Archive | September, 2013

“Liking” a Facebook Page and the First Amendment

likes_graphicIs “Liking” a Facebook page protected speech under the First Amendment  in the public employment context?

Recently, the Fourth Circuit Court of Appeals in Bland v. Roberts, 12-1671 (4th Cir., September 18, 2013), overturned a District Court decision which held that public employees’ Facebook “Likes” were not protected speech under the First Amendment. In this case, six city employees were terminated from their employment for supporting an opposing candidate in an election. One method used by these employees to show their support for the candidate was by “liking” his Facebook page. The District Court held that this was not protected by the First Amendment and dismissed the Plaintiffs’ claims. In reversing the District Court, the Fourth Circuit noted that other courts have granted First Amendment protection to posts written on Facebook. Here, this was simply a click of the mouse indicating that the user liked a page or a post. Nevertheless, the Fourth Circuit held that there is no constitutional significance between a single mouse click and the typing of a post. The court also went on to describe the action as an internet equivalent of displaying a political sign in your front yard. On this basis, the Fourth Circuit held that a Facebook “like” did constitute speech protected by the First Amendment.

We note, however, that this decision only applies to those states within the Fourth Circuit.  On this basis, this holding is not controlling in Pennsylvania.  However, it is quite possible that other circuits may adopt the reasoning of the Fourth Circuit.  Accordingly, we caution public employers to be careful when taking an adverse employment action based on their employees’ social media activities including, but not limited to, “liking” a Facebook post or page.

Employers Can Enforce Their Standard Employee Call-Off Procedure For Employ ON FMLA LEAVE

fmlaA recent case from the Sixth Circuit confirms in Srouder v. White that an employer may condition FMLA leave on the employee properly following the employer’s standard call-off  procedure absent unusual circumstances.  The Court further held that if the employee fails to follow the employer’s usual call off procedure, the employer may delay or deny  FMLA leave.  The Sixth Circuit decision further confirms that this requirement can still be applied even when the employee has previously discussed the FMLA leave with his or her employer.

However, this decision presumes that the employee handbook provides a specific procedure for call-outs.  It also presumes that the employer equally applies the call-outs/attendance policy evenly to both FMLA and non-FMLA leaves.  On this basis, we recommend that employers set forth a specific procedure for call-outs in the employee handbook and enforce it consistently and regularly.  In addition, we recommend that employers advise employees via the employee handbook and possibly also when they request and receive approval for FMLA leave that they are required to follow the standard call out procedure.  Then if an employee who is on FMLA leave fails to call off as required by the policy, the employee’s time off can be denied FMLA status and protection.

The employer should confirm first, however, that there were not any unusual circumstances, which prevented the employee from calling out per the normal procedure such as an emergency hospitalization.

THE accommodation or AN accommodation?

accomodationA Third Circuit decision  has been issued which confirms that an employer is only required to offer an ADA-qualified employee a reasonable accommodation. An employer is not required to provide the employee with the accommodation that the employee requests or prefers. In this particular case, the employee suffered from asthma which affected her ability to work with certain chemicals in her job. Upon receiving a request for an accommodation under the ADA, the employer offered the employee the option of wearing a full face respirator while working. The employee was subsequently fitted with the respirator, but she only used it a few times because it made her claustrophobic and caused her to suffer a panic attack.  Subsequently, the employer offered her a partial face respirator, which she refused to try.  Instead, the employee requested transfers to other facilities where she would not need to work around the chemical that aggravated her asthma.

Later, the employee filed suit against the employer alleging, among other things, that the employer had failed to accommodate her under the ADA.  The Third Circuit Court ultimately found that the employee was not a “qualified individual” under the ADA because she refused to try the partial face respirator made available to her.  The Court found that the offer to provide her with a partial face respirator was a reasonable accommodation.  In support of this holding, the Court noted that the record included testimony that the partial face respirator could have alleviated the employee’s claustrophobia problems while still protecting her from the effects of exposure to the chemicals.  The Court further found that there was no requirement to provide the employee with the accommodation specifically requested by her, but rather the employer only needed to provide a reasonable accommodation.

On this basis, we remind employers that although they are required to engage in the interactive process and to provide reasonable accommodations to ADA qualified employees, they are not necessarily obligated to grant the employee the requested accommodation when there is an alternative reasonable accommodation available.