Articles Posted in Labor

On May 18, 2016, the Department of Labor announced the publication of its final rule updating the overtime regulations (“Overtime Rule”) under the Fair Labor Standards Act (FLSA). The FLSA applies to “Covered Enterprises” as well as individuals. Covered Enterprises include businesses with annual sales or business of at least $500,000. However, hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies are “named enterprises,” meaning they are covered by the FLSA regardless of their total annual sales or business done. Under individual coverage, employees may be entitled to FLSA protection if they themselves are engaged in interstate commerce or in the production of goods for interstate commerce.

The Overtime Rule, both current and revised, applies to an employee of a CE unless the employee is “exempt.” The FLSA’s exemptions include ”bona fide” Executive, Administrative, and Professional employees as well as certain computer professionals and outside sales employees. The DOL’s revised rule will increase the number of employees that are not exempt from the Overtime Rule. The newly revised rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the revised rule:

1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);

It is often difficult to discern whether the employee’s conduct online-whether it be posting pictures, writing comments about the work environment or the employer, will constitute protected concerted activity. This determination will determine what actions, if any, an employer may take against an employee when s/he as posted online content, and more broadly, the cases which follow can allow an employer to craft legally permissible policies and handbooks.

No protected concerted activity:

For example, in Karl Knauz Motors, Inc., 358 NLRB 164 (2012), a BMW automobile dealership (the Respondent) discharged a sales representative for photos and comments that he posted to his Facebook page. The first post was about a sales event for a new model and included sarcastic comments about the quality of the food (hot dogs, chips, and bottled water) being served at a marketing event for a luxury automobile.

The second incident involved an accident at an adjacent dealership in which a customer’s 13-year old child was sitting in a vehicle’s driver’s seat when the vehicle accelerated over the customer’s foot and into a pond while the child was inside. The employee posted photos and comments mocking the incident on his Facebook page. A competitor told the Respondent about the posts and the employee was discharged. The Board determined that these comments and photos which led to his termination did not amount to protected and concerted activity under the Act.

Additionally, in Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the employer discharged an employee for her Facebook posts regarding work. After discussing nonwork issues with a private group of 10 current and former coworkers, the employee turned to the conversation to work and wrote: “They [the employer] are full of s**t…They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F***…FIRE ME…Make my day…”

The employer found about this posting the following day. It terminated her, stating that it was “obvious” she was no longer interested in working there and the employer was concerned about having the employee work with customers given her feelings about her job. The Board held that the employee did not engage in protected concerted activity and, therefore, the employer did not violate the Act when it terminated her employment. Although the postings referenced her work situation, her comments amounted to nothing more than individual griping rather than any shared concerns about working conditions.
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In a memorandum released in 2012, the National Labor Relations Board (“NLRB”) explained its position on various social media policies after having reviewed the policies of seven employers, finding six of them to contain unlawful provisions. The rules cited by the NLRB apply to private sector employers and employees, regardless of whether or not employees are members of a labor union. Based upon this memorandum by NLRB, a recent Employment Alert has suggested that employers review social media and other confidentiality, media contact, and employee conduct policies, regardless of how recently those policies have been reviewed.
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