Employee Social Media Griping: Can An Employer Terminate Employees Because of Their Social Media Posts Without Violating Section 8(a)(1) of the National Labor Relations Act

Social Media is the new water cooler conversation. It enables and facilitates conversations that years ago would have taken places at the old-fashioned water cooler. In today’s world of Facebook and Twitter, employee complaining is instantly, electronically and permanently transmitted to the world. Social Media users think less about their posts and disclose more so that a simple gripe monologue is turned into dialogue – on steroids – with the world. Such platforms encourage employees to blur their personal and professional lines of behavior and blurt out what is bothering them without engaging their higher level thinking tools.

With seven hundred and fifty million people actively using Facebook, there is a significant chance that a post about working conditions, compensation or other issues related to their employment will spark a conversation with an employee’s colleagues, and such conversations may constitute concerted activity under the National Labor Relations Act.

The question remains, if your employees say something negative on Facebook about your company, their fellow employees or their supervisors, can you terminate without running afoul of the National Labor Relations Act?

The answer depends on the facts surrounding the post(s). The test is whether the employee is engaging in activity solely for himself or on behalf of other employees.

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Missouri Shared Work Program

A Unique Opportunity to Reduce Employee Hours While Still Qualifying Them for Unemployment

In a struggling economy, employers have to make difficult decisions pertaining to their businesses and employees. Faced with “hopefully” temporary losses in business, many employers are forced to terminate employees losing their experience and knowledge. On the other hand, if the employer elects to reduce hours, the employees receive lesser pay and are ineligible to collect unemployment benefits.

Fortunately, employers do have a unique alternative under the Missouri Employment Security Law whereby they can retain their hourly workforce and reduce hours while at the same time allowing their employees to receive a proportional supplement of unemployment benefits. This article applies only to such programs that involve hourly-paid employees.

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10 Ways for Companies to Stay Union Free With or Without the Passage of the Employee Free Choice Act

The Employee Free Choice Act (EFCA), in its present form, would result in three sweeping changes to labor law. First, the EFCA allows unions to more easily organize employees by eliminating the secret ballot in a National Labor Relations Board election. Instead, the union would merely present signed cards supporting unionization (authorization cards) of 50 percent plus one of the targeted work units to the National Labor Relations Board. The company would then be required to recognize the union as the collective bargaining agent and bargain with the union.

Secondly, the EFCA forces companies to reach an agreement with the union within 90 days of the National Labor Relations Board certification of the union or either party can demand mediation. If an agreement is not reached at the mediation table within 30 days, the contract is referred to binding arbitration and the arbitration results will then be binding on both parties for two years.

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HR/Legal FLSA Overview-Drilling Down and Through The Department of Labor Exempt Regulations—What Favorable Changes Are You Still Not Using?

The Fair Labor Standards Act was passed in response to the Great Depression. An important piece of New Deal legislation, the Act was concerned primarily with providing a minimum subsistence wage and protection against oppressive working hours. Congress passed overtime legislation to advance three goals: a shorter work week, compensation for overworked employees, and work spreading (sharing). The white collar exemptions essentially served as a line drawing tool between those workers in need of statutory protection and those whose skills, pay and position offered them sufficient bargaining power to protect themselves.

In the agrarian and manufacturing-oriented economy of the 1930′s and 1940′s, white collar workers had clearly defined decision-making responsibilities, were closer to management and were paid better than today. In such an economy, white collar workers were middle class in income, outlook, attitude and life.

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Choosing The Best Franchise Model For You

Today, approximately ten percent of franchises are owned solely by women and that percentage is steadily increasing. Women’s superior relationship skills shine in service businesses and women currently gravitate toward more female oriented franchise models such as hair salons, weight loss centers, flower shops, cosmetic companies, etc. Driven by the desire to start a small business in order to create more flexibility and control over their time and to be their own boss, the franchising model provides an exciting lure. Caution, however, speed bumps abound. Your entrepreneurial zeal should be tempered with a reality knowledge check supplied by due diligence performed by you, number crunching services performed by your accountant and perspective and negotiating advice provided by your attorney.

What to Expect from Franchise System

Although the franchise model is no guarantee, the model does increase your chance of staying in business. Banks are more willing to lend to franchisees, given that 80% of independent small businesses close within seven to eight years of opening, compared to an estimated 10% of franchisees. Why the deviation? Primarily because a good franchisor should eliminate, control or manage many of the common mistakes small businesses make. From a good franchisor, at the minimum, you should expect name recognition, quality control, site selection, training, operational guidance, advertising and promotion.

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New March 10, 2005 Requirement – Employers Must Provide a Notice to Reservists of Rights under The Uniformed Services Employment and Reemployment Rights Act

Effective March 10, 2005, employers must provide a notice of the rights, benefits and obligations of employees and employers under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) to members of the Reserve and National Guard who leave, voluntarily or involuntarily, their civilian jobs for military service (“Reservists”).

Text of the Notice

The Veterans Benefit Improvement Act of 2004 (VBIA) amended the USERRA to require the employers to provide the notice “to persons entitled to rights and benefits under USERRA.” The Department of Labor has issued an interim final rule containing the text of the notice. Employers may meet this requirement by prominently displaying a poster with the notice where they customarily place notices for employees.

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Are All IT Jobs Exempt From Overtime Requirements Under the Fair Labor Standards Act?

Most companies are under a common perception that all jobs involving computers are complex, require exceptional expertise and are therefore exempt from the requirement of overtime pay under the Fair Labor Standards Act. Legally, this is not true. As a preventive measure, companies should audit their workforce to make sure that their information technology workers are properly classified. Failure to do so could cause companies to lose their exemption from paying overtime for all misclassified employees, payment of two to three years of back pay and the payment of double damages.

There are three possible applicable exemptions available to avoid overtime pay for information technology jobs. They are: (1) the computer related exemption under 29 CFR Section 541.400; (2) the administrative exemption under 29 CFR Section 541.200; and (3) the executive exemption under 29 CFR Section 641.100. This article will focus only on the computer related exemption.

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Three Top Reasons Why Employees Sue

Employment law does not address every imagined wrong, inequality, meritless promotion, mean act or omission that occurs in the workplace. The employment at will doctrine attempts to strike a balance—admittedly falling more adversely on employees. In many instances, a workplace can be like a sandbox/jungle, with no seemingly credible or impartial mediator overseeing an employee’s livelihood and the family’s survival. The employee consequently feels “wronged”.

When an employee approaches a lawyer to remedy that workplace “wrong”, the lawyer is often forced to advise the anguished employee that he or she attended law school, not justice school. Nonetheless, a lawyer’s duty to that complaining client is to look for certain acts, suspect classifications and/or factual patterns that evidence illegal aniums or unlawful motive. Accordingly, companies should plan for the worst, and attempt to avoid the more common minefields with sound policies and training.

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Employers Take Heed: Responding to the New Missouri Concealed Carry Endorsement Legislation

A new Missouri law, effective October 11, 2003, will allow persons who have been issued a concealed carry endorsement to carry concealed firearms on or about his/her person or within a vehicle throughout Missouri. Employers should take heed. In anticipation of this change, employers should consider prohibiting all persons, whether employees or not, from carrying a concealed weapon on company premises or in company vehicles.

Workplace violence is unfortunately part of the employment landscape and should be anticipated and minimized. There are many legal doctrines that create employer liability in this area. Under the common law doctrine of respondeat superior, an employer is vicariously liable for the tortious acts its employees commit within their scope of employment. More specifically, the legal theories of negligent hiring, supervision and retention are premised on the principle that a person carrying on a business through employees is responsible for the harm resulting to employees who are forced to come into contact with other employees who are reasonably foreseeable to cause harm.

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Mandatory Employment Arbitration Agreements-Employers May Not Achieve an Overall Cost Savings

Employment litigation continues to explode, fueled by the passage of the Civil Rights Act of 1991, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act and increased sensitivity to sexual harassment. The number of employment discrimination claims increased by 2200 percent in the twenty-five years from 1969 to 1994, and now account for twenty to twenty-five percent of the federal court docket. Arbitration became an attractive alternative to litigation when a string of United States Supreme Court Cases were handed down in 1991. By 1997, the United States General Accounting Office found that nineteen percent of employers were using arbitration for employment disputes.

Mandatory employment arbitration agreements are entered prior to a dispute via a written contract. Arbitration clauses are commonly found in employment applications, employment manuals, or stand alone agreements. Such clauses require employees to submit any employment dispute to one or more impartial arbitrators for final and binding arbitration. Employment arbitration differs from other commercial arbitration proceedings; a mandatory employment arbitration clause must not remove remedies that an employee would otherwise have if the employee pursued the matter in civil litigation. Those remedies include the recovery of litigation expenses, including expert witness fees, attorneys’ fees, compensatory damages and punitive damages. This unique requirement for employment arbitration clauses is sometimes referred to as the “Remedy Rule.”

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