EMPLOYER ALERT – FACEBOOK FIRINGS COULD PROMPT LEGAL ACTION

Companies who fire employees for making negative comments about their jobs on a social media site could end up in hot water with the NLRB – even if the company’s employees are not unionized.

The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act, a federal law pertaining primarily to union activity, which has been around since the 1930s. In the past, courts have held that, to a limited extent, this law also protects non-union employees, in areas such as the right to have another employee present during an employee disciplinary meeting (these are called “Weingarten Rights”), and the protection of “concerted activity” – i.e. the right of employees to meet and discuss issues such as wages, benefits and workplace safety, and to approach management to discuss those issues.

Recently, the term “concerted activity” has been applied to social network postings by employees, and civil complaints have been filed and are pending before the NLRB against companies that fired employees for positing certain comments. Not all comments are protected – they have to fall within traditional definitions of concerted activity, qualifying as a discussion between employees regarding protected activities. A recent article appearing in the Chicago Tribune provides details and insights into this evolving issue. See: http://www.chicagotribune.com/business/breaking/chi-workers-fired-over-facebook-twitter-posts-turn-to-1935-labor-law-20111202,0,6526315.story

The best approach is to review your current HR policies to ensure that they do not prohibit protected “concerted activity” by employees, and obtain legal advice on this issue before you terminate an employee based on their use of social media to air complaints about a supervisor or other workplace issues.

EMPLOYER ALERT – CHANGES IN UNEMPLOYMENT LAW

Florida’s Unemployment Compensation Law now has a broader definition of misconduct which will result in more employees being held ineligible for benefits based on the reason for their termination. As an employer, you need to be familiar with this change so that you can adjust your HR policies accordingly, and make an informed decision whether to contest a former employee’s application for benefits.

In general, an individual is entitled to benefits if they are laid off, terminated without cause, fired for poor performance, or resign with “good cause attributable to the employer” (i.e. if conditions at work are so bad that any reasonable person would feel they had no alternative but to resign). Individuals are ineligible for benefits if they are terminated for misconduct. Conduct which results in termination “for cause” under a company’s internal policies, however, does not always equate to conduct that is considered “misconduct” under the unemployment compensation law. That definition has now been expanded to include conduct that would not previously have resulted in a denial of benefits.

Under the new law, misconduct is defined as any action that demonstrates conscious disregard of an employer’s interests and is found to be a deliberate disregard or violation of reasonable standards of behavior, and may include activities that did not occur at the workplace or during working hours. This change broadens misconduct and makes it easier for an employer to deny benefits. Misconduct now includes violation of an employer’s policy that affects behavior outside the workplace (such as a rule prohibiting employees from making negative statements about the company on an employee’s personal facebook page).

The best practice is to review your current policies, and make sure you are providing written warnings for violations that would qualify as misconduct if repeated.

Other changes in the law, which primarily affect the procedures for claimants seeking benefits, include the following:

• Benefit Payments: New claims must be paid by either the Florida Unemployment Compensation Debit Card or by direct deposit to the Claimant’s bank account (i.e. paper checks will no longer be used to pay benefits).

• Online Filing and Certification of Weeks: All claims must now be filed electronically, and continuing claims must be updated electronically. The unemployment hotline is still available to answer questions about filings.
• Work Search: Claimants are required on a weekly basis to contact five potential employers and provide this information via the Internet during their bi-weekly certification for benefits. You can use the Employ Florida Marketplace website (employflorida.com) to search thousands of postings and apply for jobs. If you are unable to make at least five employment contacts in a week, meeting with a representative at a local One-Stop Career Center for reemployment services can satisfy the requirement for that week.
• Skills Review: Claimants must now complete an initial skills review over the Internet. The result of the review will be used by local One-Stop Career Centers to assist claimants with job searches.
• Severance Pay: If a claimant’s severance pay per week is equal to or greater than the claimant’s weekly benefit amount, the claimant is not entitled to benefits for that week. Severance pay does not impact the total amount of benefits that can be paid on the claim.
• Duration of Benefits: Effective January 1, 2012, The duration of benefits adjusts from the current maximum of 26 weeks to a range from 12 to 23 weeks, based upon the average unemployment rate in Florida for the third calendar quarter of the previous year. For example, the maximum number of weeks for 2012 will be based on the average unemployment rate in Florida for July, August and September 2011. When the average unemployment rate is 5 percent or less, the maximum duration of benefits will be 12 weeks. For each half-percent increase in the average unemployment, an additional week will be added to the calculation of the benefit duration beginning January 1 of the following calendar year. Should the average unemployment rate reach 10.5 percent or higher, a maximum of 23 weeks would be payable on a claim established during the following calendar year.

EMPLOYER ALERT - BEFORE YOU HIT SEND

Technology means you can be on top of business activities 24/7, and so can your employees. But stop and think before you send that after hours email or text. Unless your employee is properly classified as exempt from overtime pay under the Fair Labor Standards Act, the time that employee spends reading and responding to your email or text is compensable work time. And if they are already putting in a 40-hour week, then it's overtime.

There has been a recent growth in wage and hour claims arising from off-premises work done by employees. Similar problems arise when employees are able to log into their work computer remotely - you as the employer are responsible for keeping a record of all hours worked by nonexempt employees. The FLSA has strict guidelines regarding which employees may be classified as exempt; you can't solve this problem simply by giving an employee a title and paying them a salary.

Other concerns: If the employee checks email on their smart phone or even responds to text messages in the morning before leaving for the office, when does their compensable work day actually begin?

The best practice is to have clear policies on when it is - and isn't - acceptable for employees to work outside of normal business hours. And be sure to enforce them.

IN THE NEWS – THE BUCK STOPS HERE ON HIRING

One way to avoid claims of discrimination in hiring is to use an independent contractor or recruiter to screen and interview potential employees, right? Wrong! In a decision rendered September 10, 2009, a federal court of appeals in New York ruled that an apartment complex could be held liable for violations of the Age Discrimination in Employment Act (“the ADEA”) when an independent contractor told an applicant he was “too old” for the job showing apartments. Because the apartment complex delegated the hiring process to a third party, the apartment complex could be held liable for its “agent’s” conduct, even if it had no knowledge that the discriminatory hiring practices were occurring.

The court pointed out that this ruling only applies if the outside firm or agent is hiring applicants to work directly for the employer. You will not be held liable if an independent contractor hired to perform services for your company discriminates against its own employees.

If you do decide to use an outside firm or agent to assist you in screening applicants for a position in your company, however, you should make certain they are following EEO guidelines

EMPLOYER ALERT – ARE YOU FOLLOWING THE NEW FMLA NOTICE REQUIREMENTS?

The FMLA’s notice requirements for employers have been the subject of considerable confusion in the past. Under the Department of Labor regulations that went into effect January 2009, the notification requirements are consolidated into a single section (29 C.F.R. §825.300), and conflicting provisions and time periods in the former regulations have been eliminated.

Employers who fall under the FMLA (50 or more employees within a 75 mile radius) must provide the following notifications:

(1) General Notice to Employees. The employer must provide general information about the FMLA through a poster (available from the DOL) placed in a conspicuous place, and by including the information either in the employee handbook or in written material given to the employee at time of hire. A notice that may be used by employees is available from the DOL at:
www.dol.gov/esa/whd/fmla/index.htm.


(2) Eligibility Notice. Once an employee requests FMLA leave, or the employer has a basis to believe that the employee’s leave maybe for an FMLA-qualifying reason, the employer must provide an “Eligibility Notice” to the employee within five (5) days, absent extenuating circumstances. This notice must either advise the employee that they are eligible for FMLA leave, or explain why they are not. A form eligibility notice is available for download at the DOL website referenced above.

(3) Rights and Responsibilities Notice. The employer must also provide a “rights and responsibilities notice.” This notice can be combined with the eligibility notice, and is a single document on the DOL form described above. Part A of the form is the eligibility notice, and Part B explains the rights and responsibilities of the employee. This notice should include the following, as applicable:

a. a statement that the leave is counted against the employee’s 12-month entitlement under the FMLA, and an explanation of which method the employee uses to calculate the FMLA year (i.e. calendar, rolling, etc.);

b. any obligation for the employee to provide a certification of serious health condition, exigency (military), etc. and the consequences of failing to provide such certification. A copy of the certification form required by the employer may be included with this notice;

c. the employee’s right to substitute paid leave (consistent with the company’s leave policies), or the employer’s requirement that paid leave be substituted;

d. any requirement that the employee pay a portion of the health insurance premium during leave, and the consequence should the employee fail to do so;

e. any designation of the employee as a “key employee” under the FMLA, and the effect of that status on job restoration;

f. the employee’s right to maintain health insurance benefits during leave and restoration after leave;

g. the employee’s liability for health insurance premiums paid by the employer during leave, in the event that the employee fails to return to work after the leave;

h. any other appropriate information that should be communicated to the employee – for example, a requirement that the employee make periodic reports to the employer regarding intent to return to work.

(4) Designation Notice. The designation notice must be sent within five (5) days of the determination that in fact the leave is covered by the FMLA. This determination can be made in some cases when the initial request for leave if submitted by the employee, and in other cases will not be made until the employer receive a certification of serious health condition. This form must specify the number of hours, days and weeks that will be counted against the employee's FMLA leave entitlement (if known). If the employer requires a fitness-for-duty certificate for the employee to return to work, that requirement should be stated in this notice. A form designation notice (with boxes to check off) is also available at the DOL website.

Don’t wait until an employee requests FMLA leave - take time now to review your company’s FMLA notice procedures to make sure they are in compliance with the current regulations.

EMPLOYER ALERT – MINIMUM WAGE INCREASES JULY 24

Effective July 24, 2009 the federal minimum wage increases to $7.25 per hour, an increase of four cents above the current Florida minimum wage of $7.21 per hour. Employers are required to pay the higher of the federal minimum wage, or the minimum wage required by state statute.

Accordingly, Florida employers should adjust their payroll practices no later than July 24 to ensure that all employees are paid a minimum of $7.25 per hour. An exception is tipped employees, whose hourly rate continues to be governed by the Florida law permitting a reduced wage of $4.19 per hour, provided that the employee's wage plus tips equals total compensation of at least $7.25 per hour.

IN THE NEWS – WALKING THE TIGHTROPE – SUPREME COURT DECISION RAISES QUESTIONS FOR BUSINESSES ON TITLE VII COMPLIANCE

On Monday, June 29, the Supreme Court decided a hotly debated case attempting to reconcile the dual prohibition in Title VII of the Civil Rights Act against “disparate treatment” discrimination and “disparate impact” discrimination. Disparate treatment discrimination is the intentional different treatment of an individual or group of individuals in the workplace based on their race, color, religion, sex or national origin. Disparate impact discrimination occurs when a facially neutral employment practice has a disproportionally negative effect on the members of one of these protected classes. Title VII also provides, however, that liability for disparate impact discrimination does not exist if the employer can show that its practice was “job related for the position in question and consistent with business necessity.”

An example of the type of policy that has been upheld in prior cases under the disparate impact analysis would be weight and height requirements for firefighters – although those minimum requirements have a disparate impact on female job applicants, they are job related and consistent with business necessity, as the job requires the physical ability to carry an unconscious person out of a burning building. An example of a policy that failed the disparate impact analysis was a particular employer’s requirement that all job applicants have a high school diploma. This policy disproportionately eliminated minority applicants, but there was no evidence that having graduated high school bore any relationship to the ability to perform the job duties.

The case decided today, Ricci v. DeStefano, involved the use of a written and oral test to determine the eligibility of firefighters in the city of New Haven, Connecticut, for promotion. Under the City’s rules, an available promotion to captain or lieutenant could only be offered to individuals with the top three highest scores. The City and the consulting firm it hired to develop the test apparently went to great lengths to design a test that had content relevant to the job, and was nondiscriminatory. Nonetheless, when the test results were in, a disproportionate percentage of black and Hispanic employees taking the test scored lower than white employees taking the test. A public debate ensued and, ultimately, the City threw out the test results to avoid violating the disparate impact prohibitions of Title VII. A group of white and Hispanic employees who received high scores on the test and would likely have been eligible for promotion filed suit, claiming that discarding the test results based solely on a statistical analysis of the racial outcome constituted disparate treatment discrimination against them.

The U.S. Supreme Count (in a narrow 5-4 decision) held that by throwing out the test results the City failed to correctly apply Title VII’s disparate impact analysis – specifically, whether the test was job related and consistent with business necessity. After reviewing the testimony and other evidence presented at trial as to the content of the test and the steps undertaken by the consulting company to create it, the Court concluded that the test was job related and that there was no equally valid, less discriminatory alternative that the City had refused to adopt. Accordingly, in the words of the Court, there was no “strong basis in the evidence” to conclude that the City would have been liable for disparate impact discrimination if it had allowed the test results to stand. Therefore, the City’s conduct amounted to disparate treatment discrimination against the firefighters whose high scores were disregarded.

The challenge for employers in the aftermath of this decision is to find a balance between eliminating facially neutral policies that have a disparate impact on minority workers without inviting allegations that the very act of removing such policies itself discriminates against nonminority workers based on race. Great care should be taken to avoid implementing any employment practices that could have a disparate impact in the first place. Of course, as the City of New Haven discovered, it’s not always possible to predict whether a disparate impact will occur.

The financial consequences of a misstep can be devastating to a business. The New Haven firefighters test at issue in the case was administered to employees in 2003. The results were thrown out shortly thereafter, and six years of costly litigation ensued.