Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

This post was written by  Roy D. Prather, III, Joel S. Barras and Eugene K. Connors.

In yet another instance illustrating the National Labor Relations Board’s (“NLRB’s”) intent to prosecute violations of the National Labor Relations Act (“NLRA”) related to employee activity on social media sites, the NLRB’s Buffalo, NY regional office has issued a complaint against Hispanics United of Buffalo Inc. (HUB), a New York nonprofit agency. The complaint alleges that the employer fired five employees because they complained about working conditions on Facebook in violation of NLRA sections 8(a)(3) and 8(a)(1). Those provisions prohibit employers from taking or threatening adverse action against employees for engaging in so-called “concerted” activities protected by the NLRA. Firing or threatening employees with adverse action for voicing complaints or concerns over working conditions has been illegal for decades. But the NLRB has logically extended its reach to include email exchanges and, more recently, discussions and comments made using social media such as Facebook and Twitter.

According to the complaint, a HUB employee on Facebook named a co-worker who claimed that HUB employees failed to adequately assist its clients. This prompted Facebook rejoinders from other HUB employees who, in defending their job performances, criticized HUB’s working conditions, including workloads and staffing issues. HUB discharged five employee participants in this online forum on the basis that their comments illegally harassed the co-worker who made the “inadequacy” claim.

As noted, the NLRB asserts that the Facebook discussions were concerted activities under NLRA section 7 because they involved terms and conditions of employment such as job performances, workloads, and staffing levels. 

A hearing before an NLRB Administrative Law Judge is set for June 22, 2011, in Buffalo. We will track and report on this case as it progresses.

This matter is on the heels of two recent attempts by the NLRB to regulate employers’ reactions to employee use of social media to discuss workplace issues. The first concerned an NLRB complaint against American Medical Response, Inc., a Connecticut ambulance provider, for discharging an employee over her criticism of her supervisor on Facebook. In the second, the NLRB threatened a complaint against Thomson Reuters Corp. for its restrictive social media policy and for disciplining a reporter for a message she posted on Twitter. Both cases settled.

The lessons to be learned from the NLRB’s new and increased attention to social media activities are simple but crucially important. First, be ever-vigilant on what the NLRA permits and what it condemns. Second, “where” discussions and other protected actions occur makes no difference. Protected activities are protected if they are face-to-face, over the telephone, in a letter, in a fax, on TV, on the radio, in a news story, and “spoken” electronically, in emails or on social media sites. Put simply, the NLRA applies fully to the “cloud.” For this reason, take a thorough look at every policy to make sure that it recognizes and complies with the NLRA by balancing employer needs against the NLRA’s protections.

Feel free to discuss any concern with one of the authors or with another Reed Smith attorney of your choosing.

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This post was written by David Weissman, Cindy Schmitt Minniti, and Daniel Schleifstein.

The New York Legislature recently passed a new law that requires greater communication and transparency from employers in the hiring and firing process. Employers who fail to comply risk incurring penalties and unwanted scrutiny of labor and employment policies and practices. The Labor & Employment team at Reed Smith is here to help employers comply with this new statute and avoid undesirable consequences.

Pursuant to McKinney’s Labor Law § 195, New York employers must now provide any new employee hired on or after October 26, 2009, with information on the following subjects:

• Rate of Pay: Employers must provide the employee with the employee’s regular hourly rate of pay, overtime rate of pay (if applicable), and regular payday at the time the employee is hired.
• Written Acknowledgement: Employers must obtain written acknowledgment of the rates of pay and the regular payday from each employee at the time the employee is hired. The form and content will be provided by the Commissioner of Labor at a later date.
• Payday Changes: Employers must notify employees of any change in paydays before the change.
• Wage Statement: Employers must provide each employee with every payment of wages, listing gross wages, deductions and net wages, and must, at the employee’s request, explain how the wages were computed.
• Recordkeeping Requirements: Employers must establish, maintain and preserve records showing the hours worked, gross wages, deductions, and net wages for each employee, for not less than three years.
• Time-Off Policies: Employers must notify employees in writing or by publicly posting the employer’s policy on sick leave, vacation, personal leave, holidays and hours.
• Termination: Employers must notify any employee terminated from employment – in writing – of the exact date of termination, as well as the exact date of cancellation of employee benefits connected with the termination. Notice must be provided within five working days of the actual date of termination. Failure to notify an employee of cancellation of accident or health insurance subjects an employer to penalties, including a fine of up to $5,000 paid to the Commissioner of the New York State Department of Labor, as well as potential liability in a civil action brought by the employee in which damages may include reimbursement for medical expenses that were not covered by the insurer because of the termination of the employee without notice.

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