Articles Posted by Lisa Gingeleskie

Employees’ use of social media in the workplace can be harmful to employers both legally and from a public relations standpoint. It can decrease company morale in the event employees choose to use social media as a forum to complain about their employer. It can also be costly to employers, as it may result in a loss of productivity during work hours. The use of social media also poses a threat that trade secrets or confidential information will be disclosed, even if done so unintentionally. Given these risks, employers may find themselves inclined to discipline employees for engaging in social media in the workplace, particularly when the subject matter is adverse to the employer.

However, employers seeking to discipline employees for social media posts must consider the application of the National Labor Relations Act (NLRA) to this area before doing so. The NLRA protects the right of employees to exercise “Section 7 Rights,” which guarantees employees the right to self-organize, form, join or assist unions, collectively bargain for changes in wages and working conditions, and engage in other “protected concerted” activities. What constitutes protected concerted activity is relatively broad, but must involve a term or condition of employment (wages, hours, etc.) and must occur for the group’s mutual aid and protection (more than one employee). An employer commits a violation when it engages in conduct that reasonably tends to interfere with the free exercise of employee rights regardless of the employer’s intent. Thus, an employer that discovers through social media that employees are undertaking activities to change their workplace, even if adverse to the employer, must be mindful not to make a negative employment decision based on this information or risk being in violation of the NLRA.

Solution: Adopt a Clear Social Media Policy and Apply it Consistently to All Employees.

On May 11, OSHA promulgated a new regulation imposing additional reporting requirements on employers. All non-exempted employers are already require to report information on work related illnesses and injuries to OSHA on paper forms, however, the new rule requires that certain submissions now be made electronically.

The newly promulgated regulation establishes three different categories of employers and imposes different electronic reporting requirements on each. Those non-exempted employers with 250 or more employees at an establishment must electronically submit certain information from the three reporting forms established by OSHA: 1) Form 300 – Log of Work Related Injuries and Illnesses; 2) Form 300A – Summary of Work-Related Injuries and Illnesses; and 3) Form 301 – Injury and Illness Incident Report.

Non-exempted employers with more than 20 employees, but less than 250 employees at an establishment, and who are engaged in a business designated in Appendix to the new rule, are required to electronically file information from Form 300A. Employers in this category include, among others, construction and manufacturing industries and many retail operations, such as department and furniture stores.

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employee’s religious practices, including religious garments. In an 8-1 ruling, the United States Supreme Court recently decided an employer may be liable for religious discrimination if its hiring decision was motivated by the applicant’s possible need for an accommodation of religious garb. According to the Supreme Court, the applicant does not need to request or notify the employer of a need for religious accommodation for liability to ensue.

Facts: Samantha Elauf, a practicing Muslim, interviewed for a position in an Abercrombie retail store with Heather Cooke, the store’s assistant manager. Elauf wore a headscarf in the interview but never mentioned that it was part of her Muslim observance and that she would need accommodation for her religious garb.

Using Abercrombie’s system for evaluating applicants, Cooke gave Elauf a rating that made her eligible for employment. However, Cooke was concerned Elauf’s headscarf would conflict with Abercrombie’s “Look Policy” governing employees’ dress to ensure it is consistent with the image Abercrombie seeks to project. Under the Look Policy, employees are prohibited from wearing “caps” on their head. After Cooke informed the district manager that she believed Elauf wore her headscarf for religious reasons, the district manager noted that all headwear violated the Look Policy and directed Cooke not to hire Elauf.

To avoid the costs inherent in the employer-employee relationship, including employee benefits, workers compensation insurance, employment taxes and other liabilities, many employers secure the services of an independent contractor to avoid these liabilities.   There are significant risks with this approach, however.  An employer who misclassifies a worker as an “independent contractor” who, in the eyes of the law, is actually serving as an “employee” faces significant liability for unpaid overtime, employee benefits, payroll taxes, statutory penalties and other consequences.    To make matters worse, individuals who prevail on claims that they were misclassified as independent contractors are eligible for double damages and attorney fees from the employer.

Both at the state and federal levels, the courts have used various tests – applied to various legal contexts – to determine whether a worker should be classified as an independent contractor or an employee in the situation at hand.  While some tests result in a greater number of workers qualifying as independent contractors, the far narrower “ABC test” is widely regarded as a more difficult test for employers to meet when facing an independent contractor misclassification challenge.

On January 14, 2015 the New Jersey Supreme Court issued its opinion in , resolving some of the uncertainty by declaring the ABC test as the governing test to determine an individual’s employment status for purposes of wage-and-hour and wage-payment disputes under New Jersey law.