A Bulletin for Nonprofit Organizations
by the Public Law Center                                                      August
 2011, Volume 6, Issue 2
In This Issue
New Restrictions on Employer Regulation of Social Media Use
Expanding The Realm of Retaliation Claims
Legal Developments Affecting Your Clients
Legal Developments Affecting Your Organization
IRS Updates

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Legal Disclaimer
Upcoming Workshop
New Restrictions on Employer Regulation of Social Media Use

By Thomas A. Lenz, Esq., Andres C. Hurwitz, Esq., and Jennifer D. Cantrell, Esq.,

 Atkinson, Andelson, Loya, Ruud & Romo 


As more Americans tap into the social networking world of Facebook, Twitter, LinkedIn, and blogs, employers must be aware of the potential legal minefield when attempting to restrict their employees' use of social media.


Recently, the National Labor Relations Board (NLRB) has investigated several cases where employees were disciplined for social media use. In a case that settled earlier this year, a Connecticut employer was charged with violating federal labor law for firing an employee after she complained about her boss on Facebook. The NLRB alleged that the company's policies were overly broad and chilled the employee's right to communicate with co-workers regarding their working conditions. The settlement agreement requires the employer to revise its policies so as not to improperly restrict employees from discussing their wages, hours, and working conditions.


The NLRB has brought charges in several other social media-related cases, including one against a non-profit organization in New York, saying it improperly fired five employees for posting on Facebook. According to the complaint, an employee posted a comment on her own Facebook wall alleging that other employees were not doing enough for clients. A group of employees responded to the post by defending their job performance and complaining about their work load and staffing issues. The employer fired the employees who participated in the discussion on the grounds that it amounted to harassment of the employee mentioned in the original post. The NLRB's complaint, which is still pending, claims that the employees' speech was protected under federal labor law.  READ MORE...


Expanding The Realm of Retaliation Claims 

By Jennifer Yanni*


Employees may often think that while they, in theory, might possess the right to complain about working conditions or unfair employment practices, such is rarely the case when put into practice. In two Supreme Court cases decided earlier this year, employees are becoming more empowered to speak out against employer retaliation and to enforce their right to be protected.


Thompson v. North American Stainless: Not Just a Tale of Coincidence


In 2003, Eric Thompson received news that he had been terminated by his employer, North American Stainless (NAS). He learned that his fiancée, Miriam Regalado, who was also employed by NAS, had filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging sex discrimination. Within three weeks of learning of this complaint, NAS had fired Thompson. Employment law prevented NAS from firing Regalado on the basis of her complaint. But, was Thompson likewise protected?


The Supreme Court found that an employer couldn't take any action against an employee that might dissuade him or her from alleging any charges of discrimination. To be sure, if Regalado had known that her claim of sex discrimination would've resulted in retaliation against her fiancé, she might never have come forward in the first place. READ MORE... 

Legal Developments Affecting Your Clients 


The US Court of Appeals for the Ninth Circuit decided in Castro-Martinez v. Holder 641 F.3d 1103 (9th Cir. 2011) that a homosexual man from Mexico, who was raped as a child, did not qualify for asylum. The Court held that the applicant did not show that the government was unwilling or unable to protect him, since he never reported the abuse to Mexican authorities. The decision has far reaching implications for those who suffer persecution based on LGBT status, not only from Mexico, but from countries throughout the world whose governments ignore or tacitly approve of such violence. The decision also raises serious issues for child victims of persecution who often are too fearful to report crimes to the authorities. A petition for re-hearing and re-hearing en banc has been filed with the Ninth Circuit Court of Appeals. Public Law Center signed onto an amicus brief in the petition for re-hearing.


Bankruptcy/Defense of Marriage Act (DOMA)

In June 2011, US Bankruptcy Court Judge Thomas Donovan issued a decision declaring the Defense of Marriage Act (DOMA) unconstitutional because it violates equal protection rights. The case involved two legally married California men who filed a Chapter 13 bankruptcy petition as joint debtors. The US Trustee moved to dismiss the case, claiming that DOMA prevented the Court from recognizing the debtors' marriage as a valid marriage. Judge Donovan held that "no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple" and found that the debtors' bankruptcy could go forward. The government initially filed an appeal, but has since withdrawn it.


Children & Youth

The Foster Youth Alliance website lists a number of CA bills to watch that affect children and youth.



California Public Benefits Issues for Lesbian, Gay, Bisexual, and Transgender Clients: A Guide for Attorneys and Advocates is a new publication of the National Center for Lesbian Rights (NCLR) and Legal Services of Northern California (LSNC).  It covers issues commonly faced by LGBT people and their families who are seeking Social Security, health benefits, income assistance, disability and unemployment, veterans benefits, and more.


NCLR provides technical assistance to attorneys and advocates representing LGBT people or their families in public benefits applications. For assistance, contact NCLR via email at or call them at (415) 392-6257.


No Right to Counsel in Child Support Contempt Proceedings

The US Supreme Court recently ruled in the case of Turner v. Rogers that low-income civil litigants are not entitled to court-appointed attorneys even in the face of jail time for failure to pay child support.


Small Claims

Governor Brown signed SB 221 increasing the small claims jurisdiction to $10,000 (from $7,500) effective January 1, 2012.


For text and status updates of state law, visit the Official CA Legislative Information website.  


Legal Developments Affecting Your Organization

Donation Box Law

AB 918 requires boxes placed in public locations for the collection of donated goods to clearly display on their exterior certain information, including the name of organization that owns the collection box; the address and telephone number of the organization; website address of the organization; a statement indicating whether the box is owned and operated by a non-profit organization or a for-profit organization, among other information.  For further details, please read AB 918.  (Note that some cities or counties may have stricter regulations.)


Flexible Purpose Corporations and Benefit Corporations

Two bills introduced this year in the California Legislature would create two new forms of corporate entities.  SB 201 would allow Flexible Purpose Corporations (FPC) to seek profits and at the same time pursue public benefit goals, which "may include, but are not limited to, charitable and public purpose activities that could be carried out by a nonprofit public benefit corporation."  AB 361 would allow the creation of Benefit Corporations (B Corps) and permit corporate directors to pursue a broad set of public benefit objectives similar to nonprofit missions in addition to profits.  The California Association of Nonprofits (CAN) opposes both bills.


School Volunteers

If signed, AB 13 would require the same background check for charter school volunteers as for public school volunteers, potentially setting a precedent for all nonprofits that involve children and adults.


In April 2011, Independent Sector launched the new online Resource Center for Good Governance and Ethical Practice, a collection of tools for nonprofit and philanthropic organizations to enhance the accountability and transparency of their operations and ensure they operate in ethical ways. It showcases, through downloads or links, over 250 model policies, research papers, templates, and other tools. Most are available free of charge. 


IRS Updates
 In June 2011, the IRS announced its release of the list of organizations-- approximately 275,000 organizations nationally and more than 2,200 in Orange County-- that have automatically lost their tax-exempt status because they failed to file annual reports as legally required for the past three years.  The IRS has issued guidance on how organizations can apply for reinstatement of their tax-exempt status, including retroactive reinstatement. In addition, the IRS announced transition relief for certain smaller tax-exempt groups - those with annual gross receipts of $50,000 or less for 2010 and eligible to file Form 990-N, the e-Postcard.  The relief allows eligible revoked groups to gain retroactive tax-exempt status and pay a reduced application fee.


To apply for retroactive reinstatement, the organization must submit a qualifying request within 15 months of the date on which the IRS posts the organization's name on the revocation list. For organizations posted on the June 9, 2011 list, the due date is September 9, 2012. 


More information, including FAQs and a Fact Sheet, can be found on the IRS website.  GuideStar has also issued its own report available for free download on "What Automatic Revocation of Nonprofit Tax Exemptions Means for You: A Review for Nonprofits, Grantmakers, and Donors."