Parsons Behle & Latimer Employment Law Seminar - Boise, Idaho - October 19, 2017

1. Annual Idaho Parsons Behle & Latimer Employment Law Seminar
EMPLOYEES' OFF-THE-JOB
CONDUCT – EMPLOYEE RIGHTS
AND EMPLOYER RISKS
W. Mark Gavre
801.536.6834
mgavre@parsonsbehle.com
parsonsbehle.com
THURSDAY OCTOBER 19, 2017 | BOISE CENTER EAST
4834-6335-6496.v3

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 Employee Privacy
 Employee Social Media Activity
 Protected “Concerted Activity”
 Protected Legal Conduct
 Employee Whistleblowing
ISSUES

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 At least 23 states have enacted laws restricting employers’ ability
to obtain information on employees’ social media accounts
 Arkansas: Employer may not “require, request, suggest or
cause” an employee or applicant to:
– disclose a username or password to “a personal social media account”
– add any person to the account’s list of contacts, or
– change privacy settings.
– employer may not retaliate against anyone for refusal to do so.
PRIVACY OF EMPLOYEE SOCIAL MEDIA
ACCOUNTS – STATE LAWS

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 Colorado: Employer may not “suggest, request or require”
employee or applicant to (a) disclose username, password “or
other means for accessing” a personal media account, (b) add
anyone to account’s list of contacts, or (c) change privacy
settings. Employer cannot retaliate or threaten to retaliate against
employee or applicant for refusing to do so.
 Nevada: Employer may not “directly or indirectly” do any of
above.
PRIVACY OF EMPLOYEE SOCIAL MEDIA
ACCOUNTS – STATE LAWS (cont.)

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 At least 29 states and the District of Columbia have laws
protecting employees and applicants from adverse employment
actions based on off-duty activities:
– 18 states protect off-the-job smoking or use of tobacco products
– 8 states protect off-the-job “use of lawful products” (ILL, MINN, MO,
MONT, NEV, NC, TENN, and WIS)
– 4 states protect “any lawful activity” off-the-job (CA, CO, NY, and ND)
 Some limitations or exceptions for occupational or business
requirements
STATE LAWS PROTECTING CERTAIN
OFF-THE-JOB LAWFUL ACTIVITY

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 Employee medical coverage cannot be denied on basis of
smoking
 Medical plans must cover smoking cessation therapy
– With no out-of-pocket cost
 Medical plans can charge up to 50% more for smoking status
– Employee can avoid this smoking surcharge by joining employer-based
tobacco cessation plan
AFFORDABLE CARE ACT and SMOKING

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 At least 30 states and the District of Columbia have some form of
permitted use of marijuana for medical reasons
– State laws vary greatly
 8 states permit recreational use of marijuana (AK, CA, CO, ME,
MA, NEV, OR, and WA)
– All enacted between 2014 and 2016
– Voter approved in all 8 states
– Utah and Idaho surrounded? Marijuana available to east and west
– Likely future trends?
 Federal law still makes marijuana illegal
OFF-THE-JOB MARIJUANA USE

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 Most states still allow employers to test employees and applicants
and to prohibit on-the-job use or being under the influence at work
 But evidence of marijuana lasts long after use or being under
influence
– Up to 90 days in case of hair sample
– What is being tested? Impairment? On-the-job use? Weekend use?
 Many states prohibit adverse employment action based solely on
fact of employee having a permit to use medical marijuana: Ark,
AZ, Conn, Del, Ill, ME, NY, NEV, PA, and RI
CAN EMPLOYERS CONTROL OR
TEST FOR MARIJUANA?

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 Arizona: Employer cannot take adverse action against employee
for holding medical marijuana use permit or on basis of positive
test result without evidence of use or possession at work.
 Illinois: Employer cannot discriminate against employee or
applicant for being a licensed medical marijuana user.
– Employer may use drug testing and enforce zero-tolerance drug-free
workplace policy
– Employer may apply policy and discharge employee so long as it has
“good faith belief” that employee used or possessed marijuana at work or
was under the influence at work
– Employee must be given opportunity to contest basis of the decision.
STATE VARIATIONS – MARIJUANA

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 Colorado Supreme Court in 2015 upheld discharge of employee
for positive test result even though he used marijuana off-the-job
to treat genuine medical condition because the court interpreted
the state statute protecting off-the-job “lawful activity” as requiring
“lawfulness” under both federal and state law.
STATE VARIATIONS – MARIJUANA (cont.)

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 July 17, 2017 Barbuto v. Advantage Sales and Marketing, LLC
 Barbuto suffers from Crohn’s disease and treats it with medical
marijuana
 Advantage offered Barbuto a job and she disclosed her medical
condition and fact that she treats it with medical marijuana
 She tested positive and discharged after one day
 Massachusetts medical marijuana law states a medical marijuana
user shall not be “denied any right or privilege” due to medical
marijuana use
MASSACHUSETTS SUPREME
JUDICIAL COURT RULING

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 Court ruling: If a medical marijuana user is a person with a
disability, the person can assert a claim of disability discrimination
under state law due to adverse action based on medical
marijuana use
– All such persons likely meet definition of disability
– Despite marijuana use being illegal under federal law
 Employer must engage in an “interactive process” with the
employee/applicant to learn if person can perform the essential
functions of the job with a reasonable accommodation
BARBUTO v. ADVANTAGE SALES (cont.)

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 NLRA protects all non-management employees to engage in:
– self-organization and support of unions and unionization
– “concerted activity” for “mutual aid or protection”
 Employer commits an unlawful “unfair labor practice” if it
“interferes with, restrains or coerces” an employee with respect to
any of the above
 National Labor Relations Board (politically appointed independent
federal agency) prosecutes unfair labor practices
– NLRB can require rehiring of employee with back pay and “posting” in the
workplace if employer committed an ULP.
NATIONAL LABOR RELATIONS ACT

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 Traditionally NLRB focused on unionized sector
 NLRB now extends attention to non-union employers and protection of
concerted activity even where there is no pro-union activity
 Protection of off-the-job activities from employer retaliation
 Protection of social media postings in particular
Scrutiny of employer policies on confidentiality, public criticism, etc.
Vague or overbroad policies that “would reasonably tend to chill
employees in the exercise of their [NLRA] rights” unlawful
 As seen from perspective of an employee
NLRB RECENT ACTIVITY

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 “If you enjoy blogging or using online networking sites such as Facebook and
YouTube, please note there are guidelines to follow if you mention the
company or your employment with the company:
– Don’t release confidential guest, team member or company information…”
 “You need to protect confidential information…. Make sure someone needs
to know…. Confirm it is proper…. Talk to your supervisor…. Never discuss
confidential information in the breakroom, at home or in public areas….
We’re serious about this…. A violation will result in corrective action up to
and including termination [and possible] criminal prosecution….The
Company reserves the right to take any other action it believes is
appropriate”
UNLAWFUL EMPLOYER POLICIES

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 “Use good judgment about what you share and how you post…. If you post
about the company, you must be sure that your posts are completely
accurate and not misleading and do not reveal non-public company
information…. If you are in doubt, DO NOT POST!
 When in doubt, check with management or legal to see if it is a good idea.
Non-public information includes financial information, safety information,
secret, confidential or privileged information, information not already publicly
disclosed by an authorized person, and information about other employees
such as medical, performance, compensation and status information.
Failure to stay within these guidelines can result in disciplinary action.”
UNLAWFUL EMPLOYER POLICY

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 These policies could reasonably be understood to prohibit
employees from talking about wages and terms and conditions of
employment with co-workers and others—This is a basic right of
all employees.
 Prohibition of communication of confidential information must
expressly state that talk about terms and conditions of
employment is not affected
 Use of vague terms like “confidential information” which is not
defined is intimidating and will chill employee communications
about terms and conditions of employment.
WHAT MAKES IT UNLAWFUL?

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 Employees have the right to discuss and criticize management,
working conditions, employment policies, treatment of employees,
etc.
 Employees cannot be required to obtain permission to engage in
protected activity.
 Threats of discipline and termination will likely chill exercise of
protected activity.
WHAT MAKES IT UNLAWFUL? (cont.)

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 Shared with one or more co-workers (among others) and
 Concerns terms and conditions of employment or
 Discusses/criticizes managers/supervisors or treatment of
employee(s) or
 Seeks to start or prepare for employee group action or
 Helps bring group concerns to management or
 Enlists support from co-workers for work-related action or
 Relates to earlier concerted activity or
 Seeks to discuss work-related concerns with co-workers
LAWFUL SOCIAL MEDIA POSTINGS

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 Employer: non-profit social services agency helping low-income clients
 One employee overhears criticism of workers for not doing enough for clients
and posts the criticism on her Facebook page
 Five employees respond, defending their work and criticizing working
conditions, work loads, and staffing levels
 Employer fires the 5 employees for “harassing” first employee who posted
 NLRB judge rules that Facebook comments were protected activity because
they concerned terms and conditions of employment, including job
performance and staffing; no unlawful harassment
 Employer ordered to rehire 5 employees with back pay and to post notice in
workplace on employee rights under NLRA
PROTECTED FACEBOOK POSTINGS

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 Employer: web-based home improvement retailer
 Employee posted on her Facebook page criticisms of employer and
possible state law violations
 Co-workers who were Facebook “friends” responded
 First employee fired for her Facebook posting
 NLRB judge rules Facebook posting protected because concerns
terms and conditions of employment
 Employer ordered to reinstate employee with back pay and post notice
for 60 days on employees’ rights to post on social media about work-
related issues without fear of termination or punishment
PROTECTED FACEBOOK POSTINGS (cont.)

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 Employer: ambulance service company
 Employee posted on Facebook criticisms about her supervisors
and responds to comments from co-workers
 NLRB issues complaint against employer because Facebook
postings were protected communications about terms and
conditions of employment and because employer had overbroad
policy on blogging and internet postings
 Employer reaches settlement with employee and agrees to
change social media policy
PROTECTED FACEBOOK POSTINGS (cont.)

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 Employer: BMW dealership
 Salespersons unhappy with sales event at dealership and
possible loss of sales commissions
 One salesperson posted on Facebook photos of sales event
showing only hot dogs and bottled water offered to customers and
criticized dealership for being “cheap”
 Other salespersons commented on Facebook page
 NLRB judge: Facebook postings protected concerted activity and
dealership’s confidentiality policy overbroad; dealership ordered to
post notice of employees’ rights under NLRA
PROTECTED FACEBOOK POSTINGS (cont.)

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 Vulgarity and obscenities generally do not cause loss of legal protection
 Employee posted on Facebook after argument with supervisor:
– Bob [supervisor] is such a NASTY MOTHER FUCKER [and] don’t know how to talk to
people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES
for the UNION!!!!!!
 Employee’s Facebook “friends” included ten co-workers
 Employer tolerated obscenities in the workplace. Supervisor said: “What the
fuck are you doing? …. Are you guys fucking stupid?”
– No one previously disciplined or fired for using profanity
 Employee’s posting was protected “concerted activity” and his firing was
unlawful retaliation
 NLRB v. Pier Sixty, LLC., 2d Cir. (April 21, 2017)
PROTECTED FACEBOOK POSTINGS (cont.)

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 In Auto Center case (2011), Ninth Circuit ruled that NLRB had
wrongly upheld firing of employee for arguing with employer and
using profanity. NLRB reversed its decision.
 Employee, a car salesman, expressed concerns about breaks,
restrooms and commissions/compensation
 Employer: salesman’s “negativity” was affecting others and “he
should not complain about pay.”
NINTH CIRCUIT LAW ON OFFENSIVE
LANGUAGE

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 Employee got angry and called owner: a “fucking mother
fucker,” a “fucking crook,” an “asshole.” Also said owner was
“stupid” and “nobody liked him.” Employee fired.
 Ruling: Employee’s conduct was legally protected concerted
activity because it addressed terms and conditions of
employment, primarily how salesmen were compensated.
 Employee’s conduct was not threatening and did not disrupt the
general workplace. His “f-bombs” not enough to override his
right to engage in concerted activity.
NINTH CIRCUIT ON OFFENSIVE
LANGUAGE (cont.)

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 “Whistleblowing” refers actions taken to report perceived wrong
doing or improper/illegal conduct
 State law varies greatly on (a) what basis employee must have for
belief, (b) what standard of wrongfulness applies, and (c) what
conduct is protected
 Many statutes prohibit employer retaliation against a protected
whistleblower
 Increased encouragement of whistleblowers
PROTECTED EMPLOYEE
WHISTLEBLOWING

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 Securities and Exchange Commission (SEC) Office of the
Whistleblower
– Rewards for whistleblowers who reveal fraud and other violations by
corporations and management
– Recent $7 million award to 3 whistleblowers
– Total of $149 million awarded by SEC to 41 whistleblowers
 OSHA Whistleblower Protection Program
– OSHA enforces whistleblower protections under 21 federal statutes
– OSHA provides easy-to-use online complaint procedure for whistleblowers
to complain about retaliation
FEDERAL AGENCIES INVITING
WHISTLEBLOWING

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 W. Mark Gavre
801.536.6834
mgavre@parsonsbehle.com
Thank You