HIGHLIGHTS FOR THE MONTH OF DECEMBER 2008

By: Fiona W. Ong

RECENT DEVELOPMENTS

MySpace Posting Can Be Basis for Termination

A federal district court in Pennsylvania addressed for the first time whether an individual may be terminated from a program based on the content on her MySpace page, and found the termination was legal.

Facts of the Case: In Snyder v. Millersville University et al., participants in the University’s student teacher program were instructed during orientation that they should not refer to any students or teachers on their personal webpages, and were told of a student who had been dismissed after posting information about his assigned school on his webpage. Nonetheless, Plaintiff informed her students at her assigned school that she had a MySpace page, and communicated about personal matters to them through the webpage, as well as making a derogatory statement about her supervising teacher. She also posted a picture of herself as a “Drunken Pirate”. After the school discovered the plaintiff’s MySpace page, she was suspended from the student teaching program. She then received an “unsatisfactory” rating for professionalism on her final evaluation, which disqualified her from obtaining a teaching certificate.

The plaintiff sued, alleging that her inability to receive her degree, based upon the actions of the University, was a violation of her rights to free speech under the First Amendment. (The University is a public employer, to which the First Amendment applies; the First Amendment does not apply to private employers).

Court’s Ruling: The trial judge first determined that the plaintiff, as a student teacher, was a teacher/public employee more than she was a student. Recognizing that the U.S. Supreme Court has held that public employees are entitled to First Amendment protection if their speech relates to matters of public concern, the trial judge found that the plaintiff’s MySpace speech related only to personal matters, and therefore, was not entitled to First Amendment protection. In its opinion, the trial court emphasized that the plaintiff had been warned not to discuss the school, teachers or students on her personal webpage.

Lessons Learned: Although not strictly an employment case, this opinion offers valuable guidance for employers regarding an employee’s postings on social websites such as Facebook and MySpace. Even public employees are not guaranteed constitutional protection for personal webpages, which gives private employers greater comfort in taking adverse employment actions based on an employee’s personal webpage content that negatively discusses the employer or the employee’s supervisor or coworkers. Keeping in mind the court’s interest in the warnings that the plaintiff received, employers should consider specifically advising employees to avoid making negative work-related comments on social-networking sites.

NLRB Issues Guidance Concerning Withdrawal of Recognition Based on Loss of Majority Support

The General Counsel of the National Labor Relations Board (NLRB) has issued an updated guideline memorandum addressing when an employer may legally withdraw recognition from an incumbent union.

Background: In 2001, the NLRB issued its opinion in Levitz Furniture Co. of the Pacific, holding that an employer may withdraw recognition from a union where it can prove that the union has lost majority support from the employees in the bargaining unit. The NLRB General Counsel then issued a guidance memorandum on the processing of unfair labor practice (ULP) charges alleging that the employer unlawfully withdrew recognition. Subsequent to Levitz and the original General Counsel memorandum, other cases have explored the standard of proof that employers must meet in order to establish a loss of majority support. The newly issued General Counsel’s memorandum standardizes the approach set forth in these cases.

The General Counsel’s Guidelines: The General Counsel first confirmed its longstanding policy that ULP charges will be dismissed “when the General Counsel has sufficient objective evidence that the Union has lost majority support.” It then goes on to state that “objective evidence sufficient to demonstrate actual loss must be specific enough to show that a numerical majority of the unit no longer supports the union.” Examples of such objective evidence include a petition, a poll, or individual statements from unit employees, but the General Counsel cautions that what constitutes sufficient evidence depends on the circumstances of the particular case. The General Counsel acknowledged that under certain circumstances, hearsay (i.e. not firsthand) evidence regarding the loss of support may be sufficient. The Regional Offices are also directed to consider any allegations that the loss of support is tainted by improper employer conduct or whether there is countervailing evidence showing a continuation of majority support for the union.

The General Counsel noted that the wording on employee petitions is important. An employee petition entitled “showing of interest for decertification” was insufficient to establish actual loss of majority status, where evidence showed that many employees signed the petition in order to secure an election. On the other hand, a petition entitled “we the undersigned no longer wish to be represented by the union” was sufficient to establish loss of majority support.

Lessons Learned. In order to ensure that withdrawal of union recognition is deemed valid, employers should only rely on specific, numerically based evidence, such as petitions, polls, or individual written statements from employees. The employer should also confirm that the language contained or involved in such documents clearly sets forth the lack of support for the union.

TAKE NOTE

New FMLA Poster and Forms. As discussed in our E-lert on the revised Family and Medical Leave Act regulations, the DOL has revised its Family and Medical Leave Act (FMLA) poster, and has issued both new and revised forms for use by employers and employees. These include the Notice of Eligibility and Rights and Responsibilities form (WH-381), the Designation Notice to Employee of FMLA Leave (WH-382), the Employee’s Serious Health Condition (WH-380E), the Family Member’s Serious Health Condition (WH-380F), the Certification of Qualifying Exigency for Military Family Leave (WH-384), and the Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385). These forms and the poster are now available from the DOL FMLA Final Rule website, http://www.dol.gov/esa/whd/fmla/finalrule.htm.

Union Organizing Tactics. The U.S. Court of Appeals for the Third Circuit held that “tagging” of motor vehicle information by unions seeking contact information for employees is prohibited under the federal Driver’s Privacy Protection Act (“DPPA”). In Pichler v. UNITE, the union recorded license plate numbers from cars in the company parking lot, then obtained information about the owners from state motor vehicle records (i.e. “tagging”). The union used the information to contact employees at home to solicit union support. The Third Circuit held that this procedure was a violation of the DPPA, which sets forth fourteen specific permissible uses for such information (e.g. governmental agency function, use in litigation) and prohibits all other use. Union organizing, which is not a listed permissible use, is therefore an impermissible reason, even when the union may have also had permissible uses for such information. Given this decision, unions will be exploring more creative ways of contacting employees in order to promote the union, especially if the Employee Free Choice Act is passed by Congress and signed into law by President-elect Obama.

New York Background Checks Law. As of February 5, 2009, New York employers will need to comply with a new law regarding background checks. If an employer conducts background checks of applicants by using a third party agency, in addition to any required notices under the federal Fair Credit Reporting Act, the employer must also provide the applicant with a copy of Article 23-A of the New York State Correction Law, which addresses “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses.” If the background check reveals a criminal record, the employer must provide the applicant with another copy of Article 23-A. Finally, all employers must post a copy of Article 23-A in a visually conspicuous manner in an area accessible to all employees. Article 23-A may be found on the New York government website: http://www.omh.state.ny.us/omhweb/fingerprint/article23_a.htm.

Sarbanes Oxley Act. The U.S. Court of Appeals for the Fourth Circuit, which includes Maryland and Virginia, held that a complainant must report more than billing discrepancies in order to be entitled to whistleblower protection under the Sarbanes-Oxley Act (SOX). In Platone v. U.S. Department of Labor, the Fourth Circuit reaffirmed that employees of publicly traded companies are entitled to whistleblower protection from retaliation for reporting specific violations of securities laws, including fraud. The Court stated, however, that the reports to management “must be definitively and specifically related to” the statutory violation at issue. In the instant case, the Court found that an allegation of “billing discrepancies” did not “meet the standard of definitively and specifically alleging wire or mail fraud.”

Reasonable Accommodation. The U.S. Court of Appeals for the Seventh Circuit, in King v. City of Madison, held that transfer to another position is not necessarily a required reasonable accommodation under the Americans with Disabilities Act (“ADA”). The ADA recognizes reassignment to a vacant position as a potentially reasonable accommodation. Reassignment, however, is not required where the transfer would violate the employer’s legitimate, nondiscriminatory policy, such as reassignment provisions contained in a collective bargaining agreement (“CBA”). In this case, pursuant to the CBA, the employee was not entitled to bump other employees from available positions within the collective bargaining unit. In addition, she was not entitled to obtain a position outside her unit because she was not the most qualified candidate. This case reiterates that employers are not required to ignore a CBA or to offer a position to a disabled employee over more qualified applicants.

TOP TIP

New Handbook for the New Year

During this past year, there have been significant changes to employment laws at the federal and state level. As we approach the New Year, a good resolution for employers is to update their employee handbooks to address these new legal obligations and rights.

Among the policies that employers should review and update are:

• Family and Medical Leave Act policy, to incorporate the substantial changes to notice and certification requirements under the revised FMLA regulations, as well as the new military family leave definitions, rights and obligations.

• Reasonable accommodation policy, to address the employer’s enhanced obligation to discuss and provide reasonable accommodations to disabled employees under the ADA Amendments Act of 2008.

• Anti-discrimination and harassment policies, to include genetic information as a protected characteristic in accordance with the Genetic Information Nondiscrimination Act of 2008.

• Leave policies, to comply with changes to state laws. For example, Maryland’s Flexible Leave Act requires employers to allow employees to use any earned paid time off to care for ill family members.

The District of Columbia now requires employers to provide paid sick and domestic violence leave to employees.

• Technology policies, to address new and emerging issues such as instant messaging (IM) in the workplace, blogs and social networking postings about work-related matters, etc.

For greater clarification of any of these issues, you may contact any Shawe Rosenthal attorney.

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