Washington Attorneys Assisting Community Organizations (WAACO)

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Washington Attorneys Assisting Community Organizations (WAACO)
Washington
Attorneys
Assisting
Community
Organizations
May 13, 2013
Gil Sparks, JD
Ogden Murphy Wallace, PLLC
SECTION 1:
• Major Federal and state
employment laws impacting
non profits
• Potential liability issues
• Minimum necessary written
policies
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Key Federal Laws
Title VII of the Civil Rights
Act of 1964 (Title VII)
• Prohibits discrimination base
on race, color, religion, sex,
and national origin
• 15 or more employees
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Disability Leave - Federal
Americans With Disabilities Act of 1990
(ADA & ADAAA)
Prohibits discrimination against qualified
applicants/ employees who have physical or
mental disabilities
15 or more employees
• Requires reasonable accommodation for employees
with qualifying disabilities, unless an undue burden
• Unpaid leave may be a reasonable accommodation
• Need to maintain confidentiality of medical
information
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Key Federal Laws
Age Discrimination in Employment Act
(ADEA)
Prohibits discrimination against individuals over
the age of 40
20 or more employees
Fair Labor Standards Act (FLSA)
Establishes minimum wage & overtime
requirements
Applies to employers engaged in interstate
commerce
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Key Federal Laws
Uniformed Services Employment and
Reemployment Rights Act (USERRA)
• Prohibits discrimination due to military
service or intent to serve
• Applies to all employers, regardless of size
• Establishes reemployment rights
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Key Federal Laws
Immigration Reform and Control Act (IRCA)
• Prohibits discrimination against any
applicant/employee (other than an unauthorized
alien) because of national origin or citizenship
status
• 4 or more employees
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Key Federal Laws
Consolidated Omnibus Budget
Reconciliation Act (COBRA)
• Provides opportunity to continue group health
coverage following termination of employment
• 20 or more employees
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Key State Laws
Washington Law Against Discrimination
(WLAD)
Prohibits employers from discriminating because of
age, sex (including pregnancy), sexual orientation,
marital status, race, creed, color, national origin,
sensory, mental, or physical disability, military or
veteran status, or use of trained service dog by a
person with a disability
8 or more employees*
* Note: Courts are recognizing common law discrimination
claims apply to all employers.
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Disability Rules - State
• Any sensory, mental, or physical (medically
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cognizable or diagnosable) condition
Can be temporary
Requires reasonable accommodation for qualifying
disabilities
No need to accommodate if only a trivial effect
Unpaid leave may be a reasonable
accommodation
Need to maintain confidentiality of medical
information
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Key State Laws
Washington Minimum Wage Act (MWA)
Establishes minimum wage, overtime, and meal &
rest break requirements
Applies to all employers, regardless of size
The Military Family Leave Act (MFLA)
Provides leave prior to deployment or while on leave
from deployment during a military conflict
Applies to all employers, regardless of size
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Key State Laws
Domestic Violence Leave
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To deal with domestic violence, sexual assault or
stalking issues
Grant reasonable leave for employee and employee’s
family members
Definition of family members includes the employee’s
child, spouse, parent, parent-in-law, grandparent, or
person with whom employee has a dating relationship
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Key State Laws
Washington Family Care Act (FCA)
Allows employee to use sick leave or other paid
leave to care for a family member with a serious
health or emergency condition, or to care for a
child with a health condition requiring treatment
or supervision
Applies to all employees who accrue and are
eligible to use paid sick leave
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Key State Laws
Washington Parental Leave Requirements
If employer provides any form of child care
leave, must grant leave to fathers, adoptive
parents, or step-parents
Applies to all employers
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Key State Laws
Industrial Insurance Act
(Workers’ Compensation)
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Establishes eligibility & criteria for worker’s
compensation for workplace injuries
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Shields employers from further liability for
workplace injuries
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Key State Laws
Washington Veterans Employment
and Reemployment Act (“WVERA”)
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Prohibits discrimination due to military service
Parallels Federal USERRA, except:
– Employer under WVERA must provide up to
4 years of Leave
Military leave is in addition to any vacation or
sick leave the employee is entitled to
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Potential Liability Issues
Supervisors can be held individually liable
for engaging in discriminatory and/or
inappropriate workplace harassment
Brown v. Scott Paper Worldwide Company
and Raymond v. Pacific Chemical
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Manager/Supervisor Personal Liability
Applies to anyone in a decision making
role, even temporarily
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Owners
Principals
Partners
Managers
Directors
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Superintendents
Supervisors
Assistant Supervisors
Foreman
Leads
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Minimum Necessary Written Policies
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Disclaimer
Equal Employment Opportunity
Workplace Harassment
At Will Employment
Attendance / Punctuality
Job Descriptions
Domestic Violence Leave
Acknowledgment Forms
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Section 2:
• Practical and legal overview of
hiring and interviewing process
• Use of social media to research
job applicants
• Reference and criminal history
background checking
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Hiring & Interviewing Practices
Negligent Hiring
Duty to exercise reasonable care
Consider nature of job
Carefully reviewing applications/resumes
Reasonable investigation of applicant’s
background
Thorough investigating
Check references
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Hiring & Interviewing Practices
Applicant Screening
• Do not accept any incomplete application
• Review applications carefully for gaps in
employment, etc.
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Hiring & Interviewing Practices
Interviews
Permissible/impermissible questions
Structured interviews
Uniform questions
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Hiring & Interviewing Practices
Interviewing tips
Open-ended job related questions
Job descriptions identifying essential functions
Careful choice of words
Avoid inappropriate comments or promises
Rate applicants
Comfortable closing to interview
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Hiring & Interviewing Practices
Obtaining references
Ability to release reference information
(RCW 4.24.730)
Use consent form
Prior to job offer
Job-related questions
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Hiring & Interviewing Practices
Providing references
Require consent form
Identify reference checker
Identify who is authorized to provide
references
Keep written record
Be objective
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Hiring & Interviewing Practices
Background checks
Required for jobs with unsupervised
access to children, financially vulnerable
adults, or developmentally disabled
persons
Obtain written disclosure
Verify with Washington State Patrol
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Researching Applicants & Employees
Internet searches
Employers can conduct a Google
search for publically available
information on prospective
employees
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Internet Searches of Prospective
Employees
“Cybervetting”
A recent Microsoft survey indicates
79% of human resource professionals
engage in this practice of viewing
social network sites to obtain
information about a job applicant.
• 70% reported they have rejected a
candidate based on information
obtained online about a candidate.
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Internet Searches of Prospective
Employees
• Factors relating to age, color, gender,
disability, age, national origin, and sexual
preference may be inadvertently discovered
during cybervetting.
• In the face of a claim that an illegal hiring
decision was subsequently made on one or
more of these factors, it would be helpful to
have a policy for screening applicants in a
uniform manner.
• Potential exists for claims of negligent hiring
if employer fails to cybervet.
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Internet Searches of Prospective
Employees
Factors to consider include:
• listing the social media sites that will be
searched for each applicant
• listing the lawful information about
applicants desired from every search
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Internet Searches of Prospective
Employees
Factors to consider include:
• having a neutral third party that will
conduct the search
• prohibiting the organization from
“friending” an applicant to gain access to
nonpublic social networking profiles
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Section 3:
• Wage and hour issues
• Exempt vs. Nonexempt classifications
• Interns / Trainees / Volunteers
• Employee vs. Independent Contractor
• Meal and rest breaks
• Overtime and compensatory time
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Federal (FLSA) and State (MWA)
• Requires overtime to be paid at the
employee’s “regular rate” of pay to
non-exempt employees who work
more than forty (40) hours in a work
week
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“White Collar” Exemptions
• Both state and federal law provide
exemptions from both minimum wage
and overtime pay for employees who
are employed in a bona fide:
Executive
Administrative
Professional
Outside Sales
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Three Tests for Exemption
• Salary Level
• Salary Basis
• Job Duties
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Minimum Salary Level: $455
• For most employees, the minimum
salary level required for exemption
is $455 per week
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Salary Basis Test
• Regularly receives a predetermined amount
of compensation each pay period (on a
weekly or less frequent basis)
• The compensation cannot be reduced
because of variations in the quality or
quantity of the work performed
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Salary Basis Test
• Must be paid the full salary for any week in
which the employee performs any work
• Need not be paid for any workweek when
no work is performed
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Executive Employees
• Primary duty is managing the enterprise, or
a customarily recognized department or
subdivision thereof
• Customarily and regularly directs the work
of two or more other employees
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Primary Duty
• Fact specific inquiry
• Does not strictly mean more than 50% of
time – look to relative importance of duties,
discretion and judgment, closeness of
supervision, relative rates of pay, and other
factors
• Exception for emergencies
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Management Work
• Discretion and judgment over work flow or
the work force
• Normal supervisory functions: selecting or
training employees; directing the work to be
performed; assigning or scheduling which
employees to do the work, etc.
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Administrative Employees
• Primary duty: office or non-manual work
directly related to the management policies
or general business operations of the
employer or the employer’s customers; and
• Must exercise discretion and independent
judgment with respect to matters of
significance.
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Management or General
Business Operations
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Tax
Finance
Accounting
Budgeting
Auditing
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Research
Safety and Health
Human Resources
Employee Benefits
Labor Relations
Legal and Regulatory
Compliance
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Discretion and
Independent Judgment
• The comparison and evaluation of possible
courses of conduct, and acting or making a
decision after the various possibilities have
been considered
• Must be exercised with respect to “matters
of significance,” which refers to the level of
importance or consequence of the work
performed
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Professional Employees
• Primary duty: the performance of work
requiring advanced knowledge
• In a field of science or learning
• Customarily acquired by a prolonged
course of specialized intellectual instruction
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Advanced Knowledge
• Predominantly intellectual in character
• Includes work requiring the consistent
exercise of discretion and judgment
• The advanced knowledge is generally used
to analyze, interpret or make deductions
from varying facts or circumstances
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Advanced Knowledge
• Not work involving routine mental, manual,
mechanical, or physical work
• Cannot be attained at the high school level
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Field of Science or Learning
• Occupations with recognized professional
status, as distinguished from the
mechanical arts or skilled trades
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Volunteers
• Work is performed for a public, religious or
humanitarian service
• Without expectation of pay
• At the individual’s initiative
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Volunteers
• Can a current employee also volunteer?
• Only if all three tests are met, plus two
additional tests:
Volunteer work is done on employee’s own time;
and
Volunteer duties may not be similar to regular
duties
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Trainee/Intern Criteria
• Training similar to a school program
• For the benefit of the trainee
• Intern does not displace employees, but
under their observation
• Business obtains no immediate advantage
• Intern not entitled to a job at end of the
program
• Trainee understands no entitlement to pay
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Independent Contractor Test
• Washington Supreme Court adopts the
“economic realities” test for determining
whether a worker is an independent
contractor or an employee
Anfinson v. FedEx Ground Package System, No.
85949-3 (July 19, 2012).
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The Economic Realities Test
• Looks to whether the hired party is
economically dependent upon the hiring
party or is instead in business for himself
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Bottom Line
• It is likely that more workers will be
considered employees rather than
independent contractors under
Washington State’s adopted “economic
realities” test
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Meal Periods & Breaks
Meal periods – 30 minutes
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2–5 hours after beginning of employee’s
shift
3+ hours longer than normal shift
Can be waived (in writing)
Rest breaks
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10 minutes for each 4 hours worked
Can be on an intermittent basis
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Meal Breaks
• Any time an employee works more than five
hours, must be allowed a 30 minute meal
break between the second and fifth hour of
the shift
• Meal breaks may be waived
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Meal Breaks
• May be unpaid – if employee allowed to use
time as his or her own, and completely
relieved from duty
• If employee is required to be “on call” – may
not be completely relieved from duty
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Rest Breaks
• Employee must be allowed one 10 minute
rest break for each four hours of work
• Rest periods are paid time
• Employees may be required to remain on
premises
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Rest Periods
• Employees may be required to remain on
call during a rest period
• “Intermittent” rest periods allowed
• If employee is unable to get a rest break,
must be paid for the time – but the rate of
pay is controversial
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Missed Rest Breaks / Overtime
• Employees who miss state-mandated rest
breaks during their regular 40-hour
workweek are entitled to overtime
compensation for the missed rest breaks
Washington State Nurses Association v.
Sacred Heart Medical Center, No. 86563-9
(October 25, 2012).
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Compensatory Time
Non-exempt employees
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FLSA – not allowed in private sector
Washington – only in public sector
1-1/2 times hours worked
Exempt employees
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Permissible because of exempt status
Allowed in public sector without affecting
exempt status
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Section 4:
• Documenting performance
• Attendance / Leave Issues
• At will employment (reality or myth)
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Documentation
• Easier to track behavior and
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performance
Helps establish expectations
Provides notice to employee
Consistent documentation can
counter discrimination or retaliation
claims
Expected by courts and juries
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General Guidelines
• Job related
• Identify basis for unsatisfactory
performance or discipline
• Thorough
• Honest, consistent, and even-handed
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General Guidelines
• Clearly describe specific conduct or
performance deficiencies
• Decide appropriate level of discipline
for conduct or performance
• Clear consequences for repeat
behavior or other inappropriate
conduct
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Counseling Employees
• Quite often, an employee’s actions do not
warrant the use of formal disciplinary
actions. In these cases, informal verbal
counseling may be appropriate.
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Informal Verbal Counseling
• Informal verbal counseling should be done
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in private
Before conducting the counseling session,
the supervisor or manager should prepare a
list of issues that will be covered in the
counseling session
Do not use accusatory language
Do not disparage the employee
Attempt to maintain rapport for the sake of
the long term working relationship
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Format
The written record should include:
• Description of incident or activity
• Rules or expectations violated by
employee’s conduct
• Description of discipline
• Consequences if conduct does not change
• Check spelling, grammar, punctuation
• Date
• Signature
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Attendance & Leave Issues
ADA and WLAD
Requires awareness of potential
disability
Identify essential functions (need job
descriptions)
Regular & punctual attendance should
be a job requirement for all positions
Engage in interactive process
Evaluate & implement possible
reasonable accommodations
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Attendance & Leave Issues
ADA and WLAD
Dealing with co-worker resistance
Documenting performance issues
Disciplining employees with disabilities
Maintaining confidentiality
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At-Will Employment
• Employee can be terminated at any
time, with or without notice, or with or
without cause.
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Exceptions to At-Will Doctrine
• Written and implied contracts
• Statutory exceptions
• Public policy exceptions
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Handling Terminations
Ways to Reduce
Wrongful Discharge Claims
Document warnings
Decide adequate reasons for dismissal
Consider employee characteristics
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Handling Terminations
Ways to Reduce
Wrongful Discharge Claims
Review personnel file
Evaluate if just cause can be
substantiated
Implement consistent termination
procedures
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Handling Terminations
Prepare for meeting
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Avoid arguing
Avoid apologies
Explain separation benefits
Take responsibility
Document
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Handling Terminations
After the Discharge Meeting
Carefully communicate the termination
to co-workers and clients.
ƒ Consider exploring with the employee a
strategy about notice to colleagues and
customers.
ƒ Consider a voluntary resignation and
possible severance agreement
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Latest Employment Law Trends
• Same-Sex Marriage Referendum (eff.
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12/6/12)
New I-9 Employment Eligibility Form (May
7, 2013)
Affordable Care & Patient Protection Act
Social Media Policies
Distracted Driving Policies
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Latest Employment Law Trends
Marijuana Reform
• In 1998, voters approved Medical Use of Marijuana Act
(MUMA)
• In 2012, voters passed Initiative I-502 (Marijuana
Reform)
• Law does not protect marijuana users from adverse
hiring or employment decisions based on an employer’s
drug testing policy
• Marijuana use is still illegal under federal law
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Social Media Policies: NLRB
• National Labor Relations Board (NLRB)
enforces the National Labor Relations Act
(NLRA)
• Most private sector employees (whether
unionized or non-unionized) are subject to
the NLRA
• Nonprofits. The NLRB asserts jurisdiction
based on substantive purposes and
revenue threshold
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Social Media Policies: NLRB
• Revenue thresholds for NLRB Jurisdiction
over Nonprofits:
Social services organizations (other than those
with a set standard): $250,000
Art museums, cultural centers, libraries, and
private nonprofit colleges and universities: $1
million
Credit unions: retail standard ($500,000) or
nonretails standard ($50,000) (depends on the
nature of operations)
Day care centers for children: $250,000
Law firms and legal services organizations:
$250,000
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Social Media Policies: NLRA
• § 7: Rights of Employees
Employees shall have the right to [form
unions] … and to engage in other
concerted activities for the purpose of
… mutual aid or protection
NLRA protects employee communication
rights under § 7 of the NLRA, which
applies to all employers regardless of
union representation
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Social Media Policies: NLRA
• Application of § 7 in social media context is
a “developing area of the law”
• Employer has the right to protect its
legitimate business interests
• However, an employee cannot be
disciplined for protected concerted activity
• An overbroad social media policy is a
violation of NLRA
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Model Social Media Policy
• The NLRB has a draft model social media
policy: can be used
http://nlrb.gov/news/acting-general-counsel-releasesreport-employer-social-media-policies
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Social Media Policy: Takeaways
• Social media policies should
Not prohibit the use of social media to
discuss or attempt to resolve concerns
about working conditions
encourage employees to use internal
mechanisms to report harassment /
discrimination but not require such use
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Social Media Policy: Takeaways
• Social media policies should
state that employers will investigate
harassment / discrimination complaints
regardless of how they are discovered
(i.e. social media sites)
Be clear that the employer is not trying to
curtail § 7 rights
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Social Media Policy: Takeaways
• Employers should also
Advise supervisors to be cautions about
“friending” employees or engaging in
social media
Supervisors should be obligated to
report discrimination / harassment claims
discovered through “friending”
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Distracted Driving Leading to Employer
Liability
• Judgments have been rendered against
employers whose employees have been
involved in distracted-driving accidents
while working
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Statistics on Distracted Driving
• At least 24% of crashes in 2010 involved
drivers using cell phones
• The risk of a crash is four times as likely
when a person is using a cell phone —
handheld or hands-free
• Studies have found that hands-free devices
offer no safety benefit because they don't
eliminate the cognitive distraction of
conversation
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Distracted Driving Jury Verdicts
Against Employers
• A jury ordered an employer to pay $21.6
million to the family of a Florida woman who
was killed when an employee in a company
car rear-ended her because he was
distracted and didn't react when traffic
slowed
• International Paper paid $5.2 million to
settle a case with a woman who lost an arm
in a collision caused by an employee on a
cell phone
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Distracted Driving Jury Verdicts
Against Employers
• A Texas jury ordered Coca-Cola to pay $21
million to a 37-year-old woman who
suffered nerve damage to her back after
she was hit by a car driven by a
salesperson who was talking on a cell
phone
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Washington Prohibition Against
Distracted Driving
• Handheld ban for all drivers
• Ban on all cell phone use (handheld
and hands-free) for novice drivers
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Bottom Line
• All employers should have a clear cell
phone policy banning employees from
using any hand held or hands-free device
while on company business whether in
personal or company vehicles and take
steps to train and educate employees on
the policy and on the dangers of cell phone
use while driving
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THANK YOU!
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