August 2011

Social media sitesThe NLRB’s Division of Advice recently issued memoranda in several different cases, showing that not all activity by employees on social media sites constitute protected activity.  These reports show that the Labor Board, like many employers, struggle with what is “protected concerted activity” – and thus protected from any employer discipline – and what are mere individual gripes – and most likely not protected.

The NLRB’s attempt to provide guidance in these memoranda does show the Labor Board’s adoption of a more realistic view of what is protected activity on social media than some had feared (and more realistic than some critics had charged).  In short, “protected concerted activity” even on social media must show more than an individual employee’s private complaint or gripe about her/his employer. The employee must be expressing group complaints (acting “with or on the authority of” other employees) and generally must be interacting with employees in such expression. posted a good article illustrating the differences. In one instance, the NLRB even examined whether a particular employee’s Facebook wall included ‘friends’ who were co-workers. Continue Reading Labor Board Report Shows Its Struggles with the Realities of Social Media

A federal appeals court recently held that a job applicant cannot sue a prospective employer for retaliation under the Fair Labor Standards Act (FLSA). 

In the case, Dellinger v. Science Applications International Corp., the employee had to complete a security clearance form after a conditional offer of employment.  The form asked the applicant if she had been involved in any non-criminal court actions.  The applicant disclosed she had sued her former employer for wage/hour violations.  The employer then withdrew the offer of employment. As a result, the job applicant sued for retaliation.

In ruling that the applicant did not have a claim, the Fourth Circuit Court of Appeals (the federal appeals court for appeals from Maryland, North Carolina, South Carolina, Virginia and West Virginia), explained that the anti-retaliation provision of the FLSA applies only to actual employers, not prospective employers.  The Court recognized the compelling argument of the job applicant but still held that extending the law as requested would go beyond the law’s plain language.  An applicant who never began or performed any work could not, by the language of the FLSA, be an ’employee,’ the Court said.

Continue Reading Should Employers Now Ask All Applicants If They Have Sued Under FLSA On A Background Check?

Tennessee has a maternity/paternity leave law which permits both male and female full-time employees with 12 consecutive months of service to have four months of unpaid leave for adoption, pregnancy, childbirth and nursing a new infant.  In order for an employee to be covered, the employer must have 100 or more employees on the job site or location at which the employee requesting leave is employed.

The employee must give three months’ advance notice except for medical emergency.  With regard to adoption, the four-month leave period begins on the date that the employee receives custody of the child.  Typically, the leave is job-protected.  However, there is an exception if the employee is so “unique” that the employer, after reasonable efforts, cannot fill the position temporarily. Continue Reading What Do Tennessee’s Family And/Or Medical Leave Laws Require?

Magnifying glassThe EEOC has renewed the debate recently on an employer’s use of background checks in hiring.  Nothing new right?  You know you cannot use arrest records but only convictions because in this country, all are innocent until proven guilty.  But the renewed debate is whether use of conviction records is unlawfully discriminating against minorities.

In evaluating use of conviction records, employers must balance their exposure for possible “adverse impact” discrimination claims and their exposure for negligent hiring or retention claims.  For more on this debate, The Wall Street Journal has a good post on its Law Blog.

Continue Reading Why the Renewed Debate on Criminal Background Checks?

The Tennessee Human Rights Act (THRA) applies to employers with eight or more employees within the state and prohibits discrimination based on race, creed, color, religion, sex, age or national origin.  The interpretation and enforcement of the THRA follows closely that of Title VII and the Age Discrimination in Employment Act (ADEA).

The Tennessee Human Rights Commission (THRC) investigates charges of discrimination brought under the THRA, although most charges of this nature are filed jointly with the EEOC and THRC.  Under a work-sharing agreement between the two agencies, most discrimination charges are investigated by the EEOC.  Because Tennessee is a “deferral state,” discrimination charges must be filed within 300 days of the alleged discriminatory act.  Continue Reading What are the Protected EEO/Non-Discrimination Categories in Tennessee?