Wyche at Work: June Employment Update

Prepared by Ted Gentry
June 2012

Statistics for Discrimination Charges Now Available Online

The Equal Employment Opportunity Commission (EEOC) just posted statistics for private sector workplace discrimination charges. With 1,370 total charges in Fiscal Year 2011, South Carolina accounted for 1.4% of the total workplace discrimination charges nation-wide. Here is a breakdown, by frequency of type of claim, of the claims and charges filed in South Carolina (because some claims assert multiple theories, the categories total more than 1,370):

  • Race – 584
  • Retaliation (All) – 508
  • Retaliation (Title VII) – 463
  • Sex – 405
  • Disability – 309
  • Age – 268

NLRB Issues Third Memorandum on Social Media Cases

The National Labor Relations Board continues to draw attention to social media cases by issuing another report, Memorandum OM 12-59, on May 30, 2012.  As highlighted by Wyche’s Ted Gentry at an HR Trends presentation last month, the NLRB continues to target social media policies, and its findings apply to non-unionized employers as well.

The NLRB’s latest report summarizes seven cases. In six of the cases, the employers’ social media policies were found to be unlawful, meaning that they interfered with the rights of employees under the National Labor Relations Act. A few remarkable findings reported in these cases include:

  • Confidentiality policies may be unlawful if they discourage employees from discussing wages and terms and conditions of employment.
  • Encouraging employees to check with a superior if they are unsure if what they are about to share online complies with company policy can be unlawful if it requires employees to secure permission from the employer as a precondition to engaging in protected activities.
  • Requirements to carefully consider “friending” co-workers may be overbroad and therefore unlawful.
  • A warning to not “pick fights” may be unlawful as it may steer employees away from online discussions that could become heated or controversial.

In another case, the NLRB concluded that the employer’s rule requiring employees to maintain the confidentiality of trade secrets and company confidential information was lawful. The NLRB’s continued focus on social media policies emphasizes the priority employers should place on developing and implementing a carefully crafted policy. Please let us know if we can help create a policy or revise an existing one for your workplace.

Court Rules Employer Retaliated When Employee Refused to Sign Release

In a rare summary judgment verdict in favor of a plaintiff, a federal court recently ruled that an employer unlawfully retaliated against an employee for refusing to waive his right to file a discrimination charge. In that case, the employer agreed to permit an employee to sign a “last-chance” agreement, which contained terms that prohibited filing a discrimination charge – including charges based on conduct that might occur in the future – with the EEOC. When the plaintiff refused to sign the agreement, he was fired.

In its ruling, the Court noted that it was rare for a plaintiff to move for or be granted summary judgment in a Title VII retaliation claim, but in this case the employer’s arguments “defie[d] simple logic” and no jury could reasonably conclude that the termination constituted anything other than unlawful retaliation.

This case serves as a good reminder of the value of correctly drafting employee releases and not requiring employees to give up future rights, even in “last chance” situations.  If we can assist in the drafting or review of your employee releases, please let us know.


If you have any questions about these or other workplace law topics, please contact Mark Bakker or Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice. 

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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