Wyche at Work: March Employment Law Update

Prepared by Wyche attorneys, Mark Bakker and Ted Gentry
March 2012

NLRB Issues Second Report Challenging Social Media Policies

The Office of the General Counsel of the National Labor Relations Board recently issued Memorandum OM 12-31 summarizing the Board’s findings on 14 social media cases.  This is the second such report – the first, OM 11-74, was issued August 18, 2011.  The cases covered in the January report concern questions about employer social media policies, most of which were found to be unlawful.  The decisions by the NLRB provide guidance for employers:   

  • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

While technology and this area of law continue to develop, the number of lawsuits over social media in employment will inevitably continue to rise.  In particular, there has been a marked increase in disputes over who owns what in social media – does the company or employee own the Twitter or LinkedIn account and connections?  Thus, employers should have in place a sound social media policy that protects business needs and employee rights.  Also, consider the impact of social media on recruiting, productivity, and handbook or company policies such as non-harassment, confidentiality, and media relations. 

E-Verify Required for New Hires in South Carolina

A lawsuit over the law-enforcement provisions of South Carolina's Illegal Immigration and Reform Act (the “Act”) has come to a standstill pending a U.S. Supreme Court decision regarding Arizona’s immigration law that served as a pattern for South Carolina’s legislation, but the E-verify requirements of the Act still became effective January 1, 2012.  Under the Act, all private employers in the state are required to enroll in E-Verify as of January 1, 2012 and use that system to confirm the status of newly hired employees.  The Immigrant Worker Compliance page on the South Carolina Department of Labor, Licensing and Regulation website provides background on the Act and training videos on the use of E-Verify.

Federal Court Addresses NLRB Posting Rule; Deadline Remains Unchanged

The controversial rule of the National Labor Relations Board requiring most employers to post a notice informing employees of their right to organize was the subject of a recent ruling by the U.S. District Court for the District of Columbia.  In a lawsuit brought by the National Association of Manufacturers and others to enjoin enforcement of the rule, the Court held that the NLRB could require employers to post the notice but struck down some of the rule’s strict penalties.  The NLRB rule would have made it an unfair labor practice to fail to post the notice and allowed the Board to toll the 6-month statute of limitations for all unfair labor practice actions involving a job site where the notice was not posted.  Instead of the “blanket advance determination that a failure to post will always constitute an unfair labor practice” proposed by the NLRB, the Court ruled that the Board should consider the facts and circumstances on an individual basis.

The Court’s decision could be appealed, and a separate lawsuit is pending in the U.S. District Court for the District of South Carolina, but as of now the deadline established by the NRLB to comply with the posting requirement – April 30, 2012 – still stands.

NLRB Rules Class Action Waivers in Arbitration Agreements are Invalid

The National Labor Relations Board continued to make headlines in a ruling that may affect any employer that requires employees to sign mandatory agreements to arbitrate.  In a case involving national home building company D. R. Horton, Inc., the Board ruled that the company violated federal labor law by requiring employees to sign arbitration agreements that prohibited them from joining forces to pursue employment-related claims in any forum.  Although the Board stressed that “finding the MAA’s class action waiver unlawful will not result in any large-scale or sweeping invalidation of arbitration agreements,” many predict the ruling will be appealed, perhaps even to the Supreme Court.  Meanwhile, employers should consider the risk of an unfair labor practice charge if they use mandatory arbitration agreements that prohibit class actions.

Discrimination Charges Set Record Highs in 2011

The Equal Employment Opportunity Commission has reported that private-sector employees have filed a record-breaking number of discrimination charges with the agency.  According to the 2011 Performance and Accountability Report, 99,947 charges were filed in the fiscal year ended September 30.  The EEOC’s charge statistics are available here.

Based on the Performance and Accountability Report, employers may anticipate these EEOC strategies in FY 2012:

  • The EEOC will continue to pressure employers to timely respond to discrimination charges. 
  • The EEOC may not be receptive to requests for extensions of time for the initial response to a charge due to increased pressure on investigators to meet the 180-day target.  Investigators may also set short deadlines for responding to supplemental requests for information.
  • The EEOC will continue to place a high priority on"systemic" investigations and litigation (defined as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location”).

EEOC Clarifies Guidance on ADA and Education Requirements

To address “significant commentary and conjecture about the meaning and scope” of an informal discussion letter the EEOC issued last year, the agency has released a Q&A on the ADA and job requirements for a high school diploma.  The subsequent guidance stresses that employers are not prohibited from requiring an applicant to have a high school diploma, but the employer may have to allow the applicant “to demonstrate qualification for the job in some other way.”  Applicants “who simply decided not to get a high school diploma” are not protected under the ADA.

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If you have any questions about these or other workplace law topics, please contact Mark Bakker or Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.