Recently in Social Media and the Workplace Category

April 14, 2014

This is one badass labor and employment law roundtable

Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.

Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.

Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming. 

Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.

I'm a real peach.

What were we talking about again?

Right, the roundtable. We debated several topics:

  • background checks
  • social media in the workplace
  • employee leave issues
  • dating in the workplace
  • BYOD
  • my 28 inch blog pythons

Here is the transcript.

April 11, 2014

A 79-year-old teacher was fired for refusing to unfriend her students on Facebook

Thumbnail image for facebookprivacy.jpgA teacher getting in trouble for something having to do with Facebook?

You don't say...

The full story, plus another state has passed a social media workplace privacy law. I've got it all for you after the jump...

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Continue reading "A 79-year-old teacher was fired for refusing to unfriend her students on Facebook" »

March 27, 2014

Wages aren't confidential, you guys. Your employees can discuss them.

bankvault.jpgOver the past several years, seemingly, we're seen the NLRB take a more active interest in employee handbooks. 

We've certainly seen it with respect to social media policies; especially, where these policies purport to limit the rights of employees to discuss their employment with one another. This is because Section 7 of the National Labor Relations Act allows employees to discuss their terms and conditions of employment together.

And you don't need to have a union either. The act applies in most every private-sector workplace.

So, whether it's employees gabbing about how their workplace sucks, or how they are being underpaid, you can't forbid that.

This holds true even if you have a workplace policy which categorizes wages as "confidential." The National Labor Relations Board won't have any of that. 

And, most recently, the Fifth Circuit Court of Appeals reaffirmed it in this case, by underscoring that "a workplace rule that forbids the discussion of confidential wage information between employees patently violates section 8(a)(1) [of the Act]."

Indeed, even a workplace rule that doesn't expressly lump wages into the definition of "confidential information" can still be overbroad and, therefore, unlawful. 

The company's "confidentiality" policy highlighted in the Fifth Circuit opinion didn't mention wages explicitly. Instead, it precluded discussion of company "financial information, including costs." Both the NLRB and the Fifth Circuit concluded that an employee could reasonably construe this language to preclude discussion of wages.

Therefore, when drafting your confidentiality policy language, consider carving out wages and benefits specifically, or more narrowly defining your confidential information so that a reasonable person wouldn't read the policy to preclude discussion of their paycheck.

Image Credit: Minneapolis Institute of Arts on Flickr

March 24, 2014

Plaintiff-employee destroys Facebook posts about her case; court destroys her

dentist.jpgLast month, a daughter's Facebook post cost her father an $80K age-discrimination settlement (more on that here). 

Last week, with some Facebook shenanigans, the plaintiff in a sexual harassment case screwed herself over.

(See what I did there?)

Heather Painter used to work for Dr. Aaron Atwood D.D.S.

According to Ms. Painter, one day at work, the good doctor -- err, dentist -- just happened to climb on top of her with his pants undone and held her down.

Dr. Atwood didn't exactly deny those allegations; however, he claimed that he was only attempting to tickle Ms Painter* and that the sexual nature of their relationship was consensual.**

[* Editor's Note: Like, with his penis? Ok, just kidding....]

[** Editor's Note: Ms. Painter was Dr. Atwood's babysitter too. Not kidding about that.]

Anyway, during litigation, the defendants, the dentist and his practice, wanted to obtain copies of Facebook posts from Ms. Painter in which she supposedly commented about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working under with him.

Ms. Painter's counsel conceded that her client deleted those Facebook comments and that she deleted those comments after she retained counsel for this litigation. However, Ms. Painter argued that she should avoid court sanctions because the posts were not relevant and Ms. Painter was only 22 and didn't know any better that it's improper to destroy potentially relevant evidence after you sue someone.

The Court was, shall we say, non-plussed (opinion here):

"Plaintiff had an obligation to preserve her Facebook comments; she deleted the comments with a culpable state of mind, and the comments were relevant to Defendants' claim. Although Plaintiff's counsel may have failed to advise Plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so, the deletion of a Facebook comment is an intentional act, not an accident, and the Court cannot infer that Plaintiff deleted Facebook comments which stated that she enjoyed working for Defendant Dr. Atwood, after she contemplated the instant litigation, for an innocent reason."

To sanction the plaintiff, the Court ordered the factfinder (i.e., the jury) should infer that the deleted Facebook posts undermine Ms. Painter's sexual harassment claims. Next to outright dismissal of the case, this is as bad a sanction as a court can order.

Given the potential that social media evidence can have on claims and defenses in an employment case, judges, like the one in the Painter case, do not tolerate intentional destruction of relevant social media content. Even accident erasure of this information may result in sanctions.

So, to all you employees and employers out there, be aware that, once there arises a reasonable anticipation of litigation, all potentially relevant evidence -- including social media content -- must be preserved. This is especially important for employers (and their counsel) who may be responsible for informing multiple employees of this duty to preserve.

March 13, 2014

What the EEOC wants companies to know about social media and employment discrimination

socialthumbup.jpgYesterday, the United States Equal Employment Opportunity Commission held a public meeting at which it discussed, well, you read the lede. Don't miss this one employers; the full 411 is after the jump...

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Continue reading "What the EEOC wants companies to know about social media and employment discrimination" »

March 7, 2014

Accessing Your Employee's Social Media Accounts May Violate Federal Law

Thumbnail image for facebookprivacy.jpg

Back in 2011, when y'all were Tebowing, planking and winning, I was blogging about this case where an employer allegedly updated its employee's Facebook page and tweeted from her Twitter account without her permission while she was on leave from work following a car accident.

The Stored Communications Act prohibits intentional, unauthorized access to electronically stored communications. The employer admitted that it had accessed the employee's social media accounts. However, it claimed that it had permission because the employee left her passwords stored on a company server. So, the employer moved for summary judgment.

Opposing the motion, the employee argued that, while the company did possess the account passwords, she had told them to leave their digital fingers off of her social media accounts. This would have made the access unauthorized.

So, faced with a he said/she said, the court, in this opinion, decided to let a jury decide who is telling the truth.

What does all of this mean for employers?

Jon Hyman, at the Ohio Employer's Law Blog, discussing the case here, offers this takeaway:

"If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact."

Solid advice right there.

I say that once the employee sets up his or her own social media account, it's hands off to the employer. Period. Sure, the employer can require that the employee's online speech conform to the law (e.g., trademark, copyright, and fair use laws) and otherwise require a disclaimer where a social media posting could suggest that the employee is speaking for the employer. But, directly accessing those accounts? Fuggedaboutit!

Instead, if you want an employee to tweet and Facebook for the business, then set up the account yourself, maintain the username and password, and have any employee with access to those accounts acknowledge, in writing, the company's ownership rights in the account.

February 28, 2014

Daughter's Facebook post costs dad $80k employment settlement

facebookdislike.pngI'll bet the father didn't "like" that so much. 

Get it?

Dad is the former headmaster at a school in Florida. When the school failed to renew his employment contract, he sued for age discrimination and retaliation. Eventually the two sides settled, with the school to pay $10,000 in back pay, $80,000 as a "1099", and $60,000 to dad's attorneys.

The settlement was strictly conditioned upon confidentiality. It included a provision that divulging even the existence of the agreement, would cost dad the $80K payment.

But, only four days after the agreement was signed, and before making any settlement payments, the school notified the father that he had breached the agreement based on the Facebook posting of his college-age daughter

"Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT."

This Facebook comment went out to approximately 1200 of the daughter's Facebook friends, many of whom were either current or past students at the school.

When the school later withheld the $80K, the father sued to enforce the settlement agreement to get his loot. But the Court, in this opinion, sided with the school:

"Before the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school."

Honestly, I'm surprised that the court enforced such a large penalty provision in the settlement agreement. But, then again, the violation -- broadcasting the existence of the agreement to 1200 people -- is fairly egregious. 

That's why, when I draft settlement agreement, I often include confidentiality language warning that keeping quiet about the agreement means shutting your yap and your social media fingers.

(h/t Ashley Collman @ UK Daily Mail)

February 27, 2014

I'm using pitcher Carlos Martinez's porn-filled Twitter feed to teach you a social-media-and-the-workplace lesson.

The other day, Deadspin tweeted this headline:

Now, before you say anything, remember, I read Deadspin for their keen insight into the world of sports. And sometimes that means reading a post about porn. That holds especially true when there's a potential social-media-and-the-workplace post in it for you, my wonderful readers.

Hey! A blogger's gotta do what a blogger's gotta do, right R. Kelly?

So, yeah, St. Louis Cardinals pitcher "favorited" a lot of porn on his Twitter feed. A feed which has about 22K followers.

Someone give that man a Twitter lesson. Oh, right, Martinez claimed he was hacked.

*** cough *** *** bullsh*t *** *** cough ***

Either way, after the St. Louis Cardinals learned the news, they briefly considered spinning it into a "Carlos Martinez KY Jelly Giveaway" day at the ballpark weren't happy

But, they used the incident as a springboard to focus on social media education for their players, so that something like this doesn't happen again.

Still, could this have been prevented? How confident are you that your employees understand the potentially embarrassing digital breadcrumbs that their Twitter activity may create?

*** napalms Twitter feed ***

May I make a little suggestion? Maybe it's time to dust off that social media policy, update and reissue it, with a little social media training to boot. 

Ensure that, at the very least, your employees know how to keep their off-the-clock social media activities from bleeding into the workplace.

It could save you a Carlos-Martinez-sized headache.


February 24, 2014

Employees who social network at work for 20 minutes are happier -- and no less productive

smartphones.jpgThat social media policy of yours. The one in which you begrudgingly tolerate employee social media use on their own time and roadblock their efforts to use it at work.

You may want to revise it. ASAP!

Chad Brooks at Business News Daily reports here about a recent study by two members of the Society for Industrial and Organizational Psychology, which concludes that workplace morale improves when employees use social media on their smartphones at work.

According to the study, the average employee uses a smartphone for about 20 minutes during the workday. And, generally, anywhere between 20 and 25 minutes doesn't affect productivity and is good for the employee.

Using a smartphone to tweet, check Facebook, and the like, is no different than spending that time checking email, talking on the phone, or reading a book. It's a few minutes a few times throughout the day that an employee can recharge the batteries, so to speak.

So, consider encouraging -- yes, encouraging -- your employees to social network at work.

Image credit: Jfingas on Flickr

January 22, 2014

Social media? Anti-harassment? No workplace policy can prevent something this stupid...

On MLK Day, with a few of my co-workers and my four-year-old son, I performed community service. We went to a local center and spent a few hours making peanut butter sandwiches to feed the homeless.

Actually, we spent a half-hour or so making sandwiches. Most of us spent the remainder of the time continuing to make sandwiches, while my son ate peanut butter.

Win-win.

An offensive "tribute" to Martin Luther King

But imagine, if instead of performing community service, my co-workers and I decided to host an "MLK Black Party," where we dressed in basketball jerseys, flashing gang signs and drank from watermelon cups.

KVVU-TV Fox 5 reports here, that this is exactly what a bunch of knucklehead students from the TKE Fraternity at Arizona State University did on Monday. Below is the video report.

These students were not only ignorant enough to host this party, but two shared it on Instagram (complete with hashtags like #mlkparty, #watermeloncup, #hood, #blakcoutformlk and #ihaveadream). Both appear to have since deleted their Instagram accounts (here and here).

Policies can't prevent stupidity.

While it is prudent to educate and train your workforce on policies governing discrimination and responsible use of social media, stupidity like this proves that no matter what type of policy or guidance you may provide, problems in the workplace will arise.

It's how you respond that matters.

When it comes to folks who create a hostile work environment for others, make sure that you take the immediate necessary steps that are reasonably designed to end the harassment.

Arizona State University has suspended the TKE fraternity. We'll see whether some of the students involved continue to receive their education from ASU.

January 2, 2014

New Year's Resolution: Social media training for your workforce

nyres.jpgThe king is dead. Long live the king!

Teens are beginning to drop Facebook like a bad habit; instead, taking advantage of messaging apps like What'sApp, Snapchat, and Instagram to social network.

According to a GlobalWebIndex study highlighted in this Forbes article from Haydn Shaughnessy, "from Q2 2012 to Q3 2013 the percentage of active users among 16 - 19 year olds fell from 62% to 52% (these are active users in the sense of having contributed content), and among 20 - 24 year olds fell from 63% to 52%."

What this means for your business is that your aging workforce comprises the largest percentage of Facebook users. Shaughnessy also reports that the "percentage of active users among the 35 - 44 year old age group rose from 47% to 53%, among 45 - 54 year olds from 43% to 49%, and among 55 - 64 year olds from 39% - 45%."

Hopefully, by now, you have a social media policy. In 2014, make sure to conduct social media training -- just as you would, say, respect-in-the-workplace training. (By now, I trust all of you HR pros have received an employee complaint about a co-worker, along with the printout of a Facebook page on which the complaint is based).

So, consider pairing social media training with respect-in-the-workplace training to address how online behavior -- even "off the clock" -- can still impact the workplace.

However, just as there is no one-size-fits-all social media policy, training too should be customized to your workforce. Consider not just any negative impact employee social media use could have on the workplace, but be sure to accentuate the positives. They do exist, you know.

If you have any social media training tips that you wish to share, please let me know in the comments below.

(One tip from yours truly, remind employees to adjust their Facebook privacy settings)

December 30, 2013

The most clicked, hella-best HR-compliance updates from 2013!!!

Ah, it was a good year at the ole Handbook.

Total web traffic was up over fifty percent from 2012. And average time per visit was down over 20%, which is fine by me. I pad my important stats, while discouraging loitering.

five.pngAnd we got our first visitor from Uzbekistan. And the fifth most common search phrase that brought visitors to the site was "Kenny Powers."

Swish!

(6th was "excuses for missing work" -- yikes!)

And, thankfully, our servers have recovered from the beating you pervs HR/Lawyer laureates administered on the recent Facebook groping photo post. Yeah, don't worry. A little hair of the dog, and the blog is back in business.

And, to think, that post didn't even make the Top 5 from 2013. Here's what did:

5. "Feeling 'maybe overworked' is not an FMLA 'serious health condition'"

4. "Court holds that anxiety from possibly getting fired is an ADA disability."

3. "New federal bill would expand FMLA to cover part-time employees"

2. "Employee gets fired for tweeting complaints about discrimination"

1. "When a hostile work environment isn't a hostile work environment"

Dudes, thank you for making 2013 a banner year for The Employer Handbook.

Wishing you all a happy and prosperous 2014!

Eric

P.S. - No post tomorrow, but this Vine of my 1-year-old and I doing "Lollipop" should hold you over until we return in 2014:

December 26, 2013

Teacher fired over Facebook groping photo could get her job back

facebooksanta.jpg_jpgMerry Christmas, Laraine Cook.

Back in October, I blogged here about Ms. Cook, an Idaho school teacher who lost her job after her employer learned about a photo on her Facebook page that showed her boyfriend touching her chest.

(Oh, fine, here's the pic)

What made this story unique -- yeah, I know, teacher getting in trouble on Facebook is fast approaching "death and taxes" status -- is that the female teacher's boyfriend, also taught at the same school. He was not fired; merely disciplined.

Well, according to this story from Jimmy Hancock at the Idaho State Journal, Ms. Cook should be getting her job back soon:

A grievance panel has determined that former Pocatello High School girls' basketball coach Laraine Cook should again be allowed to work as a teacher and that she should be rehired as the girls' basketball coach for the 2014-2015 season....Addressing the firing, the panel said it should be rescinded and considered a suspension without pay from the time of the termination until the time of the panel's decision.

The panel further noted that the lack of a social media policy afforded Ms. Cook little guidance as to what the school considered online behavior that could cost her her job.

So, use Ms. Cook's situation as a wake-up call to implement/revise your social media policy. Remind your employees that certain online conduct -- even on their own time -- could cost 'em their jobs.

December 23, 2013

So your public relations executive just tweeted a racist joke that went viral...

justinesacco.jpgIt doesn't end well for the PR Exec. Just so we're clear.

Click through to read the full story...

Continue reading "So your public relations executive just tweeted a racist joke that went viral..." »

December 5, 2013

HR's 2013 Performance Review (via SHRM's #nextchat)

weknownext.pngYesterday, We Know Next, the muscle-bound social media arm of the Society for Human Resource Management, hosted a NextChat session on Twitter.

Oh, you don't know NextChat?

NextChat is a one-hour session on Twitter, which runs every Wednesday from 3-4 PM EST on a topic du jour -- that's the soup of the day -- affecting HR. 

Each NextChat features 8 questions posed to an HR influencer. During theNextChat, other Twitter users may tweet along using the hashtag #nextchat, or simply follow along by searching for the #nextchat hashtag.

This week, the HR influencer was moi. (Go figure). The topic: HR's 2013 Performance Review.

If you missed yesterday's NextChat, check out all great tweets after the jump...

Continue reading "HR's 2013 Performance Review (via SHRM's #nextchat)" »