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SHRM Newsletter: Facebook/Employer Ruling Makes News Headlines



November 16, 2010

This is Utah SHRM Legal-mail no. 2010-17 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







FACEBOOK/EMPLOYER RULING MAKES NEWS HEADLINES: The federal National Labor Relations Board (NLRB) recently made national news headlines for asserting that an employer may have violated the National Labor Relations Act (NLRA) by firing an employee for making negative comments about her supervisor on Facebook. The NLRA protects the right of employees, even in non-union settings, to engage in “concerted activities” such as talking to co-workers about their jobs, managers and working conditions. Thus, the NLRB issued a complaint when a Hartford, Connecticut ambulance company fired an employee when she complained about her supervisor on Facebook and several friends/co-workers responded with similar comments. The company’s social media policy prohibited employees from depicting the company “in any way” on the internet. The complaint may signal an era of heightened scrutiny by the NLRB of employer policies that might seem to chill employee communications with each other about working conditions. A hearing will be held on the case in January of 2011 before an NLRB administrative law judge (ALJ) and the ALJ’s ruling likely will end up in front of the NRLB itself. Stay tuned for developments, and in the meantime, get legal advice before you fire someone because he or she has posted comments online or communicated with co-workers about working conditions.

MORE UTAH CITIES PASS ANTIDISCIMINATION ORDINANCES: The Utah cities of Murray and Moab have joined the growing list of local governments to enact ordinances prohibiting workplace discrimination based on sexual orientation. Salt Lake City, West Valley City, Taylorsville, Salt Lake County, Park City, Summit County and Logan also have adopted similar measures at the municipal level. Employers within those local government boundaries now can be subjected to claims for discrimination and should take steps to manage that risk. These steps should include adding sexual orientation and gender identity as protected classes listed in employee handbooks and policy statements and training supervisors and employees about the new legal requirements.

EEOC ISSUES GINA REGULATIONS: The federal Equal Employment Opportunity Commission (EEOC) recently issued new regulations regarding the implementation of the Genetic Information Nondiscrimination Act (GINA). The full regulations are available at: The EEOC says GINA “prohibits the use of genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.” For those of you who do not want to read the full regulation, the EEOC also has issued a helpful Q & A for businesses on how to comply with GINA (see For example, the EEOC’s Q & A explains that GINA “is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. Someone who is discriminated against because she actually has breast cancer or another condition would not be protected by GINA, even if the condition has a genetic basis. The ADA, however, may protect such an individual whose cancer or other condition meets the definition of disability.” The Q & A also explains that employers should not collect family medical history information unless lawfully sought under the certification procedures of the Family and Medical Leave Act (FMLA) -- e.g. when an employee seeks FMLA leave to care for an ailing parent. The EEOC also explains that inadvertent acquisitions of genetic information (e.g. an employee emails his supervisor to say the employee’s mother has cancer) are not illegal, provided the employer does not use the information in an adverse job decision.

LEGISLATIVE ALERT- SENATE MAY CONSIDER PAYCHECK FAIRNESS ACT: Post-election, but pre-installation of the new Congress, the United States Senate may consider passage of the Paycheck Fairness Act (S. 3772) this week. The Act proposes sweeping changes to the Equal Pay Act and could increase litigation and exposure for employers. Specifically, among other things, the Act would require employers to defend pay differentials as consistent with business necessities and based on bona fide factors other than sex and allow unlimited punitive damages (claims under other discrimination laws are capped by employer size). The House passed the Act in 2009. Consider using the SHRM website to email your senator expressing your views on the Act, starting here:

SPIRITUAL HEALING COVERED BY THE FMLA? The federal appeals court covering the New England region is currently considering whether the FMLA requires leave for an employee to accompany a family member seeking to obtain spiritual healing. The case involved an employee who was fired after she sought FMLA leave to accompany her husband who was traveling to the Philippines to attend a spiritual healing center. The court will issue its ruling later this year, no doubt after much meditation and contemplation.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.