Earlier this week, in Diaz v. Brewer, the Ninth Circuit Court of Appeals agreed with a federal judge's earlier decision to strike down a state law that was intended to block state employees' domestic partners from being eligible for health care benefits. Following the announcement of the decision, several media reports incorrectly suggested that:

• The Ninth Circuit had recognized a constitutional right to healthcare for gay and lesbian domestic partners;


• Same-sex partners of all workers in Arizona were entitled to healthcare benefits; and


• The Arizona law at the heart of the controversy had been blocked from the books.

However, a closer analysis of the Ninth Circuit opinion demonstrates that the ruling is more narrow in its application than initially reported and, just as importantly, may not survive either an appeal to the U.S. Supreme Court or further proceedings, if any, in the federal district court.

What the Ninth Circuit Really Said

In Diaz v. Brewer, a three-judge panel of the court, with an opinion written by Circuit Judge Mary Schroeder (herself a former State of Arizona employee), determined that the Arizona law at issue discriminated against same-sex domestic partners of state employees on the basis of sexual orientation. The adverse effect recognized by the court was the result that, under Arizona law, different-sex couples retain existing healthcare coverage by marrying, while same-sex couples are prevented from marrying and, therefore, precluded from receiving such benefits.

Judge Schroeder determined that the State of Arizona had failed to provide sufficient support that this differing treatment of same-sex and different-sex couples furthered any legitimate financial or administrative interest of the state. Thus, the court enjoined the offending Arizona law as a violation of the U.S. Constitution's equal protection clause.

The Ninth Circuit did not, however, find that the domestic partners of government workers are constitutionally entitled to health benefits. Instead, as Judge Schroeder wrote, "when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular."

Private Sector Employer Actions in Arizona Not Affected

The equal protection clause only applies to government actions, not to the actions of private citizens or corporations. In other words, although the government is not allowed to treat same-sex domestic partners differently from different-sex domestic partners without a rational basis, private sector employers may make this distinction, regardless of the reason.

Thus, the Ninth Circuit ruling in Diaz v. Brewer narrowly applies to only government employers. Although non-government employers are free to not follow the lead of the State of Arizona and provide healthcare benefits to same-sex partners, neither Arizona law nor the Ninth Circuit's recent decision requires them to do so.

Round One: Diaz 1, Brewer 0

Although the Ninth Circuit's decision went against Arizona Governor Jan Brewer, it remains to be seen whether she appeals to the U.S. Supreme Court which, as other pundits point out, overturns decisions from the Ninth Circuit on a regular basis.

In addition, the Ninth Circuit's ruling upheld the trial court's preliminary injunction in this matter, and did so because the State of Arizona failed to provide sufficient support for the cost savings and administrative reductions that it claimed justified the statute in the first place. If a further hearing is held to decide whether a permanent injunction is appropriate, and Governor Brewer is able to provide additional evidence of the state's economic interests, then the State of Arizona may be able to justify its differing treatment of same-sex and different-sex domestic partners without offending the Constitution's equal protection clause.

Whether any of these procedural processes will occur, or Governor Brewer simply leaves the Ninth Circuit ruling undisturbed, is yet to be determined.

Regardless of the next step taken in the Diaz v. Brewer case, the battle over same-sex partner healthcare benefits is far from over. Similarly, the media attention that same-sex partner issues receive is only going to increase.

By: Neil Alexander and Wade Swanson

Can an Indiana employer with reasonable suspicion ask an employee if he has a gun in his briefcase? Not without opening itself up for liability under Indiana's new Disclosure of Firearm or Ammunition Information as a Condition of Employment Law.

What Does the New Law Prohibit?

Effective July 1, 2011, no "public or private employer doing business in Indiana" may "require an applicant . . . or an employee to disclose information about whether the applicant or employee owns, possesses, uses, or transports a firearm or ammunition, unless the disclosure concerns the possession, use, or transportation of a firearm or ammunition that is used in fulfilling the duties of the employment of the individual." Ind. Code ? 34-28-8-6(1).

Employers are also forbidden from conditioning employment "or any rights, benefits, privileges, or opportunities offered by the employment" on an employee's or applicant's agreement to forgo lawfully owning, possessing, storing, transporting, or using a firearm or ammunition. Ind. Code ? 34-28-8-6(2).

While it remains lawful for Indiana employers to have a policy prohibiting the possession and use of firearms and ammunition on company property (except in locked vehicles), this new law prohibits employers from taking any action to enforce that policy that might be construed as a requirement to disclose information about employees' or applicants' firearms and use thereof.

Why Should Employers Be Concerned About This Law?

One word: Damages. Individuals who believe an employer has harmed them by violating this law may sue for actual damages, punitive damages, injunctive relief, costs, and attorneys' fees.

Which Employers Does the Law Cover?

This law covers all public and private employers "doing business" in Indiana. The definition of "private employer" is particularly broad. A private employer need not have an Indiana employee to be within this law's reach. If a private employer does business in Indiana and "offers to employ one (1) or more individuals in Indiana," the employer is covered. In other words, an employer could do business in Indiana solely through independent agents or distributors. If the employer later interviews candidates for a job it intends to create in Indiana, offers a job to an applicant who turns it down, violates the new law during the process, and ultimately decides not to fill the position, the business could still be liable under this law solely because it made the offer of the Indiana job.

More important, unlike Indiana's 2010 Possession of Firearms and Ammunition in Locked Vehicles Act, no employers are excluded from this new statute. Schools, penal facilities, facilities that care for endangered children, colleges and universities, domestic violence shelters, employers subject to the U.S. Department of Homeland Security's Chemical Facility Anti-Terrorism Standards, and public utilities are restricted in the same way as all other employers. None of these entities may require an employee or applicant to disclose firearm and ammunition information or condition employment upon an agreement to forgo activities connected to firearms and ammunition.

Even more disconcerting, the new law reaches beyond the legal possession and use of firearms and ammunition. The law clearly protects all applicants and employees without exception. In other words, if an employer requires an employee to disclose that he is carrying a gun, the employee may sue the employer for damages – even if the employee possesses the gun illegally.

Is There Any Good News?

The very last section of the new law states that "despite" the requirements prohibiting required disclosure, the law does not prevent an employer from "regulating or prohibiting the possession or carrying of a firearm by an employee during and in the course of the duties of employee on behalf of the employer or while on the property of the employer." It also does not prohibit an employer from "enforcing" such a regulation or prohibition so long as the regulation or prohibition does not reach to firearms or ammunition locked in the glove compartment or trunk, or otherwise out of sight in an employee's locked vehicle.

What Can Employers Do?

Employers may not ask questions about owning, possessing, using or transporting firearms during a job interview. An employer also may not require its current employees to answer questions such as: "Do you own a gun?" "Are you carrying a gun?" "Do you have a gun in your car?" "Do you have a gun in your briefcase, purse, or desk?" An employer cannot deny, suspend, or terminate employment or discipline any applicant or employee who refuses to provide information concerning his or her possession or ownership of a firearm.

What else does "require to disclose" mean? Unfortunately, the implications of the new law are not fully clear, but below are some scenarios for consideration.

• Does an employer "require" disclosure if it sets up a metal detector at the door without prior notice to employees? Does the answer change if the employer provides prior notice of the metal detector?

If an employee with a gun in his pocket arrives at work and finds a metal detector at the door, he must make a choice: (1) he can return to his car and lock his gun up there, which may make him late to work and will, at a minimum, arouse suspicion that he had something he should not have had; (2) he can take the gun out of his pocket before going through, which is clearly "disclosing" the gun; (3) he can walk through the metal detector with the gun on him, which will also be "disclosing" the gun; or (4) he can refuse to go through the metal detector, which will make it crystal clear that he possesses something he should not.

If the employee makes the second or third choice, the employer arguably will have violated the new law. If the employer disciplines the employee for being late after the first choice, or fires him for job abandonment after he makes the fourth choice, has the employer also violated the law? Did the employer "require" disclosure? It is not clear.

If the employer gives prior notice of the metal detector, then the employee has a fifth choice. He can leave his gun at home or locked in his vehicle. If he walks up to the metal detector with the gun on him, he has arguably given his implied consent to the disclosure. It seems less likely the employer has required the disclosure in this circumstance. But if an employee asserts he forgot he had the gun on him and had no choice but to pull it out after the detector went off, can he not also argue that the employer "required" disclosure? Again, it is not clear.

• Does an employer "require" disclosure if it randomly searches desks, lockers, or other employer-owned property? What if the employer searches such property in the employee's presence or with the employee's consent? What if the employer asks an employee if it can search a backpack, briefcase, or purse?

There are multiple forms a search in the private sector might take. Indeed, a search might occur for multiple reasons besides firearms and ammunition – drugs, alcohol, stolen property, etc. If a private sector employer has a policy in place that makes it clear employees have no reasonable expectation of privacy in desks, lockers, and other employer-owned property, then the employer may comfortably conduct a search of these areas outside an employee's presence and without an employee's consent. While an employee might argue that simply by conducting the search, the employer "required" the employee to disclose information about his or her ownership/possession of a firearm, that argument seems quite weak. The argument grows stronger if the employer informs the employee of the search before it occurs. If the employer needs to search a purse, briefcase, backpack, or an employee's person, it is almost always going to obtain consent and, as a result, possibly look even more like it is "requiring" disclosure.

Public sector employers, who must meet the constitutional burden of "reasonable suspicion" before a search, are arguably even more likely to announce their intention to search and thus come closer to "requiring" disclosure.

Simply put, the new law leaves searches of all types in a very grey area.

• Does an employer "require" disclosure if it asks employees to disclose voluntarily the presence of firearms on their persons? In their locked vehicles?

If the employer simply wants to know where the firearms and ammunition are in case of a fire or an attack from the outside, it may not be a violation of the new law to send out a memo saying something similar to:

For safety reasons, the Company would like to know where firearms and ammunition are kept on its premises. If you have firearms or ammunition in the facility or in your car, we would appreciate you letting us know. You are under no obligation to disclose this information, but if you choose to do so, please contact Human Resources. You will not be penalized in any way if you choose not to disclose this information.

But what if employees or rogue supervisors put pressure on others to make the "voluntary" disclosure? When does disclosure transform from voluntary to "required?" More important, if the employer has a "no weapons in the workplace" policy, then making a truthful voluntary disclosure would force people to admit that they are violating the policy – an admission no one is likely to make.

How Does an Employer Comply With This Law and Keep Its Workforce Safe?

An employer can have a policy prohibiting the possession and use of firearms/ammunition on company property (except in locked vehicles), but not take any action that can be construed as a requirement to disclose information concerning such firearms. In other words, an employer can enforce its policy only when the employee voluntarily pulls out a gun to show it off, voluntarily tells a co-worker he has a gun, or accidentally drops a gun out of a purse, briefcase, or backpack. Understandably, this may not be the most attractive approach to most employers.

Employers who wish to be more aggressive may:

• Install metal detectors with significant advance notice, understanding that the use of metal detectors may lead to arguable requirements to disclose with respect to employees' objecting to submitting to such a detector, as discussed above.


• Ask employees to disclose voluntarily their intention to possess a firearm/ammunition, attach no discipline to an employee's refusal to disclose, and monitor behavior very closely to ensure that there is no peer or rogue supervisor pressure to disclose. If an employer has a "no weapons in the workplace" policy, such voluntary disclosure would need to be limited to weapons in vehicles (which is the required exception to a lawful "no weapons" policy).


• Choose to conduct random searches of the property for contraband, if a private employer, and both private and public sector employers could consider conducting reasonable suspicion searches outside of the targeted employee's presence.

As described above, however, all of these possibilities clearly carry the risk that the employer may become a "test case" for the new law.

A few other practices may be helpful:

• Listen to your employees. Employees talk about hobbies, weekend activities, etc. If you have a gun enthusiast in your ranks, this information is likely to be shared. In other words, voluntary disclosure may happen if you are listening for it.


• Do more than just distribute a "no guns" policy. Have a comprehensive policy prohibiting all weapons and ammunition on company property (with the carve-out for firearms and ammunition locked in cars) and a comprehensive workplace violence policy. Have employees sign off on both policies. Train employees on both policies. If the company believes it is better off without guns in its building, now may be the right time to explain the basis for that belief to employees.


• Consider requiring all employees to sign a form pledging that they will not bring a firearm or other weapon into the workplace in the future. This is not requiring disclosure of firearm or ammunition information, but a refusal to sign may put the employer on notice of potential future issues.

Authors: Jane Ann Himsel and Brian Mosby

A federal district court in New York recently issued a decision in Hernandez v. Alpine Logistics, LLC, 2011 U.S. Dist. LEXIS 96708, that requires employers to pay overtime compensation to employees who are otherwise exempt from overtime under the Motor Carrier Act for any workweek in which the employee operates a vehicle weighing 10,000 pounds or less. It is important that employers with a mixed fleet of vehicles review their classification decisions to assess any potential exposure the Alpine Logistics decision may present.

Background

The plaintiffs in Hernandez were employed as delivery drivers responsible for picking up and delivering packages in the Rochester, New York area. They filed a class action/collective action against their employer for overtime based on the Fair Labor Standards Act (FLSA) and New York Labor Law. Alpine's permanent fleet consisted of 26 vehicles, two of which weighed more than 10,000 pounds and 24 of which weighed 10,000 pounds or less. All of Alpine's drivers could be called upon to drive any of the vehicles. The plaintiffs claimed they and other drivers were entitled to overtime because of an amendment to the FLSA that became effective on June 7, 2008. The defendant argued that the drivers were exempt from overtime under the Motor Carrier Act.

Background on the Motor Carrier Exemption

The Motor Carrier Act provides an exemption from the maximum hours/overtime provisions of the FLSA. The scope of the exemption is defined by the jurisdiction that the Secretary of Transportation can assert under the Motor Carrier Act. 29 U.S.C. ? 213(b)(1). The Secretary of Transportation has the power to regulate the qualifications and hours of employees of "motor carriers" and "motor private carriers" engaged in activities directly affecting the safety of motor vehicles in interstate commerce. 49 U.S.C. ?? 31501, 31502(b); Baez v. Wells Fargo Armored Serv. Corp., 938 F.2d 180 (11th Cir. 1991).

On August 10, 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Pub. L. No. 109-59, 199 Stat. 1144 (2005). Section 4142 of the SAFETEA-LU amended 49 U.S.C. section 13102 so that "motor carrier" and "motor private carrier" were defined as a person providing transportation with a "commercial motor vehicle." In turn, "commercial motor vehicle" was limited to a vehicle with a "gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater." This amended definition effectively stripped the Secretary of Transportation of the power to regulate qualifications and maximum hours of service for drivers employed by motor carriers operating vehicles weighing less than 10,001 pounds and narrowed the Motor Carrier Exemption accordingly.

On June 6, 2008, Congress passed the SAFETEA-LU Technical Corrections Act (TCA). Pub. L. No. 110-244, 122 Stat. 1572 (2008). The TCA restored the definitions of the terms "motor carrier" and "motor private carrier" to their pre-SAFETEA-LU meanings. As a result, the Secretary of Transportation regained the power to exercise jurisdiction over the qualifications and maximum hours of service of drivers employed by motor carriers or motor private carriers operating vehicles with a weight of 10,000 pounds or less.

At the same time, however, the TCA retained the FLSA overtime protection for any "covered employee." The TCA defined "covered employee" as any individual "employed by a motor carrier or motor private carrier" whose duties, in whole or in part, are defined as a "driver, driver's helper, loader, or mechanic . . . affecting the safety of operation of motor vehicles . . . in interstate or foreign commerce . . . who performs duties on motor vehicles weighing 10,000 pounds or less."

Employees performing duties on vehicles designed or used to transport more than eight passengers for compensation, more than fifteen passengers and not for compensation, or material found by the Secretary of Transportation to be hazardous under 49 U.S.C. section 5103 were excluded from the definition of "covered employee."

The Court's Holding

The primary issue in Alpine Logistics was whether the individuals who drove both larger vehicles (10,001 pounds or more) and smaller vehicles (10,000 pounds or less) were "covered employees" and thereby entitled to overtime under the FLSA. The court pointed to Wage and Hour Division Fact Sheet # 19 issued by the Department of Labor in support of its holding that individuals who drove both larger and smaller vehicles during the same workweek were entitled to overtime compensation. The court held that the Motor Carrier Exemption does not apply to an employee in workweeks where the employee operates a smaller vehicle even if the employee also operates a larger vehicle during the same week. The court rejected the company's argument that Congress could not have intended to subject drivers to dual jurisdiction of the Department of Labor and Department of Transportation. The court held that the company's argument was inconsistent with the language of the TCA.

Implications of the Decision

The decision in Alpine Logistics may create added regulatory and recordkeeping obligations for companies with a mixed fleet of vehicles by subjecting employees to dual jurisdiction of the Department of Transportation and Department of Labor. Further, the decision conflicts with the general principle that the "[Motor Carrier] exemption is to eliminate any conflict between the Department of Labor's jurisdiction over the FLSA and the mutually exclusive jurisdiction exercised by the Department of Transportation over the MCA." Glanville v. Dupar, Inc., 2009 U.S. Dist. LEXIS 88408 (S.D. Tex. 2009). In Collins v. Heritage Wine Cellars, LTD, 589 F.3d 895 (7th Cir. 2009), for example, the court said "[d]ividing jurisdiction over the same drivers, with the result that their employer would be regulated under the Motor Carrier Act when they were driving the big trucks and under the Fair Labor Standards Act when they were driving trucks that might weigh only a pound less, would require burdensome record-keeping, create confusion, and give rise to mistakes and disputes."

The decision may also create additional financial burdens and exposure for companies with a mixed fleet of vehicles and adds further complexity to an already inconsistent approach taken by federal courts. See, e.g., Dalton v. Sabo, Inc., 2010 U.S. Dist. LEXIS 32472, at **11-12 (D. Or. 2010) ("even if each of these plaintiffs occasionally performed duties on vehicles weighing 10,000 pounds or less, 'when mixed activities occur, the Motor Carrier Act favors coverage.'"); Hernandez v. Brink's, Inc., 2009 U.S. Dist. LEXIS 2726, at **15-16 (S.D. Fla. 2009) ("when mixed activities occur, the Motor Carrier Act favors coverage of the employee during the course of employment."); Vidinliev v. Carey Int'l, Inc., 581 F. Supp. 2d 1281, 1293-94 (N.D. Ga. 2008) (exemption generally applies if some drivers operated larger vehicles within four months of the pay period at issue and the plaintiff could have reasonably been expected to drive a larger vehicle); Mayan v. Rydbom Express, Inc., 2009 U.S. Dist. LEXIS 90525, at *31 (E.D. Pa. 2009) ("[a]n employee working on a 10,001 pound vehicle two days a week and a 5000 pound vehicle the remaining days of the week appears [to be entitled to overtime"]). The cases that allow the exemption when mixed activities occur seem to be more consistent with the intent of the Motor Carrier Act.

Given the patchwork of decisions on the applicability of the Motor Carrier Exemption when mixed activities are involved, employers with a mixed fleet of vehicles should review their classification decisions and vehicle assignments to assess any potential exposure the Alpine Logistics decision may present.

Authors: Michael Gregg

Within the last year, the National Labor Relations Board's Acting General Counsel – who decides which unfair labor practice charges to prosecute against employers and unions – has taken a great interest in employee use of social media and employer responses to such use. For example, last October, he issued a complaint against AMR?of Connecticut for terminating an employee after she referred to her supervisor on Facebook as a "scumbag," a "dick," and a "17" (AMR's?code for a psychiatric patient). While that case settled before it was litigated, the NLRB's Acting General Counsel also has issued numerous other complaints against employers for disciplining employees in response to their off-duty posts on social media complaining about their employers, their supervisors, their wages, and other working conditions. Social media cases have become such a "hot button," the Acting General Counsel has mandated that these cases be submitted to his Division of Advice for a determination of whether or not a complaint should issue.

Like the AMR?matter, most of the cases in which a complaint has been authorized have settled before trial. Therefore, without these cases being heard by the NLRB, it has been very difficult for employers to ascertain how to comply with federal labor law during this burgeoning era of social networking. On August 18, 2011, however, the Acting General Counsel released a report, entitled Report of the Acting General Counsel Concerning Social Media Cases, which summarizes the theories behind many of the social media cases he and the Division of Advice have addressed within the last year. The Report also discusses general parameters employers should consider when creating and enforcing their social networking policies. Although the Report is not by any means the last word on the subject, and, while the NLRB has yet to rule on the myriad issues relating to employee use of social media under the National Labor Relations Act, the Report does provide some guidance for employers to follow when treading through these murky waters.

Employees May Not Be Disciplined for Social Networking Activity Protected by the NLRA

Section 7 of the NLRA?protects employees who engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Importantly, this federal statute does not just protect employees who engage in union activities or work in a unionized environment. It also protects other forms of employee conduct undertaken for their "mutual aid or protection" including, for example, a group of non-union employees complaining to management about their wages or working conditions, participating in a strike or work stoppage, or attempting to enlist public support to improve their terms or conditions of employment. The NLRB's?standards for determining whether an employee, or group of employees, is engaged in protected Section 7 activity have evolved over many years. With the explosion of social networking sites such as Facebook and Twitter, questions have arisen as to the extent to which an employee's online postings fall under NLRA?protection. The Acting General Counsel's Report illustrates how the NLRB's traditional principles for determining whether employees are engaged in "protected, concerted activity" will apply to employees' social networking activities and their employers' social networking policies.

Under the NLRA, conduct is considered "protected" and "concerted" where an employee: acts together with or on the authority of other employees; seeks to initiate, induce, or prepare for group action; or brings "truly group complaints" to the attention of management. Section 7 of the NLRA also protects an employee's activities if they are the logical outgrowth of work-related concerns expressed by employees collectively. On the other hand, conduct is not protected, concerted activity if the employee is engaging in activity "solely by and on behalf of the employee himself." Similarly, employee comments that are "mere griping" as opposed to "group action" do not fall within Section 7. The Report generally follows this framework in evaluating whether an employee's social media conduct is protected, concerted activity.

Cases where the Acting General Counsel's Division of Advice found that an employee's online posts constituted protected, concerted activity involved topics such as: employee job performance; staffing levels; protests of supervisory actions; criticisms of an employer's promotional event that employees believed would negatively impact their sales commissions; and shared employee concerns about their employer's income tax withholding practices. As the Report makes clear, online postings that could be considered a "direct outgrowth" of earlier employee discussions or complaints, or an invitation to coworkers to engage in further action or complaints over their working conditions, will most likely be viewed as protected, concerted activity. In those cases where the Division found an employee's use of social media to be protected, the electronic discussions typically came after face-to-face employee discussions or shared concerns about their working conditions.

Recently, one of the social media cases in which the Acting General Counsel issued a complaint against an employer was tried before an Administrative Law Judge (ALJ) of the NLRB. The employer, Hispanics United of Buffalo (HUB), had discharged five employees because they posted comments on Facebook about a coworker who had repeatedly criticized their job performance in conversations and text message exchanges with several of them. The Acting General Counsel argued that the employees' Facebook posts constituted protected, concerted activity and, therefore, that HUB unlawfully fired these employees for making these posts. In response, HUB contended that it discharged the employees on the grounds their posts constituted bullying and harassment in violation of its harassment policy. In his decision, which issued on September 2, 2011, the ALJ?agreed with the Acting General Counsel that the employees' terminations violated Section 7. The ALJ?concluded that the employees' Facebook communications were protected, concerted activity because they implicated a mutual work-related concern – their reaction to a coworker's criticisms of their job performance. The ALJ?found that the discussions alone were sufficient to constitute protected, concerted activity even though there was no express evidence the employees intended to take further action or were trying to change their working conditions. According to the ALJ, it was enough that the employees discussed matters affecting their employment amongst themselves. The ALJ?further decided that the employees did not engage in conduct that forfeited the NLRA's?protection. He pointed out that they posted their comments on a Saturday, a nonwork day, and that none of them used HUB's computers in making these posts. He also concluded that the evidence failed to establish that any of the employees' posts constituted harassment of their coworker.

In contrast, as the Acting General Counsel's Report discusses, an employee who complains about work on Facebook or Twitter, but only with family, friends, or other non-coworkers, is not engaged in protected, concerted activity. For example, in one case, the Division of Advice found that a bartender who made negative comments on Facebook about his employer's tipping policy was not engaged in concerted activity because he directed his comments to his relative and only made them by and on behalf of himself. Similarly, the Division concluded that an employee who made inappropriate comments to her non-coworker friends on Facebook about her employer's mentally disabled clients was not engaged in concerted activity. In another case, a reporter's Twitter postings critical of his newspaper's sports department headlines and a local TV station did not relate to his or other employees' working conditions, nor did he discuss or seek to discuss his concerns with any of his coworkers. As such, these tweets were not "concerted." The Division also found that an employee who posted negative comments about her employer on her senator's Facebook page was not acting in concert with her coworkers and, thus, her posts were not "concerted."

Additionally, individual gripes about the workplace posted online do not constitute concerted activity even if such posts result in coworkers expressing emotional support or sympathy. In one case discussed in the Report, an employee posted several complaints on Facebook about his store's management. The comments were not specifically directed to fellow employees, even though some who read the posts told him to "hang in there." The Division concluded that the employee's posts were not concerted activity because he was merely complaining about his individual situation and was not attempting to induce group action.

Moreover, even if comments are "concerted," they may still be deemed "unprotected" based on their opprobrious content. However, with the current NLRB, this is a very difficult standard for employers to meet. Indeed, the Report discusses two cases where the Division of Advice concluded that employees' use of expletives and other derogatory remarks in their postings when referring to their supervisors and management was not so egregious as to lose the NLRA's?protection. One such case is the AMR case mentioned above, where the employee referred to her supervisor on Facebook as a "scumbag," a "dick," and a psychiatric patient. In the other case, an employee referred to one of the employer's owners on Facebook as "such an asshole," and her coworker asserted that the owners could not even do paperwork correctly.

Employer Policies Governing Social Networking by Employees Must Be Narrowly Tailored

The Report further underscores the importance of employers drafting social networking policies that are not overbroad and do not infringe on employee Section 7 rights while using social media. In Lutheran Heritage Village-Livonia, 343 NLRB?646 (2004), the NLRB?articulated a two-step approach to determine whether an employer's handbook or work rule violates the NLRA. First, if the rule explicitly restricts protected activity, it is unlawful. Second, if the rule does not explicitly restrict protected activity, it is still unlawful if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Over the years, the NLRB has applied this analysis to invalidate employer work rules and policies governing many forms of employee conduct both on and off the job.

As discussed in the Report, the Division of Advice applies Lutheran Heritage's?two-step analysis in determining whether employer social networking policies were lawful. In one case, the Division concluded that a social media policy was overbroad and therefore unlawful because it prohibited employees from posting pictures of themselves in any media, including the internet, that depicted the company in any way, including by wearing a company uniform or corporate logo. Applying the Lutheran Heritage test, the Division opined that the rule could be interpreted as prohibiting an employee from engaging in protected activity, such as posting a picture of employees carrying picket signs depicting the company's name or wearing a t-shirt or other apparel portraying the company's logo in connection with a protest over working conditions. The Division concluded that another portion of the employer's policy prohibiting employees from making disparaging comments when discussing the company or the employee's superiors, coworkers, or competitors also was unlawful because the rule was ambiguous and did not contain any limiting language informing employees that it did not apply to Section 7 activity.

Similarly, in two other cases, the Division of Advice concluded that employer policies were unlawfully overbroad because the rules could reasonably be construed to prohibit an employee from engaging in activity protected by Section 7. Those policies prohibited employees from using a blog or the internet to engage in "inappropriate discussions" about the company, management, or coworkers or talking about company business on their personal accounts; posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy; disclosing inappropriate or sensitive information about the employer; posting any pictures or comments involving the company or its employees that could be construed as inappropriate; and using the company name, address, or other information on their personal profiles. The Report pointed out that none of these rules set forth any definition, guidance, or examples as to what communications were specifically prohibited or any limitations on what was covered.

In another case, the Division determined that a hospital's social media policy was overly broad to the extent that it prohibited employees from: using any social media that may "disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity;" posting any communication that "constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee, officer, board member, representative, or staff member;" and making any statements that "lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees." In a case involving a supermarket chain, the Division found unlawful the employer's new social media and communication policy that precluded employees from revealing personal information about their coworkers without their consent and from using the employer's logos and photographs of the employer's store without written authorization because these rules impermissibly prohibited employees from discussing their wages and other working conditions with their coworkers and others and from portraying the employer's logo in connection with any protests involving their working conditions.

Although, as noted above, the Report indicates that the overbroad?social networking policies did not contain any definitions, guidance, examples, or other limiting language to inform employees that the policies do not apply to Section 7 activity, it remains an open question whether an otherwise overly broad social media policy will withstand NLRB?scrutiny if it contains a disclaimer that the policy does not apply to or will not be interpreted as infringing upon Section 7 rights. Concerning for employers is the NLRB's recent decision in Jurys Boston Hotel, 356 NLRB?No. 114 (2011), where the NLRB?set aside the results of an election decertifying?a union merely because the employee handbook contained overbroad?rules prohibiting employee solicitation, distribution, loitering, and the wearing of buttons and insignia. In that case, the handbook had a general NLRA?disclaimer. In addition, the employer clarified, during the election campaign, that the rules did not apply to NLRA?protected activity and the rules were not enforced against any employees. However, the disclaimer and the clarification were not enough in the eyes of the NLRB.

Nonetheless, social networking policies that are narrowly tailored and precisely written, using clearly defined terms to avoid any ambiguity, are more likely to be deemed lawful. For example, the Division of Advice found that an employer's policy prohibiting employees from "pressuring their coworkers to connect or communicate with them through social media" was valid as it "was narrowly drawn" and "sufficiently specific in its prohibition" as to clearly apply "only to harassing conduct." Therefore, the policy "could not reasonably be interpreted to apply more broadly to restrict employees from attempting to 'friend' or otherwise contact colleagues for the purposes of engaging in protected concerted or union activity." Similarly, the Division found that a grocery store chain's rule restricting employee contact with the media was lawful where the stated purpose of the rule "was to ensure that only one person spoke for the company," and the rule could not reasonably be interpreted to prohibit employees from speaking with reporters on their own behalf with respect to their working conditions.

Implications for Employers

The current Acting General Counsel of the NLRB?appears to be taking a very aggressive approach to employers' social media policies and attempting to find cases to present to the NLRB?from which the Board can fashion specific rules and guidelines in this arena. In so doing, the Acting General Counsel appears to be expanding the law to give employees extremely broad latitude to use social media to communicate about their employers, supervisors, wages, and working conditions. Although the Report provides helpful guidance for employers on how to craft their policies in a manner that avoids infringing on employees' Section 7 rights, the actual limits on an employer's ability to regulate its employees’ social networking activities have yet to be fully developed or addressed by the NLRB or by the federal appellate courts that will review its decisions.

Employers should continue to closely monitor legal developments in this area and review and, where appropriate, revise their social networking policies with the assistance of experienced labor counsel. If an employer’s social media policy, or for that matter any personnel policy, work rule, or employee handbook provision, contains any language that could be construed to infringe on its employees’ ability, during their nonwork?time, to communicate with their coworkers, a union, the public, or others about their wages or other terms or conditions of employment, the employer should revise the policy to make it clear it does not apply to activity protected by Section 7. In addition, before taking disciplinary action against employees because of their social networking activities, employers and their labor counsel should consider whether the employees’ activity constitutes protected, concerted activity under the NLRA.

Authors: Mark Robbins and Jennifer Mora

Is an unlicensed law school graduate working as a law clerk required to be paid overtime under California law? On August 17, 2011, the California Court of Appeal held such an employee can be exempt from overtime requirements under the “learned professional” exemption.

Plaintiff’s Complaint

After graduating from law school, but before passing the bar examination, Matthew Zelasko-Barrett worked as a law clerk for Brayton-Purcell, LLP, a law firm in Novato, California with approximately 180 attorneys. Barrett performed duties similar to those of junior attorneys at Brayton, including drafting pleadings, discovery demands and responses, legal research, interviewing witnesses, assisting in deposition preparation and interacting with opposing counsel on discovery matters. As a law clerk, Barrett was treated as an exempt employee, paid a salary, and was not paid any overtime.

Barrett ultimately passed the bar examination and became an associate attorney. After leaving Brayton, Barrett filed a complaint, alleging that as a law clerk he had been misclassified as an exempt employee, and should have been paid at hourly overtime rates for all overtime hours worked. Barrett did not challenge his status as an exempt employee during the time he was employed as an associate attorney.

Trial Court Finds Barrett Was Properly Classified As Exempt

The trial court granted summary judgment in favor of Brayton, finding that Barrett had been properly classified as an exempt employee under the professional exemption. Barrett appealed the trial court’s ruling.

Court Of Appeal Holds That Unlicensed Law Clerks May Be Classified As Exempt Professionals

Under Industrial Welfare Commission Wage Order 4-2001, an employee may qualify as exempt from overtime under the professional exemption in one of two ways: (1) if the employee “is licensed or certified by the State of California and is primarily engaged in the practice of … law” (the “enumerated professions exemption”); or (2) “is primarily engaged in an occupation commonly recognized as a learned or artistic profession” (the “learned professions exemption”). According to the Wage Order, the learned professions exemption applies to an employee who is primarily engaged in the performance of work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education.

Barrett argued that since he was employed in a law-related capacity, he could qualify as exempt only under the enumerated professions exemption, and, since he was not licensed during his employment as a law clerk, he did not qualify for that exemption. The Court of Appeal rejected this argument, relying on the Ninth Circuit’s decision regarding unlicensed accountants in Cambell?v. Pricewaterhouse Coopers, LLP 642 F.3d 820 (9th Cir. 2011), click here to read. The Court of Appeal concluded that there was no ambiguity in the language of the Wage Order, which allows employees working in a law-related capacity to qualify under either the enumerated professions exemption or the learned professions exemption. The court found that Barrett’s law school educational background satisfied the learned professions exemption.

Barrett also argued that he did not customarily and regularly exercise discretion and independent judgment in the performance of his duties as a law clerk, and therefore was not exempt under either the enumerated professions exemption or the learned professions exemption. Barrett contended that his work always was supervised, corrected and approved by a supervising attorney, that the ultimate decision to craft an argument was made by the supervising attorney, and that he could not sign pleadings, make court appearances, or provide advice to clients.

The Court of Appeal also rejected this argument, concluding that such limitations and oversight did not negate the fact that Barrett’s responsibilities required discretion and independent judgment. The court cited 29 Code of Federal Regulations section 541.207(e), which states:

The term ‘discretion and independent judgment’ … does not necessarily imply that the decisions made by the employee must have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee’s decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment within the meaning of the regulations …

The court found that, even though Barrett lacked final decision-making authority, his duties in collecting and assimilating evidence, performing legal research, and drafting legal memoranda required him to exercise a significant level of discretion, and that his tasks were not “routine mental, manual, mechanical or physical work.”

What Brayton Means for Employers

Brayton is the first California appellate court decision holding that an unlicensed professional may qualify for the professional exemption even though the profession also is enumerated in the licensed professional section of the exemption. However, as this court did, employers also need to make sure that all other requirements of the exemption in question are satisfied, including whether the employee exercises discretion and independent judgment. In this regard, the court in Brayton concluded that the discretion and independent judgment test can be satisfied even if the decisions made by the employee are subject to review by others.

By: Fred Sanderson

Today, the National Labor Relations Board announced that it has issued a final rule requiring employers to notify employees of their rights under the National Labor Relations Act (NLRA). The rule is scheduled to take effect on November 14, 2011.

The poster is required to be placed in a conspicuous place readily seen by employees. The final rule also imposes a requirement that employers post the notice on an intranet or internet site if personnel rules and policies are customarily posted there. There are also requirements for printing the poster in languages other than English.

The? poster is required to state that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.? Specific language is provided in the final rule.

This new posting requirement applies to nearly all private-sector employers subject to the NLRA, which excludes agricultural, railroad, and airline employers. NLRA rights apply to both union and nonunion workplaces and all employers subject to the NLRB’s jurisdiction will be required to post the notice.

The NLRB issued a press release regarding the final rule.

As the NLRB makes information available,?HR Allen Consulting Services?will provide customers with additional guidance regarding this new posting requirement, including a compliance fact sheet.

You can order your updated poster for $38.95 by clicking the link below.

ORDER POSTER

By: HR California/Copyright California Chamber of Commerce

On August 17, 2011, the Ninth Circuit held, in Oliver v. Ralphs Grocery Company, et al., that plaintiffs in disability access lawsuits under Title III of the Americans with Disabilities Act ("ADA") must allege in their complaint all of the architectural barriers which form the basis for the ADA claim. A plaintiff cannot rely on an expert's report created later in discovery identifying such barriers, but must specifically plead each and every barrier in the complaint so as to afford the defendant fair notice and an opportunity to respond.

Oliver marks yet another decision from the Ninth Circuit imposing more stringent pleading requirements on plaintiffs in disability access lawsuits. The Ninth Circuit held earlier this year that a plaintiff must specifically allege that he or she personally encountered a barrier at a place of public accommodation and must further allege how his or her disability was affected by at least one of the barriers. Such allegations are necessary to satisfy the requirement for standing that a plaintiff have suffered an injury-in-fact.

The Facts of Oliver

Oliver, an individual who uses a wheelchair for mobility, filed suit in December 2007 under the ADA and parallel California state laws. He alleged he encountered 18 architectural barriers which denied him full and equal access at a Food 4 Less store owned and operated by defendant Ralphs?Grocery Company ("Ralphs").

In an effort to make moot Oliver's claim for injunctive relief, Ralphs?immediately began renovations at the store. After a court-imposed deadline to amend the complaint lapsed, Oliver sought to allege additional architectural barriers, but the court denied his request as untimely. A year into litigation, Oliver filed with the court an expert's report which identified a number of additional architectural barriers which were not alleged in the complaint. Oliver actually conceded that his delay in disclosing the additional alleged architectural barriers was strategic. He hoped to preclude Ralphs' ability to remove the barriers prior to trial thereby mooting his injunctive relief claim.

The court ultimately granted summary judgment against Oliver on his ADA claim (and then declined to exercise supplemental jurisdiction over his state law claims). In doing so, the court refused to consider the architectural barriers identified in the expert's report, holding that Federal Rule of Civil Procedure ("FRCP") 8 requires that each architectural barrier be alleged in the complaint. FRCP 8 requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief."

The Ninth Circuit's Decision

In affirming, the Ninth Circuit explained that FRCP 8's "short and plain statement" requirement exists to provide a defendant with "fair notice" of the claim and the "grounds" upon which it rests. Because the grounds for an ADA claim are the alleged architectural barriers, they must all be specifically alleged in the complaint.

That Ralphs had access to Oliver's expert's report before the close of discovery did not change this pleading requirement. As the Ninth Circuit held, "a plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere."

Oliver's Significance

Oliver signals that the Ninth Circuit is becoming a less receptive forum for disability access plaintiffs in so-called "drive-by" ADA litigation. While there are strategies that plaintiffs could employ to mitigate or neutralize the effect of this decision, Oliver's?holding does preclude plaintiffs from, as Oliver attempted to do, strategically springing new allegations of architectural barriers on a defendant late in litigation. Accordingly, in cases with relatively few barriers, businesses may be able to remove the alleged barriers and moot the plaintiffs' claims for injunctive relief, the only relief available under federal law.

By: Minh Vu and Eden Anderson

Gov. Jerry Brown vetoed a California Chamber of Commerce-opposed bill that would have increased costs for employers and opened them to potential liability by mandating them to offer commuter benefit programs to employees.

SB 582 (Yee; D-San Francisco) would have authorized metropolitan planning organizations to mandate employers in their jurisdiction to offer one of three options to employees for commuting purposes:

• A pre-tax option where employees can exclude from their taxable wages commuting costs incurred for public transit, as allowed under federal law;


• The employer would directly pay for public transit costs; or


• The employer would offer a vanpool service.

The CalChamber expressed several concerns with the bill:

• Federal law already allows employers to take advantage of the payroll deduction. Some employers already do this on their own accord. Considering this is allowed under federal law and that some companies already use it because it fits their business, there is no need to mandate it on the state or local levels. This is more of a public outreach issue where employers may not be aware they can offer this benefit to their employees.


• There could be employer liability issues. If an employer opts to provide a vanpool (Option 3) and there is a car accident or other incident on board where employees get injured, there could be employer liability issues, including workers’ compensation issues. Under Option 2, because the employer is directly subsidizing the costs, it can be argued that it is employer-controlled and therefore the employer can be held liable. Although very large employers may be able to absorb such costs, small business owners will not be able to do the same.


• The mandate’s impact on small business would be much greater than for large employers. Small businesses are already hurt by the weak economy, and do not need more mandates to further restrict them. There is a cost to implement the program that must be borne by employers large and small. Small employers will find it difficult to absorb the costs.? Although there may be cost savings down the road, this is a business decision and should not be mandated.

Governor Brown stated in his veto message: “While I support the goal of reducing vehicle trips, this bill would impose a new mandate on small businesses at a time of economic uncertainty.”

By: Thomas Vu

In an informal discussion letter, (pdf) the Equal Employment Opportunity Commission’s Office of Legal Counsel reiterates the position that an employer-provided wellness program that offers financial inducements to provide genetic information as part of a wellness program runs afoul of Title II of the Genetic Information Nondiscrimination Act (GINA). Among other restrictions, GINA limits the ability of health insurers and employers to collect genetic information, which includes family medical history. Whether and to what extent employer-provided wellness programs and health surveys that solicit information about family medical history violate GINA and other statutes and regulations is a rising concern for employers.

As discussed in the EEOC letter, which was written in response to a request for guidance on this issue, Title II of GINA does permit employers to gather genetic information about employees and their family members when it offers health or genetic services – including wellness programs – on a voluntary basis. The EEOC issued a final rule implementing the employment provisions of GINA in November 2010. As outlined in the rule and the discussion letter, prior consent to participate in a wellness program must be voluntary, knowing, and written. In addition, “while individualized genetic information may be provided to the individual receiving the services and to his or her health or genetic service providers, genetic information may only be provided to the employer or other covered entity in aggregate form.” The EEOC letter notes that the final rule states that employers may not offer financial inducements for employees to provide genetic information as part of a wellness program. However, the final rule provides that employers may offer a financial inducement for completing a health risk assessment that includes questions about genetic information so long as the employer identifies such questions and makes clear that the employee is not required to answer the questions about genetic information in order to receive the financial inducement.

The EEOC letter further explains that an employer may use the voluntarily-provided information about the employee “to guide that individual into an appropriate disease management program,” provided it opens the program up to all employees if the program includes financial incentives to participate or reach certain health-related outcomes. The EEOC letter declined to address the concern that an example used in the GINA Title II final rule to illustrate this point is at odds with the regulations implementing Title I of GINA, which restricts the use of genetic information by group health plans and health insurance issuers. The reason given in the letter for failing to explain the apparent inconsistency between the two regulations was that the EEOC is not responsible for enforcing Title I. However, the letter states that the Commission’s goal in formulating its position on wellness program incentives and the examples cited was to be consistent with the Title I rules.

The Commission further declined to take a position on whether and to what extent Title I of the Americans with Disabilities Act (ADA) would permit an employer to offer financial incentives to participate in a wellness program that included disability-related inquiries or medical exams, but stated that it would take any comments on this issue under advisement.

Despite the guidance provided in the EEOC letter, much still remains unclear. In October 2010, the Department of Labor’s Employee Benefits Security Administration (EBSA) issued guidance in the form of Frequently Asked Questions (FAQs) that discussed the interaction between GINA’s restrictions and employer-provided group health plans and insurance providers. As previously discussed, this guidance outlines certain constraints placed on insurance plans and issuers in providing incentive-based wellness programs, which appear at odds with the provisions in the Patient Protection and Affordable Care Act that are designed to increase the use and effectiveness of employer-sponsored wellness programs. Specifically, the Affordable Care Act recognizes the value of incentive-based wellness programs by increasing the amount of the reward allowed under the current HIPAA regulations beginning in 2014. As reflected in the Affordable Care Act, incentive-based wellness programs can be an effective tool for employers seeking to reduce health care costs and improve the productivity of their workforce.

Given the complexity and apparent inconsistency of the federal statutes and rules governing wellness programs, employers are cautioned to consider all applicable legal requirements when designing their wellness program.

By: IIyse Schuman

Summer is traditionally a time when employers turn to the teen workforce for temporary help. A recent report shows a big job gain for teens this summer: 714,000 16- to 19-year-olds were hired nationwide in June 2011 according to Chicago outplacement firm Challenger, Gray & Christmas. This is the largest June job gain for teens in four years and a 44 percent increase from last June.

The gains occurred largely in traditional summer jobs in the private sector, such as the retail, leisure and hospitality industries.

In California, the jobless rate for teens is higher than the national average, according to data from the federal Bureau of Labor Statistics. The nationwide jobless rate for 16- to 19-year-olds was 24.5 percent in June. By comparison, California’s unemployment rate for teens is more than 34 percent.

Be mindful that if you decide to hire minors, you must follow certain legal requirements. Minors are entitled to child labor law protections under both state and federal law. Employers make several common mistakes, including:

• Not acquiring the proper work permits before hiring minors


• Not paying the required wages


• Employing minors in prohibited occupations

Employers should also be aware of safety risks that are particular to employing minors. Employers must follow all relevant health and safety laws to keep young workers safe on the job.

Copyright: HR California/Cal Chamber of Commerce