The Legal Intelligencer Blog

Will Local Employers Be Required to Give Paid Sick Leave?

By Eric B. Meyer
Special to the Legal

Employers beware. The cost of doing business in Philadelphia may be on the rise.

City Council is currently considering a bill that would require businesses to provide paid sick leave to employees who work a minimum number of hours in Philadelphia County.

Businesses with 11 or more employees would have to provide 72 hours (approximately nine days) or more of paid sick leave or paid time off (PTO) and businesses with 10 or fewer employees would have to provide 40 hours (approximately five days) a year. Businesses that currently meet or exceed the bill’s standards would be exempt. However, employers with a PTO policy may not be exempt from the bill if employees lose vacation time as a result of utilizing sick leave.

You can read the full “Promoting Healthy Families and Workplaces” bill here.

On the heels of another employee-friendly measure under consideration in City Council, many local business owners showed up to a City Council meeting last week to voice their displeasure with the bill. The Greater Philadelphia Chamber of Commerce also strenuously opposes the bill.

The Philadelphia Inquirer reports that City Council may vote on the “Promoting Healthy Families and Workplaces” bill on March 24. Mayor Michael Nutter appears set to veto the bill, if it passes City Council.

Eric B. Meyer is a member of the labor and employment group at Dilworth Paxson. Meyer also has his own labor and employment law blog, The Employer Handbook and readers can contact him via e-mail and follow him on Twitter.

Can an Employer Legally Refuse to Hire a Smoker?

By Eric B. Meyer
Special to the Legal

Recently, The New York Times ran a story discussing how some employers are refusing to hire smokers. The article warns, "Smokers now face another risk from their habit: it could cost them a shot at a job." 

But is this legal? Can an employer really refuse to hire someone who smokes?

Many states have laws prohibiting discrimination against smokers. Much to the chagrin of Nick Naylor (a character in the 2005 film, “Thank You for Smoking”), 29 states (including New Jersey) and the District of Columbia have passed laws forbidding employers from refusing to hire smokers.

Does that mean that employers in the other 21 states -- which include Pennsylvania and Delaware -- can refuse to hire (or decide to fire) all smokers? Well, just because state law doesn't forbid it, doesn't mean its legal.

The ADAAA may preclude a company from refusing to hire smokers.

Consider this: under the Americans with Disabilities Act (ADA), an employer may not discriminate against individuals with disabilities. In 2008, Congress passed the Americans with Disabilities Amendment Act (ADAAA), which effectively made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

Additionally, the ADAAA makes it so that an employer may not take a prohibited action against an individual based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor. That is, an employer cannot discriminate against anyone it "regards as" disabled.

Given that the ADAAA construes the definition of "disability" in favor of broad coverage, under the ADAAA, smokers may be considered disabled because they may have difficulty breathing or because they have a nicotine addiction. Consider that an alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, most smokers are able to performs their essential job functions without any sort of accommodation. Therefore, a smoker who is fired may have a difficult time proving that the employer fired the smoker because s/he smoked.

But what about an employer that has a policy of refusing to hire smokers? Presumably, this policy would cut down on insurance rates because employers would, on average, be hiring healthier employees.

However, could a rejected smoker (or class of rejected smokers) argue that the employer refused to hire them because the employer "regarded them" as disabled? I would not be surprised to see that argument presented in the future.

So should employers implement smoker-free hiring policies? Good question.

Maybe hiring smokers is just a cost of doing business. Employers must ask themselves whether limiting the applicant pool to preclude smokers will save enough in health insurance rates to overcome the cost of potential lost talent (and litigation).

Eric B. Meyer is a partner in the labor and employment group at Dilworth Paxson. He also has his own labor and employment law blog, The Employer Handbook, and readers can e-mail [email protected] and follow him on Twitter.

Can Employees Disparage Employers on Facebook?

By Eric B. Meyer
Special to the Legal

The Hartford Courant is reporting that an administrative law judge will hear a “first-of-its-kind case” involving a woman who was fired from an ambulance company after she made disparaging remarks about her boss on Facebook. Business Insurance has a nice write-up of the case.

The National Labor Relations Board alleges that a unionized employer illegally fired one of its emergency medical technicians in late 2009 after she criticized her supervisor on her personal Facebook page. The employer claims it fired the employee for making disparaging remarks online about the company.

Employers firing employees for online remarks is nothing new. I’ve written about it on my blog, The Employer Handbook, where I have also discussed employee monitoring and the importance of social media policies. I have even addressed how plaintiffs counsel and defense counsel can utilize social media to “make or break” their clients' cases.

However, this particular case is unique because it underscores the importance of understanding context when implementing and enforcing a social media policy. That is, unionized employers may have an obligation to bargain with the union before implementing a policy that restricts employee online activities.

But even in a non-union environment, the National Labor Relations Act protects an employee’s right to organize. Therefore, an employer may not be able to discipline an employee who engages in pro-union speech, even if that speech somehow violates the company’s social media policy.
We’ll know for sure soon.

(h/t Daniel Schwartz)

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson. He also has his own labor and employment law blog, The Employer Handbook, and readers can contact him via e-mail and follow him on Twitter.

Should You Monitor Employee Use of Social Media?

Sharlyn Lauby, an HR pro turned consultant with more than 20 years of professional human resources experience, posted a wonderful article, "How to Handle an Employee's Controversial Online Comment."

And notwithstanding that I am quoted at length in Sharlyn's story, it's still a great read for employers.

Some of the highlights:

* When it comes to social media, set expectations for employees. Educate your employees on social media; let them know what it is. Then implement a social media policy. Consider not just a set of rules, but also some use guidelines.

* Monitor employee use of social media? Not necessarily, but employers should inform employees that the company has the right to do so. For an inexpensive solution, employers can set up Google Alerts and use TweetDeck to conduct real-time Twitter keyword searches to monitor social media use by employees (or others). This approach is broad enough to allow companies to know what people are saying about them online. It also avoids the impression of companies targeting individual employees. But, if a company insists on monitoring individual employees, consider using a third-party -- one with "no skin in the game."

* Get the facts and then react. An employer should not overreact after discovering an employee's online comments. Instead, investigate the incident, talk to the employees involved, and follow company policy. And then discipline accordingly. The company should be consistent, and reasonably tailor discipline to best ensure that the offending employee doesn't do it again.

* Follow Up, Follow Up, and Follow Up Some More. Once an employer has investigated the situation, be sure to follow up with everyone involved. Bring closure to the situation.

You can learn more about Lauby and read other great blog posts at www.hrbartender.com.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Mr. Meyer via e-mail and follow him on Twitter. This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship.

Will Your Trades Secrets Be Safe if You Lose a Member of Your Senior Team?

 By Eric B. Meyer

Chris Botticella used to work for Bimbo Bakeries USA, the Pennsylvania-based maker of Thomas’ English Muffins, among other products. As vice president of operations, Botticella had access to Bimbo’s code books containing the formulas and processes for Bimbo’s products. Most notably, Botticella was one of seven people at Bimbo who knew how to independently recreate those unique little nooks and crannies in Thomas’ English Muffins, according to the 3rd U.S. Circuit Court of Appeals case Bimbo Bakeries USA Inc. v. Botticella.

Last year, after copying Bimbo’s trade secrets, Botticella accepted a job with one of Bimbo’s biggest competitors. When Bimbo found out, it sought an injunction to prevent Botticella from competing with Bimbo. One problem: Botticella never signed a non-competition agreement with Bimbo, according to the opinion.

The 3rd US Circuit Court of Appeals resolved that problem and held that Bimbo could temporarily stop Botticella from going to work for a competitor — even though Chris had never signed a non-competition agreement. The court blocked Botticella from working because Bimbo was able to demonstrate a “substantial likelihood” that he would disclose Bimbo’s trade secrets to his new employer.

Despite Botticella’s preposterous argument that he had “blocked out of his head” many of Bimbo’s trade secrets, the court found ample evidence that he had acted suspiciously in his final weeks at Bimbo, justifying the harsh remedy.

Are non-compete agreements still necessary?

Absolutely. While the Bimbo case showed that courts are willing to protect sensitive company information from misuse, restrictive covenants provide the only path to ensure that all of your company’s trade secrets — not just the “nooks and crannies” — are adequately protected from disclosure. When reviewing your company’s agreements, keep three things in mind:

• The Bimbo case is unusual. Generally, courts do not enjoin employees without non-competition agreements from working for a competitor.
• If you do not want your employees to compete with you, have them sign a non-competition agreement when their employment begins. Only some states will enforce a non-competition agreement signed after employment starts. 
• Make sure the non-competition agreement is reasonable in both geography and scope. Some courts will revise overly broad agreements, but others will disregard them altogether.
  
  Just remember, Botticella is the exception, not the rule. Maybe next time he’ll hire the Men in Black or the Inception folks to erase his mind.
  

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship

You’ve heard of the FBI’s National Sex Offender Registry. How about the National Sexual Harassment Registry?!?

By Eric B. Meyer

EBossWatch, a group claiming to help people avoid hostile work environments and workplace bullying, launched what it calls the “National Sexual Harassment Registry,” on July 14.  The Registry, found here, is being billed as “a database and search tool for conducting searches to obtain information about people who have been accused of sexual harassment in the workplace.”

The database is searchable by name or company. Users can submit “tips” on “bad bosses” via e-mail.

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Eric B. Meyer is a member of the labor and employment group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

How Facebook Can Make or Break Your Case

By Eric B. Meyer

Facebook has over 400 million active users.

Twitter users are recording an average of 55 million tweets a day.

If an employee files suit against your client, what are the odds the employee uses social media? I’d say they’re pretty good. Just imagine missing the Facebook post:

“I’ll do whatever it takes to get back at my employer.”

The first thing I do after I receive a copy of an employee-filed complaint — before I read the complaint — is check the plaintiff-employee out on Facebook and other social networking sites.

I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee’s friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.

Why do I want this information? Because many social media users do not filter what they publish online — they find social media cathartic. So, for every couple of banal “I’m going to the movies with John tonight” online posts, you’ll find an “I just had the worst day in the office because…” post.

Don’t believe me? Check out this, this, this and this blog post from Delaware labor and employment attorney Molly DiBianca, who writes about how a waitress lost her job for a complaint made on Facebook.

What if the plaintiff restricts Facebook access?
Not to fear. That’s what discovery is for.

Recently, in EEOC v. Simply Storage Management, a federal court permitted an employer to obtain discovery of an employee’s social networking activity that, through privacy settings, the employee had made “private” and not available to the general public.

That makes sense, right? I have yet to see a “tweet” or a Facebook status update appear on a privilege log.

So, as part of discovery, an employer should consider requesting:

All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams and blog entries), photographs, videos, and online communications that:

1. refer or relate to the allegations set forth in the complaint;

2. refer or relate to any facts or defenses raised in the answer;

3. reveal, refer or relate to any emotion, feeling or mental state; or

4. reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state.

If that doesn’t work, bring out the big guns: subpoenas and spoliation.

If the responding employee no longer has access to responsive information, then go right to the source with a subpoena. To guide you, here is a list of Internet Service Provider mailing addresses for service of subpoenas. (Just be prepared to pay some hefty fees, such as those Facebook charges for processing a third-party subpoena). And make sure you obtain a written consent (such as this one  from LinkedIn) from the employee. As labor and employment attorney John Hyman explains in a recent blog post, many social networking sites use the Stored Communications Act, 18 U.S.C. § 2701 et seq., to aggressively protect the privacy of user content. 

Suppose, however, the subpoena to the social networking website fails; try the plaintiff’s online friends. Each Facebook user has a “Wall.”  Facebook users can post content, like photos, videos, and notes, to their own wall and, usually, to a friend’s wall. Facebook’s “Wall-to-Wall” feature allows you to see the history of Wall posts between two people. You can imagine, then, how this could come in handy during the course of litigation. Many Facebook users communicate Wall-to-Wall much as they would face-to-face.

If all else fails and you know that the plaintiff-employee is a Facebook user who has published online content relevant to the litigation, then you may have a good spoliation argument. Recently, Judge Shira A. Scheindlin of the Southern District of New York sanctioned 13 plaintiffs who failed to act diligently and search thoroughly at the time they reasonably anticipated litigation. According to Scheindlin, a recognized leader in e-discovery jurisprudence, writing in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC.

[T]he courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party.

It’s 2010 and the way we communicate has changed dramatically.

Get with the times.

If your client is sued by an individual and you are not harnessing the power of social media as part of your litigation strategy, you’re making a BIG mistake.

Eric B. Meyer  is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Mr. Meyer via e-mail and follow him on Twitter. [This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Do You Contract With The Government? You May Need To Tell Your Employees That They Can Form A Union

By Eric B. Meyer

Special to the Legal

 

As of June 21, many federal contractors and subcontractors are required to post notices educating their employees about their right to form, join and support a union and to bargain collectively with their employer. Also, this notice should indicate how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or to file complaints.

 

Where must these notices be posted? According to the United States Department of Labor, Office of Labor-Management Standards, or OLMS, they should be posted where employees are sure to read them.

 

Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees. In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted.

Additionally, contractors and subcontractors who post notices to employees electronically must also post the required notice electronically, via a link to the OLMS website. When posting electronically, the link to the notice must be placed where the contractor customarily places other electronic notices to employees about their jobs. The link can be no less prominent than other employee notices. Electronic posting cannot be used as a substitute for physical posting.

 

Violate the notice requirement and very harsh sanctions will follow, such as suspension or cancellation of an existing contract, debarment from future Federal contracts and subcontracts, and inclusion on a banned contractor list.

 

More information about these posting requirements may be found here.

 

Don’t be surprised if organized labor places more federal contractors and subcontractors in its crosshairs. Is your business prepared for the threat of unionization? To be certain, check out this article.

 

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Eric Meyer via e-mail and follow him on Twitter.

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Two Recent Supreme Court Decisions Provide Little Clarity for Employers

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Last month, the U.S. Supreme Court rendered two employment law decisions. Neither provides much guidance for employers. However, there are a few takeaways.

In New Process Steel v. NLRB, the court invalidated all National Labor Relations Board cases decided by a panel of two board members. The NLRB may have up to five panel members, but the board only had two members for the past two years.

How many cases does this affect? More than 500. And, unless otherwise resolved, the NLRB — now comprised of four members — will need to re-hear each one of these cases. The former two-member panel was equally weighted, with one member viewed as pro-labor and the other as pro-management. They only issued decisions where they could reach a consensus based on existing board precedent. Now, although the NLRB still has an even number of panel members, three of the four are considered union friendly. So, don't be surprised when the ultimate outcome changes in many of the same 500 cases.

In  Ontario v. Quon, the court held that a public employer's reasonable search of an employee's text messages on an employer-supplied pager does not violate the Fourth Amendment to the U.S. Constitution.

Private employers got no guidance regarding their legal right to search employee text messages on employer-supplied devices such as cell phones and BlackBerrys. Instead, the court warned, "The dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve."

In the meantime, it makes sense for an employer to have explicit “computer use” and “social media” policies in which the employer reserves the right to monitor employee use.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact  Meyer via e-mail and follow him on Twitter.

Labor Department Extends FMLA to Cover Lesbian, Gay, Bisexual and Transgender Parents

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

On June 22, the U.S. Department of Labor clarified the definition of "son and daughter" under the Family and Medical Leave Act to ensure that all employee-parents, regardless of legal or biological relationship, may obtain family leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.

The FMLA permits an ”eligible” employee to take off up to 12 work weeks in any 12 month period for the birth or adoption of a child, to care for a family member with a serious health condition, or if the employee has a serious health condition. The FMLA covers employers of over 50 employees within 75 miles of a company worksite, where at least 50 employees work 20 or more workweeks in the current or preceding calendar year.

The DOL interpretation extends FMLA coverage to many non-traditional families, including families in the lesbian-gay-bisexual-transgender community. A DOL press release declared this a “victory” for those employees who previously have been denied leave to care for their loved ones.

 Employers covered under the FMLA that do not already permit family leave to LGBT employees should immediately update their FMLA policies to reflect this new interpretation of the law.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson. Readers can contact Meyer via e-mail and follow him on Twitter.