Posts tagged ‘policies’

When Does An Employee’s Post Go Too Far?

How much can you, or should you, discipline employees for comments they make on their own social media accounts, like Facebook?  That is the question I have been asking myself since reading this article in the CU Times reporting that MTC Federal Credit Union based in Greenville, South Carolina fired one of its loan officers for using a racial slur on Facebook. 

The CU Times reports that Gerri Cannon admitted to posting the slur, but also contended that she is not a racist and has retained a lawyer.  As I like to point out, retaining a lawyer doesn’t mean you have a case.  Ms. Cannon’s dilemma provides an important teaching moment for credit union employers and employees alike. 

The first thing I always hear in these cases is that the employee’s free speech rights are being violated.  But they aren’t.  The First Amendment restricts government conduct, not the conduct of private citizens. Hudgens v. N. L. R. B., 424 U.S. 507, 513, 96 S. Ct. 1029, 1033, 47 L. Ed. 2d 196 (1976).  This means that Ms. Cannon has a right to post just about anything she wants on Facebook and MTC FCU has every right to fire her for it. 

The second question that always gets raised in these situations is that the Employee Handbook didn’t ban the specific conduct.  But to answer this question, we need to take a little detour.  As most of you know, New York, like most other states, is an at-will employment state.  This means that unless otherwise specified, employment is for an indefinite period of time and may be “freely terminated by either party at any time for any reason or even for no reason.”  Lobosco v. New York Tel. Co., 96 N.Y.2d 312, 316, 727 N.Y.S.2d 383, 751 N.E.2d 462 (2001).  There is a misconception on the parts of employees and employers that a handbook creates a contract which modifies at-will employment.  And, in fact, there have been cases in which a poorly drafted handbook restricted the ability of employers to get rid of an employee.  Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 465-66, 443 N.E.2d 441, 445 (1982). 

But this is very much the exception to the rule.  As a federal court noted earlier this year New York’s Court of Appeals has pointed out, “[r]outinely issued employee manuals, handbooks, and policy statements should not be lightly converted into binding employment agreements.  This is especially true where the handbook contains an express disclaimer.”  Rumsey v. Ne. Health, Inc., 89 F. Supp. 3d 316, 340-41 (N.D.N.Y. 2015), aff’d, No. 15-833, 2016 WL 336196 (2d Cir. Jan. 28, 2016), as corrected (Jan. 29, 2016). 

Does this mean that a credit union can just ignore its handbook?  Not at all.  A more typical case than the one involving MTC FCU involves a discharged employee who argues that she was unfairly disciplined by her employer because of her race.  For instance, let’s say that a credit union routinely looks the other way when it hears about inappropriate comments on employee Facebook pages.  If that same credit union turns around and fires a pregnant or minority employee who makes such a comment, the unequal treatment can be used as evidence of discrimination on the part of the employer.  Redford v. KTBS, LLC, No. 5:13-CV-3156, 2015 WL 5708218 (W.D. La. Sept. 28, 2015), on reconsideration in part, No. CV 13-3156, 2016 WL 552960 (W.D. La. Feb. 10, 2016).

One more thing to keep in mind when monitoring employee social media conduct is to make sure you are not violating federal labor laws.  As I’ve mentioned in previous blogs, the NLRB is aggressively protecting the right of employees to engage in “concerted activity” using social media.  This means that an employee’s complaints about his workplace may in fact be protected.  It also means that you must be sure that your social media policies are not so poorly written that they can be read as prohibiting employees from taking to Facebook to talk about workplace concerns.

Needless to say this is one of those fast evolving areas that creates confusion and legal actions.   This is one of those areas where a review of your handbook and a call to your attorney make a lot of sense.

On that note, enjoy your day.




April 6, 2016 at 9:04 am 4 comments

Can You Email Your Buddies On Company Time?

Judging by the number of people who have told me over the years that they have had to get permission to access my blog at their credit union, I know there are many credit unions that have policies prohibiting the use of company electronic equipment and email systems for activities unrelated to the employee’s job.  Assuming you have an appropriate policy on the issue, and you aren’t selectively enforcing it, such policies are fine according to a 2009 decision by the United States Court of Appeals for the District of Columbia, (Guard Publishing Co. v. National Labor Relations Board, 571 F.3d 53 (2009)).

But has the Internet become such an integral part of communication that policies imposing blanket bans on non-business use of employer equipment are outdated?  Our good friends at the NLRB think so and its head counsel is bringing an Administrative Appeal before the Board in a case called Purple Communications, Inc. (Cases 21-CA-095151; 21-RC-091531 and 21-RC-091584) in which it is going to ask the Board to reverse the DC court’s 2009 ruling.  Given the importance of the issues involved, the NLRB is requesting interested parties to file amicus briefs for or against its appeal.  It’s a very good assumption that win or lose, the issue will once again be examined by the DC federal court.

Why should you care?  Most importantly, even though most of you don’t have union shops, the NLRB is seeking to regulate the ability of all employers to limit the use of office technology.  It is concerned that overly restrictive technology policies inhibit the ability of employees, regardless of whether or not they belong to a union, to take “concerted actions” against problems in the work place.  Second, the case will provide HR professionals much-needed guidance about the use of technology in the workplace.  For example, this case deals specifically with the use of company owned and distributed technology but is likely to provide some indication as to where regulators and the courts are headed related to appropriate limitations for employees who are allowed to bring their own devices to work.

My personal view is that the existing legal precedent makes perfect sense and provides both employees and employers a bright line rule to follow.  Unfortunately, common sense and consistency aren’t top priorities of the current NLRB hierarchy.  Bottom line: this is a case to keep an eye on and even to consider writing an amicus for if you think it may have  an impact on your credit union policies.  By the way, if you don’t yet have a technology policy, you should develop one quickly.




May 5, 2014 at 8:52 am 1 comment

Did you violate the law this weekend?

Here is a Monday morning survey: 

  • Did you send out any e-mail to any of your employees over the weekend? 
  • Were those salaried employees? 
  • Did you violate the Fair Labor Standards Act? 
  • Can you imagine waking up with a lawyer every morning? 

There’s a great post this morning from the Harvard Business Review providing tips on how to better manage our e-mail addiction.  But the part of the post that most intrigued me was its reference to the fact that as overtime disputes become more common, the role that smart phones play in our workplace needs to be better regulated by many businesses.  For example, if you were watching your kid’s soccer game on Saturday, and sent an email asking your loan originator if a certain mortgage was approved, or if you contacted your secretary at 7:00 a.m. asking that a memo be sent, depending on the status of those employees, the time they spent on those projects should be counted against the 40-hour work week over which they are entitled to overtime.  As a matter of fact, last week U.S.A. Today reported that after years of layoffs, employees are bringing an increasing number of law suits alleging  misclassification of non-exempt employees as exempt employees with resulting overtime violations.

And remember there are special concerns in the financial sector since the Department of Labor has opined that most mortgage loan officers are non-exempt employees.  So what steps should we be taking to address these issues?  The most important one is to have strict policies as to which employees have access to company cell phones.  Remember, if there is simply no need to contact an employee outside of the workplace, then they shouldn’t need a phone.  Second,  policies should make clear who has access to cell phones and also include a reminder to supervisors that responding to email constitutes work.  Finally, the question as to who is and who is not an exempt vs. no-exempt employee is not as clear cut as you may think.  Depending on the size and complexity of your credit union, now would be a good time to sit down with your HR Professional and analyze the specific responsibilities of your employees to ensure that their classifications are correct.


April 30, 2012 at 7:15 am 2 comments

Will the healthcare debate impact credit unions?

If, since you already have health insurance or already provide it to your employees, you’re thinking that this week’s arguments before the U.S. Supreme Court on the constitutionality of the Affordable Care Act don’t affect you, think again.  The arguments being bandied about challenge some of the most fundamental assumptions of the federal government’s powers, and the Court’s decision will impact the type of laws it passes and their interpretation for decades to come.

The debate centers around the Act’s requirement that most people must either obtain insurance through their employers or buy it on their own.  Those who fail to do so will be subject to a government imposed tax or fine (depending on how you want to interpret the legislation). There was an exchange between Chief Justice Roberts, Justice Kagan and Michael Carvin, an attorney representing interests opposed to the measure, that encapsulates the issues involved and the impact the court’s decision could have on a wide range of industries, including credit unions.

Justice Kagan asked Mr. Carvin, why, since Congress doesn’t know precisely who will need health insurance, but knows that at some point most people will impose costs on the rest of us, can’t it impose a requirement on people to purchase health insurance?

Carvin responded: “Under your theory, you could regulate anybody if they have a statistical connection to a problem.  You could say, since we could regulate people who enter into the mortgage market and impose mortgage insurance on them, we can simply impose the requirement to buy private mortgage insurance on everybody before they have entered the market because we are doing it in this prophylactic way before it develops.”

Roberts: “no… I don’t think that’s fair, because not everybody is going to enter the mortgage market. The government’s position is that almost everybody is going to enter the health care market.”

I can think of several government imposed requirements in the financial services sector that could be construed as individual mandates, such as mandatory flood insurance in areas prone to flooding.  That’s not to say that all these mandates will become unconstitutional overnight, let alone sometime in the future; however, as lower courts seek to apply the rationale of the Court’s decision, particularly if it strikes down the Act, the financial services sector will be one of several industries subjected to increased litigation.

If you look at the really big picture, this is not all that surprising.  After all, the need to regulate commerce is one of the primary reasons the founders decided to throw out the Articles of Confederation and start from scratch.  During the Great Depression, President Roosevelt threatened to amend the Constitution because he was so frustrated that the court struck down some of his prized new deal initiatives on the grounds that Congress lacked the authority to extensively regulate industry under the commerce clause. Opponents of civil rights even argued that the Court’s Post-Depression commerce clause jurisprudence amounted to a usurpation of state’s rights. 

Whether you agree or disagree with these decisions, when the Court reexamines a provision that lies at the heart of so much regulation, its reexamination will cause an earthquake with tremors that everyone will feel.   

NCUA Provides Economic Overview/Analysis of Interest Rate Risk

NCUA released the third installment of its video overview of economic trends and issues facing credit unions.  Think C-SPAN meets Wayne’s World.  This month’s video includes an excellent overview of the impetus behind NCUA’s new requirement that credit unions promulgate interest rate risk policies.  It is worth a listen.

March 30, 2012 at 7:23 am Leave a comment

Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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