Thursday, October 29, 2015

Second Circuit Says Clicking “Like” on Facebook is Protected Activity

The National Labor Relations Board (the "Board") continues to focus on protecting employee activity in social media outlets, as reflected by the Board's protected concerted activity page.  Last week, the Second Circuit Court of Appeals decided a case that will likely further that enforcement activity.

In Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. National Labor Relations Board, the Second Circuit upheld the Board's decision that an employee's use of the Facebook "like" and comment features can be protected activity under the National Labor Relations Act ("NLRA").  In Triple Play, two employees were terminated after engaging in social media activity on Facebook that was negative towards their employer. The first employee "liked" a Facebook status update by a former employee who stated, "[m]aybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...!!!!" The second employee commented on the same status update, referencing the owner by stating, "I owe too. Such an [a**h***.]"

The Board found, and the Second Circuit agreed, that the conduct of both employees was concerted protected activity under the NLRA, because it involved current employees discussing working terms or conditions. The Second Circuit also agreed with the Board's conclusion that the comments at issue were not so disloyal or defamatory as to lose protection under the NLRA. The Second Circuit noted that the comments "did not even mention Triple Play's products or services" and were not defamatory.

Importantly, the Second Circuit refused to accept Triple Play's argument that the comments at issue lost protection under the NLRA based on the comments containing obscenities and having been viewed by customers.  The Court stated that, because almost all Facebook posts have some potential to be viewed by customers, holding that this causes a loss of NLRA protection would have the undesirable result of chilling virtually all employee speech online.

In light of the NLRA's continued focus on protected concerted activity, employers should continue to exercise caution in implementing social media policies that may "chill" protected activities, as we discussed earlier this year in our post on employer handbook rules.   In addition, employers should be cautious before taking adverse actions against employees if their social media activities appear to include discussions related to their employment terms, conditions or environment.

Wednesday, October 21, 2015

FLSA Refresher: Calculating the Regular Rate of Pay for Overtime Purposes

In the midst of busy work days, it can be helpful to revisit important fundamentals. As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (“FLSA”) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours in a workweek.

Thursday, October 15, 2015

Minneapolis Drops Predictability Pay Proposal, Continues Push for Paid Sick Leave

The Star Tribune reported today that the Minneapolis mayor and city council have, at least for now, tabled a controversial proposal to require businesses to adopt predictable scheduling practices or face monetary penalties. As discussed in last week’s post, the City’s earlier proposal would have penalized Minneapolis-based employers for failing to give substantial advance notice of work schedules or changing schedules on short notice. The proposal faced significant opposition from Minneapolis businesses and even some of the workers that the proposal was intended to help (see, for example news reports at and Opponents argued that the predictability pay proposal would have dramatic negative effects on small businesses and decrease flexible scheduling favored by some workers.

Wednesday, October 7, 2015

Is Paid Sick Leave On its Way to a Minneapolis Workplace Near You?

Throughout the year, we’ve posted about efforts at the federal and Minnesota legislative level to enact paid sick leave laws.  So far, there’s no federal or Minnesota state-wide law, but there is clearly a growing movement afoot around the country to pass such laws. And now, the Minneapolis City Council is getting in on the action. The City Council is considering an ordinance that has been referred to as one of the most far-reaching paid sick leave initiatives in the nation. The proposed ordinance, known as the Working Family Agenda, would require every business in the city of Minneapolis to give paid sick leave to workers and to provide advance notice of work schedules or face additional payroll costs.

Thursday, October 1, 2015

Three Former UMD Coaches Sue University Alleging Gender and Sexual Orientation Discrimination

Three former University of Minnesota-Duluth coaches filed suit against the University Board of Regents on Monday in federal court. Former women’s hockey coach Shannon Miller, former softball coach Jen Banford, and former women’s basketball coach Annette Wiles allege that University administrators discriminated against them based on their gender and sexual orientation and failed to properly investigate reports of harassment and discrimination. The lawsuit also claims disparities between the men’s and women’s athletic programs at the University.