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Labor and Employment Law

Foley & Lardner Labor and Employment Law Weekly Update (Week of July 5, 2011)

Don't Work, Text, and Drive


By John S. Lord, Jr.

None of us should be texting and driving. None of our employees should ever be working, texting, and driving.

We all understand these common sense rules, but does your organization have such policies in writing? If not, recent discussions by a top member of OSHA should cause you to make sure you do.

"We've never issued a citation or fine for distracted driving, but now we are prepared to and are putting that information out," stated David Michaels, Assistant Secretary of Labor for Safety and Health during the Symposium on Prevention of Occupationally-Related Distracted Driving (

OSHA has added a distracted driving page to its Web site ( which states, "Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job."

Make sure you have a written policy in place that expressly prohibits texting while driving, whether in a company or personal vehicle. Such policies, when enforced, will go a long way toward helping prevent willful and other citations by OSHA, as well as help limit liability in other legal matters.

Good News on the Social Media Front
By Michael C. Lueder

It seems that the NLRB files a complaint every month against an employer claiming an illegal reaction to a Facebook posting, taking the position that social media complaints are protected activity if they touch on topics of employee collective concern. Now, an employer has finally won a social-media-based retaliation case.

Lilli Morse sued JPMorgan Chase saying that it failed to pay her overtime wages. She claimed that she was fired after she complained on her Facebook page about being shorted on wages. JPMorgan Chase managers allegedly told her that her posting motivated the discharge. Ms. Morse claimed it violated the Fair Labor Standards Act's anti-retaliation provision, which limits retaliation claims to actions taken in retaliation for filing formal complaints, instituting a proceeding, or testifying. Ms. Morse did not contend she filed a complaint - oral, written, or otherwise - with her employer. JPMorgan Chase moved to dismiss the complaint because a Facebook posting "lacks the hallmarks of a serious complaint."

While the Florida federal judge let the complaint proceed on the overtime claim, the retaliation claim did not stick. A Facebook posting is not a serious complaint. The court ruled ( there could be no retaliation because there was no filing of a complaint, which is a "serious occasion" not some "triviality." (Morse v. JP Morgan Chase & Co., Case No. 8:11-CV-779-T-27EAJ (M.D. Fla. June 23, 2011), slip op p. 2) Some degree of formality is required because the employer is entitled to "fair notice" that an employee is in fact making a complaint rather than just "letting off steam." According to this court, voicing concerns on Facebook falls far short of activity protected by the FLSA. Keep an eye out for this line of reasoning. While this holding is dependent on statutory language unique to the FLSA, some day it might be used to challenge the NLRB's current position on social media.

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week's issue. 

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