April 17, 2019

Workplace Privacy To Be Discussed at Employment Law 2014 Conference in March

One of the hot-topic issues for employment law today is workplace privacy. Qusair Mohamedbhai, a leading Colorado employment law attorney, and Philip Gordon, a leading privacy attorney who focuses on HR privacy issues, will tackle this complex and rapidly evolving area of the law at the CBA-CLE 2014 Employment Law Conference on March 20-21. Expect a lively and informative discussion including critical privacy and information security issues raised by the “Bring Your Own Device” (BYOD) movement and how recent state laws and EEOC guidelines can impact workplace privacy policies involving background checks, especially the use of an employees’ criminal history for employment purposes, and access to employees’ personal social media. Below are excerpts from their upcoming presentation.

Workplace Privacy:
“In the coming year, employers may expect to see more restrictions on access to applicants’ and employees’ criminal history, credit information, and personal social media content.  To further complicate the challenges of addressing privacy in the workplace, employers will be required to grapple with next-generation issues raised by the use of social media as a business tool and the increasing adoption of “bring-your-own-device” (BYOD) programs.  The ever-shifting balance between employer prerogative and employee privacy likely will continue to move in a direction that favors employee privacy.” –  Philip L. Gordon, Littler Mendelson

Workplace Privacy: Criminal Background Checks & Victims of Crimes:
2012 EEOC Guidance on Arrest and Conviction Records in Employment Decisions: For criminal conduct exclusions in hiring practices that are alleged to have an unlawful disparate impact, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. For example, the EEOC may look for offenses or classes of offenses that were reported to the employer (all felonies, all drug offenses) or how far back in time the report reached. 2012 WL1499883 § V (E.E.O.C. Guidance Apr. 25, 2012). – Qusair Mohamedbhai, RATHOD ǀ MOHAMEDBHAI LLC

CLE Program: Employment Law 2014

This CLE presentation will take place on March 20-21, 2014. Click here to register for the live program. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

Tenth Circuit: Petition for Review of Black Lung Benefits Act Award Denied

The Tenth Circuit Court of Appeals published its opinion in Antelope Coal Co./Rio Tinto Energy America v. Goodin on Monday, March 3, 2014.

Rolland E. Goodin worked at surface coal mines for 25 years and smoked cigarettes for more than 40 years. He developed a respiratory condition and filed for benefits under the Black Lung Benefits Act (“BLBA”). An Administrative Law Judge (“ALJ”) awarded Goodin benefits. His employer, Antelope Coal Company/Rio Tinto Energy America (“Antelope”), appealed, and the Department of Labor Benefits Review Board (“Review Board”) affirmed the grant of benefits. Antelope filed this petition for review of the Review Board’s order.

Antelope’s primary argument was that the ALJ wrongly limited its options to rebut a regulatory presumption that Goodin’s work as a coal miner caused his respiratory condition. It argued 20 C.F.R. § 718.305(d), a rule limiting the type of evidence that may be used for rebuttal, should not apply to coal mine operators like Antelope.

The Tenth Circuit first held that to rebut the presumption that a coal miner is disabled under the BLBA due to a respiratory or pulmonary condition when he has worked for 15 years in underground coal mines or substantially similar conditions, the employer must rule out any relationship between the disability and the coal mine employment. This is known as the “rule-out standard.” The second method to rebut the presumption is to prove the claimant does not have the lung condition pneumoconiosis.

The court held there was substantial evidence to support the ALJ’s conclusion that Antelope failed to rebut the presumption under either method and that the ALJ had not limited Antelope’s rebuttal evidence. It found Antelope’s remaining arguments lacked merit. The court denied Antelope’s petition for review.

Tenth Circuit: Wire and Mail Fraud and Identity Theft Convictions Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Porter on Thursday, March 6, 2014.

Following a jury trial, Defendant-Appellant Gloria Porter was convicted of 105 counts of wire fraud, one count of mail fraud, and one count of identity theft. The National Federation of Federal Employees (“NFFE”) is an independent federal union that represents federal workers. The NFFE is comprised of five councils, which in turn are made up of approximately two hundred “locals.” Porter joined the NFFE in 1992. She was a member of Local 2049 at White Sands and served as its president. She also served as secretary/treasurer of the Armed Material Command (“AMC”) Council (one of the NFFE’s five councils) and as national vice president of the NFFE. She was secretary/treasurer of the AMC Council from 2002 to 2008, and was the only active signatory on the AMC Council’s bank account.

Starting in August 2004 and throughout her time as an NFFE officer, Porter created fraudulent bank statements on her computer and sent them to NFFE officers, while having the authentic bank statements sent to her home address. The NFFE took away Porter’s authority over the union’s bank account, and, after both the NFFE and IAM conducted their own audits of their accounts, the matter was turned over to the United States Department of Labor (“DOL”) for further investigation.

Porter appealed her convictions, claiming that the district court erred by instructing the jury that a signature is a “means of identification” for purposes of the aggravated identity theft offense. Porter argued that the word “signature” is not expressly mentioned in the statutory definition of “means of identification” found in § 1028(d)(7) and a signature should not be viewed as a form of a “name”—a term that does appear in that definition. The Tenth Circuit found the reasoning of a Ninth Circuit case, Blixt, persuasive in holding that a signature is a form of “name” for purposes of § 1028(d)(7)’s definition of “means of identification.”

Porter also argued that the evidence was insufficient to support her convictions for wire fraud and mail fraud. The court found her arguments to be without merit and affirmed her convictions.

Tenth Circuit: Lockheed Employee Prevails in Whistleblower Case

The Tenth Circuit Court of Appeals published its opinion in Lockheed Martin v. Department of Labor  on Tuesday, June 4, 2013.

Andrea Brown worked for Lockheed Martin Corp. (“Lockheed”) from 2000 to 2008. She reported to Wendy Owen. In May 2006, Brown began having difficulty getting responses from Owen on work-related matters. She discussed the problem with Tina Colditz, a coworker and personal friend. Colditz was a longtime Lockheed employee who also reported to Owen.

Colditz also ran a pen pals program for the company, through which Lockheed employees could correspond with members of the U.S. military deployed in Iraq. Colditz told Brown that Owen had developed sexual relationships with several of the soldiers in the program, had purchased a laptop computer for one soldier, sent inappropriate emails and sex toys to soldiers stationed in Iraq, and traveled to welcome-home ceremonies for soldiers on the pretext of business while actually taking soldiers to expensive hotels in limousines for intimate relations.

Colditz told Brown she was concerned Owen was using company funds for these activities, and Brown understood that most employee expenses incurred were passed on to Lockheed’s customers, in this case the government. Brown became concerned Owen’s actions were fraudulent and illegal and that there could be media exposure that could lead to government audits and affect the company’s future contracts and stock price.

Brown brought her concerns to Jan Moncallo, Lockheed’s Vice President of Human Resources. Moncallo told Brown she would submit an anonymous ethics complaint on Brown’s behalf so that she would be protected from retaliation. On May 25, 2006, Moncallo sent an email to Jean Pleasant, the office Ethics Director, for an investigation, detailing Brown’s allegations. The email identified Brown as an individual who should have some knowledge about the allegations.

Lockheed investigated Owen from May 2006 to August 2006. Within a few days of Brown’s complaint, the pen pal program was discontinued. Brown eventually revealed it was she who filed the complaint. In the months that followed, Brown faced so many instances of adverse circumstances that it resulted in Brown’s emotional breakdown and she took medical leave.

Brown brought a complaint with the Occupational Safety and Health Administration (OSHA) on January 25, 2008, alleging violations of Section 806 of the Sarbanes Oxley Act of 2002. See See 18 U.S.C. § 1514A(a). On February 4, 2008, she provided Lockheed with a notice of forced termination. On February 6, 2008, Brown amended her OSHA complaint to allege constructive discharge. OSHA denied Brown’s complaint.

Brown subsequently requested a hearing before the Office of Administrative Law Judges. After a hearing, the Administrative Law Judge (“ALJ”) found that Brown had engaged in protected activity; that she suffered materially adverse employment actions, including constructive discharge; and her engagement in protected activity was a contributing factor in the constructive discharge. The ALJ awarded reinstatement, back pay, medical expenses, and non-economic compensatory damages in the amount of $75,000. Lockheed timely appealed the ALJ’s decision to the Administrative Review Board of the Department of Labor, which affirmed. Lockheed appealed.

Section 806, the anti-retaliation provision of Sarbanes-Oxley, provides, in relevant part:

Whistleblower protection for employees of publicly traded companies.–No [publicly traded] company . . . , or any officer [or] employee . . . of such company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—

(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of . . . [18 U.S.C. §§] 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any
provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by—

. . . .

(C) a person with supervisory authority over the employee . . . .

18 U.S.C. § 1514A. The regulations implementing Section 806, as well as the decisions of numerous circuit courts, establish the elements of a prima facie claim for violation of § 1514A. A claimant must show: (1) she engaged in protected activity or conduct; (2) the employer knew of her protected activity; (3) she suffered an unfavorable personnel action; and (4) her protected activity was a contributing factor in the unfavorable personnel action. See 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. § 42121(b); 29 C.F.R. § 1980.104(b)(1) (2007); Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009).

On appeal, Lockheed argued the Board’s findings of fact and conclusions of law were erroneous as to the first, third, and fourth elements of Brown’s prima facie case.

A. Protected Activity

The ALJ concluded Brown established by a preponderance of the evidence that she (1) reasonably believed Owen had committed mail or wire fraud, see 18 U.S.C. §§ 1341, 1343; and (2) communicated that belief “definitely and specifically” to Lockheed.

Lockheed argued the ALJ’s finding that Brown’s complaint did not relate to shareholder fraud was fatal to her retaliation claim because Section 806’s protection of employees who report conduct reasonably believed to constitute mail or wire fraud applies only if such conduct “relat[es] to fraud against shareholders.” 18 U.S.C. § 1514A(a)(1). The Tenth Circuit found Lockheed’s interpretation of the statute incorrect, and held an employee complaint need not specifically relate to shareholder fraud to be actionable under the Act.

Second, the Tenth Circuit found there was substantial evidence supporting the ALJ and Board’s findings that Brown reasonably believed Owen had committed fraud and that she definitely and specifically communicated that belief to her superiors.

B. Constructive Discharge

In Strickland v. United Parcel Service, Inc., this court set forth the requirements for establishing constructive discharge:

Constructive discharge occurs when an employer unlawfully creates working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign. The plaintiff’s burden is substantial. The standard is objective: the employer’s subjective intent and the employee’s subjective views on the situation are irrelevant. Whether a constructive discharge occurred is
a question of fact.

555 F.3d 1224, 1228 (10th Cir. 2009) (quotation and citations omitted).

In considering whether a constructive discharge occurred, the court considers the totality of the circumstances. Narotzky v. Natrona Cnty. Mem’l Hosp., 610 F.3d 558, 565 (10th Cir. 2010).

Lockheed’s challenge to the Board’s conclusion that Brown suffered an adverse personnel action because she was constructively discharged was twofold. First, Lockheed argued the ALJ applied the wrong legal standard to Brown’s constructive discharge claim and that the Board incorporated the ALJ’s mistake in its Final Decision and Order. Second, Lockheed argued there was insufficient record evidence to support the conclusion that Brown was constructively discharged.

The Tenth Circuit found both arguments unpersuasive.

First, the ALJ recited the correct legal standard for a claim of constructive discharge and concluded, after reciting the litany of adverse circumstances Brown faced following her ethics complaint, “a reasonable person such as Complainant would see resignation as her only option under these circumstances.” As to Lockheed’s second argument, the Court made reference to numerous facts cited by the ALJ and Board that are indicative of constructive discharge. A reasonable person would deem this evidence adequate to support the Board’s ultimate conclusion that Brown’s working conditions were so intolerable she would have viewed quitting as her only option.

C. Contributing Factor

To establish a prima facie case under Section 806, a complainant must show her protected activity was a contributing factor in the unfavorable personnel action. 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. §  2121(b)(2)(B)(I); 29 C.F.R. § 1980.109(a). This element is broad and forgiving: the Board has defined a “contributing factor” as “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Klopfenstein v. PCC Flow Techs. Holdings, Inc., No. 04-149, 2006 WL 3246904, at *13 (Admin. Rev. Bd. May 31, 2006). Temporal proximity between the protected activity and adverse employment action may alone be sufficient to satisfy the contributing factor test. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1003 (9th Cir. 2009).

The Tenth Circuit held that the conclusion that Brown’s protected activity was a contributing factor in her eventual constructive discharge was supported by the Board’s finding that the adverse employment actions Brown experienced began shortly after the conclusion of the investigation against Owen. This finding was supported by substantial evidence

D. Remedy

Finally, Lockheed argued the Board’s award of $75,000 to Brown as noneconomic compensatory damages for her emotional pain and suffering, mental anguish, embarrassment, and humiliation was not authorized by 18 U.S.C. § 1514A(c)(2) and that the Board’s damage award was otherwise unsupported by substantial evidence. However, § 1514A(c)(1), provides that a prevailing employee “shall be entitled to all relief necessary to make the employee whole.” It may now be necessary for the Board to quantify its award of back pay, medical expenses, and attorney’s fees, and to reexamine its award of reinstatement to the extent an appropriate position for Brown at Lockheed no longer exists.

The decision of the Board is AFFIRMED and the matter REMANDED to the agency for further proceedings not inconsistent with this opinion.

Tenth Circuit: ALJ’s Credibility Determinations Deserve Great Weight

The Tenth Circuit issued its opinion in Cordero Mining LLC v. Secretary of Labor on Thursday, November 15, 2012.

Cindy Clapp was a long time employee at a coal mine operated by Cordero Mining. She was terminated after making several complaints about safety issues. The Secretary of Labor filed a complaint of discrimination on her behalf, alleging Cordero violated § 105(c) of the Federal Mine Safety and Health Act of 1977 (the Act). An ALJ found Cordero had violated the Act and ordered Clapp be reinstated with back pay and imposed a civil penalty of $40,000. As the Federal Mine Safety and Health Review Commission denied review, Cordero petitioned for review of the final decision.

The Tenth Circuit held the ALJ’s findings were supported by substantial evidence. Clapp had established a prima facie case of discrimination by 1) showing she engaged in the protected activity of raising safety concerns and 2) that she was terminated for that activity, not for insubordination. The ALJ’s credibility determinations deserved great weight.

The court also rejected Cordero’s challenge to the back pay award as Cordero failed to meet its burden of establishing Clapp “did not exercise reasonable diligence” in finding new employment and thereby mitigating her damages. Finally, the court found substantial evidence supported the ALJ’s civil penalty, including the chilling effect Clapp’s termination would have on other miners.

Tenth Circuit: Importance of Preserving Your Best Arguments in the Proper Administrative Forum

The Tenth Circuit published its opinion in Public Service Company of New Mexico v. National Labor Relations Board on August 28, 2012.

Robert Madrid worked for Public Service Company of New Mexico (PNM), collecting overdue bills for the electric utility. Angered by a particularly obstinate customer and without his supervisor’s permission, Mr. Madrid drove to the customer’s home and disconnected the gas line that was not provided by PNM, but another utility. PNM fired Mr. Madrid.  Mr. Madrid’s union filed a grievance on his behalf contesting his dismissal. The union argued that Mr. Madrid’s firing violated its collective bargaining agreement with the company. The union hypothesized that Mr. Madrid may have treated more harshly than other employees guilty of similar things.

The union sent PNM a discovery request demanding documents showing whether and to what extent PNM had disciplined other employees who, like Mr. Madrid, violated the company’s ethics policy or state law.

PNM provided documents disclosing disciplinary actions taken against union employees, but it refused to provide information about discipline meted out on non-union workers.  The company argued that information about non-union employees was irrelevant. PNM eventually handed over the requested documents. However, because of its many months of delay, the Board found that PNM had engaged in an unfair labor practice.  The Board ordered PNM to post a notice informing employees of their rights under the law, PNM’s violation, and the company’s promise to do better going forward.

PNM now petitions the Tenth Circuit for review of the Board’s decision and the Board cross-petitions asking us to enforce its order.  The only question the company raises on appeal is whether the disciplinary information about non-union employees was relevant to the union’s processing of Mr. Madrid’s grievance.

The most significant relevance objections PNM seeks to press in the Tenth Circuit never made their way into the proceedings before the Board. And under 29 U.S.C. § 160(e),  “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”

The Tenth Circuit divided PNM’s appeal into two parts: the set of objections it preserved by raising them with the Board, and the set it did not.

Taking the first group first, the Court agreed to hear PNM’s claims that (1) information about the discipline of non-union employees is irrelevant because non-union employees aren’t “similarly situated” to union employees, (2) the union was obliged to timely explain the relevance of its information; and (3) the union’s request was motivated by an improper purpose.

Regarding PNM’s first objection, because the rules serving as the basis for Mr. Madrid’s termination applied to union and non-union employees equally, the documents were held to be relevant. In response to the second objection, the Court found the record contained substantial evidence that the union did timely apprise PNM of the basis for its request. In response to PNM’s third objection, the Court held that PNM did not carry its burden to show affirmatively that the Board’s findings are ones no reasonable mind could accept.

The Court held it had no authority to hear the remainder of PNM’s objections because PNM never raised them with the Board as required by 29 U.S.C. § 160(e). Accordingly, PNM’s petition for review was denied, and the Board’s cross-petition for enforcement of its order was granted.

Tenth Circuit: Firing Was Not Retaliation for Bringing to Light Various Accounting Improprieties

The Tenth Circuit Court of Appeals published its opinion in McBride v. Peak Wellness Center, Inc. on Monday, August 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is an accountant who worked as Respondent’s business manager for about nine years. Respondent terminated her in 2009, citing job performance and morale issues. Petitioner, however, claims she was terminated in retaliation for bringing various accounting improprieties to the attention of Respondent’s Board of Directors. Petitioner brought several federal and state-law claims against Respondent, among them (1) whistleblower retaliation under the federal False Claims Act (FCA); (2) violations of the federal Fair Labor Standards Act (FLSA); (3) breach of employment contract; (4) breach of implied covenant of good faith and fair dealing; (5) defamation; and (6) a federal sex discrimination claim under Title VII of the Civil Rights Act. After discovery, Respondent moved for summary judgment on all claims, and the district court granted the motion. Petitioner appeals the grant of summary judgment, arguing that significant issues of material fact remain unresolved and that her claims should proceed to trial. She also appeals the district court’s denial of an evidentiary motion. The Court found no error in the district court’s decision and affirmed.

Tenth Circuit: Error to Instruct Jury that Former Employer Bore Heightened Burden of Proof in Establishing Entitlement to FLSA Exemption

The Tenth Circuit Court of Appeals published its opinion in Lederman v. Frontier Fire Protection, Inc. on Wednesday, July 11, 2012.

The Tenth Circuit reversed and remanded the district court’s decision. Respondent sued his former employer, Petitioner, to recover overtime pay he alleged was owed to him under the Fair Labor Standards Act (FLSA). A jury found Petitioner liable and awarded Respondent $17,440.86 in damages. Petitioner challenges the jury instructions issued by the district court. The Court found that the district court should not have instructed the jury that Petitioner bore a heightened burden of proof in establishing its entitlement to an FLSA exemption, the instruction was prejudicial errors, and therefore reversed and remanded.

Spark the Discussion: Organize! The Rising Role of Unions in Colorado’s Medical Marijuana Industry

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Recently, the United Food and Commercial Worker’s Union, Colorado’s largest labor organization, announced it had unionized its first medical marijuana shop in Denver—with more than a dozen shops predicted to follow suit in the upcoming weeks.

According to Colorado’s UFCW President Kim Cordova, “the Union is committed to representing the hard working and compassionate workers in the Medical Cannabis retail centers and promoting guidelines to safeguard the interests of our members and the communities our members work in.”

What does it mean for Colorado’s medical marijuana industry to have union shops?

Colorado’s newest industry is in a tough position.  It faces near-constant attacks from various branches of the federal government including the IRS, Treasury, and, most recently, the Department of Justice.  Just last month, the United State attorney in Colorado, John Walsh, launched an attack on state-legal medical marijuana providers by sending 23 letters to centers, informing them that that were in areas deemed problematic by the federal government and would have to shut down in 45 days or face property seizure and criminal prosecution.

In the face of these mounting problems, the medical marijuana industry needs allies.  And they have found a powerful one in the Union.

At a basic level, labor unions allow workers to organize and engage in “collective bargaining” to promote better wages, benefits, and working conditions.  There is no denying the vast role that unions have played in positively shaping the American workforce with these organizations leading the charge to end child labor, secure a minimum wage and sick leave, and establish workplace safety measures as far back as the 1800’s.

But perhaps the most important role that unions play is their heavy influence over politics.  Beyond pushing for the interests of workers, unions have long been engaged in successful political campaigns, using lobbying and traditional campaign tactics to ensure the longevity of the industries they represent.  Through sophisticated political maneuvering, labor unions have played a crucial role throughout history in helping to establish and legitimize businesses—a lesson that medical marijuana shops may want to heed.   With the public backing of a state and national powerhouse like the UFCW, these fledgling businesses may be viewed in a new light by legislators, many of whom owe their elections in large part to the political backing of unions.

At the dawn of this new industry in Colorado, having mainstream partners such as labor unions may be crucial to the medical marijuana industry’s legitimacy and, quite possibly, its longevity.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: If Employee’s Primary Duty Is Related to Emergency Response or Law Enforcement, Entitled to FLSA Protections

The Tenth Circuit Court of Appeals published its opinion in Maestas v. Day & Zimmerman, LLC on Wednesday, January 4, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioners were officers in a private security force that protects Los Alamos National Laboratory. They contend that their employer, Respondent, improperly classified them as exempt employees under the Fair Labor Standards Act (FLSA). The parties disagree over which of Petitioners’ “job duties is ‘primary,’ a determination essential to the classification of their positions under FLSA.” The district court concluded that all Petitioners were exempt executive employees and granted summary judgment to Respondent.

The Court disagreed with the district court’s reasoning. “In order to fall under the executive, administrative, or combination exemptions to FLSA’s overtime protections, an employee’s primary duty must be managerial or administrative, or a combination of the two. . . . However, if an employee’s primary duty is related to emergency response or law enforcement, the employee is entitled to FLSA’s protections.” The Court held that a dispute over the classification of job duties presents a question of fact rather than an issue of law, and that “an employee who supervises subordinates while also conducting front-line law enforcement work performs a non-managerial task. Because there remains a genuine dispute as to whether three of the plaintiffs had this task as their primary duty, summary judgment was proper only against [one] plaintiff  and improper as to the other plaintiffs.”

Department of Labor and Employment Proposes Increase in Minimum Wage

The Colorado Department of Labor and Employment has proposed to increase the minimum wage in Colorado. Pursuant to the inflation adjustment requirement of Article XVIII, Section 15, of the Colorado Constitution, the  state minimum wage will be raised to $7.64/hour and the state tipped employee minimum wage will be raised to $4.62/hour, effective January 1, 2012.

Current Colorado minimum wages are set at $7.36/hour and $4.34/hour for tipped employees.

A hearing on the amended rule will be held on Friday, November 4, 2011 at the Colorado Division of Labor, 633 17th Street, Second Floor, Denver, Colorado 80202, beginning at 2:00 pm.

Full text of the proposed rule change including line edits can be found here. Further information about the rule and hearing can be found here.

More Guidance from the NLRB on Social Media: When Must Employers Not Fire an Employee for an Offensive Facebook Post?

In a recent blog post, we addressed three Advice Memos issued by the National Labor Relations Board’s (NLRB or the “Board”) Division of Advice, which provided useful guidance on the types of social media conduct that do not enjoy protection under the National Labor Relations Act (NLRA). On August 18, 2011, not long after the publication of those Advice Memos, the NLRB’s General Counsel issued a lengthy memorandum to all Regional Directors that summarizes the Board’s resolution of more than one dozen “social media cases,” including the three cases discussed in our prior blog post. As a contrast to that post, this post will focus on the cases in the August 18, 2011, Memorandum where the General Counsel found that an employer’s discharge of an employee violated the NLRA. The August 18, 2011, Memorandum also provides useful guidance on social media policies, which are addressed below as well.

When Not to Fire an Employee Based on a Social Media Post

The August 18, 2011, Memorandum summarizes four cases that concluded that the employer’s discipline violated the NLRA. In a nutshell, these cases involved the termination of one or more employees based on the following social media conduct:

  • While preparing for a meeting with management, an employee asked coworkers on her Facebook page for their reaction to another employee’s complaints about work quality and staffing levels at the employer;
  • An employee complained on her Facebook page about her supervisor’s refusal to permit a union representative to assist her in responding to a customer complaint about the employee;
  • A salesmen at a car dealership criticized on his Facebook page the dealership’s handling of a sales event intended to promote a new car model and posted mildly mocking photographs that included his coworkers;
  • Employees posted on Facebook about the employer’s failure to withhold state income taxes, resulting in the employees’ receiving payment demands from state tax authorities.

In all of these cases, employees posted on their own Facebook page, on their own time, and using their own equipment.

When viewed as a group, these cases have a common thread that provides substantial insight into how the Board analyzes social media cases. Most importantly, the subject matter of each of these posts related to the terms and conditions of employment, the exercise of rights conferred by the NLRA, or other matters traditionally considered “protected activity” under the Boards’ precedent. The topics included: (a) preparation for a discussion with management about employees’ job performance and the employer’s staffing levels; (b) the right in a unionized workplace to union representation during an investigatory interview by the employer; (c) conduct by the employer (a sales event) that could have an impact on employees’ compensation (their sales commissions); and (d) the employer’s administration of income tax withholdings.

Of equal significance, in each of these situations, the General Counsel concluded that employees were collaborating, otherwise known as “concerted activity.” In the first case, the employee was seeking assistance from coworkers in preparation for a discussion with management. In the second case, the employee was discussing supervisory actions with coworkers who were her Facebook friends. In the third case, the employee was expressing the sentiment of his coworkers about the sales event. In the fourth case, employees were sharing concerns about the employer’s failure to withhold state income taxes. None of these cases could be said to involve individual gripes.

While the fulcrum of these cases is the General Counsel’s determination that the disciplined employees were discussing protected subject matters and doing so in concert with their coworkers, there is one other common thread that can help employers weigh risks when deciding whether an employee’s social media post justifies discipline. In each of the cases, the offending Facebook post was either the culmination of an on-going dispute with the employer or the continuation of a pre-existing conversation among employees. In contrast to these fact patterns, the Facebook posts discussed in our previous blog entry and upon which the Division of Advice relied to justify discipline were relatively spontaneous and had no real history behind them.

Profanity Generally Will Not Justify Discipline for Protected Concerted Activity

According to the General Counsel, the offending Facebook posts in these cases included “swearing and/or sarcasm,” use of a “short-hand expletive,” and references to management personnel as an “asshole” and a “scumbag.” Nonetheless, in each case, the General Counsel concluded that the employer’s termination violated the NLRA.

The General Counsel’s analysis in these cases seems to give employees a license to curse. In finding that an employee did not lose the NLRA’s protections after calling her supervisor a “scumbag,” the General Counsel relied on the following facts: (a) “the Facebook posts did not interrupt the work of any employee because they occurred outside the workplace and during nonworking time;” (b) “the comments were made during an online employee discussion on supervisory action;” (c) “the name-calling was not accompanied by verbal or physical threats;” (d) “the Board has found more egregious name-calling protected;” and (e) “the employee’s Facebook postings were provoked by the supervisor’s unlawful” conduct.

In social media cases, the first three or four factors listed above typically will be present. Thus, the Board effectively is telling employers that they must have a thicker skin when it comes to employees’ raunchy social media posts.

Disclaimers and Carefully Crafted Policies Are Critical

Throughout the August 18, 2011, Memorandum, the General Counsel identified social media policy provisions that the General Counsel deemed overbroad and in violation of the NLRA. At first blush, these determinations are portentous for employers because employers routinely include the challenged provisions in their social media policy. However, the August 18, 2011, Memorandum suggests — at least implicitly — how employers can retain these commonly used policy provisions without running afoul of the NLRA.

The list of policy provisions found to be overbroad is lengthy but worthy of repetition. The list includes the following:

  1. Inappropriate Discussions: Prohibition against “inappropriate discussions about the company, management, and/or coworkers;”
  2. Defamation: Prohibition on any social media post that “constitutes embarrassment, harassment or defamation of the [company] or of any [company] employee, officer, board member, representative, or staff member;”
  3. Disparagement: Prohibition against “employees making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors;”
  4. Privacy: Prohibition on “revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent;”
  5. Confidentiality: Prohibition on “disclosing inappropriate or sensitive information about the Employer;”
  6. Contact Information: Prohibition on “using the company name, address, or [related] information on [employees’] personal profiles;”
  7. Logo: Prohibition on using “the Employer’s logos and photographs of the Employer’s store, brand, or product, without written authorization;”
  8. Photographs: Prohibition against “employees posting pictures of themselves in any media . . . which depict the Company in any way, including company uniform [or] corporate logo.”

Removing all of the prohibitions described above would eviscerate most social media policies. Fortunately, such drastic action does not appear to be necessary.

In finding these rules unlawful, the General Counsel emphasized not only their overbreadth (i.e., “the [rules] utilized broad terms that would commonly apply to protected criticism of . . . terms and conditions of employment”), but also that “the rule[s] contained no limiting language to inform employees that [the rules] did not apply to Section 7 activity.” This italicized language suggests that the rules quoted above will not violate the NLRA as long as the policy contains a disclaimer which explicitly informs employees that the policy will not be construed or applied in a manner that improperly interferes with employees’ rights under Section 7 of the NLRA.

The General Counsel also provided some guidance for policy drafting by rejecting challenges to several other policy provisions. One upheld policy, for example, provided that “no employee could ever be pressured to ‘friend’ or otherwise connect with a coworker via social media.” The General Counsel reasoned that this policy was “sufficiently specific,” “clearly applied only to harassing conduct,” and could not be read to prohibit employees from friending for purposes of engaging in activity protected under the NLRA.

In a second example, the General Counsel approved of a policy that required employees to “maintain confidentiality about sensitive information” and to direct all media inquiries to the company’s public affairs office after stating that the employee was not authorized to comment. The General Counsel determined that this policy did not violate the NLRA because it was intended only “to ensure a consistent, controlled company message,” was not a blanket prohibition on all contact between employees and the media, and “did not convey the impression that employees could not speak out on the terms and conditions of their employment.”

These examples suggest that an employer can increase the likelihood that its social media policy will survive the NLRB’s scrutiny if the policy emphasizes the legitimate purposes that it seeks to achieve, such as protecting the employer’s good will and brand reputation. In addition, restrictions in the policy on employees’ social media conduct should, where practicable, be narrowly tailored to meet those legitimate objectives.

© 2011 Littler Mendelson.  All Rights Reserved.

Philip L. Gordon is the Chair of Littler Mendelson’s Privacy and Data Protection Practice Group. He has years of experience litigating privacy-based claims and counseling clients on all aspects of workplace privacy. He blogs at Littler’s Workplace Privacy Counsel, where this post originally appeared on August 22, 2011.