written in the policy that employees were “prohibited from using the company’s electronic technology in a way that is ‘disruptive, offensive to others, or harmful to morale’ or ‘to solicit employees to support any group or organization, unless sanctioned by management.” Such terms as “disruptive”, “offensive to others” and “harmful to morale” were deemed as ambiguous due to the lack of examples within the policy. Employees would not be able to determine what constituted disruptive, offensive, and harmful social media action. Thus, the policy was in violation of the NLRA.

In the second case, an employee who was terminated, sued his employer for having violated his NLRA rights. He alleged that he had been reassigned within the workforce because of his social media postings. Despite his testimony being the only form of evidence for the allegation, the judge declared that the employee had been punished, in this case reassigned, due to his social media posts and therefore his NLRA rights had been violated.

Employer Guidelines:

While both cases have been appealed, avoiding such situations to begin with is the ultimate employer option. Keep in mind the following tips when forming your business’ social media policies. Following these tips may be the difference between  a healthy business and a business related lawsuit.

  • When forming social media policies, avoid ambiguous terms. Provide examples of what is expected from employees in regards to social media as well as examples of what types of posts are not allowed. Leave nothing to interpretation. This will demonstrate the employer’s desire to protect his or her business rather than suggest an impermissible desire to restrict employee rights.
  • Provide proper employee training based on your social media policy. This will give employees a clear picture of what is expected of them.
  • Finally, always consider whether an employee’s social media activity is protected under the NLRA before taking disciplinary action.

Independent Contractor VS Employee: How much control is too much control?

A common and repeated inquiry from our clients involves whether, when and how to classify workers as independent contractors vs employees. The question is especially interesting to companies in many industries that utilize a network of sales professionals. Many of these businesses are highly regulated adding pressure on the company to ensure that their sales staffs transact business sales lawfully. A critical inquiry in these situations involves analyzing the degree of control the company exercises over its independent contractor personnel. Another important factor arises when the company sets minimum sales goals or quotas. The critical classification question is always “how much control is too much control to maintain independent contractor status?”

A recent case that addressed these questions in the insurance industry may provide guidance for other businesses that wish to use independent contractor sales force. In Beaumont-Jacques v. Farmers Group, Inc., 2013 Cal. App. LEXIS 546 (Cal. App. 2d Dist. June 12, 2013), a District Manager claimed she was misclassified as an independent contractor because Farmers controlled the “manner and means” by which she achieved required sales results. The court disagreed, finding that this manager was properly classified as an independent contractor. In its decision, the court referred to a California Supreme Court case, McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, which held that “the owner may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contractor . . .” Specifically, a company can retain the right to inspect, the right to make suggestions or recommendations as to details of the work, and the right to prescribe alterations or deviations in the work and still maintain an independent contractor classification.

Some reasons the Court relied on in finding the manager as an independent contractor, include: she exercised discretion by training and motivating other agents; she set her own daily working hours and vacation days; she usually set the time for her arrival and departure at her office; she set lunch and break times; she hired and supervised her office staff; she paid her own expenses, (e.g. marketing, office rent, office supplies and telephone service) and she deducted those expenses on her personal tax returns by filing a Schedule C; she listed herself as self-employed on her tax returns; she had signed an agreement with Farmers that established an independent contractor relationship and expressed that she was not an employee. The court rejected the manager’s argument that the “at-will” nature of her employment supported for her claim of employee status because she voluntarily resigned (therefore Farmers had not asserted or relied on the at-will clause); and, the right to terminate the agreement was given to both the manager and the company. Of interest, the court noted that even though Farmers had input about the quality and direction of the manager’s efforts, Farmers did not have control over the details of how the manager performed those efforts. While classification cases are always dependent on the specific facts of each case, the court found a sufficient level of freedom and autonomy in the manager’s conduct of the daily details of her activity such that she was properly classified by the company as an independent contractor, not an employee.

Proper classification of independent contractors is important for any business because misclassification can result in claims for unpaid overtime, wrongful termination, unemployment benefits, and subject a hiring company to other state and federal employment law claims. Misclassified plaintiffs will frequently claim various benefits and protections made available to employees under the California Labor Code and Federal labor statutes. The potential penalties for misclassification can be costly and severe. Hiring companies must take special care to avoid the assertion of too great a level of control over the day-to-day tasks and performance of their independent contractors.

Harris v Santa Monica: A Victory for Employers!

In a recent case (Harris v Santa Monica) the California Supreme Court established a new standard in termination cases: When a plaintiff shows discrimination was “a substantial motivating factor” in an adverse employment action, but the employer demonstrates it would have taken the same action even absent such discrimination, the court cannot award the plaintiff damages, back-pay, or reinstatement. The employee may still be entitled to declaratory relief, injunctive relief, and/or attorney fees and costs. An Overall Victory for Employers in Mixed-Motives Cases | CEB Blog – http://ow.ly/hY1xv