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Archive for May, 2012

Eleventh Circuit Rejects Eleventh Amendment Immunity For Sheriff

Posted on: May 18th, 2012

By Ben Mathis and Bill Buechner

The Eleventh Circuit has issued an unpublished decision holding that a Georgia sheriff is not entitled to Eleventh Amendment immunity with respect to 42 U.S.C. § 1983 claims arising out of his termination decisions.  In Keene v. Prine, Docket No. 11-13274 (11th Cir. May 15, 2012), the court held that the sheriff was not acting as an “arm of the state” when he terminated three employees.  (more…)

New Guidelines on Social Media Policies

Posted on: May 11th, 2012

By: Joyce Mocek

Last week, the Acting General Counsel of the National Labor Relations Board (NLRB) issed a 24 page report containing specific guidelines for employers on their policies concerning social media use.  This is the third report that the NLRB has issued on social media policies, and it helped clarify what the NLRB considers to be lawful or unlawful provisions in employer policies on social media.

The  Board examined seven cases of company policies on social media where employees had claimed that their rights were being violated by the policies.  In six of these cases, the Board found that some of the employer’s policies violated the National Labor Relations Act (NLRA).  The one social media policy that was found to be lawful was attached to the report.

Provisions were found to be unlawful when they interfered with the rights of employees under the NLRA, such as the right to discuss wages and working conditions with co-workers, if they “would reasonably tend to chill employees in the exercise of their Section 7 rights.”

Policies were found to be unlawful or over-broad where they :

  •  Encouraged  employees to “consider using available internal resources, rather than social media or other online forums, to resolve concerns,”
  • Prohibited employees from participating in social media activities with the  employer’s resources and/or on company time,
  • Instructed employees in a media policy to “think carefully about ‘friending’ co-workers…on external social media because “it would discourage communications among co-workers.”

The Report also concluded that employer disclaimers or savings language to cure a policy that is otherwise over-broad would not save the policy.

Policies that were found to be lawful:

  • Prohibited employees from posting “information directly or indirectly related to the safety performance of employer systems or company vehicles,”
  • Prohibited employees from posting content that is protected by attorney client privilege,
  • Instructed employees to “show proper respect for the laws governing copyright, fair use of copyright material owned by others, trademarks and other intellectual property, including employer copyrights, trademarks and brands.”

The NLRB’s recent guidance on social media provides helpful  parameters for employers trying to develop appropriate social media policies to withstand a challenge to Section 7 of the NLRA.  However, the new guidelines do not cover all issues an employer may wish to address in social media policies.  With the expondential increase in numbers of users and extent of use of social media, social media policies will continue to be on the radar for the NLRB.  There is little guidance in the courts on appropriate social media policies.  Employers will be wise to review their current social media policies to ensure that they comply with guidelines that have been considered lawful by the NLRB  as this area of the law continues to evolve.

EEOC Takes Positions on the Use of Criminal Records and on Transgender Discrimination

Posted on: May 1st, 2012

By Brad Adler and La’Vonda McLean

The EEOC is, once again, taking an employee-friendly position on trending legal issues. In its most recent Enforcement Guidance, the EEOC reaffirmed its position that employers should be cautious in using arrest and conviction records in making employment decisions. The EEOC also issued a ruling for the first time that transgender discrimination is a form of sex discrimination protected under Title VII.   (more…)

The Increasing Personal Use of Company IT: Are Your Technology Policies Enough?

Posted on: May 1st, 2012

By David Cole

It is increasingly common for employees to use their personal laptops, smartphones, USB drives, and other technology devices for both personal and work purposes. In a recent survey, 95% of workers responded they have used technology they purchased themselves for work. While many companies have policies that allow them to monitor employee use of company-owned devices, they do not always address the situation where employees use their own devices. A recent case decided by the Georgia Court of Appeals shows the importance of having a broad policy that allows your company to monitor technology devices regardless of who owns them. (more…)

Insurer May Recoup Defense Costs Paid under a Reservation of Rights

Posted on: May 1st, 2012

By Bart Gary

Frequently an insurance carrier under a general liability insurance policy may provide a defense to its insured from a claim by a third party under a “reservation of rights.” This occurs when the insurer questions whether the claim is covered by the policy. A reservation is a recognized way in which the insurance carrier can defend its insured from the claims and at the same time preserve its rights to deny coverage at a later time. The reservation of rights is often by letter sent to the insured that contains an affirmation of the insurer’s intention to defend its insured, but with several reservations, including the right to withdraw from the defense at a later time or to seek a declaration of its rights under the policy. In many jurisdictions, the insured need not sign or otherwise acknowledge formally the reservation letter in order to be bound by it. All he or she needs to do is accept the defense under the conditions stated in the letter.  (more…)