Presented by: Brandon M. Shelton H. Bernard Tisdale III Employment Law Briefing March 22, 2012...

Presented by:

Brandon M. SheltonH. Bernard Tisdale III

Employment Law Briefing

March 22, 2012 ▪ Charlotte, NC

March 22, 2012 ▪ Charlotte, North Carolina

“You’re Not The Boss Of Me”

Regulating Employee Conduct

On And Off The Job


Verbal ExpressionHow to address economic and political

activism on and off the job


Economic Speech

NLRA Section 7 protects an employee’s

right to discuss wages, hours and other

terms and conditions of employment

N.C./S.C. – no statutory protections for

employee speech content


Economic Speech

But there are limits . . .

– Sit down strikes

– Disclosing confidential business information

– False allegations against an employer where the allegations are malicious or made with a reckless disregard for the truth


Economic Speech

But there are limits (cont’d)

– Disparagement of an employer’s business unrelated to employee interests and/or working

conditions

– Violence, profanity and vulgarity


Political Speech

Public Sector Employees Have First Amendment Political Protections

Private Sector Employees are Not Protected by First Amendment


Non-Solicitation Policies

Guard Publishing Co. & Eugene Newspaper Guild, 351 NLRB 1110 (2007)– Employer may implement and

enforce a policy that allows solicitations for certain non-business related purposes, while prohibiting solicitations for other non-business related purposes

But, D.C. Circuit reversed in part



Guard Publishing Co. & Eugene Newspaper Guild, 571 F.3d 53 (D.C. Cir. 2009) – Employee’s e-mail clarifying facts regarding union rally was not solicitation and not prohibited

by policy– Court found application of

Company policy violated NLRA



What does this mean for employers . . .– Allow charitable solicitations, BUT

ban non-charitable solicitations

– Allow invitations for personal events, BUT ban invitations from commercial organizations

– Allow personal e-mail communications, BUT ban solicitations . . .

– HOWEVER . . .



What does this mean for employers (cont’d)

– CANNOT allow some commercial solicitations BUT ban union solicitations

– CANNOT allow solicitations from one union but not another

– CANNOT selectively enforce policies

Goal: Consistent Application


Non-Verbal ExpressionWhat to do with the employees who feel the need

to “dress up” for work


Religious Discrimination

Cloutier v. Costco, 390 F.3d 126 (1st Cir. 2004)– Plaintiff was a member of the

Church of Body Modification – Costco adopted a grooming policy

that prohibited facial piercings– Employee refused to remove her

facial piercings and (although no customers complained about the piercing) she was fired



EEOC v. Red Robin, 2005 WL 2090677 (W.D. Wash 2005)– Plaintiff was a member of Kemeticism,

an ancient

Egyptian religion

– Red Robin’s grooming policy required employees to cover any tattoos

– Employee refused to cover his tattoos and (although no customer complaints) he was fired



Brown v. F.L. Roberts & Co., 896 N.E.2d 1279 (Mass. 2008)– Plaintiff was a practicing Rastafarian – F.L. Roberts (Jiffy Lube) initiated new

grooming policy which required employees with customer contact to be ‘clean-shaven and hair should be clean, combed, and neatly trimmed or arranged’

– Employee refused to shave or cut his hair, so employee was transferred to work only in lower bay, with no customer contact



Costco – held that it was an undue hardship to accommodate plaintiff’s religious beliefs because plaintiff regularly interacted with customers, and the company decided that her piercings detracted from the company’s image

Red Robin – held that, even though the company determined that his tattoo detracted from its family-friendly restaurant image, it was not an undue hardship to allow plaintiff to show his very small tattoo even though he regularly interacted with customers.



Brown – held that an exemption from a grooming policy could never amount to an undue hardship and once the employee made clear he could not comply with the policy for religious reasons, the employer was obligated to engage in an interactive process to find a reasonable accommodation for him


Gender Discrimination

While differences in personal appearance policies that reflect customary modes of grooming and dress do not generally violate Title VII . . .

– Jespersen v. Harrah’s Operating Co, 444 F.3d 1104 (9th Cir. 2006) (en banc) – not gender discrimination to fire a female employee for refusing to wear makeup as required by a grooming policy

– Knott v. Missouri Pacific R.R. Co., 527 F.2d 1249 (8th Cir. 1975) – not gender discrimination to fire a man for refusing to cut his hair short as required by a grooming policy


Gender Discrimination

Some forms of differential treatment may violate discrimination laws:

– Hub Folding Box Co. v. Massachusetts Comm’n Against Discrimination, (Mass. Ct. App. 2001)

• Demand that female employee, but not male employee, cover up tattooviolated state anti-discrimination statute


Model Grooming Policy


Unhealthy ExpressionStemming the use of illegal drugs, alcohol, and

tobacco on and off the job


The Crusade Against Smoking & Drinking Outside the Workplace

Numerous states specifically prohibit discrimination against employees for lawful, off-duty use of tobacco, alcohol, or other lawful products



Some states that (either directly or indirectly) prohibit discrimination based on off-duty smoking or alcohol use, provide for exceptions:– N.C.G.S. § 95-28.2(b)

• Prohibits employment actions based on employee’s “lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours …”



– N.C.G.S. § 95-28.2(b)• Exceptions:

- adversely affects job performance

- adversely affects ability to fulfill job responsibilities

- adversely affects other employees’

safety



S.C. Code § 41-1-85– The use of tobacco products outside

the workplace must not be the basis of personnel action, including, but not

limited to, employment, termination,

demotion, or promotion of an

employee


Model Anti-Smoking Policy


Sex Discrimination

Preferential treatment based on a consensual relationship does not constitute gender discrimination

EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism


Sex Discrimination

Generally, an employee cannot claim that a supervisor’s favoritism toward someone he or she was dating constitutes sex discrimination– DeCintio v. Westchester County Med. Center,

807 F.2d 304 (2nd Cir. 1986): male employees not denied promotions because of gender, but rather because femaleemployee awarded promotion was dating the decision-maker


Sex Discrimination

BUT does that mean dating in the workplace is a good idea????

– Shrout v. Black Clawson Co., 689 F. Supp. 774 (S.D. Ohio 1988): significant damages awarded to subordinate who unsuccessfully tried to end a consensual relationship with her supervisor

– Miller v. Department of Corrections, (Cal. 2005): employees who were treated less favorably than co-workers who slept with supervisor allowed to proceed with sexual harassment claim


Fraternization Policies

Options in adopting afraternization policy:

– Ban on all inter-office dating

– Ban on dating between managers and non-managers

– Prohibit relationships between an employee and his or her direct or indirect supervisor

– “Love contracts”


Model Fraternization Policy


Electronic Expression - How to Deal with Computer Usage at Work and at Home, or . . .

Can we please bring back the typewriter?


Computer Usage At Work and At Home

Use at Home:– Blogging– Message boards– Chat rooms– Twitter & Facebook

Use at Work:– E-mails to and from work– Internet access to public sites– Internet access to password protected

web-based e-mail accounts and internet sites (i.e., on-line banking)

– Internet blogs


Limitations On Monitoring At-Work Computer Usage

Privacy and Unauthorized Access Claims:

– Claims• Invasion of Privacy• Federal and State Wiretapping laws• Electronic Communications Privacy Act of

1986• Stored Electronic Communications Act

– Exceptions• System Provider • Prior Consent Defense



Privacy and Unauthorized Access Claims:

– Campbell v. Woodard Photography, 433 F. Supp. 2d 857 (N.D. Ohio 2006)

• Expectation of privacy in e-bay activities on company computer during work hours



Privacy and Unauthorized Access Claims:– City of Ontario v. Quon, 130 S. Ct. 2619 (2010)

• Leaving unresolved whether employees had reasonable expectation of privacy in personal text messages sent using company equipment

– Sidell v. Structured Settlement Investments, 2009 WL 103518 (D. Conn. 2009)

• Invasion of privacy claim based on continued access to yahoo e-mail account after employee resigned



Attorney-Client Privilege– Sims v. Lakeside School, 2007 WL 2745367

(W.D. Wash. 2007)• Expectation of privacy on web-based e-mail

accounts on work computer



Attorney-Client Privilege– Steingart v. Loving Care, 990 A.2d 650

(N.J. 2010)• Expectation of privacy on web-based e-mail

accounts on work computer

– Holmes v. Petrovich Development Company, 191 Cal. App. 4th 1047 (2011)

• No expectation of privacy on web-based e-mail accounts on work computer


Obligation to Monitor At-Work Computer Usage

Liability to a third party: Doe v. XYC Corp., 887 A.2d 1156 (N.J. Ct. App. 2005)– Employee of XYC Corp. posted

pictures of the plaintiff’s minor

daughter on pornography

sites from his work computer



Liability to a third party:

– XYC learned that employee surfed internet for pornography at work and reprimanded him,

but did not investigate any

further

– Employee was arrested



The Court held that XYC could be liable to the plaintiff for failing to act to prevent employee’s illegal conduct. XYC:– Had the ability to monitor internet use;

– Had the right to monitor internet use;



– Should have known that employee was using his work computer to access child pornography;

– Had a duty to act to prevent

employee from continuing his

activities; and

– Failure to act caused harm

to the victim.



Sexual Harassment claims– Knox v. Indiana, 93 F.3d 1327

(7th Cir. 1996)

Defamation claims– Meloff v. New York Life, 240

F.3d 138 (2nd Cir. 2001)

Theft of Confidential Information– NewSouth Communications v.

Universal Telephone, 2002 WL 31246558 (E.D. La. 2002)


Limits on an Employer’s Right to Regulate Off-Duty Computer Usage

Many states prohibit discrimination against employees for lawful off-duty conduct away from the employer’s premises– Cal. Labor Code § 98.6– N.Y. Labor § 201-d

Section 7 of the NLRA protects employees who engage in concerted protected activity


Limits on an Employer’s Right to Access Off-Duty Computer Usage

Public v. Private Domain– Moreno v. Hanford Sentinel,

Inc., 172 Cal. App. 4th 1125 (2009)

• Newspaper did not invade plaintiff’s privacy by publishing “ode” posted on her myspace page


Limits on an Employer’s Right to Access Off-Duty Computer Usage

Unauthorized Access– Pietrylo v. Hillstone

Restaurant, (D.N.J. 2009)• Managers violated Stored

Communications Act (SCA) by knowingly accessing private Facebook page without authorization


Computer Usage Policy

Must address computer usageat-work and/or using company resources– Informs employees that the

e-mail/internet system is theemployer’s property and is

intended for business purposes



– Notifies employees that they do not have any express or implied privacy rights in any matter created, received or sent through the company’s e-mail system, or the sites that they visit on the internet, including web-based e-mail accounts



– Provides notice that the contents of e-mails, both work-related and personal,and the history of internet sites visitedare subject to monitoring

– Warns that violations may subject them to discipline up to and including termination



– Informs employees that e-mails are the property of the employer

– Prohibits blogging on company computers and during working

hours



– Instructs employees that e-mail and internet use must be limited so as not to interfere with the company’s computer resources, or the employee’s work performance, obligations or duties

– Directs that the company’s servers should not be used for personal monetary gain or commercial purposes outside the scope of the employee’s employment



– Informs employees that they may not: • use the e-mail or internet to violate any

law, including obscenity, copyright, and defamation laws

• invade the privacy rights of others



– Informs employees that they may not:

• violate any company policies, including the company’s harassment policy

• disclose or use confidential information except as authorized to perform their job duties


Social Media Policy

Primary focus: whether the policy “reasonably tends to chill employees from exercising Section 7 rights.”

The following terms are likely to draw NLRB scrutiny and are ones employers should avoid:– Disparaging remarks;– Critical statements;


Social Media Policy

Policy language to avoid:– Merely “false” statements– Negativity or negative comments– Rude, discourteous or inappropriate

comments– Generally offensive conduct– Profanity– Confidential information without further

explanation


Social Media Policies

General Counsel Memorandum issued by the Division of Advice on January 24, 2012 regarding certain policy provisions: – Policy directing employees to generally

avoid identifying themselves as employer’s employee unless discussing conditions of employment “in an appropriate manner” – unlawful – implicitly prohibits “inappropriate” discussions;



Potentially unlawful policy provisions (cont.): – Prohibitions on “disrespectful conduct” and

“inappropriate conversations”– Policy prohibiting disclosure of “confidential,

sensitive or non-public information” concerning the company, without any examples in policy to provide context, overbroad. So was prohibition on use of company name or service mark – the Acting General Counsel takes the position that employees have the right to use the employer’s logo in conjunction with PCA



Potentially unlawful policy provisions (cont.):

– Prohibition on unprofessional communication that could negatively impact the employer’s mission

– Policy requiring employee to obtain approval from employer to identify self as employee on social media is overbroad; and

– Policy prohibiting “discriminatory, defamatory or harassing” web entries unlawful (in this case the employer applied that rule to limit PCA) but amended policy prohibiting “vulgar, obscene, threatening, intimidating, harassing” actions lawful



Conversely, it is likely still appropriate to prohibit:– Abusive or profane conduct;

– Maliciously false statements;

– Illegal discrimination;

– Disclosure of confidential information obtained without permission;

– Trade secrets;

– Copyrights; and/or

– Product launch details.



Disclaimer: This policy is not intended to interfere with employee rights to form, join or assist unions or to engage in other concerted activity protected by the National Labor Relations Act, including the right to discuss wages, benefits and working conditions.



Or - Application of this policy will be consistent with the National Labor Relations Act. This policy is not intended to restrict or interfere in any way with any applicable federal, state or local law.

Or - This policy is not intended to restrict or interfere with any employee’s federal or state labor law rights, including any and all rights under the National Labor Relations Act, or any whistleblower protections under federal or state law.


Address Blogging/External Communications in Your Policy

An employer can address computer usage or external communications by employees at home that impacts the company

– Establish the rules that are inviolable, such as disclosing confidential, trade secret information, and conflicts of interest

– Advise employees that the company will monitor blogs and that the company has the right to track what is being said on such blogs



Addressing computer usage at home

– Prohibit employees fromidentifying themselves as company agents or suggest they are presenting the company’s view in any blogging activity unless specifically authorized or protected by state or federal law



Addressing computer usage at home– Prohibit employees from using blog postings

to harass or attack any employee, contractor, customer, or vendor based on any protected category

– Remind employees that they could be subject to legal action for

• making defamatory statements about the company or other persons

• posting private information about a co-worker’s medical or financial affairs



Addressing computer usage at home– Require that employees make clear that

the views in their blogs are their own and not those of their employer


Copyright Information

Any reproduction in any form or incorporation into any information retrieval system or any use without the express written consent of Ogletree Deakins is prohibited. Please direct all inquiries to Client Services Department, Ogletree Deakins, 600 Peachtree Street, Suite 2100, Atlanta, Georgia 30308 or [email protected].

Presented by: Brandon M. Shelton H. Bernard Tisdale III Employment Law Briefing March 22, 2012...

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