Q&A Going Viral for All the Wrong Reasons


Question Corner

Going Viral for All the Wrong Reasons

By Jason R. Mau


Q: One of our employees has posted a negative YouTube video about the company. Can we ask him to take it down?

A: Your response to the YouTube video depends on its content.  The National Labor Relations Act (NLRA) contains a provision (Section 7) that permits all employees to engage in concerted activities, and another that declares it an unfair labor practice if an employer attempts to interfere with that right.  The National Labor Relations Board (NLRB) has applied the NLRA to social media communications.  In fact, one of its famous cases relates to comments posted on Facebook.  YouTube is another user-content website/application that clearly falls under the same protections.  Therefore, if you were to ask him to take the video down and it contains any materials (including remarks in the comments section) that could be interpreted as communicating about the terms and conditions of his employment, it could be seen as interfering with his protected rights.

Q: We currently pay employees for all break time. May we ban smoking during all breaks?

A: Regardless of whether you pay for the break time, you may choose to adopt a policy prohibiting smoking on-site during all breaks.  You will not be able to prohibit any smoking outside the workplace, however.  A workable policy should be a general smoke-free policy that prohibits smoking in all areas of the workplace, with a specific clause stating that an employee wishing to smoke during a break or meal period must only do so in an area outside the workplace where smoking is permitted. 

Q: We are acquiring a company that has an employee with an active H-1B visa. The visa doesn’t expire for a couple more years. Can the visa transfer to us, or do we/the employee need to reapply?

A: One of the advantages of a H-1B visa is its portability, however you must first file a new H-1B petition.  The employee may begin to work with your company once you have either received notice that the US Citizenship and Immigration Services (USCIS) has received the petition, or USCIS has cashed the filing fee check.  The petition will be granted and the employee will be eligible to “port” (transfer) to your company if the employee lawfully entered the US, the new petition is not frivolous, and the employee has not been previously employed in the US without authorization.  It is advisable if you can arrange for no gap in employment in the transition from the old company to yours, as it will help avoid circumstances that could lead to a change in the employee’s non-immigrant status. 

Q: We want to start a paid internship program for college students. What do we need to do to ensure we don’t violate the law?

A: If starting a paid internship program, the law you should be most aware of is the Fair Labor Standards Act (FLSA).  Under the FLSA, a paid intern in most circumstances would qualify as an employee, so you want to make sure that you are compensating the interns with at least the minimum wage and are providing time-and-a-half compensation for all time worked over forty hours in a single workweek.  There are a few exceptions where you would be able to pay an intern less than the minimum wage, but I recommend that you consult legal counsel beforehand to ensure you comply with all of the requirements.

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.