McCormick Lindabury

As part of a recent labor contract deal between the nurses’ union and Meridian Health in New Jersey, the union agreed to withdraw an unfair labor practice charge filed with the National Labor Relations Board (“NLRB”) alleging Meridian unlawfully threatened nurses who posted social media messages in support of the union’s ongoing contract negotiations with Meridian. Meridian Health had responded to the charges by acknowledging that it maintained “a comprehensive social media policy that outlines exercising good judgment and refraining from communicating patient information or proprietary information of Meridian.”

Although the spat between Meridian and the union was averted by the contract settlement, it serves as yet another illustration of the risks faced by employers who take action against employees for their social media activities. Both union and non-unionized employers must be mindful of the significant protections accorded to employees who engage in work-related social media communications. Section 7 of the National Labor Relations Act (“NLRA”) provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” In the Meridian case, the union charged that the hospital’s threats against nurses for their pro-union posts ran afoul of these NLRA rights.

Through a series of reports, the NLRB has recognized that employee social media communications may indeed constitute protected concerted activity under Section 7. For employers with a unionized workforce, the NLRB has predictably observed that employee posts pertaining to collective bargaining, strikes or other labor actions are examples of protected activity. Moreover, the NLRB has reaffirmed that Section 7 rights also extend to non-unionized workplaces, and thus employee social media communications addressing disciplinary actions, wages, or any other terms and conditions of employment may likewise be protected under the NLRA. In several recent rulings the NLRB declined to strip employee posts of Section 7 protection even though they were laced with profanities and disrespectful comments about the employer.

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employee’s religious practices, including religious garments. In an 8-1 ruling, the United States Supreme Court recently decided an employer may be liable for religious discrimination if its hiring decision was motivated by the applicant’s possible need for an accommodation of religious garb. According to the Supreme Court, the applicant does not need to request or notify the employer of a need for religious accommodation for liability to ensue.

Facts: Samantha Elauf, a practicing Muslim, interviewed for a position in an Abercrombie retail store with Heather Cooke, the store’s assistant manager. Elauf wore a headscarf in the interview but never mentioned that it was part of her Muslim observance and that she would need accommodation for her religious garb.

Using Abercrombie’s system for evaluating applicants, Cooke gave Elauf a rating that made her eligible for employment. However, Cooke was concerned Elauf’s headscarf would conflict with Abercrombie’s “Look Policy” governing employees’ dress to ensure it is consistent with the image Abercrombie seeks to project. Under the Look Policy, employees are prohibited from wearing “caps” on their head. After Cooke informed the district manager that she believed Elauf wore her headscarf for religious reasons, the district manager noted that all headwear violated the Look Policy and directed Cooke not to hire Elauf.

In its recent landmark decision in, Ilda Aguas v. State of New Jersey, No. A-35-13 (Feb. 11, 2015), the New Jersey Supreme court broke new ground in the law of sexual harassment with an opinion that can be viewed as a victory for both employers and employees.  For employers, the Court formally adopted the United State Supreme Court’s affirmative defense analysis, which may now be invoked to shield employers from liability for a supervisor’s sexual harassment.  Consistent with the  affirmative defense, the Court made clear that the defense is only available to those employers who develop comprehensive and effective sexual harassment programs that include written polices, complaint procedures, employee training and prompt investigation of harassment complaints.

On the employee side, the Court expanded the definition of “supervisor,” thus broadening the scope of employee’s whose conduct can trigger employer liability for workplace sexual harassment.

The Facts: Aguas, a corrections officer at the Department of Corrections (DOC), alleged her male supervisors sexually harassed her over the course of several months, including inappropriate comments and touching.  Aguas conceded her supervisors did not take any tangible employment action against her.

To avoid the costs inherent in the employer-employee relationship, including employee benefits, workers compensation insurance, employment taxes and other liabilities, many employers secure the services of an independent contractor to avoid these liabilities.   There are significant risks with this approach, however.  An employer who misclassifies a worker as an “independent contractor” who, in the eyes of the law, is actually serving as an “employee” faces significant liability for unpaid overtime, employee benefits, payroll taxes, statutory penalties and other consequences.    To make matters worse, individuals who prevail on claims that they were misclassified as independent contractors are eligible for double damages and attorney fees from the employer.

Both at the state and federal levels, the courts have used various tests – applied to various legal contexts – to determine whether a worker should be classified as an independent contractor or an employee in the situation at hand.  While some tests result in a greater number of workers qualifying as independent contractors, the far narrower “ABC test” is widely regarded as a more difficult test for employers to meet when facing an independent contractor misclassification challenge.

On January 14, 2015 the New Jersey Supreme Court issued its opinion in , resolving some of the uncertainty by declaring the ABC test as the governing test to determine an individual’s employment status for purposes of wage-and-hour and wage-payment disputes under New Jersey law.

The prevalence of social media in today’s workplace is undisputed. With the lack of discretion often displayed on social media sites such as Facebook, it is no wonder employers seek to control inappropriate employee communications and the unauthorized dissemination of confidential employer information through policies restricting employee social networking activities. The National Labor Relations Board (the “Board”), however, has issued a new social media report that sets forth substantial limitations on employers’ efforts to regulate social networking activities. More important, the report puts employers on notice that most workplace social medial policies will be deemed in violation of the federal labor law if subject to the scrutiny of the Board.

In its May 30, 2012, Report of the Acting General Counsel Concerning Social Media Cases (“the Report”), the Board analyzed provisions of numerous social networking policies that, according to the Board, constitute impermissible restraints on rights accorded employees under Section 7 of the National Labor Relations Act (the “NLRA”) to freely discuss the terms and conditions of employment with fellow employees. In general, the Report suggests that the mere existence of a social media policy that could reasonably be construed by employees “to chill the exercise of Section 7 rights” is a violation of the NLRA. This would be the case even if the employer has not invoked the policy to discipline employees for social networking activities. Thus, the Board cautioned that social media policies should be narrow in their scope and clearly carve out protected discussions among employees concerning wages and benefits, discipline, working conditions and other the terms and conditions of employment.

Until recently, many of us would not have questioned a policy putting employees on notice that they may be subject to discipline for posting disparaging or defamatory remarks about the company and its employees. However, employers may be stunned to learn that such standard provisions are among those that the Board will view as impermissible under the NLRA. While the Report provides numerous additional examples, the following provisions deemed unlawful by the Board are illustrative of the Board’s expansive view of Section 7 rights.