As you have probably noticed, the interaction between social media and federal labor law has been one of this blog’s favorite topics, which we have addressed on multiple occasions. On August 18, 2011, the National Labor Relations Board’s Acting General Counsel ("AGC") issued a report that summarizes the General Counsel’s Office’s view on a variety of cases in which Regional Directors sought advice on social media issues and therefore provides excellent guidance to employers. With one exception, the topics addressed in the Report fall into two broad categories:

  1. First, the Report addresses when an employee’s social media activity is protected concerted activity under the National Labor Relations Act ("NLRA"), which may not be restricted by the employer.
  2. Second, the Report addresses the extent to which employers’ social media policies in general are so overly broad that they could be reasonably construed to prohibit employee rights to engage in concerted activity. The one exception addressed the question of union coercion of employees of a non-union employer. In that case, the union attempted to coerce the employees by making them believe that they were in danger of being deported for immigration violations. The union videotaped these interrogations and then posted edited versions on Youtube and Facebook. The AGC concluded that the threats and videotaping themselves violated the employees rights to refrain from union activity and that the postings on Youtube and Facebook unlawfully conveyed the same coercive message to any employees who may have viewed them.

Continue Reading NLRB’s Acting General Counsel Issues Report on Social Media Cases

Beginning in late 2008, Verizon New England, Inc. (VNE) began requiring its field technicians to carry company-issued cell phones, containing a global positioning system (GPS) during work. Prior to adopting this policy, VNE issued its technicians pagers so that their supervisors could communicate with them. The technician would then have to locate a phone to return the call. Obviously, in emergency situations, this was a less than optimum arrangement. As a result, VNE, relying on the management rights provision in the collective bargaining agreement between it and the technicians unit, adopted the disputed policy.

Continue Reading First Circuit Dismisses Verizon Union Employees’ Privacy Claims Based On Federal Labor Law Pre-Emption

On July 7 and 19, 2011, the NLRB’s Office of the General Counsel issued a series of three advice memoranda recommending the dismissal of unfair labor practice charges filed by employees who were disciplined for comments made on Facebook. In each of these charges, the employee alleged that their discipline violated Section 8(a)(1) of the National Labor Relations Act, but in each the NLRB’s General Counsel’s Office concluded that there was insufficient evidence that the employee engaged in concerted activity.

Continue Reading NLRB General Counsel Recommends Dismissal of Three Charges Contesting Discipline for Facebook Comments, Finding No Concerted Activity

Several days ago, I read the New York Times article reporting that the NLRB’s Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter.
Continue Reading An Appeal for Cooler Heads on NLRB’s Social Media Policy Enforcement

Wednesday, February 16, 2011
11:30 a.m. – 1:30 p.m. Lunch will be provided.
Capital Club – 41 South High Street, 7th Floor
Columbus, Ohio

An employer’s human resources department can provide one-stop shopping for identity thieves, where they can find personnel records, benefits data, and payroll and tax records all in the same place. What

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has issued a proposed rule that would require interstate commercial truck and bus companies to install electronic on-board recorders (EOBRs) to monitor their drivers’ compliance with hours-of-service (HOS) requirements. EOBRs are devices attached to commercial vehicles that automatically record the number of hours drivers

The U.S. Supreme Court today issued its decision in NASA v. Nelson, a case that we previewed back in October.   As you will recall, the respondents in Nelson were a group of California Institute of Technology employees who worked under a contract with NASA at its Jet Propulsion Laboratory.  Pursuant to a Presidential directive, the Department of Commerce required all contract employees with long-term access to federal facilities to complete a standard background check by no later than October 2007.  NASA modified its contract with Cal Tech to reflect this requirement, but shortly before the deadline, the respondents filed their lawsuit.  

Respondents contended that two specific aspects of the background check process violated their constitutional right to “informational privacy.”  Specifically, they challenged a question asking them to state whether they had received treatment or counseling in the last year for illegal drug use and a questionnaire that would be sent to the employees’ references asking open-ended questions about their suitability for federal government employment.

In a unanimous decision (with Justice Kagan not participating), the Supreme Court assumed, without actually finding, that a constitutional right to informational privacy exists.  The Court then upheld the background checks as a reasonable exercise of  the government’s right to “reasonably investigate applicants and employees to aid in ensuring the security of its facilities and in employing a competent, reliable work force.”  Not only were the disputed background check inquiries reasonable, but the Court also found that the respondents’ rights were substantially protected against public disclosure by the federal Privacy Act.


Not surprisingly, the Court was swayed by the fact that the inquiries at issue are “similar to those (that) became mandatory for all candidates for the federal civil service in 1953” and are “part of a standard employment background check of the sort used by millions of private employers.”  With respect to the inquiry regarding treatment or counseling for the use of illegal drugs, the Court noted that it was a reasonable follow-up to the prior question about using, possessing, supplying or manufacturing drugs during the previous year and, importantly, that the government used the response to the “treatment or counseling” question as a mitigating factor.  Similarly, the Court held that the open-ended inquiries made to the employees’ references were “reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business.” 


Continue Reading Supreme Court Upholds Constitutionality of Government Background Screens in NASA v. Nelson

There has been a lot of discussion lately about the EEOC’s decision to sue Kaplan Higher Education Corporation on the grounds that its policy of using credit histories as part of its applicant screening process had a discriminatory impact on minorities. Also, as noted at the end of last year in the Delaware Employment Law Blog

In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only what has been asked for.)  As a result, the records obtained frequently will include medical information wholly unrelated to the alleged workers’ compensation injuries and sometimes that information reveals genetic information, such as whether an individual had a test done to determine whether she is at greater risk for breast cancer.  Hospital records are notorious for including family history information that may reflect, for instance, that a parent died of cancer or a heart attack at a relatively young age, even when the individual went to the hospital only to have an injured knee looked at.

As a result, in the workers’ compensation context, employers are frequently obtaining genetic information even though they really haven’t asked for it.  Should the EEOC’s final rule on Title II of GINA then have any impact on employers’ approaches to their medical investigations conducted in the defense of workers’ compensation claims?  Though the rule states that GINA is not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws,” does that language provide clearance to employers to obtain through its workers’ compensation administration what otherwise would be protected genetic information?  According to the EEOC, “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition, so it is difficult (at least for me) to come up with examples of situations when an employer would need genetic information on an employee to assist in the defense of a workers’ compensation claim.  Therefore, one could argue that application of GINA to an employer’s medical inquiries and examinations for workers’ compensation purposes does not limit an employer’s rights or expand an employee’s protections under the workers’ compensation laws.


Continue Reading Will GINA Impact Ohio Employers’ Ability to Conduct Medical Investigations In Workers’ Compensation Claims?