I’m Still Here!

Hey, everyone! I will have a new post coming soon; I have been grinding out some actual legal work the past few days. You know, for clients. Who pay.

Anyway, I will have a flurry of posts up very, very soon (like tonight. ish.). Just sit tight, okay? Okay. Thanks.

To prove that I’m working hard, I’ve uploaded this webcam picture of me. Note the rolled-up sleeves and dedicated grimace.

- Tim

Friday Diversion #6: Oh, the Irony!

Today’s diversion comes from the mother of all joke sources: an EEOC press release.

Earlier this week, the Equal Employment Opportunity Commission announced that it had filed suit against a national employer for disability discrimination. I know, I know. On its own, that doesn’t sound funny at all.

But when the employer is the Scooter Store, that maven of mid-day TV “Medicare-will-pay-for-it” advertising, I’m sorry, that’s frigging hilarious.

After the title, though, the rest of the press release is not as entertaining:

The EEOC’s lawsuit … alleges that The Scooter Store failed to accommodate an employee’s request for a reasonable accommodation for his disability, psoriatic arthritis, after he sustained a knee injury that required a temporary absence from work. The EEOC’s suit states that the employee timely informed the company he was incapacitated until further notice and that he required a leave of absence to seek treatment for his disability. However, The Scooter Store refused his request and instead fired him, purportedly for job abandonment, although he had presented medical documentation.

What it is, of course, is ironic. And not just in the 1990′s pop music way. This is the classical literature, Greek Philosophy sort of irony. A disability store! Discriminating against a disabled person! And they make scooters! And his disability was a knee injury, which would potentially require a scooter!!

ARE YOU GETTING THIS?!  IRONY!

It’s entirely possible that I only think this is funny because I was an English major at Iowa, and had to debate what irony was with a bunch of Writer’s Workshop wannabes but the fact remains. Irony + Employment Law = Funny-to-Tim.

I thought about where I should link to a definition of irony, but they were all so boring. Then I remembered this graphic which explains the debate over the concept better than I’ve ever seen it. (Caution – There’s Cursing and Grown-Up-Style Drawings on this Poster). Here’s an excerpt:

Finally! The First NLRB Decision on Social Media Arrives

The NRLB has been making a super-huge deal about the rights of employees to use social media sites like Facebook to talk about their workplaces for what seems like forever. Until now, I have let my more prolific L&E blogging counterparts cover most of this news, waiting for an actual decision from the agency before I start bothering you about it. (They have done a great job of it, too – check out the book Think Before You Click, co-authored by many of the best L&E bloggers in the country.)

Well, friends, that day has finally come.

An administrative law judge in Buffalo, N.Y. issued the first decision analyzing a so-called “Facebook Firing” – a termination (or, in this case, 5 terminations) for posting about your employer on Facebook.

The facts are simple: The employer, Hispanics United, is a not-for-profit in Buffalo providing domestic relations and housing help to the needy. One of the workers in the domestic relations department had been critical for some time of the team that provided housing services. She made these criticisms through text messages, and had threatened to go to the director of the NFP with her concerns.

One Saturday, one of the housing employees posted the following on her Facebook wall:

L.C., a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?

Four of the employee’s coworkers responded, as did L.C., the critical employee, herself. There was a little war of words about how hard they work, and what-not. It reads like a spat. That’s about it.

The critical employee complained, and the director of the organization called each of the five employees into her office and fired them the following Tuesday. Incidentally, the director’s secretary, who also posted on the employee’s wall, was not disciplined.

The director said that the woman had had a heart attack because of the comments, and the company would have to pay her compensation. Neither of those things were proven at the NLRB hearing – and the ALJ doubted either was true.

The ALJ held that the comments were protected under Section 7 of the National Labor Relations Act, which gives employees the right to “engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The ALJ relied on previous NLRB decisions to determine that the employee’s posts were a collective attempt at preserving their jobs, and were a first step to acting against L.C., who they reasonably thought was out to get them in trouble with the boss.

The Takeaway

The big news here is probably going to read like common sense to most of you. If the ALJ’s decision stands, it will mean that social media communications are just like phone communications or water cooler communications. If employees talk to each other – regardless of the medium they use – that talk can be protected by the NLRA.

This isn’t really surprising, right? The whole concept of Facebook is to take something that’s been around forever – socializing – and give it a new platform. Well, turns out the same is true for labor law. So far, Facebook isn’t the source of some new precedent or legal issue, it’s just a new platform for classic protected communication.

The reason the Facebook firings are so noticeable is because unlike a water cooler conversation, Facebook leaves a paper trail. This is probably going to make Section 7 violations more common, for two reasons:

1. More violations of the law. The more employers see what their employees are saying, the more they will fire them for it.
2. Easier cases for the NLRB to win. When you can produce the actual employee communications, you don’t have to worry about the he-said-she-said issues surrounding actual water cooler conversations. Facebook = a whole lot more smoking guns.

What employers need to take away from the Hispanics United case is this:

Just because it’s more public, or preserved and readable on the internet, doesn’t make the chatter any less protected.

In fact, the fact that someone can point to the exact communication that caused them to get fired is all the more reason for you to run a termination or other disciplinary decision by your employment counsel before you pull the trigger.

Stay tuned, folks. This is likely the first of many social media cases to be decided in the next year or so by the NLRB. This one’s next step is a review by the actual Board, though I doubt they will change much of the ALJ’s decision this time around.