Monthly Archives

March 2014

Upset over Employee Facebook Posts? Think before you Fire

By Employment

 POST by Michael Melder.

The law that protects unions applies to social media postings by nonunionized workforces.  Why?

The National Labor Relations Act (NLRA) protects employees’ rights to participate in concerted activity.  What that means is, employees can get together and talk about how bad their boss is, or how much they make, or how terrible their work environment is, etc.

I’ll call it grousing over job conditions.  We have all done it.  More traditionally, we participated in concerted activity/grousing during lunch, happy hours, or BBQs with coworkers.  However, the internet has changed all of that. Now many employees post up on Facebook or other social media sites the same things we “talked” about over beers and brats.  For some folks, their postings have led to their termination after the boss gets wind of the not so flattering rants.

The National Labor Relations Board (NLRB), the arm of the government that is charged with enforcing the NLRA, has taken issue with employers who fire employees because of social media postings where the employee is discussing the terms and conditions of employment with other employees.

Beginning in 2011, the NLRB’s general counsel began issuing memorandums regarding employee’s use of social media to participate in concerted activity.  Ultimately, it issued three memorandums regarding the topic.  More recently, the NLRB has issued board decisions regarding social media and concerted activity.  As you would expect, the decisions are detailed and fact intensive.  The following link provides some details on the subject:

Needless to say, the use of social media by employees to participate in concerted activity is still novel, nuanced, and changing.  Therefore, as an employer you should use caution before firing or disciplining an employee over social media postings.  If you are an employee and you have suffered an adverse employment action because of your social media postings, your employer may have violated the National Labor Relations Act.

Annual Report of Customs Seizures for IP Violations

By Customs IP Enforcement, Import, Intellectual Property, International IP

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) and U.S. Customs and Border Protection (CBP) recently announced the comprehensive results of counterfeit and pirated goods seized during fiscal year (FY) 2013. Under the Department of Homeland Security (DHS), HSI and CBP are the agencies charged with the enforcement of intellectual property rights (IPR) for goods entering the United States.

The number of IPR seizures increased nearly 7 percent from 22,848 in FY 2012 to 24,361 in FY 2013. The manufacturer’s suggested retail price (MSRP) of the seized goods also increased from $1.26 billion in FY 2012 to $1.74 billion in FY 2013. DHS averaged slightly over 66 seizures per day, with an average MSRP of each seizure being slightly more than $71,500.

“These numbers are the result of the hard work of the men and women of the Department of Homeland Security and the increased collaboration of our agencies through the IPR Center,” said ICE’s Principal Deputy Assistant Secretary Thomas S. Winkowski. “But a great deal more has to be done to protect the public from the health and safety threat that counterfeits pose to our society. We will continue to pursue these criminals and educate the public about the real threats that intellectual property crimes pose.”

“Together with our IPR partners, CBP continues to guard the nation’s borders against counterfeit products,” said CBP Commissioner R. Gil Kerlikowske. “These products are not only unsafe and dangerous to consumers, but they also pose a threat to the economic security of our country.”

The National Intellectual Property Rights Coordination Center (IPR Center) continued Operation In Our Sites (IOS), a long-term law enforcement initiative which targets counterfeiting and piracy on the Internet. In FY 2013, the IPR Center seized 1,413 domain names, and since the launch of IOS in June 2010, the center has seized more than 2,700 domain names. Collaboration through the IPR Center led to 692 arrests, 401 criminal indictments, and 451 criminal convictions for criminal IPR infringement activities in FY 2013.

The People’s Republic of China remained the primary source for counterfeit and pirated goods seized in FY 2013 with a total value of $1.1 billion. This represented 68 percent of all IPR seizures by MSRP. DHS also made seizures from 73 additional economies during FY 2013 including Hong Kong, India, Korea, Singapore and Vietnam.

The HSI-led IPR Center is one of the U.S. government’s key weapons in the fight against criminal counterfeiting and piracy. Working in close coordination with the Department of Justice Task Force on Intellectual Property, the IPR Center uses the expertise of its 21-member agencies to share information, develop initiatives, coordinate enforcement actions and conduct investigations related to intellectual property theft. Through this strategic interagency partnership, the IPR Center protects the public’s health and safety and the U.S. economy.


THE BOX: Corrective Action, not Employee Discipline

By Blog, Community, Employment, Grab Bag

Post by: Michael Melder


So the conversation started like this:

Business Owner: “I have two employees who don’t seem to be doing their jobs like I want them to.”  He provides me with specific examples.

I am sure you can think of at least one employee in your organization that isn’t living up to expectation.

After listening to him, I provided my philosophy about corrective action.  I call it “The Box.”

Employers hire employees to do a certain job; the employer’s defined position and duties are The Box.

An employee takes a job and a position and he has his own expectations of what the job requires and the duties necessary to perform the position.

This is the start of an expectation disconnect; the employee begins to move outside The Box.   As the employer and employee settle into the relationship, the employee will begin to define the job and position he thought the employer wanted him to do.  More importantly, the employee will begin to define the roll he wants to do.  Of course not all employees do this and sometimes the changes are welcome and positive.

However, clearly the business owner I was having the conversation with wasn’t happy with the performance of his employees.

He had allowed his employees to move outside of The Box.  He expected his employees to do “X” and they were doing “Y”.

I suggested he nudge the employees back in to The Box.  Meaning, communicate with the employee in a positive and constructive manner what the employer’s expectations are for the position and the expected duties.

Notice I said “in a positive and constructive manner.”  Correct the behavior.  Define your expectations.  This is corrective action or what most employers call “Progressive Discipline” in their handbooks.

I’ll admit that at some point correcting an employee who fails to fall in line will require traditional discipline.  However, if expectations are communicated effectively, such discipline isn’t a surprise to the employee.

Surprise is what you want to avoid.  An employee who feels ambushed by an employer will look to third parties for help.  I get those calls all the time from jilted ex-employees trying to figure out the “Why.”

Sometimes it is a good thing to think inside The Box. Nudge an employee back – don’t push.

FMLA: Intermittent Leave & The Party Animal

By Blog, Community, Employment


FMLA: Intermittent Leave & The Party Animal

Regulating Intermittent FMLA Leave: May an Employer Request a Doctor’s Note for Each Intermittent FMLA Absence?

Post by:   Michael Melder

[The above subtitle came from an article I recently read.  If you would like to read it, click here.]


If you don’t want to read it here is a short summary: the employer in the article got tired of employees using intermittent FMLA to extend their weekends.  A few employees were taking FMLA leave on Mondays and Fridays.  The employer believed the employees were abusing their leave. Really, employees would do that!

For you employers who haven’t experienced this yet, employees may take family medical leave is small chunks. For employers having to administer FMLA, abuse of intermittent leave can cause many headaches. One common problem is trying to stop an employee who is intentionally using family medical leave to take three day weekends. This employer was just trying to stop the practice of some employees using intermittent leave to do just that, take extended weekends.

I highlight the article because it spotlights an important issue, how does an employer deal with an employee abusing family medical leave?   The employer in the article resorted to requiring the employee to get a doctor’s note for each leave request. If you are considering that option don’t; it might lead you to the courthouse steps.

So what is an employer to do?

Before I answer the question, let me digress and quote some law, “The employee and employer shall attempt to work out a schedule for such leave that meets the employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the health care provider.”

The quote should be empowering!  The FMLA actually requires the employee to work with the employer to work out a schedule that doesn’t disrupt the employer’s operations. If an employer suspects abuse, such as an employee who seems to take too many Mondays and Fridays off under the guise of FMLA, take control.

How?  Low hanging fruit, but consider these:

  1. Require the employee to provide dates when leave is to be expected, if possible.
  2. Push back when leave does disrupt operations.
  3. Provide alternate days or times that fit with operations.
  4. If you consider abuse, address it.

What would that look like?  Well, circling back to the article.  If an employee is taking too many Mondays and Fridays off, have the employee reschedule that leave to a Monday afternoon or a Friday Morning or a Tuesday or Thursday.

The employer has every right to require the employee to take leave that works with the employer’s schedule. It is a collaborative process.  Like any legal issue it isn’t black and white, but if you suspect abuse, exercise your right to require the employee to work out a schedule that doesn’t disrupt operations.