NLRB Decision Upholds Firing of Employee Over Facebook Posts, but Strikes Down Policy that Allowed for the Firing

A dispute before the National Labor Relations Board (NLRB) resulted in a decision affirming the respondent employer’s termination of the complainant employee over remarks he posted to the social media site Facebook. At the same time, the NLRB ruled that the respondent’s policy requiring its employees to be “courteous,” finding the policy to be overbroad in potential violation of employees’ rights. The decision is important to any employer developing policies and guidelines to social media use, as it demonstrates the intersection of internal rules governing employee conduct and laws that protect employees’ rights to “concerted activity.”

The case, Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, 358 NLRB No. 164, involved two separate questions of the employee’s termination and the employment “courtesy” policy. In the Becker matter, Becker was an employee of Knauz, which runs a BMW dealership in Illinois. Becker worked as a commissioned salesperson. Becker’s termination reportedly resulted from a series of Facebook posts related to two incidents.

Businesses Should Look at “Cyber Accessibility” When Assessing ADA Compliance

The concept of “cyber accessibility” has recently gained prominence, as businesses have reviewed their obligations under the Americans with Disabilities Act (ADA). The term “cyber accessibility,” or “web accessibility,” refers to the accessibility of the world wide web and other internet services to people with physical or cognitive impairments. Congress enacted the ADA in 1990, when few people used the internet, and the world wide web barely existed. Today, web access is nearly a requirement for many functions of society. Recent legal actions, brought under the ADA to compel companies to make their websites more accessible, have the attention of the business world. Companies should begin to consider cyber accessibility issues as part of their ADA compliance reviews and their overall risk management planning. They should include provisions for accessibility in their internet policies, and they should make sure that programmers and designers have training in accessibility.

Cyber accessibility, generally speaking, means the accessibility of the internet to people with impaired sight, hearing, or speech; learning and other cognitive impairments; limited movement; sensitivity to light or sound; and combinations thereof. The internet has become a necessary tool for job seeking, financial management and transactions, and many aspects of the legal system. E-mail and social media are a preferred method of communication for many people, and many employers either require or strongly encourage employees to use e-mail and other online services.

What is an Employer’s Liability for an Employee’s Distracted Driving Accident? Risk Management in the Digital Era

“Distracted driving” has gained significant attention in recent years as a serious threat to public safety. The term refers to operation of a motor vehicle with attention divided between the road and a mobile electronic communication device, typically a cell phone. According to the U.S. Department of Transportation, around 3,092 people died in auto accidents involving distracted driving in 2010, and another 416,000 drivers, passengers, and pedestrians were injured. States and municipalities are cracking down on the problem, passing a variety of laws and regulations to restrict or prohibit distracted driving. Businesses must carefully consider their own liability for the actions of their employees, who may get into accidents while distracted. Knowledge of local distracted driving laws, combined with strong cell phone use policies, can help businesses prevent employee accidents and mitigate or avoid liability.

The legal doctrine of respondeat superior, which translates as “let the master answer,” holds that an employer may be liable for the actions of an employee, if the employee was acting in the ordinary course of business, performing the employee’s regular job duties. In interpreting this standard, courts have adopted a quite expansive view of what actions are within the scope of an employee’s job duties. Acts that have a reasonable relationship to an employee’s job duties, or that have an appearance that a reasonable observer would connect to the employee’s job, will often lead to employer liability under respondeat superior.

Intern Hazards

If you are considering hiring a free intern, there are a few points you should consider.  While interns were once considered a bonanza of free labor, employers are no longer free to enjoy this former Wild West of employment law.

According to a Lexology posting  (which came to me via my Association of Corporate Counsel email alerts), the US Department of Labor (“DOL”) has stated that the following criteria must be met for an internship to be exempt from minimum wage requirements in the Fair Labor Standards Act:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and,
6. The employer and the intern understand that the intern is not entitled to wages for the time spent at the internship.

The above listed requirements can be rather stringent.  And, whether or not you agree with them, it’s important to be aware of their existence.  The DOL, under the current administration, has become much more active as in the exercise of its powers as a regulatory agency.

If you have questions about a current or prospective intern at your organization, you should contact your attorney (or an employment lawyer) to discuss your specific situation.  It’s better to examine these things on the front end than waiting until after the regulators start asking questions.