Employment Law Bits

Can you fire an employee for ranting against your company, or you personally, on Facebook?

American Medical Response fired one of its workers after she made negative comments about her supervisor on Facebook. The National Labor Relations Board (NRLB) issued a complaint against the company, alleging that it illegally terminated the employee. The NLRB further argued that a worker’s criticism of their boss is, “a protected concerted activity,” under the law, which protects employees’ ability to comment on the conditions of their employment. 

American Medical Response claims, in return, that the employee was fired because of serious complaints about her behavior and not because of the Facebook incident. 

Pundits set this case up to be precedent-setting in the ever expanding area of employment law regarding social media protocol. However, the case settled privately before going to trial. 

Under the terms of the settlement, which was approved by the NLRB, American Medical Response agreed to revise its rules. The company agreed not to discipline or discharge employees for engaging in discussions about wages and other work issues when not on the job. 

In 2013, the NLRB decided that a Facebook comment section among employees was protected concerted activity. The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management's refusal to address the employees' concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether their employer was violating labor laws. These conversations for mutual aid and protection are classic concerted protected activity.

Furthermore, an employer may be in violation of Section 8(a)(1) of the National Labor Relations Act if they prohibit employees from discussing “protected concerted activity” on social media sites.

So, can you fire an employee for publishing negative information about you or your company on a social networking website? The answer, while still in flux, is likely no. However, in order to curtail such employee activities, it is advisable to devise a comprehensive social media policy under the guidance of your attorney and ask all employees to sign and acknowledge it.

Image credit: Wikimedia Commons under Creative Commons license

Legal implication for employers when employees download apps on work devices

In this burgeoning age of technology, employers are looking for more and more ways to use the latest developments to increase productivity and make their businesses more efficient. Many anticipate that by the end of 2013, more people will be accessing the web through smart devices than PCs. Thus, it is no surprise that employers frequently supply employees with smart phones and devices.

But, beware. There may be legal implications for employers once an employee is terminated and the phone is returned to the employer.

Smart devices feature the ability to download various applications (apps). Apps are software downloads onto a smart device that range from things like webmail and weather, to social media. While they are common among smart devices users, in the employment setting, they may pose great risk to employers. 

Employees who download apps give the provider the ability to access information stored in other places on the device. Unfortunately, the app will be unable to distinguish business versus personal information. This means protected work information could potentially be accessed, leading to trade secrets being revealed and competitors gaining access to such information. Further, the apps often contain personal information about the employee that the employer likely did not previously have access too. This includes personal webmail and social networking activity.

Thus, employers have certain duties with respect to accessing this personal information after an employee has been terminated.

First, if employers allow employees to download apps on company devices, (employers should really think about this) there should be a policy in place alerting the employee that he or she has no expectation of privacy concerning use of the device. This policy should be in writing and signed by the employee.

Second, before the employee hands in the device, the employer should advise him or her to disable the automatic login mechanism for all downloaded apps.  Further, the phone or device should be powered down before its return.

 Third, the employer should turn the phone or device over to its technology department or equivalent to avoid inadvertent access of such information.

 Finally, the employer should stay apprised of the technology of such devices used by employees so privacy and other company policies can remain up-to-date. 

Image credit: Wikimedia

What an employer risks when it accesses employee information on a social media website

In a recent case out of the United States District Court for the District of New Jersey, a jury found that the employer violated the Stored Communications Act and a parallel New Jersey state law, which makes “it an offense to intentionally access stored communications without authorization or in excess of authorization,” by accessing a password-protected online discussion group maintained by its employees through MySpace.

In the case, a group of employees created a password-protected discussion site, which included sexual remarks about management and customers, references to violence and illegal drug use, and confidential employer information. Although one of the employee members of the group voluntarily presented a manager with some of the discussions, another manager later asked the same employee for the group’s password so that he could review the various postings. Subsequently, the two employees who moderated the discussion group were fired. 

Based on testimony that the employee member gave management the password out of fear of retaliation, a jury concluded that the employer, through its managers, accessed the discussion group without authorization, in violation of the Stored Communications Act and parallel New Jersey state law. The jury ordered the employer to pay both compensatory and punitive damages.

The lessons of this New Jersey case are important for employers seeking to gain more information about potential hires through social media websites and for employers attempting to find discovery materials from adverse parties or non-party witnesses in the course of litigation. Not only might material obtained from social media sites be inadmissible in a future legal action, but it could actually create employer liability under the Stored Communications Act or similar state laws. 

Hiring Decisions

User profiles on social media sites are filled with information that could form the basis of discriminatory hiring decisions. Federal and state statutes prohibit employers from making employment decisions based on race, religion, sex, age, and national origin, just to name a few. This kind of information is readily available on most users’ profiles and could form the basis of a failure to hire action if an employer cannot provide a legitimate business reason for declining an applicant.

To circumvent any missteps, employers should establish a policy removing all decision makers from performing social media background checks and from examining the information background checks produce. As part of this policy, employers should also require that searches be performed in a consistent manner for every applicant in order to avoid disparate treatment liability.

Limit Use to Publicly Available Information

Employers must limit their searches to publicly available user information, and should not fraudulently gain access to users’ profiles – such as by posing as a long lost friend – or else risk violating the end-user licensing agreements of social media sites, the Stored Communications Act, and possibly common law privacy laws as well. Regardless of the reasons why an employer might want to access a current or former employee’s social media profile, it is absolutely necessary that an employer not attempt to do so through any type of fraud or misdeed.

Workplace Policy and Practice Implementation

Another issue for employers to undertake is their current employees’ use of social media sites. It is crucial that employers implement sound policies regarding social media and other Internet use in order to protect against liability. Employees should be cautioned that the company can and will monitor its e-mail and computer systems, and that employees should have no expectation of privacy when using company systems. With respect to blogging, employees should be told that they cannot attach company logos to their postings, or attribute to the company any views expressed in their writing, without prior permission. Employers should also have a policy detailing how the company will deal with lawful but inappropriate comments or material made publicly available by employees through social media sites.

Disciplining Employees

Employers must be especially careful when taking adverse employment actions based on information found on social media sites, including employee rants against their supervisors. Furthermore, in light of the “off-duty conduct” statutes prohibiting employers from taking action against employees for engaging in certain lawful activities outside of work that many states have enacted, employers should be cautious when considering taking adverse employment actions based on information it learns of through employees’ social media user profiles. 

 

Photo credit: Microsoft

Beware your social media info becoming public as part of legal discovery

Social media is an area of the law that is, to put it mildly, unsettled. A recent decision by a Pennsylvania state court weighs in on the side of parties seeking to discover information contained on social-media sites of other parties. In the case of Zimmerman v. Weis Markets, Inc., the court held that a person who voluntarily posts photos or information to a social-networking profile has no reasonable expectation of privacy in those posts that would prevent their discovery. 

The plaintiff-employee, Zimmerman, sued his employer after he was injured on the job by a fork lift. Zimmerman sought lost wages, as well as compensation for pain and suffering as a result of the “permanent diminution in [his] ability to enjoy life and life’s pleasures.” In support of his damages claim, Zimmerman alleged during a deposition that he could no longer wear shorts because he was so embarrassed by scarring on his leg.

Subsequently, counsel for Weis Markets did what all employment attorneys should do—they checked Facebook. On public portions of Zimmerman’s Facebook and MySpace pages, he had posted pictures of himself wearing shorts with his scars clearly visible. Based on the public information available, Weis Markets sought access to the private portions of Zimmerman’s profiles. In his effort to protect this information, Zimmerman argued that his privacy interest outweighed the need to obtain relevant information in discovery.

In addressing this issue, the court relied on three principles: “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.” 

The court then turned to other cases that emphasized the irony of allowing a party to litigation to hide behind privacy settings on a website where the primary purpose of the website is to share information. Given the intent behind social networking sites—the voluntary disclosure of private information—the court concluded that Zimmerman did not have a reasonable expectation of privacy as to the information posted there, and consequently could not assert his privacy interest as a defense to discovery. 

This is particularly true since it was Zimmerman himself who raised the issue of his physical condition by initiating the litigation. Consequently, the court ordered Zimmerman to provide opposing counsel with his passwords, user names, and log-in names for all MySpace and Facebook accounts he maintained.

The court did note, however, that its opinion did not open the door to fishing expeditions into the private portions of any party’s social networking accounts. The court emphasized that this case was distinguished by the fact that Weis Markets was able to meet a threshold burden of showing that publicly accessible portions of the site contained relevant information, allowing an inference that similar information existed in private portions of the site.

Although this case was decided in Pennsylvania, other state courts could follow this trend as the use of social media sites continues to grow. Moral of the story: think twice about the information and pictures you post on any social media site you use.

 

Social media law: When the “at will” employee doctrine clashes with unfair labor practice

Employees are permitted to discuss the conditions of their employment with co-workers - in the break room, in the parking lot or on Facebook. That was the National Labor Relations Board's basic position involving an unfair labor practices case the agency brought against an employer.

The backstory: A worker, at home, on Facebook, posted derogatory comments about a supervisor. Co-workers read the post, liked it, and added barbs. The employer fired the original author for violating a company policy that barred employees from depicting the company "in any way" on social media. But the labor relations board said that the policy was too broad and that it infringed on the rights of workers - union and non-union - to engage in "protected concerted activities."

In settling the case, the employer agreed to narrow its policy so it did not restrict employees from discussing wages, hours, and working conditions with co-workers and others while not at work. Employment law attorney Shelly Freeman recently warned people at the Heartland Labor and Employment Law Conference in Overland Park, Kansas, that case law and regulatory opinions are building more slowly than the social media use they are trying to control.

In most workplaces, employees are “at will." Therefore, texting or tweeting workers can be fired simply because the boss does not think a post reflects well on the company or the individual.

Lawyers and government agencies will successfully object if the firings violate laws governing discrimination, harassment, or other legal protections, such as the "concerted activities" cited in the above Facebook case.

But if and until the law catches up with social media use, any worker concerned with job security, and any employer concerned with protecting an image online, should make sure they're on the same page. Organizations need a social media policy that is specific and updated, and employees should know exactly what it says.

 

Photo credit: Microsoft

Potential employment hazards of social media

 

 

Social media may blur the lines between personal and professional life as employees, peers, and supervisors may all become connected. This may pose problems in the future when a professional connections learn things about you that are unfavorable. This video explains to cautions that you might take as an employee on social media. Kevin V. Maltby, Esq. 413.781.0560 [email protected]

© 2011, Bacon Wilson, P.C. This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

Social media's potential impact on hiring practices

   

 

Employees must be aware that they are being Googled whenever they apply for a job, so they should be mindful of any public content available that may affect their public image. Employers, on the other hard, must be careful to not use this information to discriminate against candidates. This video will further explain these warnings. Kevin V. Maltby, Esq. [email protected], 413.781.0560

© 2011, Bacon Wilson, P.C. This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

 

Social media and graduates: sanitizing your profile

   

 

It's graduation season again, and the job market will soon be flooded with new candidates. Employers are checking social media sites for background on employees, so be sure that you're presenting a professional face. This video will offer tips to enhance your chances of getting hired. Kevin V. Maltby, Esq. 413.781.0560, [email protected]

© 2011, Bacon Wilson, P.C. This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

 

Can you fire an employee for ranting against your company, or you personally, on Facebook?

American Medical Response fired one of its workers after she made negative comments about her supervisor on Facebook. The National Labor Relations Board (NRLB) issued a complaint against the company alleging that the company illegally terminated the employee. The NLRB further argued that a worker’s criticism of their boss is, “a protected concerted activity,” under the law, which protects employees’ ability to comment on the conditions of their employment. 

American Medical Response claims, in return, that the employee was fired because of serious complaints about her behavior and not because of the Facebook incident. 

Pundits set this case up to be precedent-setting in the ever expanding area of employment law regarding social media protocol. However, the case settled privately before going to trial. 

Under the terms of the settlement, which was approved by the NLRB, American Medical Response agreed to revise its rules. The company agreed not to discipline or discharge employees for engaging in discussions about wages and other work issues when not on the job. 

So, can you fire an employee for publishing negative information about you or your company on a social networking website? The answer, while still in flux, is likely no. However, in order to curtail such employee activities, it is advisable to devise a comprehensive social media policy under the guidance of your attorney and ask all employees to sign and acknowledge it.

 

Photo credit: Microsoft

Social media is a critical communications channel, so are you establishing rules within your organization?

If you are not familiar with the terms “social networking,” and “social media,” then you have likely been living under a rock for the past few years. What began as a social forum for individuals has rapidly evolved into valuable communication and productivity tools for companies. 

USA Today reports that corporations are increasingly exploring and experimenting with social media to improve productivity. Estimates show that hundreds of companies worldwide use internal social networks to collaborate with their other offices. Last year only a fraction of companies used social media in this manner. 
Social media can also be a powerful customer service tool. The New York Times reports that “Social media can be a powerful tool for listening to customers and building a reputation for responsive service,” says David Nour, of the Nour Group. “You get real-time feedback and can engage with customers quickly to answer questions or help them solve problems.''

As great as the benefits of social networking may be for companies, employers need to follow some basic guidelines to avoid the pitfalls that come along with the benefits. A simple rule of thumb to use is this: obey the same rules you would with any other communication channel. Obviously, confidential or proprietary information should never be disclosed publicly, which includes social media. If you would not tell everyone in the world in person what you are about to post, do not post that information. 

Further, every employer needs to have a comprehensive social networking policy in place for their employees. Click here for more information regarding social networking policies. 

 

Photo credit: Microsoft