July 2012 Volume XI No. 4 Taking Care of Business
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Up In Smoke

Todd Leeth
Todd Leeth

The Indiana General Assembly has passed and Governor Daniels has signed into law Indiana’s first statewide smoking ban which went into effect July 1, 2012. This new law prohibits smoking in public places, places of employment and within eight feet (8’) of any public entrance to a public place or place of employment. Smoking is not restricted in outdoor areas even if it is the location where persons are normally employed in their jobs. The restriction only applies to enclosed areas of a structure and eight feet (8’) from the public entrance to such places.

Employers must inform their employees and prospective employees about the restrictions on smoking. Owners and employers are obligated to remove ash trays and other smoking paraphernalia where smoking is prohibited. In addition, specific conspicuous signage is required at each public entrance to a public place or place of employment.

There are a few exceptions to the prohibition including casinos, social and fraternal clubs. Under certain circumstances, these facilities can permit smoking, usually in designated areas that prevent the mitigation of smoke to restricted non-smoking areas of the same building. No one under the age of 18 is allowed in a designated smoking area of an exempt facility.

Enforcement of the smoking ban is by the Indiana Alcohol and Tobacco Commission or by a series of other local agencies in cooperation with the Commission. Penalties are infractions under Indiana’s civil law enforcement provisions. The owner or manager of a public place is required to ask an individual who is smoking in violation of the law to refrain from smoking and remove that individual if he or she fails to refrain from smoking after being asked to do so. The penalties may be directed at an owner who does not enforce the law as well as those who smoke in violation of the law.

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Social Media Communications May Constitute Protected Activity

Section 8(a) of The National Labor Relations Act prohibits employers from interfering with rights conferred upon non-supervisory employees by Section 7 of the Act, which states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
 

The terminology of Section 7 may lead some employers to conclude that it applies only to a unionized workforce. Such language, however, also applies to employees of non-union employers.

Employees engage in protected activity whenever they address the terms and conditions of employment, such as wages, hours or benefits, their working conditions, and management. An employer violates the Act if it sanctions employees who communicate with each other about those protected subjects.

The National Labor Relations Board administers the Act. Each year, the Board issues opinions to assist employers in complying with the Act. Since August of 2011, the Board has issued three opinions about employer social media policies. These policies have proved to be another example of the challenges which face employers as technology continually evolves.

Many employees who engage in social networking, on sites such as Facebook, are connected with fellow employees. These employees may comment about subjects which are covered by Section 7. If these employees participate in concerted activity, their communications must not result in employee discipline. Concerted activity involves the actions of two or more employees. Based on this definition, according to one administrative law judge, if an employee simply clicks the “like” button in response to a co-worker’s post about a topic covered by Section 7, the communication is likely protected.

The Board’s most recent opinion, issued in May of 2012, cautions employers against utilizing social media policies which could prohibit Section 7 activity. In its opinion, the Board analyzed several specific policies and offered guidance for employers who wish to create or modify social networking policies. The Board explained that an employer’s social media policy can prohibit employees from disclosing “secret, confidential or attorney-client privileged information” because employers are entitled to protect such information. By contrast, the Board criticized policies which prohibit employees from releasing “confidential guest, team member or company information,” since that language could reasonably be interpreted as precluding employees from discussing the terms and conditions of employment of themselves or co-workers.

Also, while the Board recognized that an employer’s social media policy can prohibit “harassment, bullying, discrimination, or retaliation” through social media activity, since the employer has a right and duty to control such conduct, the Board took exception to a more general policy which proscribed “offensive, demeaning, abusive or inappropriate remarks” both online and offline, because that proscription could chill protected communications, including criticism of management.

Based on the Board’s opinions, employers would be well-advised to review their social media policies and gauge whether imprecise language could violate the rights of employees under the Act.



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