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Now Employers Have to Worry About the Federal Trade Commission

Posted by Attorney Roger L. Pettit in Business Management, Technology, Labor Relations / Comments

A few years back I prepared a handout for a seminar on effective employment practices.  In the handout I listed what I hoped would be a complete litany of laws that affect employers and employees in the work place.  The list of at least 27 different laws is reproduced below.

  • Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. 2000(e), et. seq.;
  • Civil Rights Act of 1991;
  • AmericansWith Disabilities Act of 1990, as amended, 29 U.S.C. § 12101, et. seq.;
  • Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et. seq., including 2008 amendments applicable to military Family Leave rights;
  • Fair Employment Act, as amended, Wis. Stat. § 111.321, et. seq.;
  • Age Discrimination In Employment Act of 1967, as amended, 29 U.S.C. § 1629, et. seq.;
  • Workers Compensation Act, Chap. 102, Wis.Stats.;
  • Unemployment Insurance, Chap. 108, Wis. Stats.;
  • Minimum Wage law, Chap. 104, Wis. Stats.;
  • Wage Payment Claims and Collections, Chap. 109, Wis. Stats.;
  • Sec. 425.110, Sec. 812.43, Wis. Stats. and 15 U.S.C. § 1671 - 1677 regulating termination of employees for garnishments;
  • Chap. 103, Stats., regulating, among other things, hours of work, overtime and employment relations, including Collective Bargaining;
  • Employee Open Records law; 103.13 Stats.;
  • Wisconsin’s Family and Medical Leave Act; 103.10 Stats.;
  • Laws regulating deductions from wages; 103.455 Stats.;
  • ConsumerCredit Protection Act, 15 U.S.C.(a), §1681-1681(v) – regulating investigations of employees;
  • Fair Labors Standard Act, 29 U.S.C.(a), § 201 - 219;
  • Employee Retirement Income Security Act (ERISA), § 29 U.S.C.(a).§§ 1001 - 1461;
  • Equal Pay Act, 29 U.S.C.(a), § 206(d);
  • Sarbanes-Oxley Act, 15 U.S.C., § 7201-66;
  • Labor Management Relations Act and National Labor Relations Act, 29 U.S.C.(a) §§ 141 - 187;
  • Immigration Reform and Control Act, 8 U.S.C.(a) § 1324 -1324(d);
  • As especially applies to care givers, HFS 12, 13 and 46 of the Administrative Rules of the Department of Health and Social Services (Chaps. 50 and 51; § 146.40; § 48.685, Wis. Stats.);
  • The Uniform Services Employment and Re-employment Rights Act of 1994 (as amended);
  • Wisconsin’s version of USERRA applicable to National Guard, Wis. Stats., § 21.80;
  • Wisconsin’s version of USERRA applicable to other branches of  the Armed Forces, Wis. Stats., § 21.79; and
  • The Lilly Ledbetter Fair Pay Act of 2009.

I hedged my bets by commenting that the “list is thorough but may not be complete based upon your particular situation”.  When I drafted that disclaimer it never occurred to me to add the Federal Trade Commission to the list.

Now that internet communication is so widespread however, the Federal Trade Commission (“FTC,”) has entered the discussion of employee speech.  The FTC’s revised guidelines focus on reviews of employers and their products.  The Agency has particularly targeted “flogs” which are fake blogs and “astroturfing” which is the posting of seemingly objective customer reviews that are bias.

The revised guidelines require disclosure of interest in reviews by employees, relatives and give away recipients.

No sooner has the National Labor Relations Act made it difficult to control employee speech when it concerns terms and conditions of employment,  now the FTC tells you that employees must self-identify if they have good things to say about your company.

A word to the wise – so long as you have to revise your social networking policies so that you do not prohibit employee speech regarding terms and conditions of employment, you  might as well establish policies that concern employee commentary (other than to co-employees) which positively reflects on the company that employs them or the products they produce.  Such a policy should include guidelines in when such commentary would be allowed, and the need for the employee to disclose his or her relationship to the employer or product.

It is probably a good idea not to incentivize employees for their online endorsements of the employer or the products and services provided, because you might have to disclose that as well.

Attorney Roger L. Pettit
Attorney Roger L. Pettit

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