Pub. 12 2014-2015 Issue 3

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S 15 new jersey auto retailer W W W . N J C A R . O R G Employers must be careful, as use of such revelations could possibly expose the employer to a potential discrimination claim by a rejected applicant. Another recent New Jersey law, which becomes effective March 2015, prohibits an employer from asking about an employee’s criminal background, until after the applicant’s first interview. The federal “Stored Communications Act,” prohibits employ- ers from unauthorized access to the online account of another person. B. Interference with employee concerted activity. Employees sometimes use social media to complain to other employees about workplace conditions. Pursuant to the National Labor Relations Act, (“NLRA”) employers are prohibited from interfering with this type of workplace communication as it is considered “concerted activity engaged in for their mutual aid or protection.” The prohibition applies to all employers, not only to those represented by or involved in union activity. Recent decisions interpreting the NLRA rules have held that the law protects “employee statements whether to co-workers, supervisors, managers, or third parties… that object to their working conditions and seek the support of others in improv- ing them.” The consequences of a violation can be substantial. In a spate of recent decisions, this rationale has been applied to employer work rules, handbooks, and policies. For example, it was held that an employer violated the Act by having a rule in its hand- book stating, “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the company.” In another case, the employer terminated employees for their facebook postings. The terminations were ruled unlawful be- cause the postings “…were complaints among employees about the conduct of their supervisor as it related to the terms and conditions of employment and about management’s refusal to address the employees’ concerns.” Handbooks and work rules should be reviewed to eliminate potentially offensive provisions. C. Worker’s compensation and liability claims There is an increased exposure to worker’s compensation and third-party liability claims when an employee who is engaged in company business is involved in an accident while using an electronic mobile device. An appropriate policy describing the proper time and place to use an electronic or mobile device, and which prohibits offensive or discriminatory communica- tions is essential. D. Employer-provided or employee-owned devices A growing number of employers permit employees to use their own devices (e.g. smart phones, tablets, or PCs) for business purposes. In that case, a stipend can be paid to employees. A stipend is defined as a fixed sum of money paid periodically for ser- vices or to defray expenses. (IRS Stipend Regulations, Publication 15.) When employers reimburse employees for business use of per- sonal devices the money is not taxable. The payment must be for “substantial noncompensatory business reasons” that require an employee to use and maintain his or her personal device for business-related reasons. The payment must not be a substitute for wages. A policy should conform to IRS guidance in order to avoid taxation. There are privacy issues that must also be considered. Employ- ees have a right to be free of unwarranted intrusion into their personal affairs, but the right is not absolute. An employer may COMMUNICATION  continued on page 17 Employee use of mobile devices while engaged in company business is useful and can promote efficiency and economy, but it can also cause unanticipated liabilities.