Monthly Archives: October 2019

Daniel Finerty Appointed To The Native Nations Law Task Force By DRI, The Voice Of The Defense Bar

Daniel Finerty, a Shareholder with Lindner & Marsack, S.C., was recently appointed to Native Nations Law Task Force by DRI, The Voice Of The Defense Bar.

Launched in 2017, Native Nations Law Task Force, a first-of-its-kind initiative, provides networking and educational opportunities for defense litigators, tribal in-house counsel and insurance companies called upon to defend native nations faced with civil lawsuits where the parties often find themselves in tribal jurisdictions, subject to the unique laws and customs of a tribal justice system.

Mr. Finerty continues to extend his practice defending native nations and their Employment Practice Liability Insurance carriers facing employment litigation in tribal, state and federal courts. He provides a unique skillset to native nations and their insurance carriers, bringing his 20-plus years of employment litigation experience, and his expertise defending sovereign nations in employment disputes, to bear in these matters.

Mr. Finerty looks forward to bringing his unique experience to further assisting native nations facing civil litigation. “I have been honored and humbled to support the extremely talented attorneys who provide general counsel to several Native American nations, and their insurance partners. I hope to continue doing so through the Native Nations Law Task Force. This effort is already gaining momentum with representation of several jurisdictions across the United States, including Alaska, and the First Nations in Canada,” Mr. Finerty said. The Native Nations Law Task Force presented at DRI’s Annual Meeting in October 2018 and is continuing its outreach to DRI going forward.

“Daniel’s unique expertise in defending native nations in employment disputes pairs up incredibly well with his deep experience working with the employment practice liability insurers that support his tribal clients. This honor is testament to his passion for this work,” said Oyvind Wistrom, Lindner & Marsack, S.C.’s President.

For more than fifty-five years, DRI has been the voice of the defense bar, advocating for 22,000 defense attorneys, commercial trial attorneys, and corporate counsel and defending the integrity of the civil judiciary. A thought leader, DRI provides world-class legal education, deep expertise for policy-makers, legal resources, and networking opportunities to facilitate career and law firm growth.

NLRB ISSUES ADVICE MEMORANDUM REGARDING EMPLOYER SOCIAL MEDIA POLICIES

By: Jonathan T. Swain & Christopher J. Saugstad

September 27, 2019

The National Labor Relations Board (“NLRB”) recently made public an Advice Memorandum (the “Memorandum”) by its General Counsel on August 15, 2019. The Advice Memorandum detailed the General Counsel’s advice regarding specific social media policies of CVS Health. The Memorandum examined numerous social media policies of CVS Health and found most to be lawful except two specific policies related to the disclosure of personal information.

The Memorandum utilized the new balancing test established in Boeing Co., 365 NLRB No. 154, which evaluates “(i) the nature and extent of the potential impact of Section 7 rights, and (ii) legitimate business justifications associated with the requirements(s).” Additionally, the Memorandum explained how the new balancing test creates three categories in which to classify various types of employer rules. The three categories are broken down into:

  • Category 1: lawful rules that either don’t interfere with NLRA-protected rights or for which the possibly adverse impact on protected rights is outweighed by the employer’s legitimate business justifications;
  • Category 2: rules which warrant individualized scrutiny on a case-by-case basis as to whether they would interfere with NLRA rights, and if so, whether the adverse impact on the protected conduct is outweighed by the legitimate business justifications; and
  • Category 3: unlawful rules which prohibit or limit NLRA-protected conduct and for which the adverse impact on workers’ rights is not outweighed by the employer’s legitimate business justification.

Here, the General Counsel found two CVS Health policies that ran afoul of Section 7 rights under the new balancing test. First, CVS Health adopted a policy in which employees were required to identify themselves by name if they mentioned CVS Health or discussed their work on social media. The Memorandum classified this rule under Category 2, found it unlawful, and explained “[t]he Board has recognized that requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.” The Memorandum explained CVS Health had other policies in place to ensure employee’s social media posts were not being made upon CVS Health’s behalf.

The General Counsel deemed another policy unlawful in relation to personal information. CVS Health’s Handbook and Social Media Policy contained a restriction that prohibited employees from disclosing “employee information” on social media. This policy was also classified by the NLRB as a Category 2 policy and was found by the NLRB as restricting employees’ ability to engage in Section 7 activities. “While the employer has a legitimate business interest in keeping customers’ and employees’ personal and medical information confidential, it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions or employment disputes.”

The Memorandum advised bringing a complaint against CVS regarding the two policies found to be unlawful under the newly established standing in Boeing Co. Due to the decision in Boeing Co., along with the recently published Advice Memorandum, employers will want to review their current handbook and social media policies. Policies requiring employee identification by real name when discussing their employer or their work, or policies prohibiting employees from disclosing “employee information” on social media may be deemed unlawful.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about effective workplace handbook and social media policies, or any other labor or employment issue involving your business, please contact us at any time.