Here in Washington, we’re getting ready for the Presidential Inauguration next weekend. But the news doesn’t stop:
NLRB Holds Facebook Kvetching Among Co-Workers Is Protected “Concerted Activity,” But Caution Is Reasonable As Social Media Meets Established Legal Framework
Let’s be clear: this is not a blog about social media. It’s a blog focused on disputes between executives and the companies they work for and manage. Through that prism, we look at many different issues that affect these employment relationships, including pregnancy, politics, sports teams and even – ahem – insurance.
We’ve also written a lot recently about social media -- specifically the impact of Facebook, Twitter, LinkedIn and their kin on employee-employer relations. Social media are rather quickly changing many of the dynamics of how employees and companies interact, and the law is rapidly trying to catch up. That means there’s a fast flow of new developments in this area.
It’s important to write so much about this, we think, to be true to our core purpose of trying to keep you current on these developments. So at the risk of appearing to dominate our pages with references to Facebook, today we’ll introduce you to a new and unique wrinkle to come out of the intersection of the employment world and social media: a limited protection against being fired for workers who use their social media accounts to kvetch together about their jobs or their employers. Readers, meet the recent decision by the National Labor Relations Board in Hispanics United of Buffalo, Inc. and Carla Ortiz.
Yesterday, we had good news for Bob Cratchit: he has a right under the FLSA to more compensation than Scrooge pays him, and could take legal action to protect that right. But what about the other unfairness and indignities that Bob suffers as Scrooge’s employee – such as the cold office and Bob’s inability to secure Tiny Tim proper medical care? Would any federal laws protect him? That’s the subject of today’s post, and the news is not good for Bob.
Bob Cratchit’s boss, Ebenezer Scrooge, is an “odious, stingy, hard, unfeeling man.” Or, at least that’s what Mrs. Cratchit says of him after feeding her family of eight, including her crippled son, Tiny Tim, a too-small pudding for dessert on Christmas. Readers of Dickens’ A Christmas Carol could easily reach the same conclusion. Bob, a clerk in Scrooge’s business (which some suggest is what we would call a stock brokerage today), is paid a mere 15 shillings weekly to work six days a week in an office that Scrooge refuses to adequately heat. That seems bad. But, today, in say, New London, somewhere in the U.S.A., would it be illegal? For these final days of the holiday season, we explore possible causes of action in Cratchit v. Scrooge. (We are not the only lawyers with these types of holiday musings.)
Between baking cookies, assembling toys and driving to the in-laws, you may have missed the Iowa Supreme Court’s decision on December 21 that a male dentist was not liable to his former female assistant of ten-and-a-half years – admittedly the best assistant he ever had – for gender discrimination. The dentist fired the assistant after: he complained that her clothing was too tight, he told her that she would know her clothes were too revealing if she saw his pants bulging, he texted her to ask how often she experienced an orgasm, he observed that the apparent infrequency in the assistant’s sex life was “like having a Lamborghini in the garage and never driving it,” and he was confronted by his wife, who believed the assistant was a “big threat” to the dentist and wife’s marriage and demanded that the assistant be terminated, which he then did by reading a prepared statement to the assistant in the presence of his church pastor.
When an employer fails to pay an employee wages that are due, the employer might have to pay far more than the amount it owed. Under the laws of a number of states, employees who don't receive earned wages can sue for those wages – and the wage laws may permit treble damages (i.e., a recovery of three times the amount of the lost wages) if the employee can prove the claim.
These kinds of wage laws don’t just apply to hourly employees, but can also be extended to cover C-level executives who are entitled to severance benefits and bonuses. Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313 (9th Cir. 1997), shows how that might occur.
We left a lot of things unresolved in our last post discussing the history of Christmas as a holiday here in the United States – although we did delve into the ancient significance of December 25 and the winter solstice, as well as the practice of decorating evergreen trees, which led here to the lighting of the National Christmas Tree on the Ellipse just outside the White House.
But of course there’s more! Read on….
Some companies have concluded that having a social media policy in place is enough to avoid problems with Facebook, Twitter, Instagram, and whatever other means to communicate have come down the pike. But to work, a social media policy needs to meet at least two other conditions.
First, a social media policy has to be clear. Second, it also has to be communicated to, and clearly understood by, the company’s employees.
It may need more than that. But at a minimum, if the policy doesn’t have those two operating elements, then enforcing it can do a company and its managers more harm than good – at least when it comes to their reputations. That, at least, appears to be the lesson we can learn from the case of Rhonda Lee, a Shreveport, Louisiana TV meteorologist.
So it’s Christmas time. And Hanukkah and Kwanzaa time. And it all follows Thanksgiving and then is promptly succeeded by New Year’s Eve and the Feast of the Epiphany.
Yikes. That’s a lot of holidays. For employers and company managers, this means a lot of decisions about what days the business should be closed – and regardless of those decisions, it means lost productivity. It’s hard to estimate how much productivity is lost due to the November and December holidays, but if the Super Bowl is any guide – and $820 million in productivity is lost during Super Bowl week – then it could be in the billions of dollars. As one famous old curmudgeon noted, the whole thing is a poor excuse for picking a business owner’s pocket every December.
My colleague Andrew Torrez wrote recently about the history of the Christmas holiday. But looking at this more generally: how did we wind up with the number of holidays that we have now? Did we always have this many?
Sometimes—but only sometimes, and certainly not all the time – we lawyers can be just a little uptight and get into nasty disputes with each other. Not that we at S-by-S have any firsthand knowledge of that. But we are intrigued by this mushrooming case filed in Pennsylvania by Jeffrey First, a former contract attorney with the legal staffing firm of Special Counsel. First started off by suing two colleagues who he claimed had hacked into his bank account and email. Then, he says, the staffing company retaliated against him and “constructively discharged” him – so he’s suing it in a separate action. He’s also suing a partner in the firm, Pepper Hamilton, that had hired him as part of a Special Counsel team.
Speaking of lawyers, here’s a hint for any in-house counsel out there: it’s not a good idea to steal $9 million from your employer, like this in-house lawyer did by using phony invoices from phony law firms that he set up with his wife. Come to think of it, that’s good advice for any executive.
Naughty, and not nice: Fry’s Electronics, a West Coast chain, is to pay the Equal Employment Opportunity Commission $2.3 million to settle a case stemming from a male manager’s sexually inappropriate texts to a female subordinate, and repeated requests that she join him for a drink. Elevating the amount of the settlement, according to this report, is Fry’s scorched-earth litigation tactics. EEOC settlements seem to make a frequent appearance in The Inbox; prior ones are here, here and here.
And from the “Uh, Thanks, I Guess” Department, defense contractor Lockheed Martin says it “won’t ask the Pentagon to reimburse part of the $3.5 million it is paying the chief operating officer who left last month after it was disclosed he had an extramarital affair with a subordinate.” Diligent colleague Andrew Torrez wrote about the case of Lockheed COO Christopher Kubasik here. Presumably, Andrew will not be asking the Pentagon to reimburse him for his time to write about the Lockheed Martin COO leaving Lockheed Martin, either. But, we’ll see.
As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.
Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.