Whew, the month is barely 2/3 of the way over, and already it’s been a doozy for employment law. Interestingly, most of the major decisions and actions this month have focused on online activities. Will this be a trend, now that the legal system is slowly catching up to suits filed in the wake of social-media-based bad behavior?
We begin in the real world: the Ninth Circuit Court of Appeals recently ruled that fitness-for-duty exams, when ordered after a pattern of behaviors that indicate a worker can’t complete their job duties safely. The writeup from Shaw Valenza at the link is a very comprehensive guide to applying this standard.
If you require employees to sign an agreement limiting the amount of time they have to file a workplace claim, a recent decision by a U.S. district court could render that language void. The U.S. District Court for southeastern Michigan ruled that the same “unwaivable” status that applies to claims filed under the Fair Labor Standards Act also applies to claims filed under the Family Medical Leave Act. It’s not unreasonable to assume that courts will apply this standard to all federal labor acts, so if you’ve got time limits on filing claims, you might want to revisit them.
Now to the virtual side. The 9th U.S. Court of Appeals in San Francisco recently ruled that employees who used an employer’s database to perform searches for a former co-worker were very much in the wrong for doing so. Although the employees were authorized to use the database, they were using it for “a purpose that violates the employer’s restrictions on the use of the information,” according to the court.
Little by little, the National Labor Relations Board is carving out some precedents for terminations that involve social media. Last week, the NLRB said that a nonprofit organization was wrong to fire five employees after they had discussed working conditions and other workers’ performance on Facebook. However, the NLRB also ruled that it was okay for a newspaper to fire an employee who Tweeted about his employer very critically. The message seems to be that discussing working conditions is one thing, but just plain slamming your employer is quite another.
Those are just two examples of recent social-media cases. There are bound to be more in the pipeline: a few weeks ago, an emergency room doctor was fired for posting pictures of her patients on Facebook, a horrifying thought for anyone who’s had to go to the ER recently.
But you know what’s sure to brighten up any day? A new home page for a federal form! That’s right, the lovely folks at U.S. Citizenship and Immigration Services have a new portal for all things I-9. Want to learn what forms of ID you can and can’t accept for new hires? How about the penalties for not filing an I-9? It’s all right here. Enjoy!