White & Case (04/05/2012)

The National Labor Relations Act does not permit many of the
provisions typically contained in social media policies,
according to the second report on social media cases issued by
the acting general counsel of the National Labor Relations Board
earlier this year. “Employer policies should not be so
sweeping that they prohibit the kinds of activity protected by
federal labor law, such as the discussion of wages or working
conditions among employees,” the NLRB says. Union and
nonunion employees who are not “supervisors” are
permitted to act collectively for their mutual aid and
protection, including addressing their terms and conditions of
employment, and these are the discussions that are increasingly
taking place on social media.

The report notes that a policy with a “savings clause,”
which provides that it is not intended to interfere with
employees’ NLRA rights, may still be overbroad. However, the
report adds that the following is a type of policy that may be
valid under the NLRA: “Prohibiting use of social media to
post or display comments about co-workers or supervisors or the
employer that are vulgar, obscene, threatening, intimidating,
harassing, or a violation of the employer’s policies against
unlawful discrimination or harassment.”

Business Management Daily (04/03/12)

How much a company pays for unemployment insurance is partially
based on how many former employees successfully file claims
against it. Therefore, companies must understand the unemployment
laws in each state in which they operate. They should also be
aware that employees can quit and still collect unemployment. If
an employee resigns because the employer changed working hours or
locations, state officials may deem the termination an
“employer-caused discharge” and approve benefits.
Underperforming workers fired for chronic tardiness or missing
deadlines could successfully argue that they did their best and
did not try to let down the firm. Unless the employer can prove
the worker was intentionally doing a bad job, the worker will
likely be eligible for benefits. Ideally, termination should be
based on something other than “poor performance,” such
as “deliberate and willful misconduct.” Employers need
to document that they tried to retain the worker by offering
counseling and issuing warnings.

Business Management Daily (04/04/12)

Federal class-action lawsuits brought under the Fair Labor
Standards Act outnumber all other types of private class-action
suits in employment-related cases. The FLSA sets the federal
minimum wage and requires time-and-a-half overtime pay for hourly
employees who work more than 40 hours in a week.

Companies need to be familiar with additional federal
legislation, including Title VII of the Civil Rights Act of 1964,
which prohibits sexual harassment in the workplace and from
discriminating in hiring, firing, or pay based on a
person’s race, religion, gender, or national origin. The
Americans With Disabilities Act prohibits job discrimination
against qualified people with disabilities. Therefore, companies
should never immediately reject disabled applicants but instead
should work with human resource personnel to help create
reasonable accommodations for disabled employees.

The Family and Medical Leave Act says employees with at least a
year of service can take up to 12 weeks per year of unpaid,
job-protected time off for the birth or adoption of a child or to
care for themselves or a sick child, spouse, or parent who has a
“serious” health condition. The FMLA applies to
organizations with 50 or more employees. The Age Discrimination
in Employment Act says employers cannot discriminate against
applicants or employees older than 40 because of their age. This
means that companies should never take a person’s age or
proximity to retirement into account when making decisions on
hiring, firing, pay, benefits, or promotions.

Associated Press (04/11/12) Randy Patrick

A bill signed into law by Kentucky Gov. Steve Beshear on April 11
aims to save the state’s employers millions of dollars in
higher federal unemployment insurance taxes by allowing the state
to issue revenue bonds to make interest payments on $963 million
in federal loans used to operate the state’s unemployment
insurance program during the recession. A $21-per-employee
surcharge will be imposed on employers starting in 2014 to cover
the first three years of interest payments at $79 million, as
well as to cover future interest on the debt. A $600 million
federal tax credit for employers would have been lost if the
state could not make the interest payments on the Sept. 30 due
date, and the federal unemployment insurance tax paid by
employers would have surged to $420 per employee from $63.