Posts Tagged ‘Employment Law’
When I was in law school I had a professor who was positively gaga about policy. It was her belief that students who understood what policy objective the courts and legislatures were trying to achieve would have a better understanding of and rememberence of any given law. It would also help those future lawyers, when confronted with facts and situations that had not been previously addressed, analyze those facts within the existing law and come to some type of reasonable conclusion (especially on her exam ).
I used that technique to a large degree myself when I was a law professor, and I found it an invaluable way to keep sight of a law and its potential impact when faced with an endless series of “but, what if . . .?” questions from my students.
So it puzzles me a bit that there is such a fuss about the NLRB and the so-called “Facebook cases”. After all, the Wagner Act, or NLRA, has been the law for 75 years. Not exactly a new, untried law. Under the NLRA, all workers have the right to engage in concerted activity for the purpose of mutual aid and protection, and, if you think about it, the workers of today have always had that right. The policy objective underneath that act is to protect and encourage the formation of unions, which takes a whole lot of communication between employees about their common grievances.
So why would any employment lawyer worth his or her hefty fee advise a company to write a policy that forbids them from discussing work on social media sites such as Facebook? Or draft a policy that forbids an employee from making a “negative comment” about their employer?
The many lawyers who advised their clients to adopt such policies, or even suggested outright social media bans – and based on these cases there were plenty – forgot the policy behind the NLRA. They forgot that this law was intended to protect certain kinds of communication among employees in order to keep them safe from those activities that might lead to unionization.
Not only did the lawyers forget the policy behind the law, they were so concerned about risk avoidance and so frightened of social media that they didn’t take the time to understand that it constituted an essential shift in the way that Americans, including workers, were communicating with each other.
Maybe the lawyers who advised employers to adopt these overly broad policies just simply forgot about the existence of the NLRA and its commitment to helping workers discuss their joint concerns about wages, hours, and working conditions.
Whatever the reason for the lawyer’s failing, it was not just a situation of “the rapidly changing law”, as many want you to believe. So if you have an overly broad social media policy suggested by a lawyer, that you are now struggling to change in light of the NLRB’s recent activity, you may want to throw out the lawyer as well as the policy.
Of course, what they really mean is “may I do it?”, and what they are really asking is, “Is what I want to do legal?”
The employment lawyer usually answers, “it depends,” and then proceeds to ask the client a number of questions about the factual situation, and gives the client a brief discourse on the relevant law.
Given that attorneys and accountants are the most valuable business partners that many businesses (particularly small businesses) have, I think that “it depends” is the wrong answer in a vast majority of cases. The better answer is asking the client “why do you want to do that?”
Let’s face it – we get the laws we deserve. We have anti-discrimination employment laws against certain protected classes because of a history of employment discrimination against those classes. More classes will be added, and more laws created, because discrimination continues. We have laws against retaliatory discharge because too many employers fired people who squealed, instead of fixing the problem being squealed about. We have wage and hour laws because too many employers will undervalue and overwork people who are desperate to feed themselves and their families.
So the next time a client calls and asks, “I hate gay people, and I don’t want to ever hire one. Is that legal?”, I am begging employment lawyers to be good business partners and community citizens, and not give a discourse about the state of anti-gay discrimination legislation in your jurisdiction. Instead, explain to the client why taking a stance against hiring an entire class of population is a poor business practice in general, and how that business practice is not in the best financial interest of the client.
Do this for every questionable employment practice you are asked about. It will save you, and the client, from having to deal with the law that will inevitably follow.
[Author's note 07/21/11 - Congress introduced a bill on July 18, 2011 that would make the unemployed a protected class by preventing hiring discrimination against them. Don't say I didn't warn you. ;-)]
I’m talking about the case of the Connecticut ambulance company that fired an employee after she posted negative comments about her boss. The National Labor Relations Board (NLRB) filed an action against the company maintaining that the firing was illegal; the ambulance company and the NLRB reached a settlement last week. There is so much misinformation and inaccuracy floating around the Web right now about this case that it’s ridiculous to even list or link to them all. If you insist, here, and here are a couple of offenders. Here’s why they are wrong:
1. FREE SPEECH – This case isn’t about free speech at all. Not one single, solitary sliver. The firing didn’t impact the employee’s free speech rights, and the settlement doesn’t validate any free speech rights. The case is about “protected concerted activity“, which all employees are allowed to engage in pursuant to the National Labor Relations Act (NLRA). The law states that employees have the right to discuss wages, hours, working conditions, etc. without fear of retaliation or punishment. That is NOT constitutional free speech, but a worker right granted by statute. If these writers don’t understand the difference between the Constitution and a statute, they need to go back to high school civics.
2. UNION OR NON-UNION – The NLRA applies to all employers and employees, with some specific exceptions that are not relevant here. When articles say that non-union employers are not impacted, they are dead wrong, because ALL employees have the right to engage in protected concerted activity. It is the conversation about wages, hours, and working conditions that allow employees to make reasoned choices about unionization, which is why it is allowed by statute. At least that is the theory.
3. AT-WILL EMPLOYMENT – Employers in an “at-will” jurisdiction do not have to have a reason to terminate an employee. BUT – they cannot terminate an employee for an illegal reason, like sexual or religious discrimination, or whistle-blowing. Commentators who say there is no impact in an at-will jurisdiction don’t understand the concept at all, and are dead wrong. Even at-will employers cannot legally fire someone for talking about their working conditions.
The issue in this case is simple: Was the employee Facebook post, and her comments in response to others, a conversation about working conditions at her place of employment? If so, it is protected concerted activity that the employer may not legally prevent or punish.
Since Facebook posts are pretty clearly an attempt to start a conversation or to encourage someone to listen to you, I don’t see why this is even questionable, unless the employee was writing about her dog or cat and not about working conditions. The case is really no different than if the woman was standing around the coffee shop talking with her co-workers about her boss. Facebook is just digital conversation around a virtual water cooler. This is what the NLRB wants employers to recognize.
Some bloggers want to turn it into more than this, or into something else altogether. Don’t believe them.
The Richard Coffinberger, JD, is an Associate Professor at George Mason University. He teaches a similar course to undergraduate students, and he asked the class if they knew what television show “Shirley Jones was famous for”. Most of the people in the class knew about The Partridge Family because none of us were 18 years old. He has obviously never heard about tailoring his presentation to his target audience. Also, the case he was referring to (Calder v Jones, 465 US 783) was decided by the US Supreme Court in 1983, regarding a National Enquirer article that was published in 1979. It’s OLD, and it’s about in personam jurisdiction. Why does an HR professional even CARE about in personam jurisdiction? The man was personable and engaging, but suffered from a serious case of “needs to update his notes and presentation.” He also misspoke about the law on one occasion and was promptly chastised by one of the attendees (he called on her before me so I didn’t have the pleasure).Environment for Business Professionals - this “pre-conference” was my first stop on the first day. The presenter,
I’m also going to rant a little about SHRM and this same presentation. It cost an extra $310, and attendees were promised a Certificate of Completion and extra HRCI credits. There were no Certificates, and they furnished no program number for HRCI. I submitted for credit without either, but if HRCI denies my credit I am going to be seriously pissed off.
How to Lobby Your Member of SHRM and works on health care, to explain the “ins and outs” of the scheduled Capitol Hill meetings with members of Congress. I was fence sitting about going to these meetings, and went to this session to make a decision. At one point an audience member asked about discussing something other than health care reform or Section 127 of the tax code (regarding extension of employer provided educational assistance), which were the two official topics of these meetings. Ms. Horn made it very clear that SHRM arranged the Hill visits and attendees were there to promote the SHRM agenda.- This program was presented by Lisa Horn, who is from
Funny me. I thought SHRM existed in some part to provide benefits and value to their members in exchange for dues and the fees from the conference. I didn’t realize that my conference fee was paying them to promote their agenda. I got off the fence and didn’t go, because I am not a shill for SHRM.
Cocktails & Conversation – Networking Happy Hour - I always thought that networking meant that people came together and actually spoke to each other. That’s pretty hard to do when SHRM has people speaking from a podium. In fact, Mary Ellen Slater, Mike VanDervort, Paul Smith and I were getting many dirty looks from others because we were actually talking during this billed-as-a-networking event. We finally went outside.
Other rants? (1) The lack of diversity of opinion, particularly about social media. See a great post about this from Mike VanDervort. I was there and he’s not exaggerating; (2) My inability to get breakfast at the Thursday morning session because I was 8 minutes late; (3) A total aversion to networking and conversation from the majority of the attendees. I’ve written about this before, and this conference was no different. In fact, one presenter had no business cards, and offered no address or phone number of any kind; and (4) A program called To Tweet or Not To Tweet? Is That the Right Question? given by a presenter who admitted to me that she doesn’t use Twitter. When I told her that I would like to Tweet the program, she said, “You mean you are going to tell people what I SAY?”
in mid-March – The weather was stunningly beautiful, mild and sunny. I had the opportunity to see many of the monuments and buildings lit during the evening- a beautiful sight. As I asked a companion as we were walking toward the Library of Congress, “How can anyone come to DC and not be emotionally moved?”
VIP Reception and Tweet-Up - This event, sponsored by the employment law firm of Constangy, Brooks & Smith, was nothing less than stunning. Held in the Great Hall of the Library of Congress, it offered food, drink, photographers and an awesome view. OK, there WERE speakers (again!), but the venue was so large that it was easy to ignore them and keep on talking and socializing networking. This was what a “networking event” should be.
Immigration Reform and the Employer – This was one of two different programs on immigration law compliance (a personal favorite topic), and it was easily the most superior (I attended both). In fact, it was the best of all of the substantive sessions that I attended. It was led by Stuart Brock, a lawyer out of Charlotte, NC who manages a consulting firm called HR Innovators. Stuart used facts, not emotion, to make the audience understand the huge shift in immigration law enforcement prompted by the Obama administration. He made it clear that some opinions could differ, and that some of his recommendations were based on the interests of his clients. He gave us information and many resources, in an engaging and friendly manner, treating us like thinking adults and not children in need of discipline. At this conference, taught mostly by employment lawyers, that was in very short supply.
If you haven’t had enough law related information this week, head on over to Creative Chaos Consultant. I am happy and humbled to be part of the “HR101″ series, where guests explore different aspects of HR management. The focus of the entire series is the small and medium- sized business owner. This week I offered HR and the Law-Part 2, which discusses some laws that affect HR and why compliance with those laws is good business.