The growth of social media use on sites such as Facebook, LinkedIn, and MySpace has prompted many employers to broaden their electronic communication policies to address employee participation on such sites when that participation includes employment-related information. There are limits, however, to how far employers can go to regulate employee communication, as illustrated by a recent complaint issued by Region 34 of the National Labor Relations Board (NLRB).

The NLRB’s complaint claims that American Medical Response of Connecticut, Inc. fired one of its employees because she posted less-than-flattering comments about her supervisor on Facebook. In particular, the employee used expletives and implied that her supervisor suffered from psychiatric problems. Some of the employee’s co-workers expressed support for her in their comments in response to the posting. Although the employer contends that the employee was terminated because of complaints about her performance – rather than anything the employee posted on Facebook – the NLRB nonetheless issued a complaint and scheduled a hearing for early next year.

At the heart of the NLRB’s case is the well-settled principle that employees generally have a right to communicate with one another about the terms and conditions of their employment. Such so-called protected concerted activities cannot form the basis for any adverse employment actions without running afoul of federal labor law. According to the NLRB, the fact that the communications in this case took place on a social media site does not in any way lessen the protections afforded the employee. Indeed, Acting General Counsel for the NLRB, Luke Solomon, suggested Facebook is akin to a “water cooler.” As a result, the NLRB took into account the employer’s policy of prohibiting employees from making negative comments about supervisors or “in any way” depicting the company on the Internet without permission in reaching its decision to issue a complaint.

Although it remains to be seen whether the NLRB will prevail, its decision to issue the complaint serves as a timely reminder to all employers. Regardless of whether employees are represented by a labor union or not, the National Labor Relations Act applies to all employers, and employers may not interfere with employee-protected concerted activity. Policies that purport to prohibit employees from engaging in “all” or “any” communication regarding the employer can draw unwanted attention from the NLRB. It is no defense that the prohibition applies only to social media or was not intended to chill employee rights.

A well-drafted, comprehensive electronic communications policy is the key to avoiding similar problems. Such a policy allows employers to protect their legitimate interests without unlawfully interfering with protected concerted activities or other employee rights.

Guidance has been issued with regard to the new health care reform coverage for children up to age 26.  The Employee Benefits Security Administration (EBSA) has issued a fact sheet, a series of questions and answers, and an interim final regulation about the new requirements. Basically, the health care reform act signed by President Obama will allow children to remain on their parents’ health coverage up to age 26. This provision is effective for plan or policy years beginning on or after September 23, 2010. Plans and issuers must give children who qualify an opportunity to enroll that continues for at least 30 days, regardless of whether the plan or coverage offers an open enrollment period. This enrollment opportunity and a written notice must be provided not later than the first day of the first plan or policy year beginning on or after September 23, 2010.

The Labor Department unveiled an online tool to help employers understand how to comply with H-1B visa program requirements.

The tool describes the H-1B program’s standards and provides detailed information about employers’ and workers’ rights and responsibilities, the department said. The tool outlines notification requirements, monetary issues, worksite issues, record keeping, worker protections, and enforcement issues. H-1B visas are granted to highly skilled, college-educated, temporary foreign workers for a maximum of six years.

The tool focuses on compliance with the requirements enforced by the Wage and Hour Division, the department said. “The Labor Department’s goal is to provide employers and the public with user-friendly information regarding both rights and responsibilities under the H-1B program,” Labor Secretary Hilda Solis said.

The H-1B compliance tool is available at http://www.dol.gov/elaws/h1b.htm.

U.S. businesses employ millions of unpaid student interns and recent college graduates to replace regular workers in violation of federal wage and hour laws, the Economic Policy Institute said in a research paper released April 5. “The increasingly competitive labor market for college graduates, combined with the effects of the recession, has intensified the trend of replacing full-time workers with unpaid interns,” EPI researchers Kathryn Anne Edwards and Alexander Hertel-Fernandez said.

The Labor Department’s Wage and Hour Division released an opinion letter in 2004 with six criteria that internships must meet for students not to be considered employees of a firm. The department recently restated the criteria for student interns to be considered a legal unpaid trainee under the Fair Labor Standards Act. Under the criteria, training is similar to that of a vocational school or academic instruction; training is for the intern’s benefit; interns do not displace regular employees; the employer derives no immediate advantage from the intern’s activities; and the student is not necessarily entitled to a job at the end of the internship. If all the criteria are not met, the intern is considered an employee under the FLSA subject to minimum wage and overtime laws.

Economic Institute Research Paper: The Kids Aren’t Alright – A Labor Market Analysis of Young Workers