Tag Archives: Decision

Brewer

Brewer postpones decision in insurance exchange

Arizona Gov. Jan Brewer is postponing when she’ll declare whether Arizona will create a state-run insurance exchange as part of implementing the federal health law that she opposes.

Brewer’s office disclosed the postponement on the hot-potato issue late Thursday after the federal Department of Health and Human Services extended until mid-December a deadline for states to make exchange declarations.

The deadline had been Friday, and that’s when Brewer had been planning to make her declaration.

“The governor remains committed to doing her due diligence about a decision of this importance, so she is hopeful that the federal government is going to provide the specific guidance and instruction we’ve been awaiting,” Brewer spokesman Matthew Benson said.

The exchange would serve as an online marketplace for consumers to purchase health coverage, which approximately 1.3 million people in Arizona lack.

An alternative to having the state create and run an exchange would be to step aside and allow the federal government to set up one for Arizona. Or she could propose a hybrid partnership between the two levels of government.

Business groups, hospitals and insurance companies have urged Brewer to create a state-run exchange, which would be subject to legislative approval. The Goldwater Institute and other conservatives say the state should not help implement the law.

Creation of an exchange would be subject to legislative approval, and a Republican legislative leader said earlier Thursday he didn’t know how such a proposal would fare.

Senate Majority Leader Andy Biggs, who will become Senate president in January, said some GOP lawmakers oppose creating an exchange, others are cautiously skeptical and others are open to the idea.

Biggs, who is among opponents of the health law and its exchange requirement, cited concerns about costs that would be imposed on the state.

Like the federal-state Medicaid program, “the feds really control it,” Biggs said.

House Minority Leader Chad Campbell, D-Phoenix, said it’d be best if the state runs the exchange as long as it is consumer-friendly.

“This is not a partisan issue at this point,” he said.

142640281

NLRB Issues First ‘Facebook Firing’ Decision

National Labor Relations Board Issues First ‘Facebook Firing’ Decision

The National Labor Relations Board (NLRB) is on a roll. Just a few weeks after issuing its first decision finding that a company’s social media policy violated the National Labor Relations Act (NLRA) (see alert at left or here), the NLRB yesterday released its first decision addressing the legality of an employment discharge over an employee’s social media postings.

In Karl Knauz Motors, decided on September 28 and released on October 1, the NLRB adopted the findings of an administrative law judge (ALJ) that a car dealership lawfully discharged one of its salesmen because of certain Facebook postings regarding an accident at an affiliated dealership. The NLRB concluded that those postings were not protected by the NLRA. In commenting on photos he took of a Land Rover that was driven into a pond by a customer’s son, the salesman wrote: “This is your car: This is your car on drugs.”  The salesman continued: “This is what happens when a sales Person sitting in the front passenger seat…allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything.” In response, the employer fired the salesman because his actions damaged the reputation of the company and the individuals involved, and because the salesman showed no remorse for his actions.

While the car dealership maintained, and the ALJ agreed, that these postings were the sole reason for discharge, these were not the only Facebook postings that the salesman made around the same time as the postings described above. Another set of postings involved photos and comments about the dealership serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. Among other things, the salesman wrote: “The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were a nice touch…but to top it all off…the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bun.”  The ALJ found that these postings were protected, concerted activities because customers could have been disappointed by the food options at the event and this could have impacted the salesman’s compensation. In its decision, the NLRB did not decide whether the “hot dog” postings constituted protected concerted activity under the NLRA.

In addition to the NLRB’s conclusion regarding the legality of the car salesman’s discharge, the NLRB also concluded that a “courtesy” rule in the car dealership’s employee handbook was overly broad and could be construed by employees as prohibiting NLRA-protected conduct. The handbook language at issue provided:

(b) Courtesy: Courtesy is the responsibility of every employee. Every employee is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The NLRB found the second section of the rule—regarding not being “disrespectful” or damaging the dealership’s image or reputation—violated the NLRA because the rule “proscribes not a manner of speaking, but the content of employee speech—content that would damage the [dealership’s] reputation.”  The NLRB ultimately ordered the dealership to remove the courtesy rule from its employee handbook and give employees inserts or new handbooks. The NLRB did not address other policy language that was at issue before the ALJ.

What This Means for Employers

The Karl Knauz Motors decision is the first in what will likely be many more decisions by the NLRB as the NLRB’s regional offices continue to issue complaints over so-called “Facebook firings” (other cases are currently pending before the NLRB). The decision is also consistent with the NLRB’s increased focus on social media postings and policies, as reflected in the many cases detailed in three reports issued by the NLRB’s Acting General Counsel since August 2011.

Before disciplining or discharging a union or non-union employee over a social media posting, employers should consider whether the posting constitutes protected concerted activity under the NLRA and consult with legal counsel. In addition, social media policies should be narrowly written to ensure they do not run afoul of the NLRA. Such policies should make clear that employees may engage in protected concerted activity without penalty. Again, counsel should be consulted when drafting or revising a social media policy.