1. Presented by: Brandon M. Shelton H. Bernard Tisdale III Employment Law Briefing March 22, 2012 Charlotte, NC

2. March 22, 2012 Charlotte, North Carolina Youre Not The Boss Of Me Regulating Employee Conduct On And Off The Job

3. March 22, 2012 Charlotte, North Carolina Verbal Expression How to address economic and political activism on and off the job

4. March 22, 2012 Charlotte, North Carolina Economic Speech NLRA Section 7 protects an employees right to discuss wages, hours and other terms and conditions of employment N.C./S.C. – no statutory protections for employee speech content

5. March 22, 2012 Charlotte, North Carolina Economic Speech But there are limits... –Sit down strikes –Disclosing confidential business information –False allegations against an employer where the allegations are malicious or made with a reckless disregard for the truth

6. March 22, 2012 Charlotte, North Carolina Economic Speech But there are limits (contd) –Disparagement of an employers business unrelated to employee interests and/or working conditions –Violence, profanity and vulgarity

7. March 22, 2012 Charlotte, North Carolina Political Speech Public Sector Employees Have First Amendment Political Protections Private Sector Employees are Not Protected by First Amendment

8. March 22, 2012 Charlotte, North Carolina Non-Solicitation Policies Guard Publishing Co. & Eugene Newspaper Guild, 351 NLRB 1110 (2007) –Employer may implement and enforce a policy that allows solicitations for certain non- business related purposes, while prohibiting solicitations for other non-business related purposes But, D.C. Circuit reversed in part

9. March 22, 2012 Charlotte, North Carolina Non-Solicitation Policies Guard Publishing Co. & Eugene Newspaper Guild, 571 F.3d 53 (D.C. Cir. 2009) –Employees e-mail clarifying facts regarding union rally was not solicitation and not prohibited by policy –Court found application of Company policy violated NLRA

10. March 22, 2012 Charlotte, North Carolina Non-Solicitation Policies What does this mean for employers... –Allow charitable solicitations, BUT ban non-charitable solicitations –Allow invitations for personal events, BUT ban invitations from commercial organizations –Allow personal e-mail communications, BUT ban solicitations... –HOWEVER...

11. March 22, 2012 Charlotte, North Carolina Non-Solicitation Policies What does this mean for employers (contd) –CANNOT allow some commercial solicitations BUT ban union solicitations –CANNOT allow solicitations from one union but not another –CANNOT selectively enforce policies Goal: Consistent Application

12. March 22, 2012 Charlotte, North Carolina Non-Verbal Expression What to do with the employees who feel the need to dress up for work

13. March 22, 2012 Charlotte, North Carolina Religious Discrimination Cloutier v. Costco, 390 F.3d 126 (1st Cir. 2004) –Plaintiff was a member of the Church of Body Modification –Costco adopted a grooming policy that prohibited facial piercings –Employee refused to remove her facial piercings and (although no customers complained about the piercing) she was fired

14. March 22, 2012 Charlotte, North Carolina Religious Discrimination EEOC v. Red Robin, 2005 WL 2090677 (W.D. Wash 2005) –Plaintiff was a member of Kemeticism, an ancient Egyptian religion –Red Robins grooming policy required employees to cover any tattoos –Employee refused to cover his tattoos and (although no customer complaints) he was fired

15. March 22, 2012 Charlotte, North Carolina Religious Discrimination Brown v. F.L. Roberts & Co., 896 N.E.2d 1279 (Mass. 2008) –Plaintiff was a practicing Rastafarian –F.L. Roberts (Jiffy Lube) initiated new grooming policy which required employees with customer contact to be clean-shaven and hair should be clean, combed, and neatly trimmed or arranged –Employee refused to shave or cut his hair, so employee was transferred to work only in lower bay, with no customer contact

16. March 22, 2012 Charlotte, North Carolina Religious Discrimination Costco – held that it was an undue hardship to accommodate plaintiffs religious beliefs because plaintiff regularly interacted with customers, and the company decided that her piercings detracted from the companys image Red Robin – held that, even though the company determined that his tattoo detracted from its family-friendly restaurant image, it was not an undue hardship to allow plaintiff to show his very small tattoo even though he regularly interacted with customers.

17. March 22, 2012 Charlotte, North Carolina Religious Discrimination Brown – held that an exemption from a grooming policy could never amount to an undue hardship and once the employee made clear he could not comply with the policy for religious reasons, the employer was obligated to engage in an interactive process to find a reasonable accommodation for him

18. March 22, 2012 Charlotte, North Carolina Gender Discrimination While differences in personal appearance policies that reflect customary modes of grooming and dress do not generally violate Title VII... –Jespersen v. Harrahs Operating Co, 444 F.3d 1104 (9th Cir. 2006) (en banc) – not gender discrimination to fire a female employee for refusing to wear makeup as required by a grooming policy –Knott v. Missouri Pacific R.R. Co., 527 F.2d 1249 (8th Cir. 1975) – not gender discrimination to fire a man for refusing to cut his hair short as required by a grooming policy

19. March 22, 2012 Charlotte, North Carolina Gender Discrimination Some forms of differential treatment may violate discrimination laws: –Hub Folding Box Co. v. Massachusetts Commn Against Discrimination, (Mass. Ct. App. 2001) Demand that female employee, but not male employee, cover up tattoo violated state anti-discrimination statute

20. March 22, 2012 Charlotte, North Carolina Model Grooming Policy

21. March 22, 2012 Charlotte, North Carolina Unhealthy Expression Stemming the use of illegal drugs, alcohol, and tobacco on and off the job

22. March 22, 2012 Charlotte, North Carolina The Crusade Against Smoking & Drinking Outside the Workplace Numerous states specifically prohibit discrimination against employees for lawful, off-duty use of tobacco, alcohol, or other lawful products

23. March 22, 2012 Charlotte, North Carolina The Crusade Against Smoking & Drinking Outside the Workplace Some states that (either directly or indirectly) prohibit discrimination based on off-duty smoking or alcohol use, provide for exceptions: –N.C.G.S. § 95-28.2(b) Prohibits employment actions based on employees lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours …

24. March 22, 2012 Charlotte, North Carolina The Crusade Against Smoking & Drinking Outside the Workplace –N.C.G.S. § 95-28.2(b) Exceptions: - adversely affects job performance -adversely affects ability to fulfill job responsibilities -adversely affects other employees safety

25. March 22, 2012 Charlotte, North Carolina The Crusade Against Smoking & Drinking Outside the Workplace S.C. Code § 41-1-85 –The use of tobacco products outside the workplace must not be the basis of personnel action, including, but not limited to, employment, termination, demotion, or promotion of an employee

26. March 22, 2012 Charlotte, North Carolina Model Anti-Smoking Policy

27. March 22, 2012 Charlotte, North Carolina Sex Discrimination Preferential treatment based on a consensual relationship does not constitute gender discrimination EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism

28. March 22, 2012 Charlotte, North Carolina Sex Discrimination Generally, an employee cannot claim that a supervisors favoritism toward someone he or she was dating constitutes sex discrimination –DeCintio v. Westchester County Med. Center, 807 F.2d 304 (2nd Cir. 1986 ): male employees not denied promotions because of gender, but rather because female employee awarded promotion was dating the decision-maker

29. March 22, 2012 Charlotte, North Carolina Sex Discrimination BUT does that mean dating in the workplace is a good idea???? –Shrout v. Black Clawson Co., 689 F. Supp. 774 (S.D. Ohio 1988): significant damages awarded to subordinate who unsuccessfully tried to end a consensual relationship with her supervisor –Miller v. Department of Corrections, (Cal. 2005): employees who were treated less favorably than co-workers who slept with supervisor allowed to proceed with sexual harassment claim

30. March 22, 2012 Charlotte, North Carolina Fraternization Policies Options in adopting a fraternization policy: –Ban on all inter-office dating –Ban on dating between managers and non-managers –Prohibit relationships between an employee and his or her direct or indirect supervisor –Love contracts

31. March 22, 2012 Charlotte, North Carolina Model Fraternization Policy

32. March 22, 2012 Charlotte, North Carolina Electronic Expression - How to Deal with Computer Usage at Work and at Home, or... Can we please bring back the typewriter?

33. March 22, 2012 Charlotte, North Carolina Computer Usage At Work and At Home Use at Home : –Blogging –Message boards –Chat rooms –Twitter & Facebook Use at Work : –E-mails to and from work –Internet access to public sites –Internet access to password protected web-based e-mail accounts and internet sites (i.e., on-line banking) –Internet blogs

34. March 22, 2012 Charlotte, North Carolina Limitations On Monitoring At-Work Computer Usage Privacy and Unauthorized Access Claims : –Claims Invasion of Privacy Federal and State Wiretapping laws Electronic Communications Privacy Act of 1986 Stored Electronic Communications Act –Exceptions System Provider Prior Consent Defense

35. March 22, 2012 Charlotte, North Carolina Limitations On Monitoring At-Work Computer Usage Privacy and Unauthorized Access Claims : –Campbell v. Woodard Photography, 433 F. Supp. 2d 857 (N.D. Ohio 2006) Expectation of privacy in e-bay activities on company computer during work hours

36. March 22, 2012 Charlotte, North Carolina Limitations On Monitoring At-Work Computer Usage Privacy and Unauthorized Access Claims : –City of Ontario v. Quon, 130 S. Ct. 2619 (2010) Leaving unresolved whether employees had reasonable expectation of privacy in personal text messages sent using company equipment –Sidell v. Structured Settlement Investments, 2009 WL 103518 (D. Conn. 2009) Invasion of privacy claim based on continued access to yahoo e-mail account after employee resigned

37. March 22, 2012 Charlotte, North Carolina Limitations On Monitoring At-Work Computer Usage Attorney-Client Privilege –Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. 2007) Expectation of privacy on web-based e-mail accounts on work computer

38. March 22, 2012 Charlotte, North Carolina Limitations On Monitoring At-Work Computer Usage Attorney-Client Privilege –Steingart v. Loving Care, 990 A.2d 650 (N.J. 2010) Expectation of privacy on web-based e-mail accounts on work computer –Holmes v. Petrovich Development Company, 191 Cal. App. 4th 1047 (2011) No expectation of privacy on web-based e- mail accounts on work computer

39. March 22, 2012 Charlotte, North Carolina Obligation to Monitor At-Work Computer Usage Liability to a third party: Doe v. XYC Corp., 887 A.2d 1156 (N.J. Ct. App. 2005) –Employee of XYC Corp. posted pictures of the plaintiffs minor daughter on pornography sites from his work computer

40. March 22, 2012 Charlotte, North Carolina Obligation to Monitor At-Work Computer Usage Liability to a third party : –XYC learned that employee surfed internet for pornography at work and reprimanded him, but did not investigate any further –Employee was arrested

41. March 22, 2012 Charlotte, North Carolina Obligation to Monitor At-Work Computer Usage The Court held that XYC could be liable to the plaintiff for failing to act to prevent employees illegal conduct. XYC: –Had the ability to monitor internet use; –Had the right to monitor internet use;

42. March 22, 2012 Charlotte, North Carolina Obligation to Monitor At-Work Computer Usage –Should have known that employee was using his work computer to access child pornography; –Had a duty to act to prevent employee from continuing his activities; and –Failure to act caused harm to the victim.

43. March 22, 2012 Charlotte, North Carolina Obligation to Monitor At-Work Computer Usage Sexual Harassment claims –Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996) Defamation claims –Meloff v. New York Life, 240 F.3d 138 (2nd Cir. 2001) Theft of Confidential Information –NewSouth Communications v. Universal Telephone, 2002 WL 31246558 (E.D. La. 2002)

44. March 22, 2012 Charlotte, North Carolina Limits on an Employers Right to Regulate Off-Duty Computer Usage Many states prohibit discrimination against employees for lawful off- duty conduct away from the employers premises –Cal. Labor Code § 98.6 –N.Y. Labor § 201-d Section 7 of the NLRA protects employees who engage in concerted protected activity

45. March 22, 2012 Charlotte, North Carolina Limits on an Employers Right to Access Off-Duty Computer Usage Public v. Private Domain –Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (2009) Newspaper did not invade plaintiffs privacy by publishing ode posted on her myspace page

46. March 22, 2012 Charlotte, North Carolina Limits on an Employers Right to Access Off-Duty Computer Usage Unauthorized Access –Pietrylo v. Hillstone Restaurant, (D.N.J. 2009) Managers violated Stored Communications Act (SCA) by knowingly accessing private Facebook page without authorization

47. March 22, 2012 Charlotte, North Carolina Computer Usage Policy Must address computer usage at-work and/or using company resources –Informs employees that the e-mail/internet system is the employers property and is intended for business purposes

48. March 22, 2012 Charlotte, North Carolina Computer Usage Policy –Notifies employees that they do not have any express or implied privacy rights in any matter created, received or sent through the companys e-mail system, or the sites that they visit on the internet, including web-based e-mail accounts

49. March 22, 2012 Charlotte, North Carolina Computer Usage Policy –Provides notice that the contents of e-mails, both work-related and personal, and the history of internet sites visited are subject to monitoring –Warns that violations may subject them to discipline up to and including termination

50. March 22, 2012 Charlotte, North Carolina Computer Usage Policy –Informs employees that e-mails are the property of the employer –Prohibits blogging on company computers and during working hours

51. March 22, 2012 Charlotte, North Carolina Computer Usage Policy –Instructs employees that e-mail and internet use must be limited so as not to interfere with the companys computer resources, or the employees work performance, obligations or duties –Directs that the companys servers should not be used for personal monetary gain or commercial purposes outside the scope of the employees employment

52. March 22, 2012 Charlotte, North Carolina Computer Usage Policy –Informs employees that they may not: use the e-mail or internet to violate any law, including obscenity, copyright, and defamation laws invade the privacy rights of others

53. March 22, 2012 Charlotte, North Carolina Computer Usage Policy –Informs employees that they may not: violate any company policies, including the companys harassment policy disclose or use confidential information except as authorized to perform their job duties

54. March 22, 2012 Charlotte, North Carolina Social Media Policy Primary focus: whether the policy reasonably tends to chill employees from exercising Section 7 rights. The following terms are likely to draw NLRB scrutiny and are ones employers should avoid: –Disparaging remarks; –Critical statements;

55. March 22, 2012 Charlotte, North Carolina Social Media Policy Policy language to avoid : –Merely false statements –Negativity or negative comments –Rude, discourteous or inappropriate comments –Generally offensive conduct –Profanity –Confidential information without further explanation

56. March 22, 2012 Charlotte, North Carolina Social Media Policies General Counsel Memorandum issued by the Division of Advice on January 24, 2012 regarding certain policy provisions : –Policy directing employees to generally avoid identifying themselves as employers employee unless discussing conditions of employment in an appropriate manner – unlawful – implicitly prohibits inappropriate discussions;

57. March 22, 2012 Charlotte, North Carolina Social Media Policies Potentially unlawful policy provisions (cont.): –Prohibitions on disrespectful conduct and inappropriate conversations –Policy prohibiting disclosure of confidential, sensitive or non-public information concerning the company, without any examples in policy to provide context, overbroad. So was prohibition on use of company name or service mark – the Acting General Counsel takes the position that employees have the right to use the employers logo in conjunction with PCA

58. March 22, 2012 Charlotte, North Carolina Social Media Policies Potentially unlawful policy provisions (cont.): –Prohibition on unprofessional communication that could negatively impact the employers mission –Policy requiring employee to obtain approval from employer to identify self as employee on social media is overbroad; and –Policy prohibiting discriminatory, defamatory or harassing web entries unlawful (in this case the employer applied that rule to limit PCA) but amended policy prohibiting vulgar, obscene, threatening, intimidating, harassing actions lawful

59. March 22, 2012 Charlotte, North Carolina Social Media Policies Conversely, it is likely still appropriate to prohibit : –Abusive or profane conduct; –Maliciously false statements; –Illegal discrimination; –Disclosure of confidential information obtained without permission; –Trade secrets; –Copyrights; and/or –Product launch details.

60. March 22, 2012 Charlotte, North Carolina Social Media Policies Disclaimer: This policy is not intended to interfere with employee rights to form, join or assist unions or to engage in other concerted activity protected by the National Labor Relations Act, including the right to discuss wages, benefits and working conditions.

61. March 22, 2012 Charlotte, North Carolina Social Media Policies Or - Application of this policy will be consistent with the National Labor Relations Act. This policy is not intended to restrict or interfere in any way with any applicable federal, state or local law. Or - This policy is not intended to restrict or interfere with any employees federal or state labor law rights, including any and all rights under the National Labor Relations Act, or any whistleblower protections under federal or state law.

62. March 22, 2012 Charlotte, North Carolina Address Blogging/External Communications in Your Policy An employer can address computer usage or external communications by employees at home that impacts the company –Establish the rules that are inviolable, such as disclosing confidential, trade secret information, and conflicts of interest –Advise employees that the company will monitor blogs and that the company has the right to track what is being said on such blogs

63. March 22, 2012 Charlotte, North Carolina Address Blogging/External Communications in Your Policy Addressing computer usage at home –Prohibit employees from identifying themselves as company agents or suggest they are presenting the companys view in any blogging activity unless specifically authorized or protected by state or federal law

64. March 22, 2012 Charlotte, North Carolina Address Blogging/External Communications in Your Policy Addressing computer usage at home –Prohibit employees from using blog postings to harass or attack any employee, contractor, customer, or vendor based on any protected category –Remind employees that they could be subject to legal action for making defamatory statements about the company or other persons posting private information about a co-workers medical or financial affairs

65. March 22, 2012 Charlotte, North Carolina Address Blogging/External Communications in Your Policy Addressing computer usage at home –Require that employees make clear that the views in their blogs are their own and not those of their employer

66. March 22, 2012 Charlotte, North Carolina Copyright Information Any reproduction in any form or incorporation into any information retrieval system or any use without the express written consent of Ogletree Deakins is prohibited. Please direct all inquiries to Client Services Department, Ogletree Deakins, 600 Peachtree Street, Suite 2100, Atlanta, Georgia 30308 or clientservices@ogletreedeakins.com.