By Brendan O'Brien
Jan 31 (Reuters) - While the National Labor Relations Board
has given notice that it will focus on social media in the
workplace, the relevant law is far from completely defined,
Crowell & Moring said in its Litigation Forecast for 2013.
According to the report, the agency signaled its interest in
social media when it ruled in September that Costco Wholesale
Corp's social media policy was not specific enough and could
stifle employees' rights to free speech under the National Labor
But the NLRB "didn't give specific guidance on what language
would be enforceable," Trina Fairley-Barlow, a partner at
Crowell & Moring, said in the report. "There is currently no
clear road map for parsing unlawful and lawful social media
Separately, the report also said there is "no end in sight"
in wage-and-hour class action litigation, the fastest-growing
segment of employment law that deals with disputes over terms of
employment such as pay and time worked.
The report predicts that wage-and-hour cases will continue
to outpace other employment litigation because of legal
questions involving worker classification, exemption and
decentralized business operations.
"A key challenge employers face in those cases is how to
handle the problem of the eager, non-exempt employee who
performs work functions after hours remotely," says Tom Gies, a
partner at Crowell & Moring. "While strong workplace policies
and periodic audits are part of the solution, they unfortunately
are not a panacea."
The report also said employers should beware of anything
that could cause the Equal Employment Opportunity Commission to
open a systemic discrimination investigation.
"Companies might want to be more aggressive at the
investigative stage to convince the EEOC that the issue is not
the type of claim the agency should pursue, either because the
facts are not good or because the law is against them,"
The report also said employers need to understand that the
landscape of whistle-blower cases has changed, after a federal
court defined a whistle-blower broadly when it refused to
dismiss a case against lighting company Trans-Lux last year.
"For companies, that means that if a plaintiff files suit,
disposing of the case on a motion to dismiss will likely be more
difficult, which means that companies may find themselves
spending more time and resources defending these cases,"
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