Mind the Gap: New Laws Affecting HR Professionals

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Mind the Gap: New Laws
Affecting HR Professionals

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Law

Cary
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Ta+
Law

9
Cary Donham, Partner
Heather Jackson, Partner

10
Agenda
•  Social Media Policies and Section 8(a)(1) of the
National Labor Relations Act
•  Pre-Hire Considerations
•  Federal Fair Labor Standards Act – Updated
Overtime Rule

11
Social Media Policies and
Section 8(a)(1) of the

12
RIGHTS OF EMPLOYEES
Sec. 7. [§ 157.] Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any
or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment as
authorized in section 8(a)(3) [section 158(a)(3) of this title].

13
UNFAIR LABOR PRACTICES
Sec. 8. [§ 158.] (a) [Unfair labor practices by
employer] It shall be an unfair labor practice for an
employer--
(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7
[section 157 of this title];

14
What is “Concerted Activity?”
All of these could be:
•  Two employees discussing their salaries on
Facebook
•  Employees posting photos of employees
working in allegedly unsafe conditions
•  Employees criticizing their supervisors on a
public message board
•  Employees using company email to plan a
meeting to jointly ask for a raise

15
Can’t an Employer Simply Forbid
Employees from Discussing
Company Business on Social
Media?
Not according to the NLRB.

16
Triple Play NLRB Decision
In Three D, LLC (Triple Play), 361 NLRB No. 31
(2014), the NLRB provides useful guidance for
employers on drafting a social media policy without
raising a red flag for the NLRB.
The following is an excerpt of a conversation in
which two employees were fired for alleged
disloyalty after posts on Facebook were critical of
the owners.

17
Posts - Conversation
Sanzone, Spinella, and LaFrance, who left the Respondent's employ in
November 2010, have Facebook accounts. On January 31, LaFrance
posted the following “status update” to her Facebook page
•  Former employee Jamie LaFrance: Maybe someone should do the owners
of Triple Play a favor and buy it from them. They can't even do the tax
paperwork correctly!!! Now I OWE money... Wtf!!!!
•  Ken DeSantis (a Facebook “friend” of LaFrance's and a customer): “You
owe them money... that's fucked up.”
•  Danielle Marie Parent (Triple Play employee): “I FUCKING OWE MONEY
TOO!”
•  LaFrance: “The state. Not Triple Play. I would never give that place a penny
of my money. Ralph [DelBuono] fucked up the paperwork...as per usual.”

18
Facebook Posts – Conversation Con’t
•  LaFrance: “It's all Ralph's fault. He didn't do the paperwork right. I'm calling
the labor board to look into it bc he still owes me about 2000 in paychecks.”
•  (At this juncture, employee Spinella selected the “Like” option under
LaFrance's initial status update. The discussion continued as follows.)
•  Parent: “Let me know what the board says because I owe $323 and ive
never owed.”
•  LaFrance: “I'm already getting my 2000 after writing to the labor board and
them investigating but now I find out he fucked up my taxes and I owe the
state a bunch. Grrr.
•  LaFrance: “Hahahaha he's such a shady little man. He prolly pocketed it all
from all our paychecks. I've never owed a penny in my life till I worked for
him. Thank goodness I got outta there.”
•  Sanzone: “I owe too. Such an asshole.”

19
Poll: Can the Company Legally
Fire Spinella + Sanzone?
q  Yes
q  No

20
Can the Company
Legally Fire Spinella & Sanzone?
Answer: No.
A.  Statements were not defamatory.
1.  “I owe taxes” was true.
2.  Company did not prove that employees knew
statements were false and with reckless disregard that
they were false.
B.  Facebook conversations were “concerted
activity.”
1.  Multiple current employees
2.  Involves working conditions - income tax withholdings.

21
Example of NLRB Approach
Triple Play Sports Social Media Policy
The Company supports the free exchange of information
and supports camaraderie among its employees. However,
when internet blogging, chat room discussions, e-mail, text
messages, or other forms of communication extend to
employees revealing confidential and proprietary information
about the Company, or engaging in inappropriate
discussions about the company, management, and/or co-
workers, the employee may be violating the law and is
subject to disciplinary action, up to and including termination
of employment.…In the event state or federal law precludes
this policy, then it is of no force or effect.

22
Poll: Is the Company’s
Policy Legal?
q Yes
q  No

23
Is the Company’s
Policy Legal?
Answer: No.
Issue: Would employees reasonably construe the
language to prohibit concerted activity among employees
regarding working conditions or issues?
Board: Employees would reasonably see the rule as
prohibiting any discussions about their terms and
conditions of employment that management deems
“inappropriate,” which is “sufficiently imprecise” to
encompass Section 7 concerted activity.

24
Unacceptable and
Acceptable Social Media
Policies from NLRB
Settlement with Wendy’s

25
Wendy’s Original Social Media
Policy - Unacceptable
Refrain from commenting on the company's business,
financial performance, strategies, clients, policies,
employees or competitors in any social media, without
the advance approval of your supervisor, Human
Resources and Communications Departments. Anything
you say or post may be construed as representing the
Company's opinion or point of view (when it does not), or
it may reflect negatively on the Company. If you wish to
make a complaint or report a complaint or troubling
behavior, please follow the complaint procedure in the
applicable Company policy (e.g., Speak Out).

26
Wendy’s Revised Social Media
Policy - Acceptable
•  Do not comment on trade secrets and proprietary Company
information (business, financial and marketing strategies) without
the advance approval of your supervisor, Human Resources and
Communications Departments.
•  Do not make negative comments about our customers in any
social media.
•  Use of social media on Company equipment during working time
is permitted, if your use is for legitimate, preapproved Company
business. Please discuss the nature of your anticipated business
use and the content of your message with your supervisor and
Human Resources. Obtain their approval prior to such use.
•  Respect copyright, trademark and similar laws and use such
protected information in compliance with applicable legal
standards.

27
Internal Use of Company
Owned Media – Do’s and Don’ts
Don’t - prohibit only discussions about unions or
wages or working conditions and allow discussion
or solicitation on other subjects.
Do - A ban on all non-work
related use of the company’s
email is acceptable.

28
Don’t - Have an email/
messaging policy that bars
nonwork use of an employee’s
email that “may be disruptive” or
“offensive” or “harmful to morale,”
but allows other nonwork email.
Such communications could be
understood to include criticism of
working conditions.

29
Don’t - Use phrases such as
•  “language the Company deems appropriate” or
•  “that may violate Company policies” or
•  “not in the Company’s best interests.”
The NLRB will view these as reasonably leading
an employee to believe that discussing wages or
working conditions is not allowed.

30
Do -
•  Be Precise!
•  Be Careful!

32
Have you ever been
arrested? Have you ever
been convicted?

33
•  Estimated that 1 in 3 adults would have to
answer “yes” to one of these questions
•  Could be as many as 70 million people in this
country
•  Answers to these questions affect employability
•  American Journal of Sociology: criminal record
decreases the likelihood of a callback by 50%

34
Ban the Box
•  Over 100 cities and counties
have adopted so-called “ban
the box” legislation. Generally,
this makes it illegal to ask about
criminal history on a job application.
•  24 states have adopted policies. Many of these
policies apply specifically to public employers, as
well as their vendors.

35
Nine states have mandated the removal of
conviction history questions from job applications
for private employers:
•  Connecticut
•  Hawaii
•  Illinois
•  Massachusetts
•  Minnesota
That means, in these states, job applications
cannot ask “the question!”
•  New Jersey
•  Oregon
•  Rhode Island
•  Vermont

36
Localities also have extended coverage
•  Austin
•  Baltimore
•  Buffalo
•  Chicago
•  Columbia, MO
•  District of Columbia
•  New York City
•  Philadelphia
•  Portland, OR
•  Rochester
•  San Francisco
•  Seattle

37
Patchwork of laws for
multi-state employers
Varies by Jurisdiction

38
Does it apply to me?
•  Am I a public or private employer?
•  Where are my employees?
•  Other qualifications
–  Size
o  Illinois: private employers with 15 employees or more
o  Chicago: all private employers
o  District of Columbia: employer with 11 or more employees
–  Am I a vendor to or do I have a contract with any states or
counties?
•  Exceptions
–  Public safety positions, required licensure and conviction
prevents licensure, cash-handling/asset management positions
only

39
When can I ask?
•  Only after determining applicant meets the basic
qualifications for the position
•  Only after selected for an interview
•  Only after interview has been conducted
•  Only after conditional offer is extended
•  Only after finalists selected

40
Job Related Screening
•  “Direct relationship” between conviction and job
•  Consider the nature of offense and job
•  Bears a “rational relationship” to position
•  EEOC factors

41
Can I include information regarding
disqualification for a conviction on a
job posting?
It depends!

42
What other information is limited
by ban the box laws?
•  Arrests
•  Impounded
•  Sealed
•  Expunged
•  Time limit (10 years)

43
Notification requirements
•  Notification of reason for denial
•  Copy of record
•  Appeal rights/opportunity to explain or correct

44
Background checks only for
some positions

45
Penalties
•  Monetary
•  License Discipline
•  Often no Private Right of Action

46
Tips
•  Compliance with State and local law or policy
that complies with multiple jurisdictions
•  Remove the box on all applications
•  Wait to ask
•  If you find something, be fair and conduct an
individualized assessment per the EEOC factors,
considering how the offense relates to the job
•  Allow applicants to review the results, and to
explain

47
Other Potential Hiring Pitfalls
•  Credit reports
•  Using third party consumer reporting agencies to
conduct background evaluations
•  Drug testing
•  Right to Privacy in the Workplace: Prohibited
inquiries and considerations

48
Other Potential Hiring Pitfalls
•  Use of social media
•  Use of written or physical abilities testing for
positions
•  Interviewing
•  Medical examination

49
Federal Fair Labor
Standards Act
Updated Overtime Rule
Effective December 1, 2016

50
Exempt Classifications
1.  Salary Basis
2.  Primary Duties
i.  Executive
ii.  Professional
iii.  Administrative
3.  Minimum Salary

51
Salary Basis
Salary not subject to reduction based on quality or
quantity of work

52
Primary Duties Refresher
Executive
•  Managing an enterprise or recognized
department
•  Managing at least 2 other employees
or
•  Significant weight in hiring, firing,
promotions, etc.

53
Primary Duties Refresher Con’t
Professional
•  Learned professionals
–  Primarily perform work that requires a
college degree; teachers, doctors,
accountants, attorneys
•  Creative professionals
–  Requires invention, imagination, originality,
talent in an artistic or creative field

54
Primary Duties Refresher Con’t
Administrative
•  Office or non-manual work directly related to
management or general business operations of
the employer or employer’s customers
and
•  Includes exercise of discretion and independent
judgment with respect to significant matters

55
Salary Basis
•  Minimum salary paid every working week
regardless of hours worked
•  Can dock salary for ½ day absence

56
Minimum Salary – New Rule
•  Currently: $455/week ($23,660/year)
•  December 1, 2016: $913/week (47,476/year)

57
•  Pay overtime on occasion
•  U.S. Dept. of Labor estimates 60% of employees
affected by the new minimum salary rule don’t
usually work overtime.
–  20% regularly work overtime
–  20% occasionally work overtime

58
Employer Strategies for Exempt
Employees Now Making < $47,476/year
•  Your employee Paula is making $40,000 a year
now. She is an administrative employee. She
manages the linen department of a department
store. She supervises five employees, manages
their schedules, and is involved in the physical
layout and display of the department.
•  How should Paula be paid starting December 1,
2016?

59
1.  Do nothing
–  Based on the DOL data, the new rule won’t affect
60% of affected employees, but make sure to track
hours and institute a “no overtime” policy.

60
2.  Raise salaries
‒  If an exempt employee is making close to $47,476/
year, increase salary to keep exempt status

61
3A. Pay overtime above a salary
o  Regular Salary 1st 40 hours
o  Hourly rate = weekly salary/40
o  Overtime rate = 1.5 x hourly rate
Example A: Paula usually works 40 hours a week and
earns a salary of $40,000 or $769 a week. One week
due to a store emergency she works 5 hours of
overtime. Her regular hourly rate is $769/40 = $19.23.
Her overtime pay would be 5 x 19.23 x 1.5 = $144.23 as
opposed to straight time pay of $96.15,

62
3B. Pay overtime above a salary
If employee usually works more than 40 hour, pay
straight time salary for usual work week
o  Hourly rate = regular salary/hours in work week
o  Overtime rate = 1.5 x hourly rate
Example B: Ahmed regularly works 50 hours a week as a manager
of Beef-fil-et, a fast food restaurant and is receiving $40,000 per
year or $769 per week. The company decides to keep the $40,000
salary + the 50 hours per week. Ahmed’s hourly rate is $769/50 =
$15.38. This would cover straight overtime pay for 50 hours. In a
normal week, the employee would have to pay the half time
premium for ten hours or $7.69 x 10 = $79.60

63
4. Work backwards, recalculate hourly rate plus
time + one half to keep salary effectively the same.
For Paula:
40 (hr. rate) + 10 (hr. rate x 1.5) = $769
40 (hr. rate) + 15 (hr. rate) = $769
55 (hr. rate) = $769
(hr. rate) = 769/55 = $13.98

66
Examples of
Unacceptable
and Acceptable
Policies

67
Unacceptable Policies
•  “You must not disclose proprietary or confidential
information about [the Employer, or] other
associates (if the proprietary or confidential
information relating to [the Employer's] associates
was obtained in violation of law or lawful Company
policy).”
•  “Discuss work matters only with other [Employer]
employees who have a specific business reason to
know or have access to such information.... Do not
discuss work matters in public places.”

68
Acceptable Policies
•  No unauthorized disclosure of “business 'secrets'
or other confidential information.”
•  “Do not disclose confidential financial data, or
other non-public proprietary company
information. Do not share confidential
information regarding business partners,
vendors or customers.”

69
Examples of Unacceptable
and Acceptable Rules
Regarding Employee
Conduct Toward the
Employer

70
Unacceptable Rules
•  No “[d]efamatory, libelous, slanderous or discriminatory
comments about [the Company], its customers and/or
competitors, its employees or management.”
•  “Disrespectful conduct or insubordination, including, but
not limited to, refusing to follow orders from a supervisor
or a designated representative.”
•  “Refrain from any action that would harm persons or
property or cause damage to the Company's business or
reputation.”

71
Acceptable Rules
•  “Each employee is expected to work in a cooperative
manner with management/supervision, coworkers,
customers and vendors.”
•  “Each employee is expected to abide by Company
policies and to cooperate fully in any investigation that
the Company may undertake.”

72
Examples of Unacceptable
and Acceptable Rules
Regarding Employee
Conduct Toward Fellow
Employees

73
Unacceptable Rules
•  Do not make “insulting, embarrassing, hurtful or
abusive comments about other company
employees online,” and “avoid the use of
offensive, derogatory, or prejudicial comments.”
•  “Material that is fraudulent, harassing,
embarrassing, sexually explicit, profane,
obscene, intimidating, defamatory, or otherwise
unlawful or inappropriate may not be sent by e-
mail . ...”

74
Acceptable Rules
•  Any logos or graphics worn by employees “must
not reflect any form of violent, discriminatory,
abusive, offensive, demeaning, or otherwise
unprofessional message.”
•  “[T]hreatening, intimidating, coercing, or
otherwise interfering with the job performance of
fellow employees or visitors.”

75
Wendy’s Revised Social
Media Policy

76
Wendy’s Revised Social Media Policy
Due to the potential for issues such as invasion of privacy
(employee and customer), sexual or other harassment (as
defined by our harassment /discrimination policy), protection
of proprietary recipes and preparation techniques, Crew
Members may not take, distribute, or post pictures, videos, or
audio recordings while on working time. Crew Members also
may not take pictures or make recordings of work areas. An
exception to the rule concerning pictures and recordings of
work areas would be to engage in activity protected by the
National Labor Relations Act including, for example, taking
pictures of health, safety and/or working condition concerns or
of strike, protest and work-related issues and/or other
protected concerted activities.

77
Wendy’s Revised Policy Con’t
•  Use the Company's (or any of its affiliated entities) logos,
marks or other protected information or property for any
business/commercial venture without the Legal Department's
express written authorization.
•  Make knowingly false representations about your credentials
or your work.
•  Create a blog or online group related to Wendy's (not
including blogs or discussions involving wages, benefits, or
other terms and conditions of employment, or protected
concerted activity) without the advance approval of the Legal
and Communications Departments. If a blog or online group is
approved, it must contain a disclaimer approved by the Legal
Department.

78
Do Not Violate the Law and Related Company Policies:
Be thoughtful in all your communications and dealings with
others, including email and social media. Never harass (as
defined by our anti-harassment policy), threaten, libel or
defame fellow professionals, employees, clients,
competitors or anyone else. In general, it is always wise to
remember that what you say in social media can often be
seen by anyone. Accordingly, harassing comments,
obscenities or similar conduct that would violate Company
policies is discouraged in general and is never allowed
while using Wendy's equipment or during your working
time.

79
Discipline:
All employees are expected to know and follow this policy.
Nothing in this policy is, however, intended to prevent
employees from engaging in concerted activity protected by
law. If you have any questions regarding this policy, please
ask your supervisor and Human Resources before acting.
Any violations of this policy are grounds for disciplinary
action, up to and including immediate termination of
employment.

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