Update on NLRB Social Media and Facebook suit

April 17, 2011 at 9:19 pm | Posted in Employee, Employer, Employment Law, Legal, Social Media/Social Networking, union | Leave a comment

One of my November blog posts discussed the NLRB filing an action on behalf of an employee dismissed for criticizing her employer on Facebook.  Of importance to this case is the union environment in which the employee worked AND that co-workers joined in the on-line “conversation” to discuss “working conditions.”  The employer in this matter, American Medical Response of Connecticut, had social media policies in place.  The employee was terminated for violating those policies due to the disparaging remarks she made about her supervisor on her Facebook page.  The NLRB alleged the employer’s social media policies were “overly broad”, particularly as they related to concerted activity.

In February of 2011, the NLRB and American Medical Response of Connecticut reached a settlement agreement in which the employer agreed to revise its social media policy to ensure that the policy did not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.  Again, this agreement is predicated on a collective bargaining agreement and the workplace being a union environment.  The employer revised the policy to show that employees would not be disciplined or discharged for engaging in such discussions on social media venues.

To review the actual settlement agreement between the NLRB and American Medical Response of Connecticut, go to:

http://www.minnesotaemploymentlawreport.com/NLRB%20Facebook%20Settlement.pdf

At least we now know social media handbook language that has been pre-approved by the NLRB.  This area of the law will continue to evolve.  With employees having social media at their fingertips via their smart phones, this area of employment law will continue to be hot.

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U.S. Immigration and Customs Enforcement “ICE” and the Department of Labor’s Wage and Hour Division “DOL” have a new Memorandum of Understanding DOL

April 2, 2011 at 8:55 pm | Posted in Employee, Employer, Employment Law, FLSA, I9, Immigration, New employment laws/amendments, wage & hour | Leave a comment

On March 31, 2011, DOL and ICE entered into an updated Memorandum of Understanding, commonly called an MOU, regarding what information each will share with the other when conducting an investigation at an employer’s workplace.  The MOU revision clarifies that while both Agencies are encouraged to share pertinent work site information, simultaneous/dual investigations by both DOL and ICE at a workplace are not favored.  The MOU gives the two signing agencies flexibility on this issue and identifies “some” of the ways in which dual investigations can occur.

DOL specifically agrees in the MOU “to assist ICE’s efforts … by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.”ICE and DOL agree in the MOU “to create a means to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status. ICE agrees to develop a means to refer to DOL information concerning violations of DOL’s civil work site authorities described in section III of this MOU.”  In other words, the Agencies will continue to share information as they have done in the past BUT now the Agencies are seeking ways in which to make the information sharing easier.  To review the MOU, go to http://www.dol.gov/_sec/media/reports/HispanicLaborForce/DHS-DOL-MOU.pdf.

The type of the information shared between ICE and DOL pursuant to the MOU is also the type of information easily shared with the new “fusion centers” being set up around the country to allow for monitoring of issues relevant to national security, which almost always impacts immigration related issues.  Without endorsing the site in any way, consider a visit to http://www.aclu.org/whos-spying-your-neighborhood-map for a listing of the fusion center in your neck of the woods.

The revised MOU shows a renewed interest by DOL and ICE in working together when auditing employers to enforce the laws currently on the books.  The political will does not appear to be for proposing new legislation to address immigration and employed related issues but instead is focused on getting the maximum mileage out of the laws currently in place.  In light of the hefty fines asserted against employers for technical violations of the Form I-9 and the Fair Labor Standards Act record keeping requirements (Abercrombie & Fitch was fined one million dollars late last year), self-audits and compliance efforts are in order.  Based upon this renewed interest by DOL and ICE in formalizing how the two Agencies will work together, and based upon the hiring of new agents by both ICE and DOL throughout the country, particularly here in Florida, I would hazard an educated guess that once an employer is visited by DOL, ICE will come knocking soon after.

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