Archive for the ‘Employment Law’ Category

Check Those Employee Handbooks!

Thursday, January 31st, 2013


There have been a spate of reporting about the National Labor Relations Board’s (NLRB) recent decisions about the use of social media by employees.¬† You may think that an employer should have absolute control over its employees’ right to talk about the employer or its customers on the Internet, but that is not the case.¬† In fact, if an employee’s online speech can be even broadly interpreted to be protected under Sections 7 and 8 of the National Labor Relations Act (NLRA),¬† such speech is permissible.¬† Sections 7 and 8 of the NLRA protect a worker’s “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….”

The New York Times recently reported the trend in NLRB decisions under the headline, “Even if It Enrages Your Boss, Social Net Speech is Protected.”¬† Similarly, the PBS network just aired a report on NLRB decisions entitled “Can Facebook Posts Get You Fired?”¬† The message presented by these reports is clear: employers must give careful consideration before firing an employee for what he or she says on the Internet.¬† We strongly recommend that employers review these reports and also consider the implications of the rulings for employee handbooks.

A recent decision this month involving DirectTV provides an object lesson.¬† In that case, DirectTV’s employee handbook contained several rules that the NLRB found objectionable because they imposed blanket prohibitions against employees from contacting the media and law enforcement about the employer or its employees.¬† The “Confidentiality” section of the handbook broadly prohibited employees from contacting the media about the company, its business and customers or from talking with law enforcement without pre-authorization and to “never discuss details about your job, company business or work projects with anyone outside the company” and to “never give out information about customers or DirectTV employees.” The rule provided detailed instructions about where employees should not discuss DirectTV business, including “public venues, such as seminars and conferences, or via online posting or information data sharing forums, such as mailing lists, websites, blogs, and chat rooms.”

According to the NLRB, such prohibitions could reasonably be understood by employees to restrict discussion of their wages and other terms and conditions of employment. That the handbook’s rules suggested that the confidentiality prohibitions applied to discussions about customers, company business and other items did not save the rules from the Board’s “condemnation.” The Board held that the confidentiality rule violated section 8 (a)(1) of the NLRA. What’s the lesson?¬† Avoid the cost of litigation, review your employee handbooks now.

–Adam G. Garson, Esq.

Ask Dr. Copyright….

Thursday, July 28th, 2011

copyright questionDear Doc:

We have a small business, and recently, one of our key employees quit unexpectedly.¬† Of course, we quickly secured things, but a customer just called to say that she has been contacted by the fellow, and that his company’s brochure is quite similar to ours, offering the same services and products.¬† We did not have a non-compete agreement, but we’d still like to know if there is something that we can do to prevent his new employer from trying to take all of our customers.


Anxious Owner

Dear Angst (may I call you that?):

It sounds like your former employee may have done some very common, but nevertheless, actionable things when he left your company.¬† Without a non-compete agreement that is reasonable in scope and duration, the law usually will not prevent competition between you and your former employee, but your competitors are not allowed to profit from your intellectual property in competing with you.¬† For that reason, you may want to carefully examine this “new” brochure, because it may infringe your copyrights (you did follow the Doc’s previous advice, and register your copyrights when you created the brochure, right?¬† If not, let’s talk – soon!)¬† If your dearly departed worker is contacting a lot of your customers, he may have copied your customer list, which may be protected both as a copyright and as a trade secret. It’s also common for employees to copy massive amounts of data from your computers before leaving – forms, specifications, bid documents, supplier lists, marketing materials – and these copies may not be authorized or legal.

Enforcing your rights is something best done very quickly.¬† Often, filing an action for an injunction that seeks to prevent the former employee and his new employer from copying or using the materials that he took from your business may be done in Federal court, and the decision may come in a matter of hours or days.¬† The court may also order discovery so that the former employee’s computer and files may be searched to find out what was taken.

We know that litigation is usually viewed as a last resort, but in cases where you’ve invested a lot in developing marketing materials and a good customer list, it may be quick action in court that preserves that investment for your company, rather than handing it to a competitor for free.

As always, ask the attorneys at LW&H – they do this stuff regularly.

— Lawrence A. Husick, Esq.