Employment Law Briefing
March 22, 2012 ▪ Charlotte, NC
Presented by:
Brandon M. Shelton
H. Bernard Tisdale III
“You’re Not The Boss Of Me”
Regulating Employee Conduct
On And Off The Job
March 22, 2012 ▪ Charlotte, North Carolina
Verbal Expression
How to address economic and political
activism on and off the job
March 22, 2012 ▪ Charlotte, North Carolina
Economic Speech
 NLRA Section 7 protects an employee’s
right to discuss wages, hours and other
terms and conditions of employment
 N.C./S.C. – no statutory protections for
employee speech content
March 22, 2012 ▪ Charlotte, North Carolina
Economic Speech
 But there are limits . . .
– Sit down strikes
– Disclosing confidential business
information
– False allegations against an
employer where the allegations
are malicious or made with a
reckless disregard for the truth
March 22, 2012 ▪ Charlotte, North Carolina
Economic Speech
 But there are limits (cont’d)
– Disparagement of an employer’s
business unrelated to employee
interests and/or working
conditions
– Violence, profanity and vulgarity
March 22, 2012 ▪ Charlotte, North Carolina
Political Speech
 Public Sector Employees Have First
Amendment Political Protections
 Private Sector Employees are Not
Protected by First Amendment
March 22, 2012 ▪ Charlotte, North Carolina
Non-Solicitation Policies
 Guard Publishing Co. & Eugene
Newspaper Guild, 351 NLRB 1110 (2007)
– Employer may implement and
enforce a policy that allows
solicitations for certain nonbusiness related purposes,
while prohibiting solicitations for
other non-business related purposes
 But, D.C. Circuit reversed in part
March 22, 2012 ▪ Charlotte, North Carolina
Non-Solicitation Policies
 Guard Publishing Co. & Eugene
Newspaper Guild, 571 F.3d 53
(D.C. Cir. 2009)
– Employee’s e-mail clarifying facts
regarding union rally was not
solicitation and not prohibited
by policy
– Court found application of
Company policy violated NLRA
March 22, 2012 ▪ Charlotte, North Carolina
Non-Solicitation Policies
 What does this mean for employers . . .
– Allow charitable solicitations, BUT
ban non-charitable solicitations
– Allow invitations for personal
events, BUT ban invitations
from commercial organizations
– Allow personal e-mail
communications, BUT ban solicitations . . .
– HOWEVER . . .
March 22, 2012 ▪ Charlotte, North Carolina
Non-Solicitation Policies
 What does this mean for employers
(cont’d)
– CANNOT allow some commercial
solicitations BUT ban union
solicitations
– CANNOT allow solicitations
from one union but not another
– CANNOT selectively enforce policies
Goal: Consistent Application
March 22, 2012 ▪ Charlotte, North Carolina
Non-Verbal Expression
What to do with the employees who feel the need
to “dress up” for work
March 22, 2012 ▪ Charlotte, North Carolina
Religious Discrimination
 Cloutier v. Costco, 390
F.3d 126 (1st Cir. 2004)
– Plaintiff was a member of the
Church of Body Modification
– Costco adopted a grooming policy
that prohibited facial piercings
– Employee refused to remove her
facial piercings and (although no
customers complained about the
piercing) she was fired
March 22, 2012 ▪ Charlotte, North Carolina
Religious Discrimination
 EEOC v. Red Robin, 2005 WL
2090677 (W.D. Wash 2005)
– Plaintiff was a member of
Kemeticism, an ancient
Egyptian religion
– Red Robin’s grooming policy
required employees to cover any
tattoos
– Employee refused to cover his
tattoos and (although no customer
complaints) he was fired
March 22, 2012 ▪ Charlotte, North Carolina
Religious Discrimination
 Brown v. F.L. Roberts & Co., 896 N.E.2d
1279 (Mass. 2008)
– Plaintiff was a practicing Rastafarian
– F.L. Roberts (Jiffy Lube) initiated new
grooming policy which required
employees with customer contact
to be ‘clean-shaven and hair should
be clean, combed, and neatly
trimmed or arranged’
– Employee refused to shave or cut his
hair, so employee was transferred to
work only in lower bay, with no
customer contact
March 22, 2012 ▪ Charlotte, North Carolina
Religious Discrimination
 Costco – held that it was an undue hardship to
accommodate plaintiff’s religious beliefs
because plaintiff regularly interacted with
customers, and the company decided that her
piercings detracted from the company’s image
 Red Robin – held that, even though the
company determined that his tattoo detracted
from its family-friendly restaurant image, it was
not an undue hardship to allow plaintiff to
show his very small tattoo even though he
regularly interacted with customers.
March 22, 2012 ▪ Charlotte, North Carolina
Religious Discrimination
 Brown – held that an exemption from a
grooming policy could never amount to an
undue hardship and once the
employee made clear he could
not comply with the policy for
religious reasons, the employer
was obligated to engage in an
interactive process to find a
reasonable accommodation for him
March 22, 2012 ▪ Charlotte, North Carolina
Gender Discrimination
 While differences in personal appearance
policies that reflect customary modes of
grooming and dress do not generally
violate Title VII . . .
– Jespersen v. Harrah’s Operating Co, 444 F.3d 1104 (9th
Cir. 2006) (en banc) – not gender discrimination to fire a
female employee for refusing to wear makeup as
required by a grooming policy
– Knott v. Missouri Pacific R.R. Co., 527 F.2d 1249 (8th
Cir. 1975) – not gender discrimination to fire a man for
refusing to cut his hair short as required by a grooming
policy
March 22, 2012 ▪ Charlotte, North Carolina
Gender Discrimination
 Some forms of differential treatment
may violate discrimination laws:
– Hub Folding Box Co. v. Massachusetts
Comm’n Against Discrimination,
(Mass. Ct. App. 2001)
• Demand that female employee,
but not male employee, cover up tattoo
violated state anti-discrimination statute
March 22, 2012 ▪ Charlotte, North Carolina
Model Grooming Policy
March 22, 2012 ▪ Charlotte, North Carolina
Unhealthy Expression
Stemming the use of illegal drugs, alcohol, and
tobacco on and off the job
March 22, 2012 ▪ Charlotte, North Carolina
The Crusade Against Smoking &
Drinking Outside the Workplace
 Numerous states
specifically prohibit
discrimination against
employees for lawful,
off-duty use of
tobacco, alcohol, or
other lawful products
March 22, 2012 ▪ Charlotte, North Carolina
The Crusade Against Smoking &
Drinking Outside the Workplace
 Some states that (either directly or
indirectly) prohibit discrimination
based on off-duty smoking or alcohol
use, provide for exceptions:
– N.C.G.S. § 95-28.2(b)
• Prohibits employment actions based
on employee’s “lawful use of lawful
products if the activity occurs off the
premises of the employer during
nonworking hours …”
March 22, 2012 ▪ Charlotte, North Carolina
The Crusade Against Smoking &
Drinking Outside the Workplace
– N.C.G.S. § 95-28.2(b)
• Exceptions:
- adversely affects job performance
- adversely affects ability to fulfill job
responsibilities
- adversely affects other employees’
safety
March 22, 2012 ▪ Charlotte, North Carolina
The Crusade Against Smoking &
Drinking Outside the Workplace
 S.C. Code § 41-1-85
– The use of tobacco products outside
the workplace must not be the basis of
personnel action, including, but not
limited to, employment, termination,
demotion, or promotion of an
employee
March 22, 2012 ▪ Charlotte, North Carolina
Model Anti-Smoking Policy
March 22, 2012 ▪ Charlotte, North Carolina
Sex Discrimination
 Preferential treatment based on a

consensual relationship does not
constitute gender discrimination
EEOC Policy Guidance on
Employer Liability under Title VII
for Sexual Favoritism
March 22, 2012 ▪ Charlotte, North Carolina
Sex Discrimination
 Generally, an employee cannot claim that a
supervisor’s favoritism toward someone he or
she was dating constitutes sex discrimination
– DeCintio v. Westchester County Med. Center,
807 F.2d 304 (2nd Cir. 1986):
male employees not denied
promotions because of gender,
but rather because female
employee awarded promotion
was dating the
decision-maker
March 22, 2012 ▪ Charlotte, North Carolina
Sex Discrimination
 BUT does that mean dating in the
workplace is a good idea????
– Shrout v. Black Clawson Co., 689 F. Supp.
774 (S.D. Ohio 1988): significant damages
awarded to subordinate who unsuccessfully
tried to end a consensual relationship with
her supervisor
– Miller v. Department of Corrections, (Cal.
2005): employees who were treated less
favorably than co-workers who slept with
supervisor allowed to proceed with sexual
harassment claim
March 22, 2012 ▪ Charlotte, North Carolina
Fraternization Policies
 Options in adopting a
fraternization policy:
– Ban on all inter-office dating
– Ban on dating between managers
and non-managers
– Prohibit relationships between an employee and his
or her direct or indirect supervisor
– “Love contracts”
March 22, 2012 ▪ Charlotte, North Carolina
Model Fraternization Policy
March 22, 2012 ▪ Charlotte, North Carolina
Electronic Expression - How to Deal with Computer
Usage at Work and at Home, or . . .
Can we please bring back the typewriter?
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage
At Work and At Home
 Use at Home:

–
–
–
–
Blogging
Message boards
Chat rooms
Twitter & Facebook
Use at Work:
– E-mails to and from work
– Internet access to public sites
– Internet access to password protected
web-based e-mail accounts and internet
sites (i.e., on-line banking)
– Internet blogs
March 22, 2012 ▪ Charlotte, North Carolina
Limitations On Monitoring
At-Work Computer Usage
 Privacy and Unauthorized Access
Claims:
– Claims
• Invasion of Privacy
• Federal and State Wiretapping laws
• Electronic Communications Privacy Act of
1986
• Stored Electronic Communications Act
– Exceptions
• System Provider
• Prior Consent Defense
March 22, 2012 ▪ Charlotte, North Carolina
Limitations On Monitoring
At-Work Computer Usage
 Privacy and Unauthorized Access Claims:
– Campbell v. Woodard Photography, 433 F.
Supp. 2d 857 (N.D. Ohio 2006)
• Expectation of privacy in e-bay activities on
company computer during work hours
March 22, 2012 ▪ Charlotte, North Carolina
Limitations On Monitoring
At-Work Computer Usage
 Privacy and Unauthorized Access Claims:
– City of Ontario v. Quon, 130 S. Ct. 2619 (2010)
• Leaving unresolved whether employees had
reasonable expectation of privacy in personal
text messages sent using company equipment
– Sidell v. Structured Settlement Investments,
2009 WL 103518 (D. Conn. 2009)
• Invasion of privacy claim based on continued
access to yahoo e-mail account after employee
resigned
March 22, 2012 ▪ Charlotte, North Carolina
Limitations On Monitoring
At-Work Computer Usage
 Attorney-Client Privilege
– Sims v. Lakeside School, 2007 WL 2745367
(W.D. Wash. 2007)
• Expectation of privacy on web-based e-mail
accounts on work computer
March 22, 2012 ▪ Charlotte, North Carolina
Limitations On Monitoring
At-Work Computer Usage
 Attorney-Client Privilege
– Steingart v. Loving Care, 990 A.2d 650
(N.J. 2010)
• Expectation of privacy on web-based e-mail
accounts on work computer
– Holmes v. Petrovich Development
Company, 191 Cal. App. 4th 1047
(2011)
• No expectation of privacy on web-based email accounts on work computer
March 22, 2012 ▪ Charlotte, North Carolina
Obligation to Monitor
At-Work Computer Usage
 Liability to a third party: Doe v. XYC
Corp., 887 A.2d 1156 (N.J. Ct. App.
2005)
– Employee of XYC Corp. posted
pictures of the plaintiff’s minor
daughter on pornography
sites from his work computer
March 22, 2012 ▪ Charlotte, North Carolina
Obligation to Monitor
At-Work Computer Usage
 Liability to a third party:
– XYC learned that employee
surfed internet for pornography
at work and reprimanded him,
but did not investigate any
further
– Employee was arrested
March 22, 2012 ▪ Charlotte, North Carolina
Obligation to Monitor
At-Work Computer Usage
 The Court held that XYC could be liable to
the plaintiff for failing to act to prevent
employee’s illegal conduct. XYC:
– Had the ability to monitor internet use;
– Had the right to monitor internet use;
March 22, 2012 ▪ Charlotte, North Carolina
Obligation to Monitor
At-Work Computer Usage
– Should have known that
employee was using his work
computer to access child
pornography;
– Had a duty to act to prevent
employee from continuing his
activities; and
– Failure to act caused harm
to the victim.
March 22, 2012 ▪ Charlotte, North Carolina
Obligation to Monitor
At-Work Computer Usage
 Sexual Harassment claims
– Knox v. Indiana, 93 F.3d 1327
(7th Cir. 1996)
 Defamation claims
– Meloff v. New York Life, 240
F.3d 138 (2nd Cir. 2001)
 Theft of Confidential
Information
– NewSouth Communications v.
Universal Telephone, 2002 WL
31246558 (E.D. La. 2002)
March 22, 2012 ▪ Charlotte, North Carolina
Limits on an Employer’s Right to
Regulate Off-Duty Computer Usage
 Many states prohibit discrimination
against employees for lawful offduty conduct away from the
employer’s premises
– Cal. Labor Code § 98.6
– N.Y. Labor § 201-d
 Section 7 of the NLRA protects
employees who engage in
concerted protected activity
March 22, 2012 ▪ Charlotte, North Carolina
Limits on an Employer’s Right to
Access Off-Duty Computer Usage
 Public v. Private Domain
– Moreno v. Hanford Sentinel,
Inc., 172 Cal. App. 4th 1125
(2009)
• Newspaper did not invade
plaintiff’s privacy by
publishing “ode” posted on
her myspace page
March 22, 2012 ▪ Charlotte, North Carolina
Limits on an Employer’s Right to
Access Off-Duty Computer Usage
 Unauthorized Access
– Pietrylo v. Hillstone
Restaurant, (D.N.J. 2009)
• Managers violated Stored
Communications Act
(SCA) by knowingly
accessing private
Facebook page without
authorization
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage Policy
 Must address computer usage
at-work and/or using company
resources
– Informs employees that the
e-mail/internet system is the
employer’s property and is
intended for business purposes
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage Policy
– Notifies employees that they do not
have any express or implied privacy
rights in any matter created, received or
sent through the company’s e-mail
system, or the sites that they visit on the
internet, including web-based e-mail
accounts
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage Policy
– Provides notice that the contents of
e-mails, both work-related and personal,
and the history of internet sites visited
are subject to monitoring
– Warns that violations may
subject them to discipline up to and
including termination
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage Policy
– Informs employees that e-mails are the
property of the employer
– Prohibits blogging on company
computers and during working
hours
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage Policy
– Instructs employees that e-mail and
internet use must be limited so as not to
interfere with the company’s computer
resources, or the employee’s work
performance, obligations or duties
– Directs that the company’s
servers should not be used for personal
monetary gain or commercial purposes
outside the scope of the employee’s
employment
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage Policy
– Informs employees that they may not:
• use the e-mail or internet to violate any
law, including obscenity, copyright, and
defamation laws
• invade the privacy rights of others
March 22, 2012 ▪ Charlotte, North Carolina
Computer Usage Policy
– Informs employees that they may
not:
• violate any company policies,
including the company’s harassment
policy
• disclose or use confidential
information except as authorized to
perform their job duties
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policy
 Primary focus: whether the policy
“reasonably tends to chill employees
from exercising Section 7 rights.”
 The following terms are likely to draw
NLRB scrutiny and are ones employers
should avoid:
– Disparaging remarks;
– Critical statements;
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policy
 Policy language to avoid:
– Merely “false” statements
– Negativity or negative comments
– Rude, discourteous or inappropriate
comments
– Generally offensive conduct
– Profanity
– Confidential information without further
explanation
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policies
 General Counsel Memorandum issued
by the Division of Advice on January 24,
2012 regarding certain policy provisions:
– Policy directing employees to generally
avoid identifying themselves as
employer’s employee unless discussing
conditions of employment “in an
appropriate manner” – unlawful –
implicitly prohibits “inappropriate”
discussions;
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policies
 Potentially unlawful policy provisions (cont.):
– Prohibitions on “disrespectful conduct” and
“inappropriate conversations”
– Policy prohibiting disclosure of “confidential,
sensitive or non-public information”
concerning the company, without any
examples in policy to provide context,
overbroad. So was prohibition on use of
company name or service mark – the Acting
General Counsel takes the position that
employees have the right to use the
employer’s logo in conjunction with PCA
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policies
 Potentially unlawful policy provisions (cont.):
– Prohibition on unprofessional communication
that could negatively impact the employer’s
mission
– Policy requiring employee to obtain approval
from employer to identify self as employee on
social media is overbroad; and
– Policy prohibiting “discriminatory, defamatory or
harassing” web entries unlawful (in this case the
employer applied that rule to limit PCA) but
amended policy prohibiting “vulgar, obscene,
threatening, intimidating, harassing” actions
lawful
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policies
 Conversely, it is likely still appropriate to
prohibit:
–
–
–
–
Abusive or profane conduct;
Maliciously false statements;
Illegal discrimination;
Disclosure of confidential information
obtained without permission;
– Trade secrets;
– Copyrights; and/or
– Product launch details.
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policies
 Disclaimer: This policy is not intended
to interfere with employee rights to
form, join or assist unions or to
engage in other concerted activity
protected by the National Labor
Relations Act, including the right to
discuss wages, benefits and working
conditions.
March 22, 2012 ▪ Charlotte, North Carolina
Social Media Policies
 Or - Application of this policy will be
consistent with the National Labor Relations
Act. This policy is not intended to restrict or
interfere in any way with any applicable
federal, state or local law.
 Or - This policy is not intended to restrict or
interfere with any employee’s federal or
state labor law rights, including any and all
rights under the National Labor Relations
Act, or any whistleblower protections under
federal or state law.
March 22, 2012 ▪ Charlotte, North Carolina
Address Blogging/External
Communications in Your Policy
 An employer can address
computer usage or external
communications by
employees at home that
impacts the company
– Establish the rules that are inviolable,
such as disclosing confidential, trade
secret information, and conflicts of
interest
– Advise employees that the company
will monitor blogs and that the company
has the right to track what is being said
on such blogs
March 22, 2012 ▪ Charlotte, North Carolina
Address Blogging/External
Communications in Your Policy
 Addressing computer usage at
home
– Prohibit employees from
identifying themselves as company
agents or suggest they are presenting
the company’s view in any blogging
activity unless specifically authorized or
protected by state or federal law
March 22, 2012 ▪ Charlotte, North Carolina
Address Blogging/External
Communications in Your Policy
 Addressing computer usage at home
– Prohibit employees from using blog postings
to harass or attack any employee, contractor,
customer, or vendor based on any protected
category
– Remind employees that they could be subject
to legal action for
• making defamatory statements about the
company or other persons
• posting private information about a co-worker’s
medical or financial affairs
March 22, 2012 ▪ Charlotte, North Carolina
Address Blogging/External
Communications in Your Policy
 Addressing computer usage at home
– Require that employees make clear that
the views in their blogs are their own
and not those of their employer
March 22, 2012 ▪ Charlotte, North Carolina
Copyright Information
 Any reproduction in any form or
incorporation into any information
retrieval system or any use without
the express written consent of
Ogletree Deakins is prohibited.
Please direct all inquiries to Client
Services Department, Ogletree
Deakins, 600 Peachtree Street, Suite
2100, Atlanta, Georgia 30308 or
clientservices@ogletreedeakins.com.
March 22, 2012 ▪ Charlotte, North Carolina