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ICYMI: Our Social Media Posts This Week – Sept. 6 - 12, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the post on Sunday 9/6/15 we saw that it just keeps coming: the NLRB’s assault on employee handbooks – potentially illegal workplace rules and policies. ALL employers, not just those with unionized workforces, must pay attention. Why? Because certain rights under the National Labor Relations Act are guaranteed to ALL employees and the current Board is applying the relevant provisions very broadly. If a rule or policy is found to chill employees in the exercise of their statutory rights, or if they would possibly construe the rule as doing so, or the rule was adopted in response to union activity or has been applied to restrict the exercise of statutory rights, then the rule/policy is illegal. The post talks about some areas where the NLRB has been extremely active in knocking down rules, including at-will employment contract disclaimers and confidential information rules and policies. More are in the post.

TAKEAWAY: Keep in mind that while your handbook or manual may not be a contract of employment, it is still a document with legal implications. Make sure yours passes legal muster in all respects, including the NLRA, by having it reviewed by an employment law attorney.

The post on Monday 9/7/15 (Labor Day) noted that FMLA leave requires more than 1 doctor’s visit (and cautioned that you should know the nuances of the law). In this recent federal case, Kendrick Johnson was scheduled to work May 1-15, 2011. Early on, he told his supervisor he wasn’t feeling well (giving details); when Johnson was unable to get through to an employee relations supervisor, he left a message that he was going to see a doctor. The doctor diagnosed Johnson, prescribed medication, and told him to go to his regular doctor. He also gave Johnson a note that he could return to work May 16th. Johnson then gave the note to a supervisor. The next day, employee relations told him he needed a different doctor’s note; Johnson brought in one from a paramedic but that was also deemed insufficient. After a short suspension, Johnson was terminated. (NOTE: more complete facts are in the post.) The employer never gave him notice of his FMLA rights and obligations. Johnson sued for FMLA interference and retaliation. What doomed Johnson’s case was the lack of evidence of follow-up treatment within the statutory 30 days such that he couldn’t meet the “continuing care” requirement. Also, the doctor he saw was not his regular doctor and so that visit didn’t come under the “regiment of continuing treatment” requirement. Since he wasn’t entitled to FMLA leave, there could be no procedural deficiencies, interference or retaliation.

TAKEAWAY: Know what the FMLA requires of both employees and employers, including whether one doctor’s visit satisfies the statutory requirements to trigger a leave.

In the post on Tuesday 9/8/15, we talked about a blatant employer violation leading to a $20,000 settlement in a pregnancy discrimination case. The employer was an assisted-living facility. It hired the employee to work as a kitchen assistant; on the first day, the employee told her supervisor that she was pregnant. A mere 3 hours later, she was terminated (and replaced by someone who was not pregnant). She was told she could reapply after giving birth. It should come as no surprise that the EEOC filed suit (after being unable to reach a settlement through conciliation).

TAKEAWAY: Don’t assume that pregnant employees cannot do the job for which they were hired. In fact, don’t take any action relative to pregnant employees unless you would take the same action relative to an employee who was not pregnant.

The post on Wednesday 9/9/15 told us that a reference search through social media doesn’t create an FCRA claim. This is good news as more and more employers use every available means to find out information on applicants and employees. In this case, what was challenged was the employer’s LinkedIn search as an alleged violation of the Fair Credit Rights Act. One name plaintiff (in the class action) alleged that she had applied for a position through LinkedIn, was hired after a telephone interview, and a week later had the offer rescinded based on the employer’s referenced review through LinkedIn. The cited search function lets paid subscribers obtain (1) the name and list of the search target’s current and former employers and (2) a list of other LinkedIn members in the same professional network of the search initiator who may have worked at the same company in the same time period as the search target. LinkedIn then generates results; what is included is in the post. The court dismissed the claim, ruling that the FCRA applies only to “consumer reporting agencies” that provide “consumer reports” and that the search here did not meet the definitions.

TAKEAWAY: Not all socmedia searches that are legally challenged will end up with a result as favorable as this one – employers must be careful that they are legally compliant in all aspects of hiring. Working with an employment law attorney is a good way to accomplish that.

The post on Thursday 9/10/15 asked if you are using a particular term and answered that if you are, just open your wallet. Yep, another “digital native” warning. Employers used to say “new grad”, meaning younger persons (which could also be legally problematic), but now have moved to “digital native”. The post lists some large companies whose ads included that term and noted that the term is merely a back-door to age discrimination. Why? Because while older persons may know technology, they didn’t grow up with it and supposedly always have a hint of the pre-tech age in them. It is interesting that (according to the post) the EEOC filed 111 charges in 2014 for job advertisements discriminating against older applicants.

TAKEAWAY:  While it is best not to use this term when advertising for applicants, the term alone probably won’t result in legal liability. However, if there are other relevant facts, then liability may lie at the feet of the employer.

On Friday 9/11/15, the post noted that an informal complaint to a supervisor about pay bars retaliation under the FLSA. This case follows a Supreme Court case ruling that oral complaints satisfy the law if they are sufficiently clear and detailed for the employer to understand. What the Court did not decide was whether verbal complaints without any administrative procedure still raise whistleblower (and anti-retaliation) protection. Here, in a federal case, the court extended that protection to information verbal complaints made to a supervisor. The facts are in the post. The court said that the FLSA does not require the employee to undertake the administrative process to receive anti-retaliation protection.  QUERY: would this case come out the same if the supervisor wasn’t the owner?

TAKEAWAY: When an employee complains, whether in writing or verbally, note the complaint, investigate and take appropriate action. Do not retaliate against the complaining employee for making the complaint.

Finally, in the post yesterday 9/12/15, we talked about 3 strategies to get the lowest possible debt settlement. What does that mean? Paying less than you owe on a debt. So what types of things might give you leverage? Delinquent taxes and child support might help settle credit card debt. This is because in most states, even if the credit card company gets a judgment against you, it will stand behind the IRS and person to whom you owe child support if it (the credit card company) tries to garnish wages – if you work in a state where that is allowed such as Maryland. Two other times you might have debt negotiation leverage are in the post. You might also consider consulting an experienced debtor-creditor rights attorney who is used to handling this type of matter.

TAKEAWAY: Negotiating and settling a debt can be a better alternative to filing for bankruptcy if it resolves the situation; knowing when you might have leverage in the negotiation process is important to that end.

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