The beginning of a new year is always a great time to revisit your company's personnel policies. With the rise of technology in our personal and business lives, one often overlooked policy relates to "blogging." What do you allow or prohibit with regard to your company and employees on the use of blogging as a communication tool?
According to a report conducted by the Pew Internet & American Life Project, The State of Blogging (January 2005),seven percent (7%) of the 120 million adults in the United States who use the Internet say they have created a blog or web-based diary. This represents more than 8 million people. Twenty-seven percent (27%) of Internet users said they read blogs, a 58% increase from a study conducted in February 2004. This means that by the end of 2004, more than 32 million Americans were blog readers.
While blogs can foster interoffice communication and are a highly effective, inexpensive means of mass direct marketing, the potential for abuse by employees is enormous. Any employee with a computer, or e-mail or web-enabled device, can be easily distracted from work posting personal opinions or reading blogs during company time. As a result, job productivity and performance can suffer. The potential for trouble, however, significantly increases when the employee, either on or off the clock, begins posting content on the Internet.
Bloggers can post comments, tape recordings, video clips or documents by sending a message to their website from a desktop computer, wireless device or any other device that sends e-mail. Some blog hosting services even provide a service where an individual can call from a phone and leave a message that is immediately posted to his or her blog as an MP3 audio file.
Unlike traditional print media, blogs are devoid of any form of external checks or balances. Angry and disgruntled employees, who want to say something about their employers, even if often factually inaccurate, now have an audience of potentially millions of readers. They may post comments that disparage your company, defame your company’s image, harass other employees, or leak your company’s trade secrets and other sensitive information. Because blogs have the potential to reach a worldwide audience in an instant, an employee blogger’s antics could have an immediate and disastrous impact.
While employers have substantial latitude when disciplining employee-bloggers, an employer should take care before an employee-blogger is “dooced” (to lose one’s job because of one’s website) . In certain circumstances, a blog that is critical of an employer might constitute legally protected whistleblowing. Some of the National Labor Relations Act’s (NLRA) provisions apply to employers who are not unionized or facing a union campaign. The NLRA, for example, prohibits all employers from restricting discussion among employees concerning the terms and conditions of their employment. Thus, if an employee wished to blog about her terms and conditions of employment, and restricted access to her website to only current fellow employees, her comments arguably would be protected by the NLRA and similar state laws, and adverse action based on the blog’s content might be unlawful.
Blogging by state or federal employees may be protected by the First Amendment. Even where no specific statute is implicated, a successful Tameny-type claim (a wrongful discharge action based upon the employee’s alleged exercise of certain fundamental and substantial statutory rights and privileges) might still be made based solely upon the constitutional right to free speech.
Companies should develop a workplace blogging policy in order to make clear the boundaries of expectations and limitations to employees. The following are some points to consider in developing a policy:
• You’re personally responsible. All policies should stress that bloggers are personally responsible for their posts.
• Disclaimer. The employee should make clear on his or her blog that the views expressed are his or hers alone and not that of the company.
• Abide by existing policies and rules. A blogging policy should refer to present corporate policies and form a basis for the blogging rules.
• Keep secrets. Prohibit employees from disclosing confidential or proprietary information of the company, or of any third-party that has disclosed such information. Refer employees to the company’s policy on what constitutes confidential information.
• Be nice. Require bloggers to be respectful to the company, co-workers, customers, partners and competitors.
• Follow the law. Require bloggers to respect and abide by copyrights and follow laws that regulate what can be written. This includes not only defamatory, libelous, harassing and abusive statements, but also statements about revenue, future plans of the company or share price if you are a public company.
• You can [or cannot] write on company time. Make clear whether the employee can or cannot blog during work time, and limit blogging that interferes with work commitments.
• Cite and link. Require employees to obtain permission from a designation company official if they want to provide a link from their sites to the company’s website.
• Discuss with your manager. Bloggers should discuss with their managers if they in any way are uncertain about what they are going to write.
• Stop blogging if we say so. Inform employees that the company may request that they temporarily confine their website or blog commentary to topics unrelated to the company if you believe that it’s advisable or necessary to comply with securities regulations or other laws.
• Discipline. Caution employees that a breach of the blogging policy could result in discipline up to and including termination.
• Designate company official. Designate a company official as the appropriate person to answer any questions employees may have about their person website or blogs in relation to the company blogging policy.
The Yourdon Report has compiled a list of sample blogging policies available on the internet. (Thanks to Human Law for the link.) Also, the Corporate Blogging Blog (now only an archive of posts) has compiled a similar list and generated further discussion on this issue from which some of the points in this post are taken.
N. DeWayne Pope, DeWayne Pope LLC
Kamis, 28 Desember 2006
Selasa, 26 Desember 2006
No Hire Provisions Upheld by Alabama Supreme Court
On December 15th, the Alabama Supreme Court in Ex Parte Howell Engineering and Surveying, Inc. upheld the enforceability of “no hire” clauses regardless of whether the employee involved in the situation has a non competition agreement. The no hire provision involved is a fairly typical no hire provision:
Contractor and Crown mutually agree not to solicit nor hire individuals actively employed by the other party’s respective organization during and for a period of one (1) year following termination of this Agreement, without the prior written consent if the other party, which consent will not be unreasonably withheld.
Previously, certain cases suggested that an underlying non compete agreement for the employee in question was required. However, the court in this case found the provision enforceable, regardless of such underlying agreement.
I have seen a number of instances where such a clause is effective and useful. Consulting companies often provide significant value to clients in locating and staffing projects. Without ‘no hire’ provisions in their contracts, a huge incentive arises to circumvent the original placement company in this context, and such acts are detrimental to the business.
However, I have concerns about this decision and the Alabama case law, which increasingly favors these restraints on alienation. First, the employee in this case is not a party to this contract. As the case law now stands, companies can make agreements concerning the livelihood of persons who have no say in the matter. From an employee’s perspective, your ability to move to another company is being restricted – without your consent. (See this article about this perspective and the antitrust concerns.)
Certainly in some situations the employee receives adequate consideration . All to often, however, the employer has a disproportionate bargaining position and often receives little to no consideration. (See this article)
Can continued employment really equate to adequate consideration? Often, employers give “test of loyalty”: requiring employees to sign non competes while at the same time continuing the employees to be ‘at will’.
My personal thought is that the pendulum has swung too far towards enforceability. Two thoughts: First, require real consideration- something more than just the right to continue to work here.
Second, require lawyers to live to the same standard. Currently, lawyers can not be restrained by non competes because these agreements restrict client choice. However, don’t all these agreements in some way limit the options of customers or clients? Why should lawyers get a free pass? Make these agreements applicable to all professions. I would surmise that is lawyers had to live with the same agreements they draft for their clients, more lawyers could persuade their clients against overbroad and unfettered use of these agreements. (See article about a recent New York case involving a non competition agreement.)
Mike Goodrich, Goodrich Law Firm, LLC
Contractor and Crown mutually agree not to solicit nor hire individuals actively employed by the other party’s respective organization during and for a period of one (1) year following termination of this Agreement, without the prior written consent if the other party, which consent will not be unreasonably withheld.
Previously, certain cases suggested that an underlying non compete agreement for the employee in question was required. However, the court in this case found the provision enforceable, regardless of such underlying agreement.
I have seen a number of instances where such a clause is effective and useful. Consulting companies often provide significant value to clients in locating and staffing projects. Without ‘no hire’ provisions in their contracts, a huge incentive arises to circumvent the original placement company in this context, and such acts are detrimental to the business.
However, I have concerns about this decision and the Alabama case law, which increasingly favors these restraints on alienation. First, the employee in this case is not a party to this contract. As the case law now stands, companies can make agreements concerning the livelihood of persons who have no say in the matter. From an employee’s perspective, your ability to move to another company is being restricted – without your consent. (See this article about this perspective and the antitrust concerns.)
Certainly in some situations the employee receives adequate consideration . All to often, however, the employer has a disproportionate bargaining position and often receives little to no consideration. (See this article)
Can continued employment really equate to adequate consideration? Often, employers give “test of loyalty”: requiring employees to sign non competes while at the same time continuing the employees to be ‘at will’.
My personal thought is that the pendulum has swung too far towards enforceability. Two thoughts: First, require real consideration- something more than just the right to continue to work here.
Second, require lawyers to live to the same standard. Currently, lawyers can not be restrained by non competes because these agreements restrict client choice. However, don’t all these agreements in some way limit the options of customers or clients? Why should lawyers get a free pass? Make these agreements applicable to all professions. I would surmise that is lawyers had to live with the same agreements they draft for their clients, more lawyers could persuade their clients against overbroad and unfettered use of these agreements. (See article about a recent New York case involving a non competition agreement.)
Mike Goodrich, Goodrich Law Firm, LLC
Rabu, 20 Desember 2006
Raising the Floor on Pay
The New York Times published a great article today in its online version on the history and current status of the minimum wage. The article states that the Democrats plan to introduce a bill in Congress next month that would increase the federal minimum for the first time in a decade — to $7.25 an hour in the spring of 2009, reaching that level in three steps from the present $5.15 an hour.
One notable fact that the article discusses is that the States have taken the lead in raising the minimum wage everywhere but in the South. Twenty-nine states have jumped ahead of the federal government and now have minimums that range from $6.15 to $7.63 an hour, lifting 70 percent of the nation’s work force well above the federal level of $5.15.
Link to New York Times article
N. DeWayne Pope, DeWayne Pope LLC
One notable fact that the article discusses is that the States have taken the lead in raising the minimum wage everywhere but in the South. Twenty-nine states have jumped ahead of the federal government and now have minimums that range from $6.15 to $7.63 an hour, lifting 70 percent of the nation’s work force well above the federal level of $5.15.
Link to New York Times article
N. DeWayne Pope, DeWayne Pope LLC
Senin, 18 Desember 2006
U.S. Department of Labor Opinion Finds IT Support Specialist Not Exempt from FLSA's Requirements
The U.S. Department of Labor has issued an opinion letter (FLSA 2006-42, dated October 26, 2006) addressing the issue of whether an employee who provides computer help desk support is exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). In the opinion letter, the DOL stated that, based upon the information provided by the employer requesting the opinion, the position does not qualify for the administrative or computer employee exemption.
In this case, the employer requested guidance regarding whether the position of "IT Support Specialist" would be exempt under either the administrative or computer employee exemption. According to the employer's description of the position, the IT Support Specialist (formerly called "Help Desk Support Specialist" by the employer) is responsible for diagnosis of computer-related problems as requested by employees and contractors of the employer. The position conducts problem analysis and research, troubleshoots and resolves complex problems. The job requires a high school diploma or GED, although an associate degree is preferred.
Administrative Employee Exemption: An employee meets the administrative exemption if he/she is compensated on a salary or fee basis of at least $455 per week, and has as his/her primary duty, the performance of either office or non-manual work directly related to the management or general business operations of the employer. Also, the employee's primary duty must include the exercise of discretion and independent judgment with regard to matters of significance. In this case, the DOL found that the IT Support Specialist's duties of maintaining a computer system and testing to see that a particular piece of equipment or application is working properly according to specifications designed by others lacks the required exercise of independent judgment and discretion to qualify for the administrative employee exemption.
Computer Employee Exemption: Under the FLSA, computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties are eligible for the computer employee exemption. To qualify for the exemption, the employee must be paid on either a salary or fee basis of not less than $455 per week, or if paid on an hourly basis, not less than $27.63 per hour. Additionally, this exemption only applies to employees whose primary duties consist of the application of systems analysis techniques and procedures, including consulting with users to determine hardware, software or system functional specifications; the design, development, documentation, analysis, creation, testing or modification of computer systems or programs based on and related to user or system design specifications; the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these duties. Examples of employees who qualify for these duties include computer systems analysts, computer programmers, software engineers, and other similarly skilled workers. However, job title alone does not determine the employee's exempt status.
In this case, the DOL found that the IT Support Specialist position did not qualify for the computer employee exemption because the job's primary duties of installing, configuring, testing, and troubleshooting computer applications, networks and hardware did not involve the application of systems analysis techniques and procedures to determine hardware, software or system functional specifications. The DOL also found that the position did not involve the design, development, documentation, analysis, creation, testing or modification of computer systems or programs related to user or system design specifications. Accordingly, the position did not qualify for the computer employee exemption.
Although DOL opinion letters are not binding and are based upon the specific facts presented, the guidance provided is useful because it demonstrates the factors the DOL considers in determining whether jobs involving computer-related duties will be considered exempt.
Link to DOL Fact Sheet #17C: Exemption for Administrative Employees Under the FLSA
Link to DOL Fact Sheet #17E: Exemption for Employees in Computer-Related Occupations Under the FLSA
N. DeWayne Pope, DeWayne Pope LLC
In this case, the employer requested guidance regarding whether the position of "IT Support Specialist" would be exempt under either the administrative or computer employee exemption. According to the employer's description of the position, the IT Support Specialist (formerly called "Help Desk Support Specialist" by the employer) is responsible for diagnosis of computer-related problems as requested by employees and contractors of the employer. The position conducts problem analysis and research, troubleshoots and resolves complex problems. The job requires a high school diploma or GED, although an associate degree is preferred.
Administrative Employee Exemption: An employee meets the administrative exemption if he/she is compensated on a salary or fee basis of at least $455 per week, and has as his/her primary duty, the performance of either office or non-manual work directly related to the management or general business operations of the employer. Also, the employee's primary duty must include the exercise of discretion and independent judgment with regard to matters of significance. In this case, the DOL found that the IT Support Specialist's duties of maintaining a computer system and testing to see that a particular piece of equipment or application is working properly according to specifications designed by others lacks the required exercise of independent judgment and discretion to qualify for the administrative employee exemption.
Computer Employee Exemption: Under the FLSA, computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties are eligible for the computer employee exemption. To qualify for the exemption, the employee must be paid on either a salary or fee basis of not less than $455 per week, or if paid on an hourly basis, not less than $27.63 per hour. Additionally, this exemption only applies to employees whose primary duties consist of the application of systems analysis techniques and procedures, including consulting with users to determine hardware, software or system functional specifications; the design, development, documentation, analysis, creation, testing or modification of computer systems or programs based on and related to user or system design specifications; the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these duties. Examples of employees who qualify for these duties include computer systems analysts, computer programmers, software engineers, and other similarly skilled workers. However, job title alone does not determine the employee's exempt status.
In this case, the DOL found that the IT Support Specialist position did not qualify for the computer employee exemption because the job's primary duties of installing, configuring, testing, and troubleshooting computer applications, networks and hardware did not involve the application of systems analysis techniques and procedures to determine hardware, software or system functional specifications. The DOL also found that the position did not involve the design, development, documentation, analysis, creation, testing or modification of computer systems or programs related to user or system design specifications. Accordingly, the position did not qualify for the computer employee exemption.
Although DOL opinion letters are not binding and are based upon the specific facts presented, the guidance provided is useful because it demonstrates the factors the DOL considers in determining whether jobs involving computer-related duties will be considered exempt.
Link to DOL Fact Sheet #17C: Exemption for Administrative Employees Under the FLSA
Link to DOL Fact Sheet #17E: Exemption for Employees in Computer-Related Occupations Under the FLSA
N. DeWayne Pope, DeWayne Pope LLC
Minggu, 17 Desember 2006
Tech Tip: Using RSS to Automate Web Surfing of Your Favorite Sites
There is a link on the right side of this blog page that reads "Site Feed". If you have not already used this link to subscribe to the Birmingham Business Law Blog in your favorite news reader, you really should.
Why? What is RSS? What's a "news reader"? RSS is powerful software tool typically called a "news reader" (there are many available for download on the web for FREE) that allows you to keep up with the content on dozens of blogs and websites in less time that it would normally take you to review one or two the old fashioned way.
Dennis Kennedy and Tom Mighell have put together an article on the use of RSS by lawyers, but it is a really great article for non-lawyers, too. Do yourself a favor and give it a read. Start using RSS and you'll never surf the web the same way again!
Link to Kennedy and Mighell article
N. DeWayne Pope, DeWayne Pope LLC
Why? What is RSS? What's a "news reader"? RSS is powerful software tool typically called a "news reader" (there are many available for download on the web for FREE) that allows you to keep up with the content on dozens of blogs and websites in less time that it would normally take you to review one or two the old fashioned way.
Dennis Kennedy and Tom Mighell have put together an article on the use of RSS by lawyers, but it is a really great article for non-lawyers, too. Do yourself a favor and give it a read. Start using RSS and you'll never surf the web the same way again!
Link to Kennedy and Mighell article
N. DeWayne Pope, DeWayne Pope LLC
Rabu, 13 Desember 2006
U.S. Department of Labor Seeks Input on Changes to FMLA
The U.S. Department of Labor announced on December 1, 2006, that it is seeking information and comments from the public on the Family and Medical Leave Act (FMLA) and its implementing regulations.
Instead of publishing proposed new rules for comment, the DOL is seeking comments on the following substantive areas:
Link to U.S. DOL website seeking public comments on the FMLA.
N. DeWayne Pope, DeWayne Pope LLC
Instead of publishing proposed new rules for comment, the DOL is seeking comments on the following substantive areas:
Eligible EmployeeThe DOL invites interested parties having knowledge of, or experience with, the FMLA to submit comments and welcomes any pertinent information that will provide a basis for ascertaining the effectiveness of the current regulations and the DOL’s administration of the Act. Public comments should be received by no later than 5:00 p.m. EST on February 2, 2007.
Definition of "Serious Health Condition"
Definition of a "Day"
Substitution of Paid Leave
Attendance Policies
Different Types of FMLA Leave
Light Duty
Essential Functions
Waiver of Rights
Communication Between Employers and Their Employees
FMLA Leave Determinations / Medical Certifications
Employee Turnover and Retention
Link to U.S. DOL website seeking public comments on the FMLA.
N. DeWayne Pope, DeWayne Pope LLC
Selasa, 12 Desember 2006
Holiday Parties and Spirits on the Rise
An article by the Society for Human Resource Management indicates that a survey of 110 leading U.S. businesses shows an increasing number of organizations are planning holiday parties this year and serving alcohol at those parties.
Link to article
N. DeWayne Pope, DeWayne Pope LLC
Ninety-four percent of those surveyed will have some type of year-end party, up from 87 percent in 2005, and more than half of those parties (58 percent) were slated to take place the week of Dec. 11. A nearly equal percentage were scheduled the weeks of Dec. 4 (17 percent) and Dec. 18 (15 percent). Five percent were planned for the week of Nov. 27 and 5 percent were planned for after the holidays.
Among the employers who will have some type of holiday celebration, 86% will serve alcohol, according to a Battalia Winston survey. In 2005, 75% served alcohol. Similarly, global outplacement firm Challenger, Gray & Christmas found that 60% of employers plan to provide alcohol in 2006, up from 54% in 2005.
If your company is planning on serving alcohol at a holiday party, SHRM offers the following tips:• Serve foods that slow the absorption of alcohol, such as those high in protein or starch.
• Avoid greasy and salty foods, which tend to encourage more alcohol consumption.
• Review your insurance policies for alcohol-related exclusions.
• Offer non-alcoholic beverages.
• Provide employees a limited number of drink tickets.
• Do not use employees to tend bar or provide alcohol.
• Make sure that bartenders have been trained not to over-pour drinks and not to serve those who appear to be intoxicated.
• To limit harm and liability, make sure bartenders have been trained to handle rowdy guests.
• Hire an off-duty police officer or security specialist to work during and after the party.
• Do not serve alcoholic punch or other beverages that make it difficult to gauge how much alcohol one consumes.
• Designate someone, preferably a supervisor, to refrain from drinking to monitor the party with event staff to curtail excessive serving of alcohol.
• Provide enough food and entertainment so that drinking is not the party’s focus.
• Close the bar an hour or so before the party ends.
• Arrange for designated drivers, reduced cab fares or hotel room rates, or offer to pay cab or hotel expense if employees obviously are alcohol-impaired.
Link to article
N. DeWayne Pope, DeWayne Pope LLC
Senin, 11 Desember 2006
Welcome to Red Mountain Law's Birmingham Business Law Blog
Today is the launch of Red Mountain Law's Birmingham Business Law Blog. The blog is published by the member firms of Red Mountain Law -- Cunningham Law Firm, LLC; DeWayne Pope, LLC; Goodrich Law Firm, LLC; and Hahn Law Firm, PC. This blog is intended to provide tips and updates on issues affecting businesses and business people. Specifically, this blog will address corporate law, taxation, real estate, wills and estates and human resources. We hope that you find value in this blog and that your will visit often or subscribe to receive automatic notice of updates by entering your e-mail address in the "Subscribe to Blog" form in the sidebar. Should we be of assistance, please contact us at (205) 328-9445 or visit our website at www.redmountainlaw.com.
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