The German Federal Labor Court (Bundesarbeitsgericht – BAG) will rule on February 25, 2020 whether an employer must observe co-determination rights of the works council when using a Twitter account. READ MORE
NLRB Finds Restaurant Wrongly Terminated Employees for “Profane” Emails
The NLRB continues to find fault with employers who discipline or terminate employees for sending emails discussing the terms and conditions of employment.
When four restaurant workers at Mexican Radio responded to a group email from former employee Annette Polanco complaining about the wages, work schedules, tip policy, and the treatment of workers, the now-closed Manhattan location of the chain responded by preparing reprimands and then terminating their employment. READ MORE
Oh F**k: Employee’s Profane Facebook Post is Protected Activity
On April 21, 2017, the Second Circuit Court of Appeals upheld a National Labor Relations Board (NLRB or Board) ruling that an employer violated the National Labor Relations Act (NLRA or Act) when it discharged a catering employee for posting a vulgar comment on social media directed at his supervisor. In NLRB v. Pier Sixty, LLC (2d Cir. 2017), the court determined that the employee’s post, under the particular circumstances of the case, was not so “opprobrious” as to lose protection under the NLRA. READ MORE
Big Data, Big Problems: The Liability Pitfall Lurking Beneath the Shiny Surface of “People Analytics”
The use of big data in employment decisions—a practice often referred to as “people analytics”—has exploded in recent years. Lately, however, the concept is gaining more and more attention not only for its appeal of faster and more efficient hiring, but also for the significant risks it can pose. One key risk is the potential for a disparate impact claim, particularly on a class-wide basis. So while proponents of using software tools and algorithms to identify and select job candidates claim people analytics is more efficient and effective than traditional recruiting and selection procedures, employers should take care when choosing tools and vendors, and should proactively monitor their implementation to avoid big liability.
N.D. Cal. Judge Puts a Check on Plaintiff’s Novel LinkedIn Background Check Theory Under FCRA
The federal Fair Credit Reporting Act (FCRA) has recently spawned an unprecedented number of class action complaints against employers for allegedly failing to comply with FCRA’s hyper-technical disclosure and consent requirements before conducting background checks or proceeding with “adverse actions.” As these cases have evolved, plaintiffs have expanded their focus beyond traditional background checks and have started attacking employers’ use of ever-evolving technologies, like social media accounts, that are often accessible and searchable through just a few clicks of a mouse.
Sacking UK Employee for Inappropriate Tweets May be a “Fair” Dismissal Under UK Law
In the recent case of Game Retail Limited v Laws, the UK Employment Appeal Tribunal (or “EAT“) considered the fairness of an employee’s dismissal for offensive tweets. This is the first time this issue has been considered at EAT level. The EAT found that the dismissal was fair, even though the Twitter account was not linked to Mr Laws’ employment, and his posts were made in his own time.
Oh, F*©k No: Administrative Law Judge Rules that Employees’ Expletive-Laced Facebook Posts are not Protected Under the National Labor Relations Act
With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. READ MORE
Company E-mail Use Policies: The Next Battleground for the NLRB?
As reported in prior blogs, the National Labor Relations Board (NLRB) has become increasingly active in attacking employer policies on the grounds that those policies chill employees’ rights to engage in concerted activity. In particular, the NLRB has been scrutinizing social media policies. READ MORE
Don’t “friend me”: More State Law Limitations on Accessing Employee Social Media Sites
Effective July 28, 2013, Washington became the eleventh state to have a law prohibiting employers from, among other things, asking its personnel for the user names and passwords to employee social media accounts. The law does have some limited exceptions, including allowing employers to retrieve content from an employee’s personal social media account in the context of an investigation into an employee’s misconduct, or if an employee is accused of making unauthorized transfers of proprietary information. Even then, however, employers can only access the information if it’s provided by the employee voluntarily. READ MORE
Party Foul! NLRB Orders Reinstatement and Back Pay for Party Bus Guide After Finding Facebook Postings Amount to Protected Union Organizing Activity
Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN: 02-CA-073340 that a New York City tour guide’s Facebook postings constituted protected union organizing activities. The board held that New York Party Shuttle LLC unlawfully discharged Fred Pflantzer when it refused to give him new assignments after he posted Facebook messages criticizing the company’s employment practices. READ MORE