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
John L. Litchfield
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
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.