Employment Law Blog

The NLRB’s View On Acceptable Social Media Policies

The rise of social media, and the desire of employers to both control and police it as to their employees, has served to expose, to many for the first time, that the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, et. seq. applies not just to unionized work places but to virtually all private employers of any significant size engaged in interstate commerce.  Section 7 of the NLRA protects employees’ rights to engage in what is commonly referred to as “concerted protected activity” for their mutual aid and protection in both unionized and un-unionized work places.  Pre-social media this activity was typically not that difficult to spot because it commonly manifested itself as two or more employees talking face-to-face about working hours, pay, work conditions, etc. If an employee was acting alone, and thus, not part of concerted activity, it was typically easy to spot as well.  However, with the rise of Facebook, Twitter, YouTube and other social media outlets, what is and is not protected activity has become less clear due to the lack of clear employee interaction, and the question of what is in fact protected activity is an increasingly important question as employers struggle with what to do about employee electronic posts or communications which they do not agree with and feel merit adverse employment action.  This is especially true where these communications concern what is felt to be confidential or proprietary information. More >

How to be Prepared: When an Employee’s Misconduct Leads to Termination

Terminating an employee can be one of the most difficult tasks for a business owner or human resource manager. It is however the responsibility of both positions and a necessary part of doing business. Termination is difficult under most circumstances because of the personal information an employer may know about an employee. After an employee becomes part of the workforce supervisors often discover personal information, such as an employee’s financial hardships or family difficulties, which makes difficult decisions uncomfortable. More >

How to Handle Difficult Employees: Documenting Misconduct

In a perfect world, all employees would report to work on time and in a regular manner, perform their responsibilities with competence and be a productive team player. In reciprocation, each employer has an obligation to pay the employee an agreed up on amount for the work performed, treat every employee fairly and provide a safe work environment. Of course, we do not live in a perfect world and inevitably every employer will be faced with employee misconduct. The challenge is handling misconduct appropriately, to avoid financial and legal repercussions in the form of unemployment claims, discrimination or wrongful termination suits. More >

Vacation Pay at Termination: What’s your Policy?

For many employers, the summer season brings with it an increase in employee vacations. With that in mind, now may be a good time to re-visit vacation pay policies as they pertain to employee separation. In particular, how does your company handle accrued, but unused, vacation pay at the time of separation? More >

Shortening Statutes of Limitations for Kentucky Civil Rights Act Claims by Agreement

Employment discrimination claims under the Kentucky Civil Rights Act (“KCRA”) are subject to a five (5) year statute of limitation.  This lengthy amount of time during which terminated employees may bring claims under the act may place employers in an uneasy position, even when the claim is less than viable.  For example, an employer terminated today may be able to file a KCRA claim against his or her former employer as late as July of 2017.  It essentially requires an employer to preserve evidence which may be utilized for its defense for several years in the future – during which time other employees alleged to have done wrong may leave the company, or move departments or locations, or during which time memories may simply fade – just in case the former employee decides to initiate an action under the KCRA. More >

CONSEQUENCES OF MISCLASSIFYING WORKERS AS INDEPENDENT CONTRACTORS

Over the past several years, more and more employers are attempting to cut costs by hiring individuals as independent contractors as opposed to employees. This trend, however, has caught the attention of the Federal Department of Labor, which this year has again increased its budget to “detect and deter” misclassification of workers as independent contractors. This budget also includes the addition of dozens of new full time employees dedicated to investigate possible violations resulting from misclassification. More >

If it is not written down, did it happen?

An all too common issue we see in working with businesses is a lack of diligence in requiring hourly employees to fully document their time.  Most do a good job of requiring their employees to document when they first get to work and when they leave.  However, employers must also be diligent in requiring employees to document the time they take for lunch. More >

So you have non-compete agreements in place. Are they still enforceable?

You’ve assessed your company’s needs and have figured out that you have key personnel who should have non-compete agreements.  You’ve had your lawyers draw up reasonable agreements, you’ve offered consideration in the form of new employment or a promotion, and your employees signed.  All is well, right? More >

Pregnancy Discrimination

In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years.  That, however, does not mean that the cause of action is dead.  Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7^th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor.  Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.

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This article does not constitute legal advice.

New NLRB Report on Employer’s Social Media Policies

On May 30, 2012, General Counsel for the National Labor Relations Board (NLRB) issued a report focusing exclusively on employer social media policies for employees. The report contains seven total cases and found that six of the cases had some lawful provisions, and only one case had a social media policy that was entirely lawful. In general, social media policy provisions are unlawful where they interfere with the rights of employees under the National Labor Relations Act (NLRA), such as the right to discuss working conditions and wages with other employees. In light of this new report, now is a great time to review your social media policy. McBrayer PLLC can assist you with your social media policy needs to help ensure compliance with the NLRA.

Services may be performed by others.

This article does not constitute legal advice.