Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

USA TODAY reported that the life of a 16 year old New Jersey girl was saved as the result of a concerned woman in California. Jackie Rosas was following the blog of the NJ teenager for about a year, and noticed that her posts were often about depression.  Rosas saw a number of hurtful messages being sent to her through Tumblr.  On May 6, the 16 year old blogged that she was going to commit suicide.  Rosas called a local suicide hot line, who told her to call the police.  The police put her in touch with Officer Heather Olsen,a school resource officer at a local high school, but she did not recognize the girl's name. Olsen talked to the school's assistant principal, Karen Dimick.  Although they knew the girls name, they did not know where she lived.  Olsen and Dimick began researching the girls twitter account, and found a tweet from November where she said ow much she loved the USH marching band.  They found Union Township High School in New Jersey, and contacted the police in Union Township.  Lt. John Daubner of the Union Township police department confirmed that they sent officers to the girl's address, found her, and determined that she had taken enough pills to put her on a psychiatric hold. 

Practice pointer.  Although I often blog about the negative consequences of social media, this is a story of how one person can make a difference by using social media, and knowing what to do with the information.  Ms. Rosas is a hero for saving the life of a young girl over 3,000 miles away that she did not even know. 

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April 1 is over.  It was my birthday.  It was also April Fools' Day.  The problem is,  there are fools everywhere in the workplace, and it is a daily problem.  In this entry, I am going to pick some of my most recent favorite news stories demonstrating that stupid people do stupid things. 

Facebook posts get tenured teacher fired.  According to Michael Dell, with HRHero,  Ms. O'Brien taught for 12 years without a single problem in a school system in New Jersey.  In 2010, she was assigned to teach a first grade class of 23 students, most of whom were 6 and all were either Latino or African-American.  On March 28, 2011, she published on her Facebook page:  "I'm not a teacher-I am a warden for future criminals!" and "They had a scared straight program in school--why couldn't I bring [first] graders?"  2 days later, 2 parents appeared in the principals office, and numerous calls were made to the principal.  Later that day, about 20 protesters appeared at the school.  The following day, a number of media representatives appeared at school. During an administrative hearing, before an Administrative Law Judge, O'Brien testified that "she posted the comments because of her students' behavior, which included stealing from her and other students, striking other students, and, in one instance, striking her."  The ALJ removed her from teaching.  On appeal, the Superior Court of New Jersey, Appellate Division, held that her posts were not protected by the First Amendment, and that her "conduct had a tendency to destroy public respect of government employees and damage public confidence in the school system", and upheld her removal from her tenured position.

Single mom fired for selling Girl Scout cookies at work.  2 weeks ago, Fox news reported that Tracy Lewis, a single mother and a 28 year employee at American University in D.C. for food service provider, Bon Appetit, stacked GS cookies on a cart in the school's on-campus convenience store.  She was fired.  She said she was trying to sell cookies for her 12 year old daughter, and had done so for 3 years without any problems.  Her manager sent a letter to Lewis claiming that she committed "gross misconduct by soliciting...[and] operating a personal cash business selling Girl Scout cookies over the counter which violates company policy." 

Bi-Racial marriage leads to harassment.  Michael Myers, a white man, claims that he was fired by his employer after being subject to racial discrimination and harassment that began after he disclosed to a co-worker that his wife is black.  The lawsuit, filed in Oklahoma City, claims that after he told a co-worker that his wife is black, he was subjected to "racial slurs and offensive racial remarks regarding African-Americans approximately every one to two days" by the co-worker.  When Myers complained to management, he was terminated. 

April Fools' Day and more April celebrations.  According to Manpowergroupblogs, there are numerous celebrations scheduled throughout April that may impact the workplace.  Some of the more interesting ones are:  National Karaoke Week, Administrative Professionals Week, Don't Go to Work Unless it's Fun Day, National Be Kind to Lawyers Day and National Wear Your Pajamas to Work Day.  Of course, one of the days listed was made up, but the rest are real.  Please read them to believe them.

Whenever I give a speech on Social Media, I begin by saying that sometimes truth is stranger than fiction, and I cannot make these stories up.  The above are just some of the more recent examples of, as Forest Gump would say, "Stupid is as stupid does".  Enjoy. 

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Yesterday, the EEOC announced that it has launched a twitter account aimed at Hispanic employees and a You Tube channel.  Kimberly Smith-Brown, the EEOC's director of communications, stated that "Our Twitter en Espanol handle provides us with another tool to interact with the Spanish-speaking public and share with them helpful information about workplace discrimination....This is another example of the agency's commitment to remain accessible to the public and provide good customer service."  Twitter@EEOCespanol is now up and running, together with @EEOCNews for EEOC news in English.  The EEOC has also launched the EEOC You Tube Channel, which airs informational and historical videos in both English and Spanish. 

While the EEOC is busy launching social media sites, the Washington Post reported today that the sequester, if it continues, will impact EEOC employees by forcing furloughs.  The American Federation of Government Employees claims that employees will face furloughs of more than 8 days if the sequester continues through the end of the fiscal year.  The union claims that the furloughs will "cause the current backlog of workplace discrimination cases to grow by nearly 40 percent." 

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As we approach the end of 2012, but not the end of the world according to some interpretations of the Mayan calendar, some things are changing and some things are staying the same. The changes include:

IRS Mileage Rates for 2013.  For 2013, the IRS has established new mileage rates for use of a car:  56.5 cents per mile for business miles, 24 cents per mile for medical or moving, and 14 cents per mile in service of charitable organizations. 

Stupid People Do Stupid Things On Social Media.  In the aftermath of the tragic murders in Newtown, Al.com reported that Dakota Kent, a 21 year old Blount County man, was jailed for posting terrorist threats on his Facebook account.  What did he say?  "I am so irritated I could shoot up an elementary school", "I can't be the only one who thought that was @#%! funny", "[a]nd if you want to help the families get through this, send them a #@(ing 'I'm sorry your kid got shot card,' ", and  "[h]e used over 100 rounds and only killed 26.  They should just be lucky he was a bad shot."  What an idiot.

To prove that even lawyers do stupid things, in New Orleans, the United States Attorney, Jim Letten recently resigned his post.  Mr. Letten was the well respected, long standing U.S. Attorney who served through several presidencies, which is unusual.  What happened?  Main Justice reported that Sal Perricone, a Senior Assistant U.S. Attorney resigned earlier this year.  1st Assistant U.S. Attorney Jan Mann resigned earlier this week.  Why?  They were both caught editorializing, under pseudonyms, on NOLA.com about pending cases they were working on.  Both are possibly facing ethics charges and perjury charges as the result of testimony they gave to the court while investigating the allegations.  I would recommend reading this article so see how dangerous it can be to post on social media and/or blogs.

Trouble for the NLRB.  The U.S House of Representatives Committee on Oversight and Governmental Reform issued a report on December 13 entitled "President Obama's Pre-Union Board:  The NLRB's Metamorphosis from Independent Regulator to Dysfunctional Union Advocate."  This 33 page report finds that "...[T]he NLRB appears to be sacrificing fairness to 'job creators' in order to promote pre-union polices.  To make matters worse, its leadership disregarded ethics and internal rules along the way."  Very strong language.  The report levels multiple charges against the NLRB, including internal communications deemed to have a pro-union bias, allegations of financial conflict of interest with former board member Terence Flynn and acting General Counsel Lafe Solomon, and rushing to issue 2 substantive rules in 2011 that ignored past precedent.  These rules required employers to post a notice of employee's rights under the NLRA and changing the procedures for union organizing elections.  To make matters even worse for the NLRB, on December 12, just one day before this report was released, the Board overturned 50 years of precedence when it ruled, in a 3-1 decision, that a dues checkoff provision will survive the termination of a collective bargaining agreement.    

 EEOC Approves Strategic Enforcement Plan.  As part of it's overall strategic plan for 2012-2016, the EEOC recently approved it's Strategic Enforcement Plan (SEP).  According to it's press release, the SEP identifies 6 national priorities as the focus of this integrated enforcement effort:

     1.  Eliminating barriers in recruitment and hiring.

     2.  Protecting immigrant, migrant and other vulnerable workers.

     3.  Addressing emerging and developing employment discrimination issues.

     4.  Enforcing equal pay laws.

     5.  Preserving access to the legal system.

     6.  Preventing harassment through systemic enforcement and targeted outreach.

It will be interesting to see how the EEOC follows up with their SEP.

I hope everyone has a Joyous Holiday Season and a Happy New Year!  I will be back next year with more.

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TWEETING AND ALCOHOL DO NOT GO TOGETHER.  According to USA Today, Kimesha Jackson is the promoter/event coordinator at Privae, a high end, popular nightclub located in Dallas.  This past Friday, she tweeted that there were 12 Dallas Cowboy football players in the club, and that alcohol was flowing.   "I have 12 Cowboys in the theeee building!!!!".  According to another tweet,  "These fools are buying Ace on top of Ace!!!!" Ace is believed to be Ace of Spades, a champagne that is often consumed by celebrities and is popular on the night club circuit.  One of the players present was Jerry Brown, who died when the car he was riding in crashed.  That car was driven by teammate Josh Brent.  Brent has been arrested and charged with intoxication manslaughter.    Earlier this year, Jackson tweeted "And the special orders these NBA players are *STILL* putting in for tomorrow...craziness! ACE.ACE.ACE. #PRIVAE SOLD OUT since Monday!"  She also tweeted earlier this year that "The bottle requests that are flooding my texts rgt now...Glad we keep a crazy stock of Everything!  Ace on deck! #NFLtakeover #PRIVAE".  Now, the state is investigating whether alcohol was "served to somebody who was intoxicated, which is illegal in Texas," a spokeswoman for the Texas ABC Board said. 

Practice pointers.  So, what are the potential ramifications of the tweets?  Will Ms. Jackson lose her job?  Will Privae lose their liquor license?  Will Privae be sued by Brown's estate for serving alcohol to an intoxicated patron, resulting in his death?  If employees are tweeting, or using other social media to promote a company, the company should be aware of what is being said and make sure that it is not detrimental to the very existence of the company itself. 

DEFAMATION LAWSUIT FILED FOR BAD REVIEW.  The Pittsburgh Post Gazette reports that Christopher Diaz, a Washington, D.C.  home contractor has filed a suit against Jane Perez as a result of Perez posting  negative comments on Yelp.  Perez "listed a number of accusations , including damage to her home, an invoice for work the contractor did not perform and jewelry that disappeared."  One  post ended "Bottom line do not put yourself through this nightmare of a contractor."  Dietz filed a $750,000 lawsuit, as well as a request for an injunction prohibiting Perez from posting any more reviews of his business.  He alleges that customers fled from him, and he lost over $300,000 of business.  Perez, a retired captain from the military, is now facing a large of amount in legal expenses in defending the lawsuit. Although she removed the posts because they came up first on a google search, she is standing by her reviews.  According to the article, there was a $1.6 million verdict in California against a blogger who accused a company of stealing money from business associates.  Also, a woman in Florida obtained  a $11.3 million verdict against a woman who called her a "crook' and "con artist" in an internet forum.  I am also familiar with other verdicts in the the hundreds of thousands of dollars in Georgia and Texas.

 Practice pointer.  Be careful what you post on line.  Even if posted anonymously, there are ways to determine who posted it.  Defamation is defamation, whether it is spread by word of mouth, in the newspaper, or on the internet.  I expect to see more of these cases being filed in the future.

DON'T SURF THE WEB AND WALK AT THE SAME TIME.  Closer to home, AL.com reported that UAB, using part of a $1.3 million NIH grant, found that crossing the street while surfing the web made it twice as likely that you would be hit or have a close call as when you crossed the street without a distraction.  Using a virtual cross-walk in a UAB laboratory, students crossed with no distractions, and then crossed using their cell phones while surfing the web.  With 92 participants, the study found that when surfing the web, their eyes were off the road 60% of the time, while their eyes were off the road less than 1% of the time when they weren't distracted.  I would imagine that similar results could be found when surfing the web while driving, riding a bike, or other activities that need your attention.  Be careful when using your phones when you shouldn't be. 

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Over the past several years, I have often mentioned the Kravitz case when I have spoken about Social Media, Policies, and the ownership of Social Networking sites.  A brief history:  Kravitz worked for PhoneDog, and his twitter account was @phonedog.  He left, and changed the account to @noahkravitz.  He took the 17,000 followers with him.  PhoneDog had no policy about ownership of the Twitter account.  After Kravitz left, PhoneDog sued him, seeking damages of $2.50 per follower, per month, or $34,000 per month.  According to Daily Dot, the case recently settled, with the terms not being disclosed.  The Daily Dot speculated that the reason for the settlement may be that a year ago, PhoneDog had 15,000 followers, and this has increased by 12,000 over the past year.  During the same time, Kravitzs' followers have grown from 22,000 to 23,000.  Kravitz did tweet that "We have reached an agreement" and "I'm like a honey badger in a hurricane".  Although the details of the settlement could not be confirmed, Daily Dot quoted Mashable that noted "it sounds like no money is changing hands for Twitter followers."

Practice pointers.  It is important for companies to have policies in place about who owns social networking accounts when they are used on behalf of the company.  PhoneDog did not have any, and the result was an extended legal battle.  Although no money may have changed hands as the result of the settlement, it is safe to say that the real winners were the attorneys, who were probably paid a large sum for fighting the fight.  A simple policy that the Twitter account was owned by PhoneDog would probably have prevented the need for litigation.  As we approach the new year, now is a good time for companies to review and revise their policies and procedures, to bring them current with the existing business and legal environment. 

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Brian Downing is the University of Alabama fan who was in New Orleans for the most recent Alabama Championship game. Unfortunately for him, he went into a Krystal restaurant on Bourbon Street after the game, and placed his genitals on the head/neck of a drunk, passed out LSU fan. Of course, someone with a video camera caught it all on tape, and it went viral on the Internet. Downing was originally charged with more serious crimes, but agreed to plead guilty to 2 charges of obscenity.The guilty pleas allowed Downing to avoid registering as a sex offender. Today, the court sentenced him to 2 years in jail. According to NOLA.com, the judge stated that he was a bully, and that "You chose wisely to enter into this pleas bargain. The actions that you took on January 9 of this year were morally reprehensible, and there's no way around it."  I have often used this story to warn those of the dangers of social media.  if you don't want someone to see you doing something, don't do it.  There is a good chance that someone will catch it on camera, and you could be the next Mr. Downing. 

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Facebook Photos Defeat FMLA Interference and Retaliation Claims.  Sara Jaszczyszyn worked for Advantage Health Physician Network as a part-time clerical employee.  During the employment process, she disclosed that she had a prior back injury related to a car accident which required two surgeries.  She stated she had not had any recent back problems, and passed a pre-employment physical.  She was promoted to a full time position in the HR department, and then was transferred to a customer service representative position.  After 9 months, her back pain got worse, and her doctor took her off work for an 8 day period ending September 7.  Advantage recommended that she fill out FMLA paperwork, and placed her on intermittent FMLA leave.  On September 22, her doctor submitted another Certification, indicating she would not be able to work from September 10 to October 5, and later continued the time off through October 26.  On October 3, while she was "totally incapacitated" per her doctor's certification, Ms. Jaszczyszyn spent 8 hours at a local Polish Festival, consuming adult beverages.  Of course, she posted pictures of herself at the festival, and left her supervisor several voice mail messages stating that she would not be be able to be at work on October 5 due to her pain.  A co-worker notified her supervisor of Jaszczyszyn's adventures, and the incident was reported up the chain of command, including a consultation with Advantage's counsel.  After conducting an investigation, including interviewing Zsazsa's, Advantage terminated her employment based on fraud.  She sued alleging FMLA interference and FMLA retaliation.  The 6th Circuit held that in order to prove a retaliation claim, plaintiff must prove intent to discriminate, and she failed to do so.  The Court further found that intent is not a necessary element of the interference claim, and Advantage's "Honest Belief" in the justification of it's decision would defeat an interference claim. 

Practice Pointer.  As usual, the facts of this specific case determined the outcome.  Of critical importance was the fact that the employer conducted an investigation after it learned of plaintiff's conduct as found on her Facebook page.  This gave plaintiff an opportunity to explain what happened, which she could not do.  As such, Advantage had the legal right to terminate her.  Without an investigation, the result may have been different.

Cumberland School of Law's 19th Annual Employment Law Update.  I am fortunate to be able to present at this seminar, to take place this Friday, November 16.  I will be on a panel with Magistrate Judge John Ott and plaintiff attorney Heather Leonard on the topic of"Sex, Drugs & Rock-n-Roll:  The Impact of Social Media in an Employment Case from Start to Finish".  Other topics include Alabama's revised immigration law, employment issues in state court, "Hot Topics" (FLSA, Title VII, NLRB) and Ethical Dilemmas for Litigators during Discovery and Trial.  It is not too late to register:  you can visit Cumberland's CLE page for more information and to register. 

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Last week, I attended the 6th Annual American Bar Association's Annual Labor and Employment Law conference.  It was attended by lawyers from around the world, and focused on the current state of labor and employment law and what the hot topics of today and the immediate future.  In no particular order, here are some of the topics talked about:

1.  The National Labor Relations Board has been very active pushing it's agenda, and focusing on policies and procedures.  Remember that the National Labor Relations Act provides protection to employees who engage in protected concerted activity as it relates to the terms and conditions of employment, in both union and non-union settings.  The NLRB has recently addressed polices concerning social media, at will employment, and the confidentiality of investigations as the result of allegations of harassment and discrimination.

2.  Retaliation charges filed with the EEOC are now number one in that 37% of all charges filed contain allegations of retaliation.  This is a higher percentage then race and sexual harassment charges.

3.  The Fair Labors Standards Act continues to account for a great deal of litigation, both for overtime and misclassification of workers as either exempt or as independent contractors.

4.  The improper use of computers can lead to both criminal and civil liability under the Computer Fraud and Abuse Act, the Electronic Espionage Act (criminal only), the Electronic Communications Privacy Act, the Stored Communications Act, and various state laws.  The local U.S. Attorneys' office has a Computer Hacking and Intellectual Properties (CHIP) lawyer, and can be contacted should there be any issues.  You can visit Cybercrime.gov, for more information and resources from the Department of Justice.

5.  The EEOC continues to be busy, but like most governmental agencies claims a budget shortfall.  The EEOC will continue to be active in issuing regulations and enforcement guidance, but will be more selective when filing lawsuits. According to one of the attorneys for the EEOC, they are "trying to push the envelope" in certain areas, including same sex harassment, gender stereotyping, and in the LGBT arena.

6.  Social Media continues to raise concerns in the workplace.  In the U.S., 163 million people, or 53% of the population, use Facebook.  Globally, there are over 1 billion users of Facebook, and there are 2.5 billion posts a day.  There is an average of 3,000 tweets a second, with the record being set during the last presidential debate, with 100,000 tweets per second. The use of other SM sites continues to grow.  

7.  Workplace bullying, both in person and cyber-bullying is growing.

Practice pointer.  As we approach the end of the year,  now is a good time for employers to review and/or have an audit done of their policies and procedures, and revise them as necessary to comply with the changes that have occurred over the past year.  Make sure there is proper classification of employees for FLSA purposes, that the NLRA is not violated, and that other policies are current and up to date.  Now is also a good time to train all workers, including supervisors, on various employment related issues, including harassment, discrimination, social media policies and other workplace rules and regulations. 

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Voting Laws in Alabama.  As we all know by now, election day is Tuesday, November 6.  What do the laws of Alabama require Employers to do for their employees?  ALL Alabama employees are entitled to take no more than one hour of leave to vote, if the employee is registered to vote.  It is important to note that the polls are open from 7:00 a.m. to 7:00 p.m., and the leave is NOT required if the employee is not scheduled to begin work within 2 hours of the polls opening, or end work within one hour of the polls closing.  Any employee wishing to take this leave must give reasonable notice, and the employer may set the hours for which the employee may leave to vote.  Finally, any Alabama employers with more than 25 employees are legally obligated to permit any employee who is a  properly appointed election official to take leave on election days to perform their election duties.  No matter who you may vote for, remember to please vote!!!!

Service Dogs and the ADA.  In another one of those I can't make this stuff up stories, the owner of Billy Bob's Beds allegedly kicked an Iraqi war veteran, who helped with the capture of Saddam Hussein, and his service dog out of his San Antonio, Texas mattress store, and told him to "go occupy Wall Street".  According to the NY Daily News, a lawsuit has been filed by Adan Gallegos, a disabled veteran, after he, his service dog, Bootz and another family member went to Billy Bob's to pick up a pre-purchased mattress and were kicked out.  According to the suit, the store owner became irate when he saw the dog because the store has a no-pet policy.  After Gallegos tried to explain about the service dog, the owner said "No one could make him do anything in his own building".  Gallegos has suffered from depression, PTSD and other emotional conditions linked to combat after returning home.  Billy Bob had offered a free mattress to Gallegos and a specially sized mattress for Bootz to drop the claim.  Billy Bob's lawyer is quoted as saying "My client regrets the way things occurred', Billy Bob was not aware of the governmental regulations and that he is a small business owner with 8 employees who need their jobs. 

Practice pointer.  Service dogs and other service animals are allowed to enter businesses pursuant to the Americans With Disabilities Act.  Refusal to permit legitimate service animals can result in expensive and time consuming litigation and very bad publicity. 

 Homewood Police Officer Fired for Inappropriate Text Messages.  According to Al.com, 46 year old Mike Jackson,a 15 year veteran and Homewood's 2010 Officer of the Year, is appealing his termination after being fired for sending inappropriate texts to an 18 year old woman.  He stopped the woman on August 8, 2012, in Homewood, and his dash camera was turned off as the car pulled over.  The traffic stop was not listed on his daily report, and there was no record of him calling dispatch.  The woman told authorities that he stopped her for no reason, except to talk to her.  She started getting texts from him, asking if she would meet him at a restaurant, calling her sexy and that he saw her pictures on facebook and she was "gorgeous".   After she complained, she received a text from Jackson asking her to call him.  She called, and she says he begged her to "vouch for him and to say he didn't pull her over for no reason".  Jackson was terminated on September 24.  Jackson claims that the incident was a pretext for firing him due to his age and disability, alleging that younger officers and non-disabled officers have committed worse infractions without being terminated.  He is also claiming that his due process rights were violated because he was not interviewed during the investigation, and he was not allowed to question any witnesses or present his own witnesses.  Jackson is appealing his termination to the Jefferson County Personnel Board.

Practice pointer.  Always be careful when using any type of electronic communications: text, email, social media (FB, LinkedIn, YouTube, etc).  What you say or do can get you fired, arrested or even worse.  Assume that anything sent via electronic communications will be made public. 

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Sexting at Mountain Brook High School.  Yesterday, Al.com reported that the Mountain Brook, Alabama police are investigating multiple complaints into "sexting" at Mountain Brook High School.  Carol Robinson reported that MB police were advised by school officials that they had "developed issues with sexting".  MB police stated that the investigation involves juveniles.  Sexting is sending sexually explicit messages or photographs, usually between cell phones.  If charged and convicted, individuals who sext photographs of minors may be guilty of production and/or possession of child pornography, which can result in being required to register as a sex offender. 

Practice pointer.  I have had the opportunity to speak to college students in the past, and next month I will be speaking to high school students on behalf of Girls Inc. concerning the dangers of the internet/social media.  Sexting is one of the topics I cover:  most of us have done some stupid things in our lives, but when I was growing up and in college, there were no cell phones and no internet.  Now, a stupid stunt can get someone arrested, and if it involves sexting, especially with a minor, can result in being branded a sex offender for the rest of ones life.  For those readers in north Alabama, I will be speaking on social media on behalf of Sterling Education Services on November 8 in Huntsville.  If you are interested in attending, you can register here.

New Child Labor Law Poster Required in Alabama.  Effective October, 2012, the Alabama Department of Labor has mandated a change in the Child Labor poster, updating recordkeeping requirements for employers and changing an address and phone number.  New posters should be in place by month's end. 

Growing Businesses and Employment Laws.  An informative article appeared in the Journal of South Mississippi Business that serves as a reminder for growing businesses to comply with federal employment laws.   The article notes that as a business grows, different laws apply.  Title VII of the 1964 Civil Rights Act and the Americans With Disabilities Act apply when the number of employees on the payroll reaches 15, the Age Discrimination in Employment Act applies at 20, the Family Medical Leave Act at 50 and the requirement to file an EEO-1 report kicks in at 100. 

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Facebook hits 1 Billion Users.  When Facebook had it's IPO in May, it reported that it had 845 million monthly active users.  Today, Mark Zuckerberg reported that FB hit the 1 Billion mark for monthly active users, 1/7th of the world's population.  In May, it was also reported that FB had 2.7 billion likes/comments a day, 250 million photos uploaded on a daily basis, 100 billion "friendships" and 9.7 billion minutes a day were spent on FB.  These numbers have grown since May.  In comparison, as of June, Twitter had 500 million accounts, with over 100 million tweets a day, YouTube had 200 million views a day, LinkedIn had 150 million users and interest was growing in other SM sites, including Tumblr, PInterest and 4Square.

NLRB Rules on Termination of Salesman.  Over the past 1 1/2 years, I have spoken many times and have always mentioned the case of the car salesman in Illinois who was fired after 2 posts on FB. The salesman had posted critical comments about a sales event:  hot dogs were not good enough for the customers attending a large sales event at the BMW dealership he worked for.  He was compensated in part on customer satisfaction surveys as well as the number of sales he made.  He also posted pictures and comments around the same time about a vehicle accident at the adjoining Range Rover dealership, also owned by the same company who owned the BMW dealership.  He was terminated after these posts were discovered by his employer.  An Administrative Law Judge found that the comments about the sales event were protected concerted activity under the NLRA and he could not be terminated because of this.  However, the ALJ also found that the posting about the Range Rover accident was not protected concerted activity, and thus found his termination was lawful.

Practice Pointer.  The NLRB has been taking a very strong stance about policies and procedures involving the use of social media, and will continue to do so under the current administration.  All companies should review their social media policies and procedures to ensure compliance with the NLRA.  Because this is a very complicated, complex and nuanced area of the law, companies should consult their legal counsel in implementing and/or reviewing their SM policies.

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FLSA continues to be a problem for employers. 

The Harvard Club (not affiliated with Harvard University) is an exclusive club in Boston with approximately 5,000 members.  When a member orders drinks or food, a 17% gratuity is added to every bill.  The club has a no-tipping policy.  The staffers make more than most hospitality workers.  State law provides that when a customer pays a "service charge", the customer would reasonably expect the money to go to the server in lieu of a tip.  In reality, the servers were not given the 17%.  The waitstaff sued the Harvard Club, and a settlement has been reached, pending court approval.

Meanwhile, in Alabama, there have been numerous lawsuits (although I have not counted, I would guess at least 100) against Honda Manufacturing.  These individual lawsuits are all claiming violations of the FLSA.  The time and expense that will be incurred in defending these lawsuits will be enormous.  FLSA cases continue to be among the most common filed in Federal court. As we are about to enter the fourth quarter of 2012, now is a good time for employers to review the classification of their employees and make sure they are being properly compensated.

Twitter leads to arrest and indictment of Birmingham man.

 Another stupid social media update.  According to Al.com, Jarvis Britton of Birmingham apparently tweeted, on June 28, "Free Speech? Really?  Let's test this! Let's kill the president".  Later that same day, he tweeted "I'm going to finish this, if they get me, they get me! #ohwell.  I think we could get the president with cyanide.  #MakeitSlow".  On June 29, he allegedly tweeted "Barack Obama, i wish you were DEAD!".  Secret Service agents met with him to advise him as to the seriousness of what he did, but no further action was taken. On September 14, Britton allegedly tweeted "Let's kill the president. F.E.A.R.".  He was arrested last week, and was indicted this week for threatening the life of the President. Another instance of stupidity with social networking. 

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According to the Wall Street Journal, in New York City, Malcolm Harris, an Occupy Wall Street protester, was arrested at a protest on the Brooklyn Bridge where over 700 people were arrested.  He was charged with tweeting false information to incite the protesters to show up.  Harris stated that he deleted some tweets in order to preserve his most important ones should he exceed his capacity.  The District Attorney subpoenaed Twitter, seeking information about Harris’ Twitter account, and Twitter vigorously objected to and fought the subpoena.  Both Twitter and Harris believe that it is the users, not Twitter, who are responsible for their posts, and Twitter should not have to respond.  Judge Sciarrino ordered Twitter to respond to the subpoena.  Harris filed a separate lawsuit claiming that Judge Sciarrino’s order was improper, and a ruling is expected on that suit on September 21.  In the meantime, Judge Sciarrino threatened to find Twitter in contempt if they did not respond.  Twitter responded by submitting to the court, under seal, the information that had been subpoenaed, including messages and IP addresses.  Judge Sciarrino has stated that he will keep the contents sealed until the ruling on September 21.  If no stay is issued in the other lawsuit, Judge Sciarrino "will spend my birthday, Sept. 22, reviewing the documents."

This case is being watched around the country, by the providers of Social Media sites who are very concerned about the privacy of their users.  It is important to keep in mind that this is a criminal case, and the outcome most likely will not have an impact on civil cases.  This is the first time that a court has ordered the production of this type of information, not through a search warrant, but rather through a proscutor's subpoena.   However, with more and more criminal agencies issuing subpoenas to SM sites, this case, after the appellate process is over, will help provide the roadmap for how SM hosts will respond

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Over the past week, I have had the opportunity to read several very interesting articles.  The first two deal with social media, and the third deals with social media, perfume and the ADA.

Last week, Roy Williams with the Birmingham News published a story about wasted time in the workplace entitled "Chit-chat Wastes More Time Than Social Media".  A workplace study performed by TrackVia found that "computer glitches and water cooler chit-chat are the biggest causes of distraction in the office."  14% of the workers surveyed said chatting with co-workers was the biggest waste of time, followed by 11% who said dealing with computer software problems was the biggest waste of time.  Less than 5% claimed social media was their biggest waste of time.  The TrackVia study found that 15% of employees spent 2-3 hours a week addressing miscommunications with co-workers, while 7% said they spend 3 or more hours doing this.  17% reported spending 1-2 hours a week dealing with office politics, while 7% said they spent 3-5 hours a week on office politics.  Another 7% said they spent 6 or more hours a week on office politics.  Among those who attend meetings, 37% felt half their time in meetings was wasted.  Mr. Williams talked to Samford Professor Cynthia Lohrke, who noted that TrackVia's study "wasn't an unbiased survey" since TrackVia makes cloud based application platforms for businesses and would promote the use of social networking.

Sarah Wenger with Open-Site.org recently published an infographic  on her web site concerning the power of social media. Entitled "Power to the Online People", she gives some interesting statistics and observations about the size, power and timeliness of social media in today's world.

Practice pointer.  Social media continues to play a large role in the workplace.  The proper use of SM can be a great benefit to any employer.  Likewise, the improper use of SM can cause a great many problems.

Excessive Perfume Leads to ADA Lawsuit.    Pamela Core suffers from severe asthma and a severe chemical sensitivity to certain perfumes and scented products.  In 2008, while employed by the Illinois' Champaign County Department of Job and Family Services, a co-worker came to work wearing Japanese Cherry Blossom perfume, which caused a severe allergic reaction.  She complained to her bosses to no avail, and she had to have emergency medical treatment as a result of her exposure to Japanese Cherry Blossom perfume.  Upon her return from medical leave, a number of her co-workers made fun of her chemical sensitivity on Facebook.  Two of the co-workers specifically wore Japanese Cherry Blossom perfume to work.  After her bosses receivied information from her medical provider, an email was sent to her co-workers requesting that they only communicate with Core via phone or email.  Her condition got worse, and she was forced to take medical leave.  Pursuant to the ADA, Core asked to work from home as a reasonable accommodation.  This request was refused, but they did ask employees not to wear the Japanese Cherry Blossom perfume.  Core asked that there be a ban on all scented products in the workplace, but this request was also denied.  Core sued under the ADA alleging that the Department of Job and Family Services failed to accommodate her disability.  The Court refused to dismiss the case, finding that the request for a fragrance-free workplace was not unreasonable.  Part of the Court's logic was the failure to reprimand the employees who intentionally wore the perfume.

Practice Pointer.  This is a good case showing how SM, Facebook, can be a part of, or even result in a lawsuit being filed.  All employers who are subject to the ADA have an obligation to reasonably accommodate a person's disability: this may include working from home or even providing a fragrance-free workplace. 

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I have heard of strip poker, strip beer pong (yes, I have 2 sons, one who graduated college last year and another who is a senior in college now), and crazy versions of Twister.  But until yesterday, I had never heard of strip billiards.  Thank You Prince Harry. 

I have spoken a number of times at UAB, to both the Social Media class as well as a fraternity.  I always give two very strong warnings:  First, no matter where you are, if there are other people with you, you may be photographed with a cell phone camera.  Second, when you are with other people, don't do anything that you would not want your mother to see.  Prince Harry failed miserably, and the Queen Mother is not very happy now. 

Prince Harry was in Las Vegas, in a private $8,000 a night suite, playing strip billiards with a number of other people.  A person who was there took photographs with his/her phone camera.  As the New York Daily News  reports, he was seen holding his crown jewels and also hugging an equally naked women.  What happens in Vegas does not necessarily stay in Vegas.

The lessons to be learned?  No matter who you are, you are subject to having your photograph taken at any time.  If this happened to someone who was not a Prince, there is a good likelihood he/she would lose their job.  If this happened to someone in the US military, there is a good chance they would be discharged, or at least severely punished.  Luckily for Ryan Lochte, the US Olympic gold medal swimmer, he knew better than to go to the party.  He was also in Vegas, and Prince Harry asked to meet him, which he did.  The Prince asked Ryan to come up to the party, but he refused.  Maybe he remembered Michael Phelps, after the 2008 Olympics, when he was photographed sucking on a bong on a college campus.  Be careful out there!

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Recently, I wrote about a logger who got bit by a rattlesnake and had his workers' compensation claim denied.  This week, we switch gears to talk about exotic dancers and their misclassification as independent contractors.  Karenza Clincy, with other dancers, sued the Onyx, an adult club in Atlanta for wage and hour violations:  i.e. seeking minimum wage and overtime.  Ms. Clincy and her co-workers danced, in the nude, in an exotic fashion.  According to TLNT some of the pertinent facts are:

     * Nude dancing is featured at Onyx

     * Dancers on the main stage are visible throughout most of the club

     *  The dancers are assisted by "House Moms" hired by the club

     *  Rules of the house are provided to dancers in a "Dance Packet"

     * The adult entertainment licenses are paid for by the dancers

     *  Onyx is paid a fee by the dancers

     * The money thrown on stage by the customers is divided evenly between the dancers and the house gets a cut

     *  Dancers have limited discretion over scheduling and are fined for missing work or violating certain house rules.

TLNT sums up the finding by the court  holding the dancers are employees, not independent contractors, by quoting from the Overtime Law Blog as follows:

     "However, based on evidence that the defendants set the prices for tableside dances and how much of their gross receipts dancers were required to turn over in the form of "house fees" and disc jockey fees, as well as the fact that the defendants set specific schedules for the dancers, created rules of conduct (subject to discipline), check-in and check-out procedures and otherwise controlled the method and manner in which plaintiffs worked, the court held that the defendants were plaintiffs' employers under the FLSA."

The entire order entered by Judge Story can be read here. For a very funny, clean and explanatory video see YouTube.  Although I do not know the terms of the settlement, the case was resolved in June, 2012. 

Practice pointers.  Although Judge Story entered his order last year, the facts of this case can be instructive for any business.  If the employer controls the time and manner of work, the worker is an employee, not an independent contractor, no matter what you call them.  This is a very complex and fact specific area of the law, there continue to be many cases filed in Alabama alleging violations of the FLSA.

Social Media Update.    BirminghamMedicalNews.com is a website that refers to itself as "your primary source for professional healthcare news."  They have a blog, and I was asked to submit an entry on the impact of social media in the medical profession.  The blog entry can be viewed here.  The lessons learned in the medical profession apply as well in any work setting.  People continue to do very stupid things on social media sites, and their conduct can have an adverse impact on their employment status. 

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Earlier this week, I gave a presentation on the dangers of social media in the workplace.  As an aside, Roy Williams with the Birmingham News wrote an excellent story on this same topic on Wednesday, June 20.  One example I used was that of Brian Downing.  He is the Alabama fan who was in New Orleans for the BCS National Championship game earlier this year.  He went to a Krystal's, and there was a passed out LSU fan present.  Downing pulled out his genitalia, and rubbed it in the face of the passed out man.  Unfortunately for Downing, someone videotaped this incident, and he was arrested and charged criminally.  If convicted, he could be forced to register as a sexual offender for the rest of his life.  He also lost is job as a result of this incident.

Of course, no one else would ever do this.  Wrong.  Jason Shinn, in the Michiganemploymntlawadvisor posted an article last week detailing a member/guest golf outing at the Piedmont Driving Driving Club in Atlanta. The Piedmont Driving Club is 125 years old and calls itself  "one of the most prestigious private clubs in the South." Mr. Shinn attached a letter sent to the country club by a member setting forth numerous misdeeds, including "a golfer playing the 14th hole completely naked; a golfer demonstrating his skills picking up golf balls with his naked butt cheeks....a member passed out in the men's grill which prompted another member to reach into his pants, pulling out a certain club, and repeatedly slapping the passed out member over the head...one or more of the members deliberately exposing themselves to a female caddie while urinating on the greens and...several members mooned the attendees at a wedding rehearsal dinner that was taking place..." that evening.  Many legal problems come to mind in reading about this story:  criminal conduct in exposing themselves to a female caddie, pulling a "Downing" by hitting another member with genitalia, sexual harassment, attributable to the employer, if they know or should have known about the conduct and failed to take immediate and appropriate corrective action, public intoxication, indecent exposure, DUI (I am sure some of these people drove themselves home) and assault.  I would recommend reading Mr. Shinn's post:  it is a good one, especially for a Friday.

Practice pointer.  When I used to play golf, I participated in a number of tournaments, although not very well.  There was drinking, boorish behavior and inappropriate conduct, but nothing like what happened in Georgia.  The lesson to be learned, however, is that at any corporate outing, whether on the golf course, fishing trip, restaurant, or any where else, improper and illegal conduct can lead to civil and criminal liability.  A good time can be had by all without resorting to these kinds of antics. 

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I had an interesting interview with Marissa Mitchell with ABC 33-40 this morning.  She is doing a report for Focus@4 about what happens to FaceBook and other virtual and digital assets after you pass away.  So how does this impact the employment world?  Everything a business does on line, and even off line with laptops/desktops, needs to be accessible if the person controlling the virtual or digital asset passes away or becomes incapacitated.  On-line banking accounts.  Investment accounts.  Email accounts. Contact lists.  LinkedIn accounts.  Twitter accounts. EBay accounts.  Photo storage accounts.  Who owns them? Who has access to them?  How do the terms of use control access?  For example, FaceBook allows an account to be placed in a "Memorial State" upon death.  Certain portions of the profile section remain hidden, you cannot log onto the account, confirmed friends may leave a message, and a family or friend with administrative rights can manage the tributes.  Twitter provides for permanent backup or complete account deletion.  LinkedIn allows the account to be closed upon notification of death and verification of death.  Blogs and Websites may have copyright protection.  The value of a blog, twitter account or domain name may have significant value:  my blog is not worth much, but what about a blog written by Neil Zuckerburg or Lady GaGa?  A music library may be worth a significant amount of money if there are thousands of songs on it.  Are the company tax returns kept on a laptop/desktop? If so who as access to them should the owner pass away or become incapacitated?

Email accounts are also controlled by the Terms of Use.  For example, Yahoo considers the account to be private property, and will not provide access without a court order.  In 2005, the father of a US Marine killed in Afghanistan wanted access to his son's e-mails:  Yahoo said no.  After  a court battle, the judge ordered Yahoo to provide the information to the father.  Yahoo did so, but maintained that it did so only because of the court order, and it would not voluntarily do so in the future.  GMail automatically deletes after 9 months.  They will provide, with appropriate proof, a CD with complete contents, including contacts and emails.  Hotmail has the same policy. 

Practice Pointer.  Having a Virtual Asset Instruction Letter (VAIL) can help control what happens to virtual or digital assets should the owner pass away or become incapacitated.  Account names and numbers, passwords, answers to security questions and user names are all needed to gain access.  A power of attorney for those incapacitated, or a will for those who pass away, can address these issues.  This is an important component for the continuity of any business should the worst happen. 

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Several mid-week updates on a variety of topics.

IMMIGRATION. 

     The U.S. Supreme Court is hearing oral argument on Arizona's immigration law today.  Their opinion(s) are expected in several months.  I will update you on this topic once a decision is rendered. 

     In the meantime, the Alabama Legislature is working on potential amendments to HB56.  I have not reported on this, and will not, until it becomes law.  When and if the Legislature approves revisions that Governor Bentley will sign, I will compare the new and old laws as they pertain to employment issues.

FACEBOOK PASSWORDS. 

     There has been a lot of publicity about whether or not companies can ask employees or prospective employees for passwords to their Facebook and other social media accounts.  Maryland is the first state to pass a law prohibiting this practice, although as of this time, the Governor has not signed it into law.  Many other states are considering passing such laws.  Some members of Congress are also looking into this issue, including asking the EEOC to determine if asking for passwords is coercion which could be in violation of the Computer Fraud and Abuse Act or the Stored Communications Act.  

     For employers that do ask for passwords to social media sites, and actually look at them, caution is advised.  Learning too much information can lead to lawsuits.  Is the employee/prospective employee a member of a protected class, such as pregnant, disabled, etc? By disciplining or refusing to hire such a person, claims could be made for alleged violations of Title VII, Pregnancy Discrimination, GINA, ADA, and other laws.  The NLRB, which is extremely active right now, may consider this practice to be a violation of the NLRA, by discouraging employees from concerted activity: communicating about the terms and conditions of their employment.  This could lead to a push for unionization by the workforce at employers who ask for passwords

UNIONIZATION. 

          Speaking of unionization, April 30 is the effective date for the new rules about how unions can be formed.  Yesterday, the Senate blocked an attempt to delay the implementation of the rules.  There is currently a lawsuit filed by the U.S. Chamber of Commerce, but as of now, there has been no court ruling staying the implementation of the new rules.  I posted about the new rules on December 7. 

 EEOC RULES ON TRANSGENDER PROTECTION. 

     The Los Angeles Times reported today that the EEOC has ruled that transgender individuals may file claims under Title VII.  Mia Macy worked for the Phoenix Police Department and worked with an ATF ballistics team while they were in Phoenix.  At the time Macy applied for a job and was accepted, pending a background check, with the ATF, she was a male.  After applying, Macy went through a transition and became a female.  Macy and her wife moved to California for the new job, but was told the job had been eliminated due to budget cuts.  In fact, the job had been filled with someone else.  Macy filed a complaint with the EEOC alleging sex and gender discrimination.  The EEOC, which had been inconsistently enforcing Title VII in cases involving transgender claims, used Macy's case to clarify it's position that Title VII does apply to claims involving transgender discrimination, and will now allow transgender individuals to file charges in all jurisdictions.  The EEOC's enforcement activities will apply in both the public and private sectors. 

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HB 56/Alabama's Immigration Law.  I don't want to sound like a broken record, but....Sunday April 1 is the day HB 56 requires all employers in Alabama to use E-Verify for new employees.  This is in addition to the use of I-9's.  Employers that knowingly hire or continue to employ unauthorized aliens are subject to harsh penalties, including the suspension or revocation of business licenses.

ADEA.  The EEOC has issued it's Final Rule on Reasonable Factors Other Than Age under the ADEA.  According to the EEOC press release, "The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age."  The Final Rule will be important for companies defending ADEA claims when the defense is that the decision made in regard to an individual over 40 was not predicated on age, but rather a reasonable business decision.

Social Media.  I hate auto-correct on my Blackberry, as do many users of Iphones, Droids, etc.  Recently, WSBTV in Atlanta reported that the West Hall High School and West Hall Middle School were put on lock down after  a student sent a text message that read "gunman to be at west hall."  The message was supposed to be "gunna be at west hall", but the auto-correct feature changed the message.  The student sending the message was not charged after police discovered what happened. 

FMLA.  The United States Supreme Court, in a 5-4 decision, found that states are not subject to the self-care provisions of the FMLA.  In 2003, the Court found that states could be sued for damages for violations of the family care provisions of the FMLA, since the family leave policies in place with states either discriminated on the basis of sex or were administered in a way that discriminated on the basis of sex.  Under the self-care provisions of the FMLA, there were no policies that discriminated on the basis of sex, or were administered in a way that discriminated on the basis of sex.  Thus states are immune from damages under the Fourteenth Amendment. 

GINA.  Effective April 3, 2012, the EEOC has new record keeping requirements under the Genetic Information Nondiscrimination Act of 2008.  GINA applies to employers with 15 or more employees, employment agencies, labor unions and federal sector employers.  The new rule requires all employment and personnel records to be kept in the same manner as required under Title VII and ADA.  Records containing medical or genetic information should be segregated from other personnel records and access limited to those with a business need to see them. 

Spelling out numbers.  Oftentimes, lawyers are criticized for all the legalize that appears in documents.  One of the areas of 'legalize' is the fact that lawyers almost always spell out numbers.  Every now and then, a lawsuit demonstrates why this is done.  Michael Fox  blogged last week about a lawsuit that went to trial in London.  The suit is focused on whether a currency trader was to be paid 2.4 million rand or 24 million rand, a difference of $980,000.  JPMorgan is arguing that it was a typographical error in the numbers.  The numbers were not spelled out. 

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Several weeks ago, I had the pleasure of talking to a fraternity at UAB about the impact of Social Media in the "real world".  Besides my own personal interest in this area, the impact social media has on my clients, and all the crazy stories out there, my 2 sons, 21 and 23, are regular users of social media.  Over the past couple of weeks, there have been a lot of stories on employers asking employees for the passwords to their personal social networking sites.  Although there is no law, per se, prohibiting this, it is not a good idea for many reasons.  In no particular order:

     1.  It is probably against the terms and conditions of the use agreement with the host.

     2.  Employers may find out more information than they really should know, leading to claims of illegal conduct, including discrimination based on age, race, sex, disability, GINA, etc.

     3.  Under the Stored Communications Act, it is illegal, both civilly and criminally, for an individual to access another persons social networking site.  It should be noted that the Justice Department advised Congress that it would not prosecute such violations.

In California, an employee who was responsible for the social media of her employer was injured in a car accident.  She used both company owned and personal social media sites to promote the business.  While she was recovering from her serious injuries, the company accessed her personal sites to continue promoting the company.  She sued, alleging a violation of the Stored Communications Act, and the court is allowing the case to proceed to trial.  In another case, the ex-girlfriend of an undercover detective in New Jersey was charged with identity theft after posing on line as her ex-boyfriend, and making defamatory statements about him.

Speaking of defamation, in Georgia, a Gwinett County jury recently returned an $900,000 verdict against an individual who defamed the plaintiffs (a Husband and Wife) on social media sites.  The plaintiffs had asked the jury for $48,000 for each of them.  This was only the most recent of three social media defamation cases over the past 15 months.  According to the Daily Report, each of these cases resulted in six figure verdicts.

In Washington state,  a judge has ruled that an employee who was fired after she sent her manager a number of Facebook messages about her mental state and the fact that she was thinking of killing herself would proceed to a jury trial.  Ms. Peer was seeking treatment for depression, and she was transferred to an early shift at work.  She complained to her boss about her depression, crying, stress, that she was thinking about committing suicide and that "work feels like a war zone.  I have some serious PTSD.  Walked in the building and automatically started puking this morning".  Although she had a release from her doctors, the company terminated her after she refused to have her medical providers complete accommodation paperwork.  The company, based on the Facebook comments, was "concerned that you are not able to perform your job functions without accommodation, and that attempting to perform your job functions now presents direct risks or threats." 

In New Jersey, a criminal defendant was on trial for selling 1,500 Ecstasy pills to an undercover detective.  Although the trial judge instructed the jurors on a regular basis not to conduct internet research, the foreman confirmed his thoughts through internet research that the defendant would get a minimum of 10 years in jail if found guilty.  The foreman refused to convict, resulting in a hung jury.  After 2 jurors complained separately, the trial judge found the foreman guilty of criminal contempt and fined him $500.  He was facing up o 6 months in jail and a $1,000 fine. 

In New Orleans, an Assistant US Attorney admitted making hundreds of posts at NOLA.com under another name concerning a criminal investigation into a landfill.  He was removed from all cases on which he commented by the US Attorney.  Among the comments he made were allegations that one of the judges "loves killers", and that the US Attorney was taking credit "for other people's hard work.  It is the assistants and agents who do the work and should be congratulated". 

I cannot make this stuff up.  It happens every day.  Be careful what you do on social networking sites and on the internet.  It can get you in a lot of trouble, fired, embarrassed, sued, arrested  or worse. 

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Last week, I gave a presentation for Sterling Education Services in Huntsville.  In attendance were attorneys and HR professionals.  The topic was Social Media and the impact it has in the workplace.  During my research and preparation, I came across a number of interesting items.  Among them are the following:

      Who is Brian Downing?  The Alabama fan who was arrested after a video of him went viral.  The video was of him in a Krystals restaurant in New Orleans, following the BCS game, rubbing his genitalia on the face of a man passed out in the Krystals.  He was charged with Sexual Assault.  His employer, Hibbett Sports, terminated his employment as a result of his actions.

     Who is Roland Martin?  He is a CNN commentator, who, while watching the Super Bowl, saw the underwear commercial starring David Beckham, and tweeted, "If a dude at your Super Bowl party is hyped about David Beckham's H&M underwear ad, smack the ish out of him!#superbowl."  Numerous complaints were made, including those by gay advocacy groups, claiming that the tweet was advocating violence against homosexuals.  Martin was suspended from CNN for this tweet.

     Who is Paul Withee?  He was a middle school math and science teacher and high school football coach in Maine.  He posted a nude photo of himself on Facebook: he says he intended to send the photo to a friend, but mistakenly made it public.  It was only up for 10 minutes, but was seen by a parent who alerted school administrators.  He was fired.

     During the Daytona 500, Brad Keselowski was seen tweeting on the track during a 2 hour race stoppage as the result of an accident.  He gained over 140,000 new followers as a result of the free publicity.

     At a recent Manpower webinar, attendees were asked to text the one word that describes social media in today's workplace.  Of 123 responses, the top 10, including ties, were:

• Necessary (35)
• Distracting (17)
• Dangerous (10)
• Helpful (8)
• Scary (8)
• Growing (6)
• Wasteful (6)
• Annoying (5)
• Complicated (5)
• Essential (5)
• Overwhelming (5)
• Time-consuming (5)
• Useful (5)
• Valuable (5)

It is interesting to note the almost equal split of positive and negative descriptions.  It is here to stay, and employers must learn to make the most of it.

The New York Daily News recently published the results of a survey conducted by 11Mark.  The survey showed that 75% of Americans take their cell phones into the bathroom, 87% of Android users admitted to talking, texting or surfing the web while in the bathroom, 75% of BlackBerry users answered the phone, while 48% made a call, and 52% of iPhone users participated in social networking and 57% used an app.  Of those born between 1977 and 1993, 91% admitted using their phones while seated in a bathroom stall. 

FaceBook has over 845 million users worldwide.  Google+ believes it reached 100 million last month, and the numbers keep going up.  Employers need a social media policy that is in compliance with state and federal laws, rules and regulations, including being compliant with the National Labor Relations Act (NLRA) which protects concerted activity concerning the terms and conditions of employment.  Over the past year, the National Labor Relations Board (NLRB) has been aggressively pursuing companies that discipline, including terminating, employees for social media activity that they deem to be protected by the NLRA.

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The Atlanta Journal Constitution reported today that a football recruit will not be attending the University of Georgia.  Chester Brown, a 6'5" 340 pound offensive lineman is the son of Samoan immigrants.  Although his mother insists that he was born in the United States, which would make him a citizen, it appears as if Brown is not able to provide documentation proving where he was born.  The Georgia Board of Regents adopted a policy in October, 2010 which states that an undocumented student cannot take the place of an "otherwise academically qualified Georgia resident who has been turned away because of capacity constraints".  This policy was adopted after a Kennesaw State student was arrested for a minor traffic incident, and it was discovered that she was an undocumented Georgia resident, but had been paying in-state tuition.  What would happen if this occurred in Alabama?

As I have written in the past, employers with state or other public entity contracts are required to use E-Verify.  I have spoken with a number of such employers, and they are being provided paperwork by the state, counties and cities that needs to be completed before the contract can be entered into, no matter how big or small the contract amount.  This paperwork includes "Affidavit of Alabama Immigration Law Compliance by a Contractor or Grantee" and an "Affidavit of Alabama Immigration Law Compliance by a Subcontractor or Grantee".  Some entities are requiring that the employer provide a copy of the Memorandum of Understanding concerning the use of E-Verify.

Social media update.  For those of you in north Alabama, I will be presenting a talk on February 29 on the impact of Social Media in the workplace.  The seminar, put on be Sterling Education Services, Inc. will be at the Marriott Huntsville.  For more information or to register for this seminar, visit the Sterling Website. 

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Tomorrow, I will be speaking at Cumberland Law School's 18th Annual Employment Law Seminar.  The topic of my speech is "Stupid Is As Stupid Does", which relates to the many stupid things people do on social media that gets them fired, suspended, arrested or is just plain stupid.  Among the many social media snafu's that I will be talking about are:

     Ex-Congressman Anthony Weiner and his sexting which led to his resignation

     A lawyer who told a judge she needed a continuance due to her fathers death, and ended up going on vacation, posting about it on Facebook, and the judge finding out about it

     A journalist who was terminated due to a twitter post that showed her holding a sign at an Occupy Wall Street protest, when she was supposed to be covering the protest

     A German girl who posted her home address for her 16th birthday party on Facebook, forgot to mark it private, received over 16,000 RSVP's, canceled the party and had to have over 100 police at her house to keep keep the 1,600 people who showed up anyway.

     Several nurses and staff members at a California hospital who were suspended or fired for taking pictures of a 60 year old patient who had his throat slashed so severely that he was almost decapitated,  and posting the pictures on Facebook.

     The gay Rutgers University student who killed himself after his roommate took a video of him having gay sex and then posting it on line. 

     And, as reported yesterday by the TheEagle.com, the CFO of Texas A & M's athletic department making what he thought were anonymous posts on TexAgs, a popular website for Aggie fans, about the school's president, calling him a "putz" and an "unqualified puppet".  Another poster on TexAgs researched the screen name used by the CFO and found that he had previously identified himself as the CFO of the athletic department in a prior post.  Stupid is as stupid does.

Practice pointer.   Whenever posting on a social media site, one must always assume that you are not anonymous, anyone in the world may see it, and there are serious ramifications for posts that are not appropriate.  With a single click, one can be suspended, fired, embarrassed, arrested, or lead to someone else killing committing suicide..

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Immigration

     On Wednesday, October 5, Judge Blackburn denied requests made by the Department of Justice and a coalition of civil rights groups to delay implementation of HB 56 while on appeal.  Last week, Judge Blackburn upheld the vast majority of HB 56, while enjoining several provisions of the law.  The groups will be appealing to the 11th Circuit Court of Appeals, and have stated that they may seek a stay from the 11th Circuit to prevent the law from staying in effect pending the appeal.  I will post updates as they occur.

     In the meantime, there are numerous reports of students leaving schools throughout the state, workers leaving their jobs and several arrests have been made pursuant to HB 56.  Interestingly, the first arrests reported arose from a drug bust, and those arrested were from Yemen, and were not Hispanic.

NLRB

     I have previously reported that the NLRB was going to require the posting of Notification of Employee Rights effective November 14, 2011.  Because there appears to be much confusion over what businesses were covered by this requirement, the NLRB has delayed implementation of the posting until January 31, 2012.  At least 3 lawsuits have been filed seeking to prevent the NLRB from requiring this posting. 

Social Media and the NLRB

     The NLRB has been active in reviewing terminations or other disciplinary action as the result of social media posting.  I reported in February that the NLRB had contested the termination of an employee at an ambulance company.  Another social media firing case involved a BMW dealership in Chicago, where an employee posted negative comments about one of the dealership's events, when they planned to bring a hot dog cart to provide food to customers.  The salesman complained that the dealership should provide better food for it's customers.  This same salesman also took pictures of an accident that occurred when a customer was test driving a BMW and hit the accelerator instead of the brake pedal, and crashed.  These photos were posted at the same time he posted pictures of the hot dog cart.  The dealership learned of the postings the next day, and terminated the salesman.  The NLRB claimed that the posts were protected concerted activity since part of the salesman's compensation was customer satisfaction, and the postings about the hot dog cart concerned his compensation.  The NLRB administrative judge ruled that the posting about the hot dog cart was protected, but found that the posting about the accident was not, and that the dealership terminated is employment based on the accident related posting. 

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Recently, the 11th Circuit reviewed the American with Disabilities Act in  the case of Cunningham v. Nature's Earth Pellets, LLC.  Special thanks to Kelli Robinson, an associate with Sirote for this summary.  Kimberly Cunningham appealed a summary judgment in favor of her former employer, Nature's Earth Pellets, and against her complaint of discrimination in violation of the Americans with Disabilities Act (ADA).  Cunningham argued that Nature's Earth pellets wrongfully terminated her and regarded her as disabled based on her addiction to prescription drugs.  After considering the evidence, the Eleventh Circuit of the United States Court of Appeals affirmed summary judgment in favor of the employer.

The ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions, or privileges of employment."  To establish a prima facie case of employment discrimination under the ADA, a plaintiff must prove that she has a "physical or mental impairment that substantially limits one or more [of her] major life activities" or is "regarded as having such an impairment."  Cunningham failed to establish a prima facie case of discrimination based on either an actual or perceived disability.

Cunningham argued that her addiction to anti-depressant medications prevented her from resolving other mental disorders, caused her to suffer about ten panic attacks a month, and interfered with her ability to breathe, concentrate, interact with others, and care for herself; but, Cunningham failed to establish that any of these impairments were or were regarded as substantially limiting. Cunningham testified that she was able to breathe and get ready for work; she performed regularly the tasks of a shipping clerk, which required her to monitor the supply of company products and coordinate deliveries of those products; and, she exercised sufficient independence of thought and concentration to withdraw from a rehabilitation facility against the advice of her physicians.

Even if Cunningham had established a prima facie case of discrimination, she failed to prove that the legitimate reason proffered for her termination was pretextual.  Nature's Earth Pellets introduced evidence that Cunningham had been terminated because of her extensive absenteeism and the number of final warnings that she had been given under the company's progressive discipline system.  To establish pretext, Cunningham was required to provide that the "proffered reason was not the true reason for the employment decision ... either by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation was unworthy of credence."  Despite Cunningham's argument that Nature's Earth Pellets had not considered terminating her for past infractions of its leave policy, the court did not find that the employer's decision to fire Cunningham this time lacked credence.  The court agreed that, based on Cunningham's history of absenteeism, Nature's Earth Pellets legitimately terminated Cunningham and, therefore, the court affirmed the summary judgment in favor of the employer.

Practice Pointer.  The Cunningham decision shows the importance of documenting problem employees.  Because there was a clear record of excessive absenteeism and progressive discipline, the Court was able to decide that there was no pretext in the decision to terminate Cunningham.

 Social Media impacts job applicants.

The New York Times published an article entitled "Social Media History Becomes a New Job Hurdle" examining the use of social media searches as a background check.  Social Intelligence, a year old company, performs internet searches that go back 7 years to look for conduct that may disqualify an applicant for the job.  Several instances of what I call stupid conduct are cited, including a women on Craigs List looking for Oxycontin, a woman posting nude pictures on an image-sharing site, instances of people making racist remarks, anti-Semitic remarks, and evidence of violent activity.  Interestingly, less than a third of the information found comes from social networking platforms like Facebook, Twitter and MySpace.  Rather, much of the negative information comes from blogs, user groups and other sharing sites.  Photographs and videotapes seem to cause the most trouble.

Practice pointer.  It is important that you control, the best you can, what you put up on the internet.  It is also important to monitor what other people post about you, whether it be in pictures, videos, or comments. 

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Immigration.  As I was driving to work yesterday, I passed a Taxi, stopped in the middle of the road, with flashers flashing, waiting to pick someone up to take them to work (I reached this conclusion by the way the person was dressed and the fact that the Taxi is there on a regular basis at the same time.  However, this was the first time I saw it in the middle of the road).  My first thought was that this would be in violation of Alabama's new Immigration Act, once it is effective, since the Taxi was impeding the normal flow of traffic while picking up a person for work at another location.  This conduct would subject both the driver and the passenger to criminal charges and possibly the forfeiture of the Taxi.  Is this what the law is supposed to cover?

Social Media.  An interesting piece in the Birmingham News this morning by Kevin Scarbinsky pointing out that the NCAA charged North Carolina with an NCAA violation by not properly monitoring several football players "social networking activity that visibly illustrated potential amateurism violations within the football program..."  Is this a sign of things to come in the workplace, if employers engage in improper conduct, use social networking sites to discuss it, and the company did not know about it? 

Class actions.  The United States Supreme Court ruled in favor of Wal-Mart, denying to certify a class action lawsuit with as many as 1.6 million women as members of the class alleging sexual discrimination.  In a 5-4 decision, with Justice Scalia writing the majority opinion, the Court found that there were too many managerial decisions being made to certify the claims as a class action.

Sexual Harassment Settlement.  Recently, the EEOC announced a $1.95 million settlement with U.S. Security Associates to resolve a sexual harassment lawsuit brought by the EEOC.  The EEOC alleged, in the lawsuit, that Mr. Hargrove, the district manager for USSA in Birmingham, sexually harassed several female employees by subjecting them to unwelcome sexual demands, demeaning gestures, inappropriate touching, and other offensive conduct.  One of these employees, Jamie Marks, had previously filed her own suit against USSA and received a $2.7 million jury verdict.  6 other females intervened in the EEOC's case.  As part of the settlement, USSA agreed to pay $1.95 million to the women.  USSA also entered into a Consent Decree, for a period of 42 months, and agreed to revise it's policies and procedures and train all staff on anti-harassment procedures.  USSA also agreed to hire a consent decree coordinator who will be responsible for monitoring USSA's compliance and submitting periodic reports to the EEOC. 

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Last November, I wrote about a case in Connecticut where the NLRB filed a complaint accusing American Medical Response of Connecticut of illegally firing an employee for posting comments on her facebook page, claiming that the posting was "protected concerted activity" under the National Labor Relations Act.  The NLRB announced that the case against AMR has been resolved by AMR agreeing to revamp its policies so they don't restrict employees rights. According to the NLRB, the settlement also included an agreement from AMR that they would not discipline or terminate employees who discussed wages and other work issues while not on the job.  The NLRA allows employees to discuss the terms and conditions of their employment with co-workers and third parties. 

There was a separate private settlement agreement reached between AMR and Dawnmarie Souza, the employee who had been terminated.  I have not been able to determine the terms of that settlement at this time.

Practice pointer.  Although the AMR case involved a union work force, employers should be aware that the NLRA covers non-union work forces as well.  Many times I hear about or see policies that restrict employees from discussing the terms and conditions of their employment, including wage information, with others.  Under the NLRA, this restriction is probably prohibited.

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It is hard to believe that another year, and another decade is soon behind us.  As one of my partners commented, it seems like just yesterday that we were worried about Y2K and the world coming to an end as we entered 2000.  This blog entry will be a series of brief comments about topics of interest in the employment arena.

EEOC Charges reach a record high.  The EEOC reports that it has received 99,922 charges for the fiscal year ending 2010.  The backlog of cases is just over 86,000, virtually unchanged from FYE 2009, growing only by 570 charges.   In FYE 2009, there were 93,277 charges filed, and in FYE 2008, there were 95,402, the previous record high. The EEOC resolved 104,999 cases during FYE 2010, recovering $319 million for claimants, an increase of $25.2 million from FYE 2009.  $142 million was recovered through the EEOC's mediation program.  The EEOC's Performance and Accountability report is available for review at www.eeoc.gov/eeoc/plan/2010par.cfm. 

EEOC turns its attention to Credit Reports.  The LA Times reported on December 27 that the EEOC is cracking down on the use of credit checks and criminal background checks in job screenings.  The EEOC sued Kaplan Higher Education Corp, "accusing the company of using a selection criterion for hiring and discharge-namely, credit history information-that has a significant disparate impact on black job applicants".  The EEOC lawyer that filed the lawsuit is quoted as saying that "Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally".  Kaplan responded by stating that "We are an equal opportunity employer, and we are proud of the diversity of our workforce...[Kaplan] conducts background checks on all prospective employees.  For employees whose responsibilities include financial matters, such as those who advise students on financial aid, background checks also include credit histories." Kaplan intends to fight the lawsuit.

Social media infects juries.  The American Bar Association reports that at least 90 verdicts have been challenged as the result of jurors' internet conduct.  In 21 cases since January, 2009, judges have granted new trials or overturned verdicts.  The article reported that Reuters Legal recently reviewed tweets with the words "jury duty" for a 3 week period, and found "Tweets from people describing themselves as prospective jurors or sitting jurors popped up at the astounding rate of one nearly every 3 minutes".

NLRB Proposes New Posting Requirement of Employee Rights Under the NLRA.  In it's 75 year history, the NLRB has only issued substantive regulations one time, in 1975.  On December 22, the NLRB issued proposed regulations that would require all employers covered by the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, including the right to unionize.  These proposed regulations apply to both union and non-union employers.  The NLRB is proposing that the notice be posted both by hard copy in a conspicuous place, as well as electronically, if the employer customarily communicates with its employees electronically.    Proposed sanctions include (1) finding that the failure to post as an independent Unfair Labor Practice, (2)  tolling the statute of limitations for filing Unfair Labor Practice Charges, (3) using the knowing failure to post the notice as evidence of unlawful motive in unrelated Unfair Practice Charges.  There is a 60 day comment period, after which the NLRB will probably decide how to proceed with the proposed posting requirement.

Alabama Employment Law Report  named as a top 100 Employment Law Blog.  The Delaware Employment Law Blog issued its 3rd annual list of 100 top employment law blogs.  I am pleased to announce that my blog has made the list for the 2nd year in a row.  I view this blog as an opportunity to blog on issues that interest me, and hopefully, both employers and employees.  The Delaware Employment Law Blog is an excellent blog as well, and certainly in my top 10.  I would recommend that you visit it regularly to stay informed on current issues in employment law. 

Wishing all of you a Happy New Year. 

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                 On November 3, 2010, Legal Times reported that the National Labor Relations Board's (NLRB) Hartford office filed a Complaint against American Medical Response of Connecticut, Inc. alleging that the ambulance service illegally terminated Dawnmarie Souza, for posting negative comments about her supervisor on her personal Facebook page. The NLRB contends that American Medical Response wrongfully denied Ms. Souza her union representation during the investigatory review, and that the NLRB was charging that the company “maintained and enforced an overly broad blogging and internet posting policy.” The NLRB, in their press release, stated that her supervisors “threatened her with discipline because of her request for union representation….Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, which led to further negative comments about the supervisor from the employee.” Ms. Souza was fired three (3) weeks later.

Today, Molly DiBianca, in her blog, The Delaware  Employment Law Blog, reported that an employee and her supervisor were Facebook friends.  After the employee filed a charge of discrimination with the EEOC, the supervisor unfriended the employee.  When the employee later added a claim for retaliation, one of the facts supporting the claim was the fact that the supervisor unfriended her.  As Ms. DiBianca wrote, "The employee felt the "unfriending" was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context.  Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint."

Practice pointers.  With the NLRB entering the social networking fracas, there is one more governmental agency for employers to be concerned with when dealing with social networking in the workplace.  When considering whether to implement or change a social networking policy, employers now need to consider the concept of "protected activity" as viewed by the NLRB. 

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Recently, a trial court in New York found that the Facebook and MySpace sites of a plaintiff in a personal injury case were discoverable.  In Romano v. Steelcase, Ms. Romano fell off her chair at work and filed a lawsuit claiming that she was severely injured and had multiple surgeries on her neck and back.  She sued Steelcase, alleging that the chair she was sitting in was defective.  Romano had profiles on both Facebook and MySpace that were not publicly available and were set up as "private" pursuant to the sites' privacy settings.  Steelcase subpoenaed the information from these sites, Facebook objected, and Romano refused to consent to the release of the information.  Steelcase argued that what was publicly available on Facebook and MySpace was inconsistent with her claims in the lawsuit, and sought access to her current and past pages, including any deleted pages, even if limited to her "friends" or "connections".  The trial court relied on a decision from Canada, that held that "To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial."  The Judge in the Romano case examined the language in the privacy policies of both Facebook and MySpace, which state "this information may become publicly available."  The court wrote that:

     "Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.  Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.  Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.  As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, "in this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."

Practice pointer.  As expected, there is often useful information available on social networking sites, such as Facebook, MySpace, Linkedin, etc, for all parties involved.  Individuals should not post anything on their sites that they expect to maintain as private: it may not happen. 

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