Your Spouse Criticizes Your Boss On Social Media: Can You Get Fired For That?

The story about Kellyanne Conway's husband criticizing her boss, President Trump, on social media made me think about an issue that arises off an on in my employment practice: whether you can be fired for something your spouse does. If you are one of my regular readers, you probably aren't surprised that the answer is: of course you can.

Unless you have a contract or collective bargaining agreement, or unless you live in Montana, you are probably an at-will employee who can be fired for any reason or no reason at all. If your spouse does something that ticks off your boss, you can be fired for that.

Fair? No. Legal? Probably.

Yes, there are some exceptions. If, for instance, your spouse is also a coworker and reports or objects to discrimination, unpaid wages, or something illegal, then retaliating against you would be illegal retaliation against your spouse. However, few laws protect employees when their spouses are not coworkers.

Even states that have laws prohibiting employers from firing employees for legal off-duty activities probably don't protect you for your spouse's off-duty activities. So, while your employer can't fire you for, say, going to a wild party, they can probably fire you for your spouse going to the same party. If your spouse posts something that ticks your boss off, then even these very broad laws probably don't protect you.

Not only do you have to be careful what you post, but you need to make sure your spouse does the same. Social media posts are forever. Your spouse and you should never post anything you don't want on the front page of the company newsletter.

Facebook At Work: What's The Worst That Could Happen?

So Facebook came out with a yuge announcement that it has a brand new social platform in beta testing called "Facebook At Work." I know, huh? I gasped when I saw this announcement and if you've been doing employment law as long as I have (since dinosaurs roamed), you probably gasped too.

What the heck is Facebook thinking? Well, I know what they're thinking. They're thinking $$$$$. I'm thinking potential disaster. But there's more. Here's what Facebook says about this app:

Workplace gives users access to familiar features like Facebook Live video, Groups, Messenger, and a News Feed, but these Workplace accounts are separate from traditional personal Facebook accounts. The service is meant to help facilitate productive workplace discussion – similar to the popular communications tool Slack – rather than offering a chance zone out at your desk.

Workplace also offers a separate Work Chat app that can be downloaded for iOS and Android devices.

For those looking to connect with contacts in other companies, the service will also offer Multi-Company Groups, which are being called “shared spaces that allow employees from different organizations to work together.” These groups will be rolling out over the course of the next few weeks.

I just have to laugh so I won't bang my head against a wall, which my doctors would definitely frown on. I've written about how Facebook firings are rampant. Let's just talk about some possible disasters that could come from this before your company jumps on this bandwagon to hell:

• Sexual harassment: How many cases have there been of social media sexual harassment? Too many to count. Yes, you can get accused of sexual harassment for posting museum photos of nude statues, passing on "funny" cartoons or making jokes about politics this season. And yes, employers, if this activity occurs on your social media platform guess who will be responsible? (Hint: it's you). On the other hand, social media can be used against sexual harassment victims too.
• Race, national origin and other discrimination: Jokes about Bin Laden, Obama and Canadians abound on social media. What do you think will happen when they start circulating on your company social media platform? Who is going to police that? Because someone had better be watching carefully. As to employees, you can't treat Facebook At Work like your regular social media. 
• Disability discrimination: Social media is a great way to find out more about your employees. Like whether they have a disability or a family member with a disability. And once you find out, what will happen when you try to fire them for poor performance? Nothing good.
• NLRA: If employees criticize their workplace, working conditions or boss on this or any other social media, they are probably protected. Office gossip? Possibly protected. But there are some posts that can get you fired, so there's a fine line. And if you try to prohibit such discussions in the handbook, you may get slapped by NLRB.

There are lots of ways social media can go wrong already. And with millennials entering the workforce, we have workers who put their entire lives on display.

I'd think long and hard and consult with a management-side employment lawyer before using this new app in a workplace.

Can You Be Fired For Your Facebook Posts? Yes (With Exceptions)

Do I really have to tell you to watch what you say on social media? Apparently I really do because I run into people all too often who were fired for inappropriate postings, emails, texts, or other comments. My best advice is this: don't put anything in writing that you don’t want posted on the front page of the company newsletter.

Examples of social media firings I've heard of that stand out are posting cruise pictures while on FMLA leave (doh!), posting a foul curse-laden rant about the company (probably legally protected), posting a photo of a nude museum statue (a coworker complained of sexual harassment even though they weren’t FB friends), and posting pictures of an office party gone wild (with some resulting retaliation by a boss captured on film). Basically, I’d say use your judgment and think twice, then think again before you post, whether pictures or just your thoughts. If you don’t think it would go over well on the company newsletter front page, don’t post it.

That being said, although HR does get involved in employee social media posts, 90% of the time it’s none of their business. And the NLRB would agree with me to the extent that employees have the right to gripe about and discuss working conditions. However, if the comments are racist, sexist or otherwise demonstrate that you are inclined toward unlawful discrimination or harassment, then I’d say it depends on the situation. You might be someone HR would want to give extra scrutiny to regarding your workplace behavior. 

But if you posted, say, a Nazi symbol on your Instagram but acted respectful and considerate of coworkers at all time, then I’d go back to my position that it’s none of HR’s business. On the other hand, posting a Nazi symbol, sexist comments or other evidence of a bias means that, if HR is watching or finds out about it, they’re on notice of the employee’s propensity to discriminate. If you do it at work, then the company could be strictly liable. So it’s a balancing act. You probably want to avoid being on that HR tightrope by watching what you post.

Most times it’s better for HR not to know what people are posting unless it somehow becomes disruptive at work. If HR is checking employee social media, they may accidentally find out about your disability, pregnancy, sexual orientation or other protected status and subject the company to potential discrimination claims.

If HR is going to scrutinize social media, personal emails written on work devices or other things that employees may think are none of their business, then HR should make a written policy and put people on notice. Otherwise, it will become a morale issue.

Some states have laws protecting employees for being fired for legal off-duty activities. Those laws may protect employees who post on their own time. 

For political posts, some states have laws that may help. For instance, in Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." Here in Broward County, it's illegal to fire employees based upon political affiliation.

So you do have some legal protection for some social media posts. However, use caution, especially during political season.

Florida Democrats Take Another Swing At Pro-Employee Legislation (That Won't Pass)

Another legislative session coming up, some more pro-employee legislation that will not pass. But here’s what some Florida Democrats (okay, I didn’t check them all, but c’mon, what are the odds that any of the co-sponsors of any pro-employee laws are Republicans?) are trying to pass in 2016 to help Florida employees:

$15 minimum wage: SB 6 and HB 109 would raise Florida’s minimum wage to $15/hour

ERA: SCR 74 and HCR 8001 would ratify the Equal Rights Amendment. Better late than never.

Sexual Orientation: SB 120 and HB 45would add sexual orientation and gender identity to prohibited categories of discrimination in the workplace.

Social Media Privacy: SB 186 would prohibit employers from demanding your social media passwords.

Unemployment and Domestic Violence: SB 188 protects employees who leave or lose jobs due to domestic violence from being disqualified for unemployment benefits.

Paid Sick Leave: SB 294 and HB 205 would require state and local governments with at least 9 employees to provide paid sick leave to employees. Why only government employers? I'm really not sure that's what the sponsors meant to do, but that's what it says employers are.

Paid Family Leave: SB 384 and HB 603 would require employers to provide paid leave similar to FMLA for birth or adoption of a child and care in the first year, but it applies to employees who work at least 20 hours a week, applies to employers with at least 15 employees, and would permit up to 6 weeks of protected leave. Creates a rebuttable presumption that any demotion or discharge taken within 90 days against an employee who takes leave is a violation.

Ban the Box: SB 448 and HB 353 would prohibit employers from asking about criminal history in initial employment applications.

If you support any of these bills, start calling and writing your legislators now. Especially the Republicans. If any of these proposed laws get overwhelming support, they may just have a chance. My prediction: DOA.

Employment Law Bills Pending In The Florida Legislature

Since I've been writing about states that have pro-employee laws, and complaining about the lack of protections for employees in Florida law, I thought you'd like to hear about some legislation that has been filed in the Florida legislature for the upcoming session. Will any of it pass? Doubtful. Still, now might be a good time to contact your representatives and state senators to support some of these laws:

Intern Sexual Harassment: Rep. Joseph Geller has proposed a law expanding the Florida Civil Rights Act to include unpaid interns. Why? Because we currently have no laws in Florida prohibiting sexual harassment of interns. Who will come out in favor of sexual harassment of our teenagers? Stay tuned.

Florida Overtime Act: This proposed law revises the number of hours of labor that is a full legal day's work from 10 to 8; revises rates of overtime compensation; provides that commuting to and from certain locations is not part of a day's work; prohibits an employer from requiring employee to continue working after punching out; prohibits employers from paying an employee for less than the amount of contracted hours worked by the employee; and provides penalties for violations.

Fair Pay: The Helen Gordon Davis Fair Pay Protection Act would condemn gender-based pay disparity and have the Department of Economic Opportunity and the Florida Commission on Human Relations do research and disseminate information about unequal pay. No remedies for victims, but it could help prove that disparities exist and spread the word about what legal protections women have.

Minimum Wage: A law increasing the state's minimum wage to $10.10 probably doesn't have a snowball's chance.

Social Media Privacy: Right now, Florida employers can get away with demanding employee social media passwords. A law prohibiting this kind of invasion of privacy would make it illegal for employers to demand user names and passwords for personal social media accounts of employees and prospective employees.

Bullying: The Safe Environment Work Act would make employers liable for allowing an abusive work environment to exist. Will Florida join Tennessee in banning workplace bullies? Not likely.

Ban The Box: With this law, Florida would join the many states that ban employers from making prospective employees disclose their criminal history on an employment application. So far 13 states have passed ban-the-box laws.

LGBT Discrimination: One law that might pass, mainly because lots of Florida employers have come out in favor of it and it has bipartisan support, is the law proposing to add sexual orientation and gender identity to the categories of prohibited discrimination under the Florida Civil Rights Act.

Although it isn't specifically related to employment law, there's yet another attempt to pass the Equal Rights Amendment in Florida. The ERA was the first campaign I worked on when I moved here in 1981, and I thought it was a no-brainer. Here we are, 33 years later, with no ERA. Will it pass? No.

9 Things Every Teen Should Know About Workplace Rights

If you're in high school or college, odds are you're looking for a summer job or internship. Maybe you're even working during the school year. Of course, your school gave you detailed preparation on what your legal rights are when you work. Right? Ha. Not a chance. Schools do roughly zip to prepare teens for the real world workplace. You have to figure this stuff out on your own.

Well, I'm here to help. I wrote last week about sexual harassment, but there's more you need to know. If you're new to the workplace or getting ready to apply for an internship, this is the article for you.

If you are the parent, relative, guardian or friend of a teen who is about to enter the workforce, do them a favor and print, tweet, email (do teens email?), text, Instagram or Pinterest this to them. (You can probably forget about Facebooking it to them since they all fled when their parents got on Facebook.)

Read my article 9 Things Every Teen Should Know About Workplace Rights to find out what your high school or college probably didn't teach you about workplace rights.

70% Of Employers Think Your Social Media Posts Are Their Business

A well-respected management-side firm (and sometimes opposing counsel of mine, I should add), Proskauer, released a study they did on social media this week, and I found it quite disturbing from the employee-side point of view. Their key finding:

While nearly 90 percent of companies use social media for business purposes and almost half allow employees to use social media for non-business activities, more than 70 percent of employers report having to take disciplinary action against employees for misuse (a significant uptick from 35 percent in 2012).

While the management-side firm took the results of this study to mean that employers need to crack down more on employee social media use, I had a different reaction, which was:

Holy cow! Seventy percent of employers not only monitor employee social media but are disciplining employees for expressing incorrect views. 

I have to ask, what the hell are we coming to when employers think they have the right to monitor and control employees' opinions expressed on their own time in their own blogs, Facebook pages or other social media. What kinds of things are employers monitoring and cracking down on? Here's what Proskauer says:

• Misuse of confidential information (80 percent)
• Misrepresenting the views of the business (71 percent)
• Inappropriate non-business use (67 percent)
• Disparaging remarks about the business or employees (64 percent)
• Harassment (64 percent)

 Wait, what? Misrepresenting the views of the business? Disparaging remarks about the business or employees? Wow. The nerve of employees having views different from those of their employers or disparaging an abusive boss.

Fortunately, employees who are being subjected to this Big Employer behavior have the NLRB in their court.  NLRB protects most non-supervisory non-government employees from many overbroad social media policys. Some of their recent crackdowns include:

Tossing a disclaimer requirement: Kroger had the brilliant idea of requiring employees to post a disclaimer whenever their posts related to work. "The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores."  The NLRB judge tossed the disclaimer requirement with this comment:

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would neve r— ever — withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech.

 Tossing an anti-negativity policy: Hills and Dales General Hospital decided all employees must be happy, or at least not express unhappiness. A NLRB judge tossed policies with this language: “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other,”  “We will represent Hills & Dales in the community in a positive and professional manner in every opportunity,” and“We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.” They stopped short of, "You will be assimilated."

Making an employer rescind policy against discussing executives, customers, suppliers: Valero had to toss its social media policy to satisfy the NLRB. The offending policy about discussing executives, et al. was this:

Policy 1:  Protecting the confidential information of our employees, customers, partners and suppliers is also important.  Do not mention them, including Valero executives, in social media without their permission, and make sure you don't disclose items such as sensitive personal information of others or details related to Valero's business with its customers.

Making an employer rescind policy against abusive, embarrassing posts: Valero also had to toss this policy:

Policy 2:  Do not post anything that is false, misleading, obscene, defamatory, profane, discriminatory, libelous, threatening, harassing, abusive, hateful or embarassing to another person or entity.  Make sure to respect others' privacy.

If you think your employer's social media policy is over the top, or if you're being disciplined for social media use, contact the NLRB or talk to an employment lawyer in your state about your rights.

For more on employer invasion of social media privacy, check out my articles Can Your Employer Demand Your Social Media Passwords and Ten New (And Legal) Ways Your Employer Is Spying On You.

13 Things Every Teen Needs To Know About Workplace Rights

School’s out for summer! Or it will be soon, and many teens will start summer jobs or even their very first real job. Yet schools do little, if anything, to prepare teens for the realities of the workplace. I’m always shocked when I encounter teens whose parents drag them to me after they suffer workplace abuse with no idea they have any rights at all.

So, if you’re a teen entering the workplace or thinking of applying for a job, read this. If you’re a parent, friend or relative of a teen who is entering the workforce, please print this and show it to them.

Here are 13 things teens need to know about workplace rights that their school probably didn’t teach them:

1. Minimum Wage: Federal minimum wage is $7.25 per hour. However, there is something called the youth minimum wage, which means that for the first 90 calendar days of any new job you can be paid as little as $4.25 per hour if you are under 20. State minimum wages may be higher. Here in Florida, the minimum wage is $7.79. Tipped employees may be paid a minimum wage of $2.13/hour as long as their wages including tips equal at least the higher of the state and federal minimum wage. State minimum wages for tipped employees vary. In Florida, it’s $4.77/hour. More details about wages can be found here.

2. Hours: If you are under 16, under Federal law your work hours are limited. You can’t work during school hours at all, and you can’t work more than 3 hours on a school day, including Friday; more than 18 hours a week when school is in session; more than 8 hours a day when school is not in session; more than 40 hours a week when school is not in session; and before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when you can work until 9 p.m. Federal law doesn’t limit work hours for teens 16 or older, but your state laws may. For instance, Florida law says if you’re under 18 you can’t work during school hours (with exceptions), and that if you’re 16 or 17 you may only work up to 30 hours per week, not before 6:30 a.m. or later than 11 p.m. and for no more than 8 hours a day when school is scheduled the following day, and for no more than 6 consecutive days.

3. Breaks: Federal law doesn’t require any work breaks. However, many states require work breaks, especially for workers under 18. In Florida, workers under 18 are not allowed to work more than 4 consecutive hours without a 30 minute uninterrupted work break. For breaks of more than 20 minutes, employers don’t have to pay. Breaks 20 minutes and under are hours worked that need to be paid.

4. Sexual Harassment: If your boss, coworker, customer, vendor or potential boss is harassing you because of your gender or gender identity, that’s sexual harassment, and it’s illegal. This includes unwanted sexual advances, requests for sexual favors, offensive comments about men or women in general, off-color jokes, touching, and other harassment that is either so severe or so frequent that it alters the terms and conditions of your employment. A single offhand comment may not be sexual harassment, but a single incident that is severe could be. As a minor, you have added protection. Any adult sexually harassing you is probably committing a crime, and could be a sexual predator. It is really important that you read the company’s sexual harassment policy when you start working and write down where you are supposed to report it if it occurs. You don’t have to be afraid, and you should not let yourself become a victim. People you can and probably should report sexual harassment to are your Human Resources department at work and your parents. If you’ve been touched, then you may want to contact the police. If you see someone else being sexually harassed, you should report it. Harassers will keep doing it, and their behavior will get worse, unless an adult stops them.

5. Contracts: In most states, if you’re under 18 you can’t be bound by a contract, including an employment contract. You (or your parents) can void a contract you’ve signed while underage. However, once you turn 18, you probably can’t void it anymore. Employment contracts might have provisions saying you can’t work for a competitor for a year or two, waiving your right to a jury trial, confidentiality obligations, and other important clauses. If you are asked to sign a contract, always read it and keep a copy once you’ve signed. If you don’t understand it, talk to your parents or an employment lawyer in your state about it.

6. Internships: While many teens take unpaid internships for the summer, most employers get internships wrong. If your internship is not a real learning experience for you, then you probably have to be paid for the work you do. An internship is supposed to be training similar to that you would receive in a vocational school. Filing, stuffing envelopes, and answering phones should normally be paid. Internship assignments should build on each other so you develop more skills, similar to the way each chapter of a textbook builds on the other. You should be getting training that benefits you, and you should be getting more benefit than the company. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid.

7. At-will: If you live anywhere but Montana, your employment is probably at-will, meaning your employer can fire you for any reason or no reason at all (with some exceptions). They can fire you because they’re in a bad mood, because they didn’t like your shirt, or because you lipped off to them like you lip off to your parents. Exceptions that would make a firing illegal include firing due to discrimination, making a worker’s comp claim, and blowing the whistle on illegal activity of the company. If your boss tells you to do something that isn’t illegal (or sexual harassment), then do it. No eye-rolling, back-talk or attitude.

8. Social Media and Cell Phones: You are expected to work during work hours. That means no texting, emailing, calling, tweeting, instagraming, facebooking, downloading, or surfing at work, unless it’s work-related. If you check your texts, emails, or social media on a company computer, cell phone or other device, the company probably has the right to look at it. If you view or send inappropriate pictures, jokes, or videos, you can be fired for doing so. There is very little privacy in the workplace, and you have few rights. Assume you’re being watched at all times at work and you won’t go wrong. Oh, and remember all those party pics and embarrassing photos you posted before you started applying for work? Employers and potential employers can see them. You probably want to check your social media pages and pull down anything you can that might be inappropriate for an employer to see.

9. Human Resources: If your employer is big enough, you probably have someone who is designated as the Human Resources person or a whole department called “Human Resources.” It may be referred to as HR. This is the place to go for information about work rules, to report sexual harassment or discrimination, and you’ll probably have to go there on your first day to fill out a stack of forms. While they can be very helpful if you have questions or concerns, they aren’t your buddies. Human Resources represents your employer, not you. They aren’t your mom or your best friend, so don’t go to them with every petty complaint, confess you did something wrong, or tell them about the wild party you went to over the weekend. Keep it professional.

10. Discrimination: Discrimination against you for being you isn’t illegal. However, discrimination and harassment due to race, sex, sexual identity, national origin, disability, religion, color, pregnancy and genetic information are. In some states, there are more categories of illegal discrimination. For instance, in Florida it’s illegal to discriminate against you because you’re too young or because of marital status. Whether sexual orientation is a protected category depends on your state and local law. No federal law bars sexual orientation discrimination.

11. Bullying: While your school might have zero tolerance for bullying, your workplace may be a bullying free-for-all. No federal or state law exists that prohibits workplace bullying. However, workplace bullies are very much like school bullies: they focus on the weak and the different. If you need to complain about a bully, make sure you do it in a way that’s protected. If the bully is picking on the weak, are they weak because of a disability, pregnancy, or age? If they’re picking on the different, is the difference based on race, national origin, age, or religion? If you report illegal discrimination, the law protects you from retaliation. If you report bullying, no law protects you.

12. Dangerous Work: It is every employer’s duty to maintain a safe workplace. If you think your workplace is unsafe, you can contact the Occupational Safety and Health Administration (OSHA) to report dangerous conditions and get more information. Certain jobs are deemed too hazardous for teens under 18 to do. A plain English description of the 17 jobs considered too dangerous for minors is here. There’s a different list for agricultural work that applies to workers under 16.

13. What Kind Of Work You Can Do: Depending on your age, there may be limits on the type of work you can do. If you are under 14, you can work, but your options are limited. You can deliver newspapers, babysit, act or perform, work as a homeworker gathering evergreens and making evergreen wreaths, or work for a business owned by your parents as long as it’s not mining, manufacturing or one of the occupations designated as hazardous. If you are 14 or 15, you can do things like retail, lifeguarding, running errands, creative work, computer work, clean-up and yard work that doesn’t use dangerous equipment, some food service and other restaurant work, some grocery work, loading and unloading, and even do some work in sawmills and wood shops. We’re talking non-manufacturing and non-hazardous jobs only. If you are 16 or 17, you can do any job that isn’t labeled as hazardous.

The Department of Labor has a website where you can get more information about employment laws that apply to teens. An interactive advisor about federal law may be found here.

Of course, my book Stand Up For Yourself Without Getting Fired can help anyone new to the workplace since it covers how to handle workplace crises and issues from the interview and application, to your first day and that giant stack of papers, to workplace disputes, to promotions, to termination, and even post-termination.

The "She Asked For It" Defense Strikes Again

In another example of why women hesitate to bring sexual harassment claims, a judge has ordered twenty two women who are bringing a sexual harassment claim to turn over their cell phones and social networking passwords to attorneys for their former employers. The judge will allow these attorneys to examine their chats, text messages, tweets, private messages, pictures, posts and emails.

The former employer claims that they need the information to explore whether the women used the words they claim offended them, their romantic lives, and other information to determine whether they were indeed subjected to unwelcome sexual harassment and, if so, the extent of their emotional damage.

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, "Cu**" on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can't be offended when someone else uses it toward them.

The judge said this about his reasoning: "I view this content logically as though each class member had a file folder titled “Everything About Me,” which they have voluntarily shared with others. If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced."

This is a case where twenty-two women say they were propositioned, fondled, and subjected to unwanted comments by their manager. Twenty-two! That means this employer is claiming twenty-two women are all making up the same story. That twenty-two women asked for this behavior.

Which brings me back to the "she asked for it" defense. Too many judges in sexual harassment cases allow the harasser to claim that a woman's use of four-letter words, her clothing, or her sex life with others mean that she wasn't offended when she was groped, insulted or grabbed by her supervisor. If a woman isn't a delicate flower, blushing at the merest hint of foul language or the mention of sex, she's apparently an open target.

So, ladies, open your diaries, love letters, private email, intimate discussions with friends and anything else in your life. If you are bringing a sexual harassment claim, your harasser can see it all so they can claim you asked for it.

I have to say this to management-side employment lawyers who use this tactic to humiliate sexual harassment victims: "Have you no sense of decency, sir? At long last, have you left no sense of decency?"

Top Six Illegal Policies In Your Employee Handbook

Your employee handbook contains lots of policies and procedures you’re supposed to read and follow. But many handbooks contain policies the National Labor Relations Board (NLRB) considers illegal. NLRB is usually thought of as the agency that regulates all things union: elections, collective bargaining agreements, and unfair labor practices, to name a few. But I bet you didn’t know that they also probably regulate your employer unless you work for the government. That’s right: whether or not your workplace is unionized, the National Labor Relations Act (NLRA) applies to just about every private workplace.

Many employee handbooks contain policies that violate Section 7 of the NLRA, which says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” NLRB has a new web page that describes its enforcement efforts regarding concerted activities of employees.

Here are just some of the policies NLRB considers to be illegal that may well be in your handbook:

At-Will Employment: Your handbook probably says your employment is at-will. But in a recent complaint the NLRB filed against Hyatt Hotels Corporation, the NLRB found that an acknowledgement in the handbook saying that the only way to change at-will employment was by a written statement signed by the employee and a Hyatt officer was so broad that it implied that unionization was futile. The provision is probably similar to your company’s at-will policy:

I understand my employment is "at will." This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt's Executive Vice-President/Chief Operating Officer or Hyatt's President.

In order to retain flexibility in its policies and procedures, I understand Hyatt, in its sole discretion, can change, modify or delete guidelines, rules, policies, practices and benefits in this handbook without prior notice at any time. The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt's Executive Vice President/Chief Operating Officer or Hyatt's President.

Arbitration: Many employers have policies requiring employees to arbitrate disputes with the company. However, if the company policy says you are waiving your right to a class action, or if it otherwise prohibits employees from filing a NLRB complaint, NLRB says it violates the law.

No Discussion of Wages: Employers try to prohibit employees from discussing and comparing their wages. But prohibiting discussion of wages violates the NLRA. Employees must be allowed to discuss working conditions, including wages. That’s a really important right if, for example, you think you’re a victim of discrimination.

Nondisparagement: Does your company say you aren’t allowed to say negative things about the company, whether online or otherwise? Again, this probably violates your right to discuss working conditions.

Confidential Information: Most companies have a policy that you must keep confidential information confidential. But if that prohibition keeps you from sharing personnel information, revenues, expenses or training materials, it may also violate your right to discuss working conditions.

Social Media: If the company social media policy says you aren’t allowed to discuss or disparage the company in social media, that may well violate your right to complain about working conditions with coworkers. There have been a slew of cases where NLRB has recently found illegal firings due to Facebook postings and other social media issues. Policies that prohibit “offensive,” “demeaning,” or “inappropriate” comments are likely overbroad. Some states have passed laws against demanding your social media passwords, and there's federal legislation pending as well that may protect you from this type of intrusion.

So what do you do if you think your employer’s policies violate the law?

Your first step is to contact your regional office of the National Labor Relations Board. If they believe your employer is violating the law, they can talk you through filing a Charge Against Employer.

You have 6 months from the event or conduct to file. That means if your company comes out with a new policy, or if you are required to sign a form acknowledging your receipt of the handbook or agreement to the policies, you have six months from that date. You are entitled to have an attorney represent you before NLRB but you can’t recover your attorney’s fees if you win.

NLRB will investigate, which means they will interview you and you’ll have to sign an affidavit. They’ll also interview your employer and any witnesses. Then they’ll decide whether or not to issue a complaint against your employer. If they do, NLRB acts on your behalf to proceed against your employer. They will also help try to settle the case.

Unfortunately, your only remedies are reinstatement with back pay and back benefits if you were fired, plus an injunction to prohibit your employer from breaking the law in the future. NLRB might also require your employer to put up a poster advising coworkers of their rights.

The National Labor Relations Act is an under-utilized law protecting employee rights. Your employer may not understand that it applies to them. If you’ve been fired for violating one of these illegal policies, you may have a remedy.

Who Owns My Social Media Contacts and Posts?

Most employees think their social media is none of their employer’s business. So, who owns your social media contacts and posts? While you may think you own your contacts and posts online, the answer may depend on what agreements you’ve signed with your employer.

When you leave, it is possible for your former employer to make a claim to some or all of your social media contacts or posts.

My guest post on Monster.com tells what you need to know about who owns your social media when you leave your job.

Thanks to my friends over at MonsterThinking for continuing to ask me to post. It's such an honor to be asked to guest blog for the nation's best job hunting site (and the one I use when I need to hire employees).

Guest Blog Post on Social Media and Employment Law: Six Things You Need to Know

Whether you’re an occasional Facebooker, a Twitter fanatic, or a well-known blogger, you need to understand the risks you face every time you post or click at work and at home. If you think what you post is private, or that you can click without consequences, think again. If you make a mistake with your social media, it can cost you your job. I did a guest blog post this week on MonsterThinking (Monster.com's excellent blog on employment and career issues) where I talk about six things you need to know about social media and employment law before you post or click.

Check it out here.

I've added MonsterThinking.com to my blogroll too. It's an excellent source of information for employees on the latest issues affecting you at work. Keep checking it out - I know I will.

Yippee - I Can Insult My Boss on Facebook Now!

You’ve probably heard about the case the National Labor Relations Board brought against a company for disciplining an employee based on insults she posted on her Facebook page about her boss. Well, it settled. So I expect to hear about a bunch of employees posting nasty comments about their bosses on Facebook, tweeting about how awful management is, and then wondering why the heck they were fired.

Please, please don’t post anything in social media you don’t want on the front page of the company newsletter. Don’t get yourself fired over something stupid.

The National Labor Relations Act and Concerted Activity

In re American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010), is where the NLRB claimed a company violated the “concerted activity” provision of the National Labor Relations Act (NLRA). I personally like this provision a lot because it applies whether or not the company has a union, and covers pretty much every workplace. HR people and management-side lawyers don’t like to talk about it because it covers anything employees do for mutual aid or protection.

Here’s what it says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

If you’re complaining about working conditions, not just your own but also those of your coworkers, you’re possibly protected from retaliation under the National Labor Relations Act. Does that mean you should rush to post what a jerk your boss is? No. Not unless you want to be fired.

The Facebook Case and the Facts

The NLRB’s settlement of this case doesn’t mean that you’re necessarily protected. The facts of the case were not unusual, but they might not apply to you.

The company had a policy that prohibited: “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” It also prohibited employees from depicting the company in any way in social media. That’s pretty broad. Part of the NLRB’s beef was that the restriction was too broad. The settlement was, in part, that the company would “revise its rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.” The company also agreed that it “would not discipline or discharge employees for engaging in such discussions.”

Granted, the employee’s comments were pretty outrageous: "looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***." The company said she was rude and unprofessional, and violated their internet policy. Her coworkers then weighed in with comments supporting her and with further negative comments about the supervisor.

A big reason the NLRB found her activities protected was the fact that it resulted in comments from coworkers. If you post something just to vent and it doesn’t result in a discussion with coworkers, you’re probably not in the same boat. So tweeting that your boss is a jerk when your coworkers don’t follow you or comment is probably not going to be treated the same way.

Protesting Working Conditions Might Be Protected

While this wasn’t the first case involving protected comments, it was the first involving social media. Other cases where employee comments about working conditions were protected are where an employee was fired for criticizing unpaid two-hour sales meetings (also probably protected under the Fair Labor Standards Act and some other whistleblower laws, by the way); employees terminated for sending a letter protesting working conditions and that they were being told to spend large amounts of time on the company president’s pet project; and an employee who got a written warning for objecting to a supervisor’s lecture about radio headset volume.

So yes, protesting poor working conditions may well be protected under the National Labor Relations Act.

Why You Should Keep Your Mouth Shut

I still suggest you shut your mouth about any complaints you have, especially in social media. There are just too many ways you can mess yourself up, and the law has too many loopholes to give you much aid and comfort.

Intention is key: Your intent is all-important. If your employer thinks your intent was to retaliate, damage your boss’s reputation, damage the company, or anything but to improve working conditions, then you’re probably going to have to file for unemployment.

No solo act: Your comments have to be part of “concerted activity,” which is defined as “being engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee himself.” If you go it alone, you do it at your peril.

You might not be protected: There are also lots of exclusions, so many employees aren’t protected. Since the NLRA is meant mostly to protect attempts to unionize, supervisors, independent contractors (yeah, yeah, most employers get this wrong), domestic workers, agricultural workers, family member employees, managerial and confidential employees aren’t protected. If you’re high enough up, you can’t gripe and get away with it.

The company policy might be okay: The NLRB has found other provisions in employer policies didn’t violate the Act. For instance, in one case language that prohibited “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects” was allowed.

Bullying and harassment is legal: Let’s not forget that there’s still not a single state in the U.S. that has passed a law against workplace bullying. My post with further information about harassment and bullying is here. Bottom line is that a bully boss still has the power to discipline you, decide whether you get raises or promotions, and make your life miserable. Why tick him or her off if you aren’t protected from retaliation?

No free speech at work: The First Amendment doesn’t protect you unless you work for the government. There’s no free speech in corporate America. My post about what you can and should complain about at work and still be protected is here.

But I’m Sure My Company Did Something Illegal

So you think you were fired or disciplined for criticizing your boss, and you’re pretty sure you are protected. Don’t sit on your rights. You only have 6 months to file a complaint with the NLRB.

They will investigate to determine whether or not there’s cause for your charge. They may interview you, at work if you’re still there. You can have a union rep or coworker present with you. A report then goes to the Regional Director, who decides whether or not the case will go forward. Mostly, the cases are dismissed. Only about 1/3 go forward.

If you’re dismissed, you can appeal to the General Counsel’s office.

If the Regional Director finds reasonable cause, then they’ll first try to settle it. About 90% of the cases settle at this stage. If it doesn’t settle, it goes before an Administrative Law Judge and NLRB staff counsel will represent you. You can also have a private lawyer with you, but the lawyer’s role is limited since the case is not yours but the NLRB’s.

If you win, you can get reinstatement, back pay and interest. You cannot get emotional distress or attorney’s fees. The judge can also order that the employer cease and desist their illegal practices.

When in doubt, contact an employment lawyer in your state to get more information about your rights.