Labor & Employment Insights
Fall 2005

By: Thomas A. Davis, Christopher N. Smith, Carol Hawkins

PREVENT BLOGS FROM B(L)OGGING DOWN YOUR WORKPLACE
by Thomas A. Davis
and Christopher N. Smith

What Is A Blog?
A blog (short for “weblog”) is a regularly updated online journal of information and opinions. The key difference between a blog and a website is that a blog allows the owner to easily post diaries through which visitors can read and interact. Thus, blogs are similar to online chat rooms and message boards, but focus on specific topics of the blog owners’ choice.

According to recent reports, about 20,000 blogs are created daily and an estimated 10 million blogs will exist in the United States by the end of 2005. Together, these blogs link up to create what is known as a “blogosphere,” a collection of Internet conversations that is one of the fastest growing areas of new content on the Web.

There are blogs on about every conceivable subject, including the proverbial taboo subjects of money, religion, and politics. Most troubling for employers is the “workplace blog” in which bloggers write about their experiences at work, including their co-workers and supervisors.

What Dangers Do Workplace Blogs Pose To Employers?
Because blogs are easy to write and the Internet has immense reach, there are a myriad of risks to employers. Through blogs, employees can leak sensitive information to your competitors and disparage your company, employees, supervisors, and customers. These risks can result in numerous problems, including decreased morale in the workplace, the loss of goodwill with customers and other companies, and a ruined public image. For example, in November 2004, Delta Airlines fired a flight attendant who posted provocative pictures of herself, attired in her Delta uniform, on her personal blog.

Do Workplace Blogs Offer Any Benefits for Companies?
Despite the risks, workplace blogging can also be an effective and inexpensive means of direct advertising. Many companies have determined that official (or quasi-official) “corporate blogs” produced by authorized employees can provide substantial benefits. For example, Microsoft reportedly has full-time bloggers on staff and encourages other employees to blog as a way for employees to reach out to customers and clients.

A “good” blog raises a company’s visibility and profile and has the potential to reach millions of readers. In addition, a “good” blog can provide prospective employees with a unique perspective on what it is like working for a company. For this purpose, Sun Microsystems has dedicated an entire portion of its website to blogs written by its employees.

What Can An Employer Do In Response To Workplace Blogs?
While some employers may find that the benefits of permitting blogging in the workplace outweigh the potential dangers, most employers will find that some limits should be imposed. Assuming an employer does not want to give employees carte blanche to blog, what are its options?

Ban Employee Blogging–Completely. An outright prohibition of any employee blogging may be viewed as heavy-handed and bad for business. Employees and potential employees may resent what they see as an inappropriate abridgement of their rights, and valuable resources may be wasted trying to police an unpopular prohibition. This could morph into bad publicity for the employer, both within the blogosphere and in the mainstream media.

In addition, terminating an employee for blogging could, in some states, form the basis for a wrongful termination claim. Numerous states have enacted laws that limit an employer’s ability to fire an employee based on off-duty conduct that is not related to the job. Also, if an employee uses his blog for “political purposes,” and is discharged for that reason, the discharge may violate the law, including the California’s Labor Code, which prohibits interference with an employee’s right to engage in political activity. The same could be true for other statutorily protected activities, such as discussing compensation with other employees, promoting health and safety in the workplace, and whistleblowing. The federal civil rights laws protect employees from adverse action based on speech related to employment discrimination, workplace harassment, or disability- or religious-based reasonable accommodations, and would arguably apply to employee blogs. Finally, the First Amendment right to free speech may protect blogging by state or federal employees, although it does not apply to employees in the private sector.

Prohibiting Employees from Blogging at Work, or in a Manner that Harms the Employer’s Interests. This is more moderate than the first option, and seeks to limit blogging only to the extent that it interferes with the employer’s business. In addition to the vicarious liability issues and potential network security risks, the simple fact is that blogging from the workplace can be a significant drain on productivity. Unless there is a clear benefit associated with allowing employees to blog from work, most employers will probably choose to prohibit personal blogging by employees during work hours and in the workplace.

Similarly, there is no reason an employer should tolerate blogging that reveals trade secrets or confidential information, or that is grossly disloyal to the Company. (But beware of taking action based on those “protected” criticisms discussed above.)

The downside to this approach is that it may be too lenient. For example, the Delta flight attendant was not blogging on company time, had revealed no confidential information about Delta, and had not been disloyal to Delta in any way. But most employers can sympathize with the airline for considering her blogging inappropriate nonetheless. Trying to specifically list all possibilities is bound to be a losing battle for the employer.

The “Third Way”–Flexibility. Given the practical and legal risks of a complete ban of employee blogging, and the inadequacy of a “work-related-only” ban, the best approach may be to balance the positive aspects of the blog with appropriate safeguards against the greatest risks. Employers should establish written blogging policies that alert employees to potential liabilities and reiterate the obligations to protect confidential information.

What Else Can Employers Do About Workplace Blogs?
Because blogs travel quickly in the blogosphere, employers may consider what is being said about them on blogs. Using blog search engines, like www.bloogz.com, employers can find blogs that discuss their company and topics related to their company. Also, if requested, blog search engines can deliver those posts directly to the desktops of management.

Employers should use extreme caution in taking any disciplinary action against employees who blog, and should remember that all local, state, and federal labor and employment laws will apply. Prior consultation with counsel is highly recommended.

Blogs are now a fact of our Internet lives and workplaces. If you would like to discuss the effect of blogging on your workplace or need assistance drafting a blogging policy, please contact the Constangy attorney of your choice.

Tom Davis and Chris Smith (Birmingham, AL) both practice in the areas of litigation prevention and defense, including defense of class actions.

AND A GOOD “BLOGGING” POLICY SHOULD HAVE...UH, WHAT?
There are certain elements that should be included in any blogging policy. As always, the purpose of the policy is to let employees know what the expectations are before they get themselves and the company into trouble.

Your company’s philosophy on blogging. Are you going to offer a “company” blog to employees? Are you going to prohibit blogging entirely? Are you going to allow blogging provided it doesn’t harm the company? Your policy should spell this out clearly.

Let your policy apply to podcasting as well as blogging. Podcasting, which is a word combining “broadcasting” and “iPod,” is another method of publishing via the Internet, allowing users to subscribe to a feed of new files (usually in MP3 format). Employees can communicate just as easily about their workplace through podcasting.

“Thou shalt nots” for all types of employee blogging. Unless you plan to ban blogging entirely (not recommended), there are certain prohibitions that should apply in all cases. No disclosure of confidential information or trade secrets. No implying that views expressed by employee-blogger are those of the company. (In fact, employee bloggers should be required to have an express disclaimer relating to this.) No blogging that would violate the company’s policies, particularly no-harassment or workplace violence policies. No use of the company’s logo, service mark, slogans, or other intellectual property. No violation of copyright laws. Blogging is not an excuse for not getting the work done. Blogging, just like any other activity that interferes with productivity or quality of work, will be dealt with as a performance/disciplinary issue. When in doubt about what to blog or the company blogging policy, consult with Human Resources. Any violation of these policies will result in disciplinary action, up through and including termination.

Reserve the right to “freeze” blogging in certain circumstances. Your policy should state that workplace blogging may be suspended for a period of time if the employer is concerned about compliance with securities regulations or other laws (i.e., a takeover bid, or before a corporate announcement).

For those who will offer “company-sponsored” blogging, you may want to require that the bloggers post under their own names, as has IBM Corporation in its recently issued internal blogging guidelines. Even if your company will not sponsor employee blogging, you may want to require that any employee who blogs about your company use his or her real name. (On the other hand, if you have employees who do not wish to involve the company but want to “bloviate” in their spare time about other topics – for example, politics or religion – you may prefer to have them use pseudonyms!)

— Tom Davis & Chris Smith,

FROM THE EDITOR’S DESK: BE CAREFUL WHAT YOU TEST
by Robin E. Shea

The U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, Wisconsin) created a small uproar this summer when it held in Karriker v. Rent-A-Center that the Minnesota Multiphasic Personality Inventory (“MMPI”) was was a “medical examination” within the meaning of the Americans with Disabilities Act and therefore could not be administered to determine whether candidates for promotion were qualified.

Unfortunately, the EEOC’s rules are confusing to many employers.

The EEOC issued guidelines several years ago on pre-employment inquiries and the ADA. The general rule is this: If an inquiry would tend to elicit information about a disability, then you can’t ask it pre-offer. If an inquiry would tend not to elicit information about a disability, then ask away.

This rule means that true “personality tests” – for example, to determine whether a person can work in a fast-paced environment or be a team player – are fine and do not violate the ADA.

The problem with the MMPI is that it is not a personality test but a psychological test, normally used to diagnose psychological and psychiatric disorders. For example, individuals are asked to answer “True” or “False” to questions such as, “I have a habit of counting things that are not important such as bulbs on electric signs, and so forth.”

So, it is still permissible to test pre-offer for “normal” variations in personality; math, reading, or mechanical aptitude; keyboarding speed; physical agility or strength; and the like. (Although your tests should be validated first.)

Just stay away from tests that would tend to elicit information about medical or psychological conditions until after a conditional offer of employment has been made.

Robin E. Shea, Editor—Winston-Salem, NC

AFFINITY GROUPS: DIVERSITY TOOL, OR CAN OF WORMS?
by Carol Hawkins

One of the emerging trends in diversity is “affinity groups.” The groups represent various employee interests within companies–for example, an employer may have affinity groups for female, African-American, Hispanic, and disabled employees. Affinity groups typically make recommendations to management regarding workplace issues of interest to their members. For example, a women’s affinity group might advocate that the employer offer more generous maternity leave benefits. Affinity groups also make recommendations regarding a wide variety of human resources, retention and recruiting policies, and regarding the employer’s strategies with respect to marketing and customer relations. In many cases, candidates for employment look at the existence of affinity groups in determining whether they will “fit in” with the corporate culture. If the “right” kind of affinity group exists, the candidate assumes that the corporate culture is hospitable.

Although most employers who have affinity groups view them as positive, they present some legal challenges as well. General Motors, which has “identity-based” affinity groups for women and various ethnic groups, gay and lesbian employees, and disabled employees, is currently involved in a religious discrimination lawsuit filed by an employee whose request to start an interdenominational Christian affinity group was denied. The GM policy prohibited all affinity groups of a political or religious nature. Because the lawsuit did not allege that Christians were treated less favorably than other religious groups at GM, a federal district court in Indiana dismissed the lawsuit for failure to state a claim for which relief could be granted. The district court also found that refusal of an employer to allow a particular affinity group was not an “adverse employment action” within the meaning of the federal anti-discrimination laws. The case is now on appeal to the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, Wisconsin).

The U.S. Chamber of Commerce and the Equal Employment Advisory Council have filed an amicus brief on behalf of GM. Oral argument is scheduled for the end of October.

Even if GM ultimately wins the case, employers should beware of the extremely fine line between “common identity” and “common beliefs” when deciding which affinity groups to support.

In addition to raising discrimination questions, affinity groups could possibly run afoul of labor relations laws. Specifically, do they constitute “labor organizations” within the meaning of the National Labor Relations Act? If so, it is unlawful for the employer to “dominate” or support them. The critical question is whether the committee “deals with” the employer regarding terms and conditions of employment. The NLRB says that “dealing with” involves a bilateral process by which the committee makes recommendations to management, and management either actually or apparently considers the recommendations.

On the other hand, where management delegates duties to an employee committee or team (for example, in the case of peer review of discipline and discharge decisions, or work teams), such committees or teams are generally not “labor organizations” because they are not “dealing with” the employer. Instead, they are performing managerial functions themselves. This is true even if their decisions can be reviewed and overruled by management.

The typical affinity group is probably more like a “labor organization” than like a group to which management has delegated certain functions. This is not a problem unless the employer “supports” or “dominates” the group.

Generally, a group is “employer-dominated” if the employer permits meetings during company time, provides space for meetings and provides financial or other assistance. Most affinity groups probably fall into this category, as well.

It will be interesting to see whether affinity groups are ever challenged under the NLRA, and if so what will be the result. Until this issue is resolved, there are a few guidelines that may be of help to employers. To the extent that affinity groups are nothing more than social clubs for employees with common characteristics or beliefs, there should be no NLRA problem. At the other extreme, to the extent that affinity groups have been delegated certain management or adjudicatory functions, there should be no NLRA problem. However, there is the risk of a problem to the extent that the affinity group falls into the middle ground–making recommendations that the employer considers, and either accepts or rejects.

All that said, many employers will think the benefits of their affinity groups outweigh the risks of a legal challenge.

Carol Hawkins (Atlanta, GA) practices in the areas of employment litigation prevention and defense, and labor relations.

QUARTERLY QUIZ
Generous Corporation has an annuity fund that provides retirement benefits to employees who are disabled and incapable of continuing to work because of a bodily injury or disease. Madonna, an employee of Generous, has an extremely difficult childbirth and is permanently disabled as a result. She applies for benefits under the annuity fund, and Generous denies the request because pregnancy is not considered a “disability.” Madonna sues Generous under the Americans with Disabilities Act and the Pregnancy Discrimination Act. Who wins?

ANSWER:
Madonna loses a battle but wins the war. According to a recent advisory letter from the EEOC, Madonna would not have a claim under the Americans with Disabilities Act because pregnancy is not a “disability” within the meaning of the ADA. Thus, Madonna was not denied the benefit (discriminated against) because she was disabled. However, Madonna would still have a valid claim for pregnancy discrimination. Her argument would be that she was disabled and met the requirements for the benefit but was denied only because her disability was pregnancy-related.

On the other hand, if Madonna had had an uneventful pregnancy and merely wanted to stay home with the baby, Generous Corporation could legally deny her the retirement benefit.

GETTING TO KNOW US

ED ENNIS (Macon, GA, employment litigation prevention and defense, federal agency matters) received his bachelor’s degree in Engineering Science from the United States Air Force Academy and his law degree from the University of Georgia School of Law. Before entering law school, Ed served as an Engineering Officer on active duty with the United States Air Force. Once he received his law degree, he then served four years as a JAG officer in various places, such as Georgia, California, and Thailand. Ed’s military decorations include the Legion of Merit, the Bronze Star, two Meritorious Service Medals and two Air Force Commendation Medals. In 1998, he was appointed by President Reagan to serve as the United States Attorney for the Middle District of Georgia, where he stayed until 1993. Ed and his wife, Judy, have two grown children. When he is not practicing law, Ed enjoys fishing, tennis, and bird watching.

TAMMY DOBBS (Birmingham, AL, employment litigation prevention and defense) is the head of Constangy’s Birmingham office. She received both her bachelor’s degree in psychology and her law degree magna cum laude from the University of Alabama. While attending college, Tammy worked as a legal secretary, then received an academic fellowship for law school. Before joining Constangy, Tammy served as a law clerk for the Honorable Sharon Lovelace Blackburn, U.S. District Judge for the Northern District of Alabama. Tammy serves on the Junior Board for the YMCA and the Women’s Leadership Initiative for the United Way as well as University of Alabama’s Pre-Law Advisory Committee and the Eleventh Circuit Court of Appeals Planning Committee for their 2007 conference. She was also recently selected for inclusion in “Best of the Bar,” Labor/Employment Law category, for the Birmingham Business Journal. When she is not practicing law or volunteering, Tammy enjoys riding motorcycles, reading, going to the beach, and anything having to do with Crimson Tide football.

TERRY CLARK (Winston-Salem, NC, labor relations, employment litigation prevention and defense) received his bachelor’s degree in history from Furman University and his law degree from Samford University, Cumberland School of Law. Terry went to Furman University on an athletic scholarship for football, where he played on two conference championship teams, then signed as a free agent with the Denver Broncos. Terry is also certified as a specialist in Labor and Employment Law by the South Carolina Supreme Court. When he is not working or playing and watching sports, he enjoys travel and do-it-yourself projects. Terry and his wife, Gretchen, have two teenagers.

REIKO FUKUSHIMA (Nashville, TN, labor and employment litigation prevention and defense) received her bachelor’s degree in economics from Yokohama National University and her law degree from Regents University School of Law. Although Reiko was born and raised in Japan, since coming to the United States, Reiko has lived in New York City, Louisville, Kentucky, and Nashville, Tennessee. She is committed to promoting an environment where cultural diversity produces innovative development of the best of American and Japanese culture and practices. When not practicing law, Reiko enjoys traveling, learning languages, and working out.

MARK HURST (Atlanta, GA, employment litigation prevention and defense) received his bachelor’s degree magna cum laude in marketing from the University of Kentucky. He also attended law school at the same University, where he was a Moot Court Member and a Law Journal Member. Before joining Constangy, Mark was a Staff Attorney at the Eleventh Circuit Court of Appeals. Mark also appeared in the 1995 John Michael Montgomery video for the country song, “Sold,” which was filmed at his grandfather’s stockyards. When he is not practicing law and acting in music videos, Mark enjoys traveling, reading, exercising, movies, and horse racing.

PAPERLESS I-9 COMPLIANCE? HOW SWEET IT IS!
by Penni Bradshaw

Tired of the paperwork required to fulfill your I-9 obligations? Employers can now sign and store I-9 forms electronically. Although the Department of Homeland Security has not yet issued its formal regulations for this new law, which went into effect April 28, the Immigration Service has provided interim guidelines for making use of electronic storage.

Under the new law, employers have a variety of options. For example, employers may continue to complete the forms on paper and store the forms electronically. But if they prefer, they may both complete and retain the forms electronically.

In the latter instance, there are a number of ways to get electronic signatures: electronic signature pads, personal identification numbers, biometrics, and “click to accept” dialog boxes. Until Homeland Security issues its own regulations, the agency has suggested that employers follow IRS standards for electronic storage of taxpayer records.

While we’re at it, here is a quick review of I-9 obligations in general: All employers are required to verify on Form I-9 the identity and employment eligibility of their new hires. These forms are not filed with the federal government, but rather are retained by each employer in its own files. The employer is required to make the forms available for inspection by the Department of Homeland Security or the U.S. Department of Labor for three years after the date of hire or one year after the date the employee’s employment is terminated, whichever is later. Failure to properly complete and retain Form I-9 subjects the employer to civil penalties ranging from $110 to $1,100.

Penni Bradshaw (Winston-Salem, NC) is head of Constangy’s immigration practice.

SHORTEN THE LEASH. BUY YOUR PEACE
by Glen Fagan

As an employer, you may be able to shorten the length of time in which you can be sued, and it’s as simple as amending your employment application. (Results may vary, depending on your jurisdiction.)

The U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) recently held that a six-month limitations period in an employment application barred a lawsuit by an employee who had filed suit within the statutory limitations period but more than six months after her claims accrued.

In effect, the employer in this case managed to shorten the statute of limitations from three years to six months.

Thurman v. DaimlerChrysler
Connie Thurman began working for DaimlerChrysler (then Chrysler Corporation) in 1994 at a facility in Michigan. Before beginning her employment, she signed an application that contained a clause waiving the statute of limitations and agreeing to an abbreviated limitations period in which to file suit against the employer. The clause stated as follows:

READ CAREFULLY BEFORE SIGNING.

I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

In October 1999, Thurman alleged she was sexually harassed by a co-worker. Thurman was given a transfer to another shift in January 2000. She took a leave of absence in February 2000 and never returned to work.

On June 1, 2000, Thurman and her husband sued DaimlerChrysler, asserting claims of sex discrimination under Michigan’s Elliot-Larsen Civil Rights Act and Title VII, race discrimination under 42 U.S.C. § 1981, and negligent hiring/retention, negligent supervision, assault and battery, and loss of consortium. On December 15, 2000, the first lawsuit was dismissed because the Thurmans counsel repeatedly failed to appear and participate in court-ordered conferences.

In August 2001, approximately twenty-two months after the last incident of sexual harassment had allegedly occurred, the Thurmans filed a second lawsuit containing the same claims.

The district court enforced the six-month limitations period in the employment application, dismissing the second lawsuit as untimely. The Sixth Circuit upheld the district court.

The Thurmans claimed that the employment application was unenforceable because it was an unconscionable contract of adhesion (in other words, they argued that Thurman really had no choice but to sign the application). However, under Michigan law, contracts with terms that are reasonable are not considered contracts of adhesion. The Sixth Circuit found that the six-month limitations clause was reasonable, and therefore enforceable.

What’s in it for me?

As already stated, your results may vary. Courts in some states–including California–have upheld clauses like the one used by DaimlerChrysler. In other states, such a clause might be found to be an unconscionable contract of adhesion. Determining whether you can shorten your limitations periods will require an analysis of the law in the states in which you have employees.

But a state-by-state look might be a good investment. Some statutes of limitations are quite long. For example, the limitations period for race discrimination claims under 42 U.S.C. § 1981 is four years. Most state wrongful discharge claims have three-year statutes of limitations. Shortening those periods to six months–if possible–could be well worth an employer’s while.

Glen Fagan (Atlanta, GA) practices in the area of employment litigation and defense.

HOT DOCKETS
The U.S. Supreme Court will decide five employ-ment cases this term. Here’s the lineup:

  • Compensability of donning and doffing under the FLSA
  • Government liability for negligent mine inspections
  • Jurisdictionin discrimination case
  • Right to sue under Constitution where employee has collective bargaining agreement
  • First Amendment retaliation

Employers will be anxious to see what our new Chief Justice, John Roberts, will do. And Harriet Miers is even more of a question mark because she has never been a judge.

Should be an interesting year!

REASON PREVAILS…
“We hold this truth to be self-evident: Uh, NO,” sayeth Thomas Jefferson. The Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) upheld the termination of a court clerk in Tennessee who was having a “relationship” with the estranged husband of one of her co-workers. (There was apparently a question as to whether the relationship was adulterous.) The clerk had argued that her right to intimate association under the First Amendment had been violated.

Wonder what she’s like when not trying to make a good first impression. The Third Circuit (Delaware, New Jersey, Pennsylvania) upheld the termination of an African-American customer service employee who – in a training session that took place after only ten days on the job – got into a cussing match with another new hire, who was white. The white adversary resigned before the company’s investigation was concluded, but the plaintiff stayed on and was ultimately fired for using profanity and engaging in disruptive behavior. The plaintiff claimed she was a victim of race discrimination because the employee who had quit before she could be fired . . . wasn’t fired.

Don’t even get me started on that arbitrator . . . A Springfield, Illinois, police officer was discharged because he had severely beaten his wife, threatened a neighbor, challenged an old man to a fight during a basketball game, obstructed an investigation, and had an “egregious disciplinary record” with 31 prior incidents, including a prior termination for throwing a rock at a car while on duty. (An arbitrator ordered him back to work after that one.) He sued, claiming to be a victim of reverse discrimination. The court granted summary judgment to the town, and the Seventh Circuit (Illinois, Indiana and Wisconsin) affirmed.

Better late than never. A federal judge in Philadelphia held that the EEOC had the right to issue a regulation stating that an employer could reduce or end benefits when the retiree becomes eligible for Medicare or similar government benefits. The AARP had challenged the regulation, and the same judge had previously held that the EEOC regulation was invalid. On reconsideration, the judge did, however, leave in place an injunction prohibiting the EEOC from publishing the regulation until the Third Circuit rules in the AARP’s appeal.

REASON FLAILS…
Note to self: Develop new reality-TV show about class action lawsuit filed by reality-TV story editors . . . A wage-and-hour class action filed by reality-TV “writers” [sic] claims that the producers and TV networks overworked, underpaid, and underfed the plaintiffs, who view raw video footage and edit it into a storyline. The mastermind of the lawsuit was the Writers Guild of America, West, which is trying to organize reality-TV “writers.” Citing the example of one assistant story editor who worked 84 hours in one week for a flat rate of $800, the Guild noted that the pay averaged $7.41 per hour with no overtime. Seems like this lawsuit would make for a great new reality-TV show: The Class Action? The Real People’s Court? As the Real World Turns? You’ve Been Served? The Shysters? (Attention, networks: Please send royalty payment for concept to Constangy, Brooks & Smith, LLC.)