I Wanted to Post Something about the Last Two Days of Argument Before the Supreme Court but....

I did, I really did.  I listened to hours of oral argument and read the briefs, but I've been beaten to it and all I need to say is here.

Enjoy your Easter and Passover holidays.  Next week we'll start talking about what's ahead on the radar for employers and employees in 2013.

To Hell with "Nemo."  Winter Storm Warnings.

Back in my post from January 26, 2011 which you can re-read here, I outlined the requirements for paying employees who miss time due to inclement weather.  Because there is a nameless storm beating down upon the Northeast and especially New England, this information bears repeating.

1.  If you close your office for inclement weather, you may deduct the hours not worked from hourly employees, but not salaried employees.

2.  If you are staying open, you may deduct the hours not worked from hourly employees who fail to report for duty, but obviously there is no change in the pay of salaried workers.  If as a result of staying open, an hourly employee works more than forty hours, you must pay overtime.

3.  If you close early or open late, you may reduced the wages of hourly employees for time not worked, but not salaried employees.

4.  It stands to reason that if an hourly employee was scheduled for more than forty hours, but works less than that because of inclement weather, that employee is not entitled to overtime.  Overtime is based upon time worked, not time scheduled.

So, to recap, salaried employees' wages are unaffected by winter storms, whereas hourly employees may well be affected.

That having been said, I have always espoused the philosophy that most employment disputes can be avoided by employers' liberal use of the "Golden Rule."  Treat your employees with the same dignity and respect with which you would want to be treated.  Or, to put it another way, don't be penny wise and pound foolish.  As I've also said repeatedly here, turnover costs money.

My original post had some references to Department of Labor guidelines; if you are looking for something to read by the light of the fireplace when your power goes out, be my guest.  Then again, if your power has gone out, you may not be reading this.

While we're on the subject, I simply refuse to call winter storms by the names bestowed upon them by commercial services seeking to use such nomenclature as a marketing technique.   During my first year of law school in Boston, I survived what they're still calling "The Great White Hurricane of 1978."  I feel for you New England.  Took me a week to dig my FIAT out of a snow drift (not that doing so was worthwhile, but that's a topic for another post.)

Another take on Conan Doyle's "His Last Bow"

Spoiler alert.  The final “official” Sherlock Holmes story written by Sir Arthur Conan Doyle ends with the great detective Holmes and his arch-enemy Dr. Moriarty heading over the falls in each other’s death-grip as the last act of their final battle.  Today, the parts of Homes and Moriarty will be played by the National Labor Relations Board and the D.C. Circuit Court of Appeals (I will leave it to you which one is which, as opinions will vary sharply).

In a recent D.C. Circuit case, the court invalidated President Obama’s recess appointments to the National Labor Relations Board.  On the other hand, we have that very board, and in particular its Acting General Counsel, issuing reports about the interplay between social media and the workplace.  It is tempting to ponder whether the D.C. Circuit’s decision will invalidate everything the NLRB has put out on the subject of social media.  If that is the case, what restrictions, if any, can an employer now place on its employee’s social media activities without running afoul of the “collective action” prohibition of the NLRA?

The short answer is, “nothing has changed.”  The D.C. circuit’s case, Canning v. NLRB was limited to one decision, and is likely to land before the U.S. Supreme Court, especially because the issue was raised by an adroit maneuver by the United States Senate in creating the illusion that it was in session to avoid actually being in recess.  In some respects, the Canning decision is more important for its analysis of when recess begins and a Recess begins (why don’t they just use bells like we did in elementary school?)

The bottom line is that the NLRA permits employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Social media may be the means by which that goal is achieved.  While personal complaints may not constitute “concerted activities,” it remains important for every employer to ensure that no action taken against an employee based upon a social media posting can possibly be interpreted as concerted activity.

Even if the board members appointed during recess (or Recess) are unceremoniously “un-appointed,” the NLRB is likely to continue the tack it has to date examining social media policies as encroaching on the employees’ rights to collective action.  In fact, the NLRB has already issued a press release essentially stating that they will proceed with business as usual.  There is no love lost between the D.C. Circuit Court of Appeals and the NLRB.  If the multiple Federal Express decisions involving independent contractor versus employee status are any indication, these two have been at each others’ throats for a long time, and there’s no clear sign of any impending peace, or “last bow,” as it were.

So, it’s best not to step between these two enemies and play it safe with your social media policies.