3/20/2017 ELS INSIDE EDITION WHAT EVERY LAWYER NEEDS TO KNOW ABOUT EMPLOYMENT LAW The Employment Law Solution McFadden Davis, LLC 1100 Peachtree Street, NE | Ste. 200 | Atlanta, GA 30309 www.theemploymentlawsolution.com ELS ATTORNEYS PRESENTERS: ELS ATTORNEYS T ennille C. Hoover University of Minnesota Law School Spelman College, B.A. Atlanta Public Schools, Office of Employee Relations Licensed in Georgia ELS ATTORNEYS ELS PRESENTERS Jamala S. McFadden University of Michigan Law, 2001; Michigan Law Review, Executive Editor University of Illinois, B.A. Law clerk to federal district court judge Sutherland,Asbill & Brennan Licensed in Georgia, Michigan, Illinois Chandra C. Davis University of Michigan Law, 2002; Michigan Law Review, Editor Emory University, B.A; University of Georgia, M.Ed Law clerk to federal district and appellate court judges McGuireWoods EEOC Trial Attorney 1
3/20/2017 ELS ATTORNEYS ELS ATTORNEYS Halima H.White Vanderbilt University Law School; Vanderbilt Law Review University of Alabama at Birmingham, B.A. McGuireWoods, Jackson Lewis Licensed in Georgia and Tennessee (inactive) Raquel H. Crump Florida A&M University College of Law University of North Carolina, B.A. Licensed in Georgia, Florida, and D.C. SOCIAL MEDIA IN THE WORKPLACE T oday’s T opics Defining Social Media Activities Hiring The NLRA Social Media Policy Misconduct DEFINITION OF SOCIAL MEDIA ACTIVITIES Facebook, T witter, Instagram, Snapchat, Pinterest, Tumblr, Blogs, You Tube, LinkedIn Social media activities: posting, viewing, using any internet based program that can be shared with others Activities can be conducted on any electronic device that accesses the internet 2
3/20/2017 SOCIAL MEDIA & HIRING SOCIAL MEDIA & HIRING Considerations: Mitigate risk of discrimination claims Privacy protections Ask potential employee to provide social media login?—NO!!!!!! Healthy Skepticism No Social Media ≠ Bad Thing NLRB Developments SOCIAL MEDIA & NLRA National Labor Relations Board (NLRB) Federal agency vested with power to protect employees’ rights to join together to improve their wages and working conditions (National Labor Relations Act (NLRA) Section 7 Rights) NLRA Section 7: Concerted activities—conduct is engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself 3
3/20/2017 SOCIAL MEDIA & NLRA SOCIAL MEDIA POLICY: EMPLOYER RESTRICTIONS ON SOCIAL MEDIA ACTIVITIES Can prohibit accessing social media using company issued equipment Computers, iPads, smartphones Grey area: phone owned by employee but monthly fees paid for by employer Can limit social media activities during non- work time if conduct would violate company policies No overbroad social media policies SOCIAL MEDIA POLICY: EMPLOYER RESTRICTIONS ON SOCIAL MEDIA ACTIVITIES Focus on prohibiting activities during work time or using company equipment Use specific definitions or examples of prohibited conduct What is not considered confidential or trade secrets What would be considered“offensive” Refer to other company policies Harassment, confidentiality, conflicts of interest Avoid general threats of discipline for engaging in unauthorized social media activities Advise employees of monitoring 4
3/20/2017 SOCIAL MEDIA & MISCONDUCT: DISCIPLINARY ACTION Cannot discipline for protected concerted activities on social media sites Can discipline for violation of company policies (i.e. harassment) General harassment vs. unlawful harassment that violates policy Can discipline if social media activities reveal employee was dishonest Cannot discipline for off duty conduct that is chronicled on social media that is unrelated to work SOCIAL MEDIA & MISCONDUCT: MONITORING Can monitor employee activities while online using company issued equipment With proper policy notifying employee no expectation of privacy Can monitor activities in public postings Can monitor if employee voluntarily “friends” a supervisor or manager PAY WHAT???: WAGE & HOUR ISSUES The Department of Labor and the Fair Labor Standards Act Exempt v. Non-Exempt 1099 Independent Contractors v. W2 Employees Unpaid workers Why it Matters 5
3/20/2017 FAIR LABOR STANDARDS ACT (FLSA): WHAT YOU SHOULD KNOW Department of Labor Presume coverage Individual liability Basic requirements: o Minimum wage o Overtime pay after 40 hours worked in a workweek o Recordkeeping (Fact Sheet 21) Exempt v. Non- exempt Salary test Duties test Non-exempt = OT pay Trump changes NEW OVERTIME REGULATIONS Final Rule effective December 1, 2016 Previous Regulations New Regulations $47,476/year $23,660/year $913/week $455/week Automatic updates 6
3/20/2017 INDEPENDENT CONTRACTORS Is a worker a 1099 Independent Contractor or W2 or employee? INDEPENDENT CONTRACTOR? No withholdings for federal or state income tax, Social Security or Medicare No payroll taxes Anti-discrimination laws cover only “employees” No agency liability for acts of “ICs” No benefits INDEPENDENT CONTRACTOR TESTS Independent v. Employee tests: IRS: Publication 15-A DOL: Fact Sheet 13 General rule of thumb: a worker is an employee if the payer has the right to control or direct what will be done and how it will be done Donald Cove v. IRS, No. 2717-08, U.S. Tax Court (2011) (law firm owner, associates and law clerks were employees, not independent contractors) 7
3/20/2017 PRO TIPS! PROTECTING INDEPENDENT CONTRACTOR STATUS 1. Shorter-term engagement, project based Worker controls where, when, and how she works 2. 3. Provides her own tools (i.e., computer) 4. Does not hold herself out as an employee Works for other businesses 5. 6. No benefits Invoices the business 7. 8. IC agreement UNPAID WORKERS Interns Volunteers Trainees UNPAID WORKER TESTS DOL: Field Operations Handbook Ch.10b11 (Oct. 20, 1993) Schumann v. Collier Anesthesia, 803 F.3d 1199 (11th Cir. 2015) (adopting factors for determining when a worker can be unpaid as a trainee) General rules of thumb: the worker is probably an employee if the “primary beneficiary” of the work performed is not the unpaid worker; the unpaid worker is doing work that someone could get paid to do 8
3/20/2017 PRO TIPS! UNPAID WORKERS Pay them! College credit Youth minimum wage rate? Make the terms precise and clear WHY IT MATTERS Statutory attorneys fees IRS and DOL involvement, back taxes, penalties Potentially catastrophic for smaller businesses LEAVE & ACCOMMODATION ISSUES 9
3/20/2017 BASIC LEAVE AND ACCOMMODATION LAWS The Americans with Disabilities Act (“ADA”) 42 U.S.C. §§ 12101, et seq. Family and Medical Leave Act (“FMLA”) 29 U.S.C. §§ 2601, et seq. Title VII of the Civil Rights Act of 1964 (“Title VII”) 42 U.S.C. §§ 2000(e), et seq. State laws requiring paid medical leave For example, Connecticut’s paid sick leave law Workers’ compensation THE ADA The ADA applies to private employers with 15 or more employees and to government contractors or subcontractors. The ADA protects qualified applicants and employees with disabilities. A disability: A physical or mental impairment that substantially limits a major life activity A record of being disabled Regarded as disabled Qualified: Someone who is able to perform the essential functions of the job with or without a reasonable accommodation. REASONABLE ACCOMMODATION UNDER THE ADA One that allows the employee to perform the essential functions of the job. Leave (but not indefinite leave) Modified schedule A modified keyboard or chair Voice recognition keyboard Removing non-essential job duties 10
Recommend
More recommend
