Foley & Lardner Labor and Employment Law Weekly Update (Week of May 23, 2011)

Again, NLRB Files Complaint Over Facebook Firing
By Holly Pomraning

The NLRB has filed a complaint against an employer for terminating five employees for statements they posted on Facebook.

The complaint alleges the postings by employees of Hispanics United of Buffalo were protected because the employees were "concertedly complaining on [the] Facebook page regarding working conditions ... ." Complaining about work conditions is considered a protected activity under the National Labor Relations Act (NLRA) Section 7.

The NLRB settled its two previous cases in which employees were terminated for using social media. In the first one, an ambulance driver was terminated after posting disparaging remarks about her supervisor on Facebook, in violation of the employer's social media policy. In the second, the NLRB went after Reuters for an overly broad social media policy that "chilled" the rights of employees. Specifically, the NLRB took issue with the termination of an employee who tweeted, "One way to make this the best place to work is to deal honestly with Guild members."

The Hispanics United of Buffalo case is different than the other two cases in two noteworthy ways. First, the case does not involve unionized employees, as the NLRA protects both unionized and nonunionized employees. Second, the case does not focus on a social media policy, but instead looks at the employer's behavior.

In each of the three cases, the NLRB has taken the position that the activity was protected because the communication was allegedly about a protected issue, like work conditions or wages.

But the Hispanics United of Buffalo case comes on the heels of a memo released by the NLRB last month, which explains that the NLRA does not protect an employee who posts offensive remarks generally. The line between concerted activity and disparaging remarks has left many employers scratching their heads.

Accordingly, employers should seek counsel when making any employment-related decision based on an employee's activity on a social media website. Also, employers should have a well-drafted  social media policy. Such a policy must be drafted carefully to ensure that rules related to social media are not overreaching, and do not infringe on any protected activity.

Safe Harbors Emerge for Employers Under New GINA Regulations
By John L. Litchfield

The Genetic Information Non-Discrimination Act of 2008  (GINA) was signed into law by President George W. Bush in May 2008 and became effective in November 2009. Title II of GINA prohibits employers with 15 or more employees, unions, employment agencies, and joint apprenticeship programs from discriminating against an individual based on his or her "genetic information." Genetic information under GINA includes an individual's family medical history, an individual's participation in genetic testing, counseling, or education, and (perhaps most obviously) the results of genetic testing of an employee or his or her family members.

In November 2010, the EEOC released its final rules interpreting GINA. Under these rules, employers may be in violation of GINA if they "request, require, or purchase" the genetic information of an employee or an employee's family member. 29 C.F.R. § 1635.8(a). "Requesting" information under GINA includes anything from conducting an Internet search in a manner that is likely to return results of genetic information, to actively listening to "water cooler" conversations, to making requests of employees or employees' family members about their current health status that is likely to result in the acquisition of genetic information. As one can imagine, this seemingly broad scope of how an employer may obtain genetic information, and thus run afoul of GINA, puts many employers on edge.

But not all is lost should an employer come into possession of an employee's genetic information. Although an employer can violate GINA's prohibition on obtaining genetic information without specific intent to do so, not all acquisitions of such information will lead to liability. Indeed, the new EEOC regulations contain a "safe harbor" provision, which provides that covered entities that "inadvertently" request or require genetic information will not be liable under GINA. 29 C.F.R. § 1635.8(b). This is most likely to occur when an employer lawfully requests certain medical information as supporting documentation for reasonable accommodation requests under the ADA , FMLA, or other state or local laws. So long as the employer requesting the medical information specifically states genetic information should not be provided with the supporting documentation, the EEOC fully intends on allowing employers to fall within the regulations' safe harbor. Further, if an employer inadvertently overhears a water cooler conversation, or receives an unsolicited email or other communication from an employee's genetic information, this, too, will fall within the safe harbor.

For employers, these safe harbors are key to not running afoul of GINA's prohibitions. This is particularly so when employers are working hard to avoid liability under the ADA and FMLA by obtaining the necessary supporting documentation to accommodate a reasonable accommodation or time off request. The ADA and FMLA have recently undergone major changes, and employers should be aware of those changes. See:

Thus, it is more important than ever that employers have their current reasonable accommodation request forms reviewed and updated to ensure their compliance not only with the ADA and FMLA, but also with GINA. By updating such policies, employers can avoid many new pitfalls that have developed in recent years, and ultimately avoid liability under these laws.