U.S. District Court determines Facebook likes are not considered speech.

If your employer is an elected official, you might want to steer clear of “liking” her or his political rival on Facebook, if the recent decision from the United States District Court in Virginia is any indication.

B.J. Roberts was first elected sheriff of Hampton, Virginia in 1992. In a 2009 election, the incumbent sheriff faced Jim Adams, who had recently retired from the department. Some of Adams backers were employed in the department during the run-up to the election, and six of them showed their support by attending a fundraiser and by liking the Jim Adams for Hampton Sheriff Facebook page.

After winning the election, Roberts purged his department of twelve employees, including the six Adams backers. The sheriff cited a shift in department resources and performance issues as cause for termination. The former employees filed suit in U.S. District Court alleging that Sheriff Roberts violated their First Amendment rights to freedom of speech and freedom of association.

The Court, however, found that a Facebook “like” is not considered protected free speech under the First Amendment because it is not expressive enough to constitute speech. Additionally, the former employees failed to prove their claim that their dismissals were in retaliation. In other words, the Court did not find enough evidence to suggest that the plaintiffs in the case were discharged for any reason other than those provided by Sheriff Roberts.

For more information on social media in the workplace, check out GovDocs’ post How the NLRB Could Shape Employers’ Social Media Policy.

Government agencies are placing QR codes on labor law postings.

More than one-third of Americans owns a smartphone capable of scanning Quick Response (QR) codes. What do those 100 million+ people want to do on their smartphones that they can’t do on “non-smart” mobile phones – and are QR Codes living up to their expectations?

Short answer: More Info, Please!

• Almost three-quarters of smartphone owners use their phones for real-time location-based information – which can include QR codes – for directions, recommendations, and more detailed information.
• QR code scans increased 1400% in the 2011 when compared to the same time frame in the year before.
• Smartphone owners are twice as likely to scan QR codes versus owners of “non-smart” mobile phones.

And yet, for all their potential functionality, QR codes have generally gotten mixed reviews. Marketers love them, for instance, because they can take consumers to a specific product or a promotion very quickly. Many other people dislike QR codes for that very reason.

Are there ways to use QR codes that provide value to the end user without the ubiquitous “sales job” lurking on the other side of the QR code link?

Yes, and even government agencies are trying out some interesting QR code tactics.

Government Jumps on the QR Code Bandwagon

There is an increasing trend among government agencies to use QR codes. Some brief examples include:

• The Transportation Security Administration (TSA) began incorporating QR codes on airport check-in signage in 2011, with hopes of expanding code usage for lost and found info, customer service, procedural information, and travel tips.
• Indiana state senators use QR codes in their mailings to link to their websites for more information about the issues.
• AIDS.gov uses QR codes to link users to more detailed information about HIV-related topics.

And, Yes, QR Codes on Labor Law Postings

Currently, two federally mandated postings include QR codes directly from government agencies:

• OSHA’s Job Safety and Health: It’s the Law poster uses a QR code that brings users to the OSHA website.
• Department of Labor Wage and Hour Division’s Employee Polygraph Protection Act posting’s QR code brings users to the Department’s EPPA web page.

The QR code links could be useful to someone interested in learning more about the specific agency or statute covered by the posting, but they do little to help the business owner, human resources department, or legal compliance team to make sure the posting is up-to-date and compliant.

The Fast and the Functional: GovDocs QR Code Approach to Labor Law Poster Compliance

The trend seems to be that government agencies will use more QR codes on mandated postings, perhaps eventually incorporating even more functional QR codes for businesses. But even if each issuing state and federal agency included a QR code on their postings that led smartphone users to an agency website, the typical employer would still need to scan and navigate through a dozen state and federal websites.

Fortunately, GovDocs created Compliance Check with the busy employer in mind. Each of our All-on-One state and federal posters contain a single QR code that leads to an easy-to-read interface via the smartphone with a simple “compliant” or “not compliant” message. GovDocs is the only labor law poster and compliance services vendor to offer that smartphone interface.

Compliance Check QR codes are fast, they’re easy, and they come standard on all GovDocs All-on-One postings at no extra cost!

Your compliance audits just got easier.

The U.S. Equal Employment Opportunity Commission’s five-member panel ruled unanimously that transgender people are protected by Federal Law in the hiring process and during employment. Transgender people include those who identify with a sex different than the one they were perceived to have had at birth.

The ruling found that a refusal to hire or to otherwise discriminate against a job applicant or an employee on the basis of gender identity is by definition sex discrimination under federal law.

Spurring the ruling was the case of Mia Macy, a contractor for the Bureau of Alcohol, Tobacco, Firearms and Explosives who claimed her position was eliminated unfairly once the Bureau learned that she had changed her gender from male to female. She alleged that the position was subsequently filled by someone else and that it was not, in fact, eliminated. Although the Commission’s ruling did not assess whether she was a victim of discrimination, the ruling allows her to proceed with a discrimination suit against the Bureau.

The EEOC enforces federal laws that protect job applicants and employees from workplace discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.

GovDocs continues to monitor the EEOC to determine if this will affect the federal Equal Employment Opportunity posting, which is part of our Federal-on-One poster, available for $12.99. Our thorough research and follow-up is another great reason to sign up for free automatic alerts about labor law posting changes that affect your business. Sign up for GovWatch today for free to stay informed.

Jimmy John's franchise directed to rehire fired employees. (Photo credit: Wikipedia)

In his decision, NLRB Administrative Law Judge, Arthur Amchan, determined that a Minneapolis-based Jimmy John’s franchise engaged in unfair labor practices when it fired six former employees (detailed in a previous post). According to the ruling, the restaurant franchise owners, Miklin Enterprises, must reinstate the employees and offer them back pay with interest.

The employees had alleged they were fired in retaliation for attempting to unionize and for calling attention to company policy that doesn’t provide employees with paid sick time.

Judge Amchan stated:

Any employee on behalf of himself or herself and others, and any group of employees, with or without a Union, may concertedly petition their employer for an improvement in terms and conditions of their employment.

As an NLRB Administrative Law Judge, Judge Amchan hears cases, issues decisions, and recommends orders. If the five-member NLRB does not overturn those orders, they become an NLRB order. The NLRB has been a hot topic and of particular interest to employers in light of the U.S. District Court injunction issued to suspend the NLRB Notice of Employee Rights posting requirement.

Although GovDocs’ standard Federal All-on-One poster includes only the mandatory federal postings required for most employers in the U.S., if you are an employer who chooses to post the NLRB’s Employee Rights Notice, GovDocs also offers a Federal All-on-One poster with the NLRB posting.

Many changes to labor law posters are considered non-mandatory. Do you need to post them?

You probably can guess that a mandatory labor law posting is one that employers are required to display. But did you know that not all changes to an existing mandatory posting are considered mandatory (that is, required) updates? In other words, sometimes an agency may make a change to a posting that does not require an employer to remove the previous posting and display the newest one. These are considered recommended but non-mandatory changes.

On average, more than 200 labor law changes occur each year, with approximately only 40% requiring employers to display new posters. State and federal agencies can change their labor law regulations at any time – and often do so without notifying businesses. Changes to a posting can take many forms, from revised content to formatting modifications, and not every change requires employers to post updated state or federal posters.

An agency may make what they consider non-mandatory changes, such as updating contact information on the posting, or including the name of a newly elected governor. Other times, an agency may substantially revise the content of their posting, like when a state raises its minimum wage rate.

GovDocs actively monitors all changes from more than 500 state and federal agencies in order to provide complete and accurate posters that keep our customers compliant. The GovDocs Research Department actively follows up with issuing agencies to determine which changes are considered mandatory so that our state and federal posters are updated with all mandatory changes and any non-mandatory changes that occurred prior to a mandatory update.

With GovDocs’ Update Service, our subscribers can be certain that they receive mandatory changes when they need them in order to remain compliant.

U.S. District Court Injunction Delays NLRB posting

The District of Columbia Court of Appeal granted the National Association of Manufacturers emergency motion for injunction that indefinitely postpones the effective date for the required display of the NLRB poster pending court review. (Read the original motion for injunction here.)

The Injunction Order referenced the recent Chamber of Commerce v. NLRB ruling in the U.S. District Court in Charleston, South Carolina, in which the Honorable David C. Norton ruled that the NLRB has no power to require a posting. The injunction also restates the D.C. District Court’s previous ruling that invalidated any power for the NLRB to enforce a posting requirement. The D.C. District Court will begin receiving briefs in mid-May with oral arguments to be scheduled in September 2012.

NLRB Chairman Mark Gaston Pearce said of the recent decisions, “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”

What Do I Need to Post?

GovDocs standard Federal All-on-One poster includes all mandatory federal postings required for most employers in the U.S. If you are an employer under the NLRB’s jurisdiction that already has displayed the NLRB posting, not to worry: the posting is still compliant.

If you are an employer who chooses to post the NLRB’s Employee Rights Notice, GovDocs also offers a Federal All-on-One poster with the NLRB posting, in addition to all of the mandatory federal postings.

Stay tuned as GovDocs keeps you First to Know for all things NLRB and labor law!

The restaurant industry is experiencing increased scrutiny from the Department of Labor.

Some recent high profile allegations of Fair Labor Standards Act (FLSA) violations have put the restaurant industry on the Department of Labor’s front burner. Secretary of Labor Hilda Solis promised to expand the DOL’s enforcement efforts in an effort to protect employees in the restaurant industry.

“We will expand our efforts to bring the industry into compliance to ensure that employees receive the minimum wage and overtime wages required by law,” Solis said.

Here are some lessons for employers and employees in the restaurant industry.

Tip Skimming Doesn’t Fly

Chef and restaurateur Mario Batali has agreed to pay more than $5 million to settle a lawsuit brought by former employees who contended that Batali’s restaurants made it standard practice to skim a percentage of the tip pool.  Some of the litigants claimed they were told the money went to replace broken dishes and to defray the cost of researching wine.

The FLSA notes that a tip is the “sole property of the tipped employee” and prohibits skimming whereby any portion of the tip pool goes to the employer.

DOL Has No Time for No Overtime

The U.S. Department of Labor recently fined more than 30 restaurants in Massachusetts to the tune of $1.3 million during a restaurant industry crackdown. The DOL claimed the restaurants were responsible for significant violations of the FLSA’s minimum wage, overtime, and record-keeping provisions. The violations included employers who:

• Did not pay overtime rates
• Failed to include employees’ hours worked across different locations as part of the overtime formula
• Paid incorrect overtime rates for tipped employees
• Lacked adequate employee hours-worked tracking
• Misclassified employees as independent contractors

To adhere with the FLSA requirements, employers must: pay at least the federal minimum hourly wage of $7.25 (certain states mandate higher minimum wage rates); pay time-and-a-half for weekly hours worked beyond 40; and maintain accurate wage records of employees’ wages and hours.

Minimum Wage is Just for Starters

Applebee’s is part of an ongoing court case alleging that the company violated FLSA wage requirements  by paying non-waiter workers $2.13 an hour, which is the minimum wage for workers who receive tips.

The FLSA states that workers engaged with work that leads to tips in excess of $30 a month can receive the $2.13 hourly rate. At issue is the definition of “engaged.” The U.S. Supreme Court refused to stop the case from moving forward, and it is set to go to trial this September at the U.S. District Court of Western Missouri.

GovDocs offers a menu of options that help keep some of America’s restaurants chains and franchises in compliance with state and federal guidelines.

• The FLSA Minimum Wage Posting is part of our convenient Federal All-on-One Poster.
• Every GovDocs labor law poster includes a Quick Response (QR) code that lets your locations instantly determine if their posters are the most current available.
• Time and Attendance products make it easy to keep up with wage and hour record keeping.
• Our popular Update Service is an affordable way to maintain compliance with labor law posting requirements across multiple locations.

Some issuing agencies require specific type size and posting sizes.

For some labor law postings, size does matter. Complying with labor law posting requirements goes beyond simply displaying the most current poster.

An issuing agency may specify a specific type size or physical dimensions for a posting. For example, the National Labor Relation Board’s (NLRB) Employee Rights Notice posting is required to be posted as an 11”x17” posting.

If you’ve purchased labor law posters from a poster vendor, how do you know your posters adhere to the size requirements of the issuing agency?

Every GovDocs poster maintains all type size and poster size requirements, when specified by issuing state and federal agencies. Beware of vendors that create non-compliant posters in order to reduce poster size.

You should verify that your posters pass muster for size requirements. One simple way to do this is to check your Federal all-on-one poster, if you have one. You may notice other vendors have reduced posting dimensions and/or may have omitted required postings altogether (e.g. USSERA or OSHA) simply for the sake of poster size. To remain compliant, however, several Federal postings must adhere to specific size requirements, and these may serve as a guide for verifying that poster samples maintain government compliance.

• Minimum wage: 8.5”x11”
• NLRB: 11”x17”
• OSHA: 8.5”x14”
• Equal Employment: 11”x17”
• NLRA (required for Federal Contractors): 11”x17”

Genetic testing is on the rise, and so are allegations of genetic discrimination.

Genetic testing is on the rise to detect everything from autism to xeroderma pigmentosum. While genetic testing is used primarily to help individuals make personal healthcare decisions, the Genetic Information Nondiscrimination Act of 2008 (GINA) was passed to make sure the results of those test don’t result in discriminatory practices by employers and health insurers.

A UnitedHealthcare paper reports that four percent of patients already have had genetic testing, with the cost of genetic and molecular diagnostic testing reaching $500 million in 2010 for their members. In that same paper, physicians predicted another 14 percent of their patients will have genetic testing within the next five years.

The EEOC reports that cases claiming discriminatory practices under GINA rose from 201 in 2010 to 245 in 2011, with settlements increasing 600% in that same time. One of the most notable cases initiated under GINA involved an employee, Pamela Fink, who had disclosed the results of her genetic testing and was thereafter terminated. Her case, since settled out of court, was one of the first to bring GINA to the courts.

In part, GINA is an information mining and management issue. The Act prohibits employers from requesting, requiring or purchasing genetic information. That prohibition includes internet searches for specific information about an individual’s genetic information; “eavesdropping” on personal conversations about specific genetic testing results; or requesting medical background information that likely would uncover genetic information.

Even before the federal government passed GINA, many states enacted laws against genetic discrimination. GINA does not negate those state laws, but serves only as a minimum standard of protection that all state laws must meet.

Federal law requires employers to post GINA as part of the “Equal Employment Opportunity is the Law” posting. GovDocs offers a convenient all-one-one laminated federal poster to keep employers compliant.

Compliance is about mandatory updates - not calendars.

The simple answer to whether you need to replace labor law posters every year is…maybe.

Compliance is About Mandatory Changes – Not Calendars

While some states require yearly mandatory updates, not every state does. Regardless, employers in the U.S. are required to display the most current state and federal labor law postings. That means if your workplace is displaying required postings, and no mandatory changes have occurred affecting those postings, then your posters are in compliance – even if you purchased them one or more years ago. However (and this is a big caveat) sometimes multiple mandatory changes can take place within the same year at both the state and federal levels.

Remember that GovDocs Update Service will keep your locations compliant for one low price no matter how often laws change.

How Do I Know if My Posters are Up-to-Date?

The best way to tell if your posters are up-to-date is to audit your existing posters. To perform an audit, you may need to cross-reference the print date on your posters with a list provided by other poster providers. However, that can be a confusing and time-consuming process.

GovDocs has simplified the poster verification process. Each GovDocs poster includes a Quick Response (QR) code. By simply scanning the QR code on the poster with your smart phone, you can tell instantly if your GovDocs poster is compliant or not.

If you need to update your state and federal postings and would like the benefit of QR codes, order now from the GovDocs website.