Spring Cleaning: Time to Review and Update Employment Policies

Have you recently reviewed your Employee Handbook, Confidentiality Provisions, and Social Media Policies?  If not, then the legal developments in this Alert demonstrate that this is a prime time to have your attorney review and update, where necessary, your policies and procedures.

Virginia to join Maryland and 17 Other States that Ban Employer Access to Employee Social Media Accounts

Starting July 1, 2015, Virginia will prohibit employers from requiring job applicants and employees to disclose usernames and/or passwords to their social media accounts. Virginia joins 18 other states, including Maryland, which have such a law. Virginia’s law also prohibits employers from requiring applicants and employees to add a supervisor or other employee to the list of contacts associated with those accounts, and an employer may not retaliate against an applicant or employee for refusing to disclose his or her account information.  This law will provide employees with greater privacy protections; however, the law does provide certain exceptions, such as being able to view an employee’s information that is publicly available, and others.  Employers should examine their hiring procedures and policies to ensure compliance with this new rule upon its effective date. 

DOL’s New Rule in Effect – FMLA Leave Available for Same-Sex Spouses in The District, Maryland, and Virginia

On March 27, 2015, the Department of Labor’s (“DOL”) Final Rulemaking that expanded FMLA rights to employees in same-sex marriages regardless of where they live or work went into effect.  To implement this expansion of FMLA rights, the DOL replaced the “state of residence” rule with a “place of celebration” rule. Under the old rule, an employee in a same-sex marriage was entitled to FMLA leave only if that employee resided in a state that recognized same-sex marriages. Under the new rule, an employee in a same-sex marriage is entitled to FMLA leave as long as the employee’s marriage occurred in a state that recognizes same-sex marriages, regardless of where they live or work at the time of the leave request.

This new rule does not change anything for employers located in the District of Columbia and Maryland, both of which recognize same-sex marriage and were required to provide FMLA leave for employees in same-sex marriages under the old rule.  Employers in Virginia—a jurisdiction that does not recognize same-sex marriage—should act upon this rule by promptly reviewing FMLA policies and procedures and provide necessary training to all persons who make FMLA-related decisions. 

SEC Cracks Down on Companies “Muzzling” Whistleblowers with  Confidentiality Provisions

On April 1, 2015, the Securities and Exchange Commission (“SEC”) announced a precedent-setting settlement with defense contractor KBR resulting from its confidentiality provisions used during internal investigations.  SEC Rule 21F-17 prohibits taking actions that attempt, or could be perceived as, preventing or having a “chilling effect” on people reporting possible legal violations to the SEC.  KBR required employee-witnesses in some internal investigations and interviews to sign confidentiality provisions warning them that they could face discipline, possibly even termination, if the employee discussed the investigation or underlying facts with outside parties without obtaining prior approval by KBR’s legal department.  The SEC, without needing to wait for evidence that this provision had in fact dissuaded an employee from blowing the whistle, determined that this confidentiality provision directly violated Rule 21F-17 and could impede whistleblowers from reporting securities law violations. 

With this settlement, the SEC joins several other government entities, including the National Labor Relations Board and the Equal Employment Opportunity Commission, in this growing trend of governmental authorities that stringently monitor and enforce rules that impede or prohibit employees from reporting possible legal violations to authorities.  Employers should take this opportunity to review any confidentiality provisions in handbooks, offer letters, and/or settlement agreements to ensure that they do not run afoul by being overly restrictive. 

The NLRB Issues New Guidance on Employer Policies

On March 18, 2015, the General Counsel of the National Labor Relations Board (“NLRB”) issued Memorandum GC 15-04, the first guidance Memorandum issued by the NLRB in some time.  The Memorandum highlights numerous recent decisions by the Board and settlements obtained from cases against employers whose policies the NLRB deemed to prevent, restrict, or punish employees from engaging in protected concerted employment action under the National Labor Relations Act.  Employer confidentiality provisions and social medial policies are among the various issues that this memorandum discusses.  Employers need to understand that merely having policies or guidelines that violate the NLRB is in and of itself a violation of the National Labor Relations Act (“NRLA”), and that no employee complaint is needed for the Board to take action.  With specific examples of policies that violate the NRLA as well as compliant alternatives for these same policies, this Memorandum provides an excellent opportunity to review employer handbooks for compliance purposes.