248-409-1900 dburke@mi-worklaw.com
Making Social Media an Asset, Not a Liability

Making Social Media an Asset, Not a Liability

By:  La Toya Palmer – 8/28/14

           Social media has become a staple in both the workplace and in homes. Businesses have been hard pressed to maintain a balance with their employees between professional and personal aspects of social media. Accordingly, employers are scrambling to update their communications policies to include provisions regarding social media. A 2013 Professionalism in the Workplace study by York College’s Center for Professional Excellence found that approximately half of the 401 human resources professionals it surveyed stated that “IT abuses have increased over the past five years” among recent college graduates. Approximately 65.2% of the human resource professionals stated that excessive tweeting and use of Facebook was a consistent issue. Here are five things you should keep in mind when considering implementing a social media policy:

  1. A solid social media policy should outline what is considered confidential and private information.
  2. The policy should discuss the company’s position on when or if it is appropriate to participate in social media forums during scheduled working hours.
  3. A good social media policy should educate employees on their responsibility as well as the company’s responsibility when communicating on social media.
  4. The laws impacted by social media in particular and the internet in general are still evolving, and employer obligations can best be described as a “moving target.” For example, the NLRB has issued several advice memorandum about social media polices and employees posts. Consequently, it is imperative that when composing a social media policy it is a collaborative effort, between your legal counsel and management.
  5. Employees should be made aware that information that is posted on the internet is “forever.” It is virtually impossible to erase something once it is published to the internet. The information is almost always searchable and can be found by someone. Therefore, employees should be encouraged to be responsible and cognizant of the information they post.

          Whether employers like it or not, social media is here to stay. It is better to spend time and money on the front- end to minimize any legal exposures than to wait until after a problem occurs. Now is the time to review your communications policy to ensure that your company is in the best position possible, by having a solid social media policy in place, before you wish that you did. To learn more about social media, I will be speaking at a seminar on this subject through the Auburn Hills Chamber of Commerce on September 10, 2014, at the Crown Plaza of Auburn Hills, 1500 Opdyke Road, Auburn Hills, MI. Registration is through the Chamber – www.auburnhillschamber.com.

The Team, The Team, The Team

The Team, The Team, The Team

By: Dan Cohen – 8/26/14

          As we swelter through the remaining “dog days” of summer, I can’t help but reminiscence about those brutal “double session” football practices.   Back in the day, I dreaded the thought of training camp most of the summer, always wondering whether I had run enough sprints and hit the weights hard enough to survive those two to three weeks in August where you mostly feel sorry for yourself as grown adults spend their day screaming and yelling at you about most everything and pushing you well beyond your limits. Of course, the training camp experience brings the team together like soldiers in a bunker. Lifelong bonds are forged in the process.

          Now, I mostly enjoy my summers and the build-up to the football season. I get to lean on the fence and watch my oldest son go through that football rite of passage we know as “double sessions.” No longer do I worry about being in playing shape: It wouldn’t matter anyways as I will never be in playing shape again. With football season literally upon us, I decided to pull out the late, great Bo Schembechler’s 1983 address to his team. This speech is one of my all-time favorites. It has sentimental value to me as my brother, Jeff was on that team and in that locker room when Bo gave it. It also has great relevancy to my practice as a labor attorney and can provide great lessons for the workplace. I know businesses that foster a team first approach are the successful ones. I also know all too well just how destructive it can be to an organization when employee self-interests are elevated above the interests of the team as a whole.

          If you have never heard his now famous “the team, the team, the team” speech, it is re-printed below and well worth the read:

“We want the Big Ten championship, and we’re going to win it as a team. They can throw out all those great backs and great quarterbacks and great defensive players through the country and in this conference, but there’s going to be one team that plays solely as a team. No man is more important than the team, no coach is more important than the team. The team, the team, the team!

If we think that way – all of us – everything you do, take into consideration what effect does it have on my team? Because you can go into professional football, you can go anywhere you want to play after you leave here. You will never play for a team again. You’ll play for a contract, you’ll play for this, you’ll play for that. You’ll play for everything except the team. Think what a great thing it is to be part of something that is the team! “We’re going to win it.

We’re going to win the championship again because we’re going to play as a team. Better than anybody else in this conference, we’re going to play together as a team. We’re going to believe in each other, were not going to criticize each other, we’re not going to talk about each other. We’re going to encourage each other!

When we play as a team, when the old season is over, you and I know it’s going to be Michigan again.”

          I was fortunate enough to know Bo, having met him back in 1979 when he came to my parent’s home to recruit my brother, Jeff to play for him at Michigan. This was a guy who filled the room and commanded the utmost respect from anyone and everyone. Those who knew him well knew how much he cared about his players, how loyal he was and how valuable his lessons were. A great motivator and a great leader he was. To Bo, it was never about him, but always about “the team, the team, the team!

          For those of us who have been part of a team, we know the value of putting the team first. We know that if the team succeeds, we generally succeed as individuals.  In the workplace, being on a team gives employees a greater sense of belonging and of recognition, which helps them take more pride in their work, and their company.  Better quality, greater productivity, more accountability, and creative solutions to problems come from team environments in the workplace. By having employees with different backgrounds and perspectives discussing the pros and cons of alternative solutions, the best possible solution tends to win out. Of course, ongoing interaction among the team members, and working in a group for the whole day, helps build unity among the employees. The effects of unity and mutual cooperation make the work easier, more enjoyable and goals become more attainable.

Lessons From LinkedIn

Lessons From LinkedIn

 By:  Rhonda Armstrong – 8/21/14

          On August 4, 2014, the U.S. Department of Labor (DOL) announced that LinkedIn agreed to settle a case, paying approximately $6 Million in unpaid overtime wages to hundreds of employees. See: http://www.dol.gov/opa/media/press/whd/whd20140940.htm. Many reports indicate that most of the workers were salespeople. The DOL charged LinkedIn with failing to record, account and pay for hours worked in a workweek as required by the Fair Labor Standards Act (FLSA). The FLSA requires “non-exempt” employees to be paid for all “hours worked” and to be paid overtime pay at a rate of time and one-half for hours worked beyond 40 hours in a workweek. The DOL’s news release indicates that the central focus of the investigation was LinkedIn’s failure to track and account for employees’ “off-the-clock” hours (e.g., work from home, taking telephone calls after hours, responding to emails after hours, etc.).

          So, what can we learn from LinkedIn’s misfortune? While FLSA compliance could be a subject for a full-day seminar, here are a few pointers:

  • Do not automatically assume that salespeople are not entitled to overtime. In order to be exempt from the overtime requirements of the FLSA, most salespeople must qualify as: (1) an outside salesperson (e.g., primarily makes sales/obtains orders outside of the office), (2) a commissioned retail salespersons (e.g., sells retail goods/services to the general public where more than 50% of earnings are commissions), or (3) an administrative employee (e.g., performs work directly-related to the business and exercises discretion and independent judgment on matters of importance). Otherwise, your salespeople most likely are eligible for overtime.
  • Ensure employees treated as exempt are appropriately categorized. Many employers assume simply because employees are paid a salary, they qualify for a “white collar” overtime exemption. This is NOT the case! Employees must meet a certain salary level ($455/week), be paid on a “salary basis,” and meet certain duties requirements. Generally, exempt professional, administrative, and executive employees must be paid a predetermined salary that is not adjusted due to the quality or quantity of work performed. Employers may not make deductions from an exempt employee’s salary except in certain DOL-approved circumstances. Also, employers must meet certain duties tests . Employers often get into trouble by failing to conduct a fact-specific evaluation of the employee’s job (the DOL repeatedly warns that job titles, alone, are not determinative) and making impermissible salary deductions (e.g., docking for partial-day absences, short-term suspensions, etc.).
  • Make sure you maintain an accurate record of all hours worked for non-exempt employees. It is important that employers accurately track when the employee starts working, when the employee stops working, and any time treated as unpaid throughout the day (e.g., lunch periods). Problems arise when employers:

o   Automatically deduct time for lunch periods with no accurate record – Employers that automatically deduct for unpaid lunch periods (without requiring employees to note their time out/in on their timecard or directing employees to notify the employer of variances) will be hard-pressed to refute employee claims that they worked through lunchtime.

o   Don’t pay for lunch or break periods when they should. In order to treat break-time as unpaid, a break/lunch period should be at least 30 minutes and employees must be completely relieved of their duties. So, having Jane sit and answer the phone while she’s eating lunch or requiring your employees to punch out for 15–minute morning and afternoon breaks will be indefensible.

o   Turn a blind eye. This was likely the case with LinkedIn. The fact that an employee fails to report time to an employer is NOT a defense to an FLSA claim. So long as an employer knows or suspects that an employee works, yet fails to pay him/her, the employer can be on the hook.

  • Publish written policies prohibiting working without authorization and/or requiring employees to appropriately account for such work. Most employers want their employees to take customer telephone calls, be responsive to customer emails, and take the extra steps do a great job. Yet, some of these same employers struggle with the right amount of “checks and balances” to make sure employee claims are supportable. For the most part, employers should have written policies in place prohibiting employees from working without authorization and requiring employees to accurately account for all hours worked in a timely fashion. Also, it is important that employers train their supervisors so they understand the importance of their role. Supervisors may have to discipline an employee for working without authorization, revoke an employee’s authorization, or even add time to a timecard that does not reflect known work during “off-hours.”

CONCLUSION: The FLSA is an extremely unforgiving law; maybe the most unforgiving of all the labor and employment laws. With stepped up enforcement efforts by the DOL, employers are wise to be proactive and audit their pay practices before the DOL comes calling.

If You Can Read This, Thank a Teacher by Reminding Her/Him That August is the Only Month to Leave the MEA

If You Can Read This, Thank a Teacher by Reminding Her/Him That August is the Only Month to Leave the MEA

By:  Bill Pilchak – 8/19/14

          In case you don’t read the editorial page every morning, let me pass on a message from Robert Wiersma, an economics teacher at Hopkins High School near Holland, Michigan found in today’s Detroit News. Hopkins details how his dues money to the MEA, approximately $1000 per year, had been “air dropped” into the pockets of political candidates and wasted on controversial agendas that he did not support and which had nothing to do with education for years. He mentions “costly and economically unsustainable collective bargaining practices” that he says make him – as an economic teacher- “cringe.”

          Wiersma details his efforts to exercise his Right-To-Work rights to revoke his union membership, including communications immediately after RTW was passed in December, 2012, and culminating in e-mails and letters as late as June of that year. However, union dues continued to appear on his credit card invoices. He then learned that the MEA would not honor his many requests to leave the union, because the MEA constitution only allows members to resign in August of each year.   In other words, they disregarded his pre-August requests to resign. It’s like when Luke Skywalker made his bombing run on the Deathstar and had to fire his photon torpedo into a thermal exhaust port no bigger than a womp rat. Miss that window, and you are stuck in the union for another year. Wiersma was finally able to opt out in August, 2013 after the MEA divested him of another $1000.

          The MEA’s August “window of opportunity” demonstrates what the attorneys at P&C have known for years. Unions are in business for themselves. It’s all about the dues. Sometimes they do shockingly little for bargaining units. This is illustrated by the recent nation-wide scam where the Service Employees International Union (SEIU) made deals with Jennifer Granholm and other governors whose campaigns they helped fund, to declare the SEIU the bargaining agent for “home health care workers.” Those workers were usually parents and family members caring for elderly or disabled family members. Because the state paid the caregivers out of federal allocations, it was purportedly the employer of the caregivers, and $30 per month was automatically deducted from the amount intended to pay for the care of the disabled/elderly and sent to the SEIU. Right to Work freed those caregivers in Michigan from the scam in 2012 and the U.S. Supreme Court ruled on Harris v Quinn earlier this year holding that the state’s minimal role, paying money but setting no other terms of employment, did not justify the arrangement and divesting individuals of funds then spent on the union’s political agenda violated the First Amendment. In Michigan, more than 40,000 caregivers immediately opted out of the SEIU. The Mackinac Center estimates that $30 million was diverted from home health care to the SEIU.

          Imagine someone reaching into your pocket and taking $1000 to pay for political activity you didn’t support. If you know a teacher in that position, forward this e-mail to him/her. The language below is recommended by the Mackinac Center to resign membership:

 Michigan Education Association 1216 Kendale Blvd. P.O. Box 2573 East Lansing, MI 48826-2573

To whom it may concern:

I am an education employee in _________school district and I am in the collective bargaining unit of __________. With this letter, I am seeking to immediately and permanently exercise my rights under Michigan’s right-to-work law. [MCL 423.210] Therefore, I am terminating my membership in the MEA and all of its affiliates and revoking any previous dues authorization, check off, or continuing membership form that I may have signed. I am making this request in August, as you say I must under MEA bylaws. I understand that I may rejoin at a later time if I believe that membership is in the best interests of me, my family, and the students at my school.

If my collective bargaining agreement does not allow me to take advantage of my right-to-work rights at this time, then I ask that you accept my resignation from the MEA and all its affiliates and consider me an agency fee payer pursuant to my rights under the Supreme Court Case Abood v. Detroit Board of Education, 431 U.S. 209 (1977) until I am able to fully exercise my rights under right-to-work.

Please be aware that your failure to comply with this request can lead to a civil fine, and/or a court action against you and the payment of my attorney fees.

I ask that you notify me immediately in writing if you are not willing to honor my rights, and provide me with the legal reasons for your refusal.

Thank you for your assistance in this matter.



Garden Leave Provisions Can Help Protect Customer Relationships, Trade Secrets and Other Proprietary Information

By:  Dan Cohen 8/14/14

          You are probably asking yourself what the heck is “garden leave.” I found myself asking that same question when recent research uncovered a line of authority on the East Coast involving “garden leave” policies. As I dug deeper, I learned they are prevalent in England and Europe and are a relatively recent import to the U.S. They have become quite popular in the financial services sector in New York and Boston. The general premise of a garden leave policy is to require a departing employee to sit idly on the sidelines for a period of time tending to his/her garden rather than transitioning clients and trade secrets to the competition.

          In practice, “garden leave” provisions are established by contract and require departing employees to provide mandatory notice of resignation (60, 90 or even 120 days). The employee remains employed throughout the notice period and is paid his/her full salary and contractual benefits. The employee is not required to perform any further duties (or limited duties) during the notice period and agrees to stay home rather than commence employment with the new employer. Significantly, during the “garden leave” period, the employee remains an employee and would continue to owe a duty of loyalty to his then-employer (even though he is not actively working).

          There is not much case law testing the enforceability of garden leave policies. State and federal courts in New York and Illinois have upheld such provisions for periods ranging from 30 days to six months. According to one of the most recent cases out of New York, the fact that the employee was still being paid rendered “virtually nonexistent [the] concern that the former employee could lose his livelihood.” On the other hand, Massachusetts courts have on at least two occasions stricken similar provisions against highly compensated brokers. The Courts in those cases reasoned that the provisions were buried in compensation plan documents, could deprive clients of their brokers of choice during difficult financial times (e.g. the cases were decided in 2008 during the height of financial meltdown) and because enforcement “would be to force [the employee] to submit to Bear Stearns whim regarding his employment activity in the near future.”

          The analysis in Michigan would focus on the “reasonableness” of the provision just like the analysis of other restrictive covenants, including non-compete and non-solicitation agreements. Michigan courts would require the employer to establish a protectable interest: either customer relationships or access to confidential, proprietary or trade secret information. Obviously, “garden leave” provisions are not for everyone and not for every class of jobs. Nor should they be thought of as a substitute for more traditional restrictive covenants, including non-compete, non-solicitation and confidentiality agreements. However, in the right circumstance, they can be an effective way to augment your overall arsenal for protecting your business from unfair competition. For one, they prevent unexpected departures to the competition. They also restrict access to confidential information. And, they provide you with an opportunity to transition clients from the departing employee back to the company. In fact, I think it would be extremely beneficial to require the departing employee to fully cooperate with the Company’s efforts to retain business during the “notice” period.

          I can envision using a garden leave provision for certain key employees like executives, directors of entire divisions, perhaps even for sales managers. I would also use a “garden leave” provision whenever an executive negotiates a notice provision in an Executive Employment Agreement. I cannot, however, see them put to use for the entire sales force, for example. Quite frankly, such a broad use would be cost prohibitive.