Monitoring Employees’ Social Media

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A great deal has been written in the last week about whether you should monitor your employees’ social media activity. A lot of very smart folks fall on both sides of the debate, since it can be a rather murky issue involving a balancing act between protecting the company and respecting employees’ right to act as they wish in their time off work. Notice that I didn’t say employees’ privacy. Little, if anything, shared via social media is private, so monitoring social media can hardly be deemed an invasion of privacy.

So now I’ll offer my two cents on the subject: it probably isn’t worth it to actively monitor your employees’ social media accounts. Doing so would require a great deal of time and effort for only a small likelihood of a worthwhile result. And let’s face it, you’re probably already busy as it is, do you really need more on your plate?

Instead, just be prepared to take action if an employee posts something that could damage your business or reputation. Because the truth is, you’ll find out about it. Once you know about it, then you can decide on an appropriate response.

Monitoring doesn’t do much more than allow you to act a little bit quicker. After all, monitoring the account wouldn’t prevent an employee from saying or sharing something, it would only notify you if they did. Once the employee posts something, it will be seen and it will be cached, at which point it’s never truly gone anyway.

So maybe the biggest takeaway here is to make sure you hire employees you can trust to represent your business and your brand. Monitoring employees’ social media use probably isn’t worth the effort.

Properly Paying On Call Employees Under the FLSA

Paycheck.cartoonThe Fair Labor Standards Act requires you to pay your employees for time they actually spend working, whether they’re working on your property, at a client’s property, at home or anywhere else.  When evaluating whether wages are owed to your employees, the key inquiry is whether the employee is actually engaging in work.

Some businesses, particularly those in the medical field or other fields where emergencies arise, have employees  “on call” for a certain period of time in addition to their actual work day. Under some circumstances, you may need to pay your on-call employees for their on-call time.

When determining whether your employees’ on call time is compensable requires a case-by-case analysis. For example, if your is required to remain on your premises or is unable to use their time for their own purposes, the on call time is likely compensable. Conversely, if you simply require your employee to provide contact information so they can be reached after hours, then on call time is likely not compensable.

While the above situations are fairly simple, most situations actually fall somewhere in the middle, which makes the on call pay issue much murkier. When evaluating the compensability of on call time, a court will primarily consider the amount of control you exercise of the employee while they are on call.  A court will review your employee’s ability to use their time, including:

• Is your employee required to remain on the premises?

• If allowed off the premises, are there excessive geographic restrictions on your employee’s movements?

• Is more than merely leaving contact information required?

• How often is your employee actually contacted while on call?

• Is there a fixed time for your employee to respond while on call?

• If there is a fixed time to respond to calls, is the required response time unduly restrictive?

• Can your on-call employee easily trade on-call responsibilities with another employee?

• To what extent is your employee allowed to freely use time while on-call?

In short, a court will try to determine whether, and how much, your employee’s time is restricted during the period in which they are on call.  If your employee isn’t permitted to reasonably use their own time as they wish, then you will be required to pay wages and, if applicable, overtime.

To Delete, Or Not To Delete

Two recent cases, one from the plaintiff’s side and one from the defendant’s side, highlight the importance of following information retention requirements.

Recently, Heather Painter learned a difficult lesson about deleting. Ms. Painter claimed that her boss, a dentist, sexually harassed her. After filing her lawsuit, she deleted some Facebook comments that (allegedly) said she loved her job and working for the dentist. Ms. Painter claimed that she did not know it was improper to delete the comments, but the court disagreed. Deleting the posts was a deliberate act, and the court could not infer that she deleted comments, that were detrimental to her case, for an innocent reason. The judge decided that the jury should infer that the Facebook posts undermine Ms. Painter’s claims, which is a particularly rough sanction.

Even more seriously, Kurt Mix, a former high-level engineer for BP, is in trouble for deleting text messages from his employer-supplied iPhone in April 2010. A federal jury decided that Mr. Mix deliberately destroyed the messages because they would prove that BP lied about the amount of oil spilled into the Gulf of Mexico. Now he is facing a prison term of up to 20 years and a max fine of $250,000 in fines.

Back in the day, businesses only had to worry about retaining paper documents. Now, information is stored in so many places and forms. Important information is stored via hard drive, cloud drive, email, text message, social media and more. Corralling, and more importantly retaining, that information can be a herculean task, especially when employees have easy, and sometimes sole, access to the information.

So, how do you tackle this difficult issue? Develop a comprehensive information retention policy and provide your employees with training on implementing the policy.

Your information retention policy should address:
How long information should be retained
When information should be retained beyond the policy limits (for example, when litigation occurs)
Where information should be stored and in what format
Procedure for inquiries regarding implementation of the policy
Disciplinary procedures for violating the policy

Training, which is probably more important than the policy itself, should address not only the proper retention of information, but the reasons for doing so. Your employees will be much more likely to adhere to the policy if they know they could face fines or prison time, as well as subject the company to significant sanctions in court.

And most importantly, when it comes to information, never, ever, ever try to destroy something that hurts your case. It will almost always come back to haunt you, and it will be much worse when it does.

Weeding Out the Medical Marijuana Issues

Medical MarijuanaAlright, alright, alright… After a very entertaining and high-ly informative #nextchat about medical marijuana in the workplace, I started thinking about some of the points made today and decided that I’d like to expand on some of the ideas thrown around.  And I’ll  try to avoid more bad jokes and puns, but no promises…

The Sky Isn’t Falling

Even with the passage of bills in your state allowing medical marijuana, it isn’t the end of the world as we know it.  After all, it’s not as if your employees are going to run out to get medical marijuana cards and start smoking up at work.  For the most part, you won’t have any employees that need medical marijuana.  And even if you do, it seems unlikely that they’re going to ask to start getting high at work.  So take a toke deep breath, and relax.

Major Policy Overhauls Probably Not Required

Alcohol is a legal substance that affects a person’s ability to function. Marijuana is a (potentially) legal substance that affects a person’s ability to function.  See where I’m going with this? You don’t allow your employees to come to work drunk, or drink at work (except for those in-office happy hours, right?), so you don’t want your employees working while high or smoking weed at work. It’s doubtful that you’re going to be required to allow Jeff Spicoli stoned employees to work and raid the vending machine.

Job Duties are a Factor

Speaking of performance, your tolerance of medical marijuana usage may depend on your employee’s job duties. If your employee is a desk jockey, then there’s less danger that being stoned will cause a dangerous incident. However, if the employee drives a forklift or a tractor-trailer, then medical marijuana use is not going to work. Allowing usage will need to be done on an individualized basis, and there likely won’t be a uniform approach that works.

Testing Could Be Difficult

Testing an employee that you believe is drunk isn’t all that hard. You give them a breathalyzer, and if its too high, then they are disciplined. Marijuana, and more particularly THC, remains detectable in the system for long after its effects wear off. In other words, giving your medical marijuana-using employee a drug test doesn’t really prove anything other than the fact that they used marijuana sometime over the last few weeks. As a result, it seems like you’ll need to evaluate an employee as to whether or not they’re able to complete their work. Such an evaluation will also necessitate independent evaluations by more than one supervisor as well, to avoid claims of a contact high bias or misunderstanding.

Federal Employment Laws May Not Apply

A great deal of discussions about medical marijuana use involve an employee’s ability to invoke the ADA or other federal employment laws. However, the ability of an employee to invoke federal law is questionable. The federal government still classifies marijuana as a Schedule 1 drug, and under federal law marijuana is illegal. It seems illogical for an employee to ask a federal court to allow him or her to engage in an activity that the federal government deems illegal. So, at this point, until the federal government changes its stance on marijuana, federal employment laws aren’t much of a concern. State laws, however, may apply.

Even if medical marijuana isn’t legal in your state, it seems like we’re heading toward legality in most states over the next few years. It won’t hurt to file some of this away, just in case your very own medical marijuana-using Wooderson employee comes into your office.

Why Not Move Away From Geographic Limits in Non-Competes?

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If your employees have access to sensitive or confidential information, it’s likely you required your employees to sign non-competition agreements. Pennsylvania courts don’t look favorably on non-competes and, as a result, they have placed certain limitations on the ways employers can limit their former employees. In the words of Pennsylvania courts, a non-compete must be reasonably limited in both temporal and geographic scope. In other words, your agreement may only last for a reasonable amount of time and it cannot cover a geographic area that is greater than necessary to protect your business interests.

The issue of temporal scope is not all
that complicated and courts won’t have a problem with limitations on employment lasting one or two years. However, the issue of proper geographic scope can be much more difficult to determine. So, instead of trying to determine your geographic footprint and/or the area in which your employee operates, let me suggest an alternative: don’t use a geographic scope.

Now I’m not suggesting that your non-compete should be unlimited in scope, because that will never pass judicial review. Rather, you should create a list of competitors and other employers that could benefit from the confidential information that your employee possesses and limit the former employee from joining those companies for a set period of time. Just be sure that your list of competitors is limited only to those who would truly benefit from your former employee’s knowledge, because if your agreement is challenged, you may be required to explain why each company is included on the list.

Additionally, your list should include a “catch-all” provision allowing you to supplement the list if a new competitor enters the market between the time that your employee signs the non-compete and the employee leaves your employ. Alternately, you could amend your non-competes and require employees to sign a new one when you amend it, provided you offer sufficient consideration each time you ask your employees to sign a new agreement. Of course, this approach requires you to keep an up-to-date list of competitors.

By limiting the former employee from joining your competitors, you can prevent the dissemination of your confidential information, while narrowly tailoring your restrictions in a way that will pass judicial muster. And, just as importantly, the agreement is fair to former employees, who can go work for an employer in the same area where your confidential information won’t be used against you.

Embrace the Madness

Stanford v TexasA few years ago, I wrote about the effect March Madness has on productivity and your options for mitigating the inevitable distractions.  Apparently not many of you were listening, because the Society for Human Resources Management reports that 81 percent of employers do not have a policy regulating office pools.

Allowing, or turning a blind eye to, March Madness pools makes sense because it is extremely unlikely that the IRS or local authorities are going to come knocking just because your employees created an office pool.  So instead of telling you all the possible negative consequences resulting from March Madness, let’s find some positives.

Employee Bonding

March Madness pools bring employees together.  As long as you can avoid arguments and fights, employees can bond over a shared love of sports and good-natured competition.  March Madness may provide a means to encourage different departments, and even office locations, to interact, particularly in larger companies.

Productivity Gains

While it is almost inevitable that March Madness will cause a dip in productivity, of some degree, the increase in employee bonding and engagement may lead to greater productivity overall.  Employees that are allowed to have a little bit of fun at work will be happier employees. And happy employees will produce a better work product and will be less likely leave to look for other jobs.

Questionable Effect

The effect of March Madness on work productivity may actually bit a bit overstated, according to a 2013 study by OfficeTeam.  The study found that only one in five workers were distracted at work by major sporting events, which is good news with the FIFA World Cup approaching in a few months as well.  Even those workers who are somewhat distracted will simply just work harder once the tournament ends to catch up on work.

In short, a little March Madness may not be so bad and allowing your employees to indulge a bit could be beneficial.  Maybe this year you can relax, put your feet up and join in the fun.  Or, at the very least, you can limit your enforcement to large wagers, body paint and those clearly not getting any work done, whatever you feel comfortable with.

Sometimes DIY Is Not The Answer

DIY Gone WrongI am a huge fan of do-it-yourself.  I’ve changed the oil in my car since I turned 16.  When our dining room table was too small for a family Thanksgiving and we couldn’t afford the ones we liked, I built a new table.  In fact, just a few days ago, I had to grab a few tools to unclog a shower drain after a small floss container ended up there.

However, certain projects are beyond my knowledge or abilities.  You won’t find me rewiring any rooms in my house.  One mistake could land me in the hospital or burn down my house. In the same vein, one small mistake with regard to employees can have significant consequences.

When it comes to determining a worker’s classification, drafting employee handbooks or policies, or terminating an employee, it may seem like a good cost-saving measure to handle it on your own.  After all, hiring an attorney will cost a bit of money, even if the advice only requires a few hours of your attorney’s time.  And at first blush, many of these situations seem fairly simple, at least in the beginning.

Unfortunately, small mistakes during the process can lead to large problems down the road.  If you classify a worker as an independent contractor, when they should be an employee, your company could face tax claims and wage claims.  If the error isn’t discovered for several years, and particularly if it involves a number of workers, it could lead to a very large judgment against your company.

Similarly, if you include an unlawful provision in your employee handbook or employee policies, like forbidding employees from discussing salary information via social media, the NLRB may begin investigating your social media policies and possibly take other punitive action as well.

And last, but certainly not least, employee terminations.  Pennsylvania is, after all, an at-will employment state, but federal and state law forbid terminations for certain reasons.  If you terminate an employee for an unlawful reason, like violating an unlawful employee policy, you may find your company facing a lawsuit and an order from the NLRB to reinstate the employee.  Or if you terminate an employee for a valid reason, but they are in a protected class or have a disability, you could be facing a long and difficult lawsuit.

In each of these three examples, a DIY approach that initially saved money will cost much, much more in the end.  Lawsuits, in particular, can be expensive, even if you win.

The lesson here isn’t that you should be paranoid about making mistakes or jumping at shadows.  It’s this: find a good attorney and use them.  Don’t be afraid to pick up the phone or send an email asking a question.  Ask for a review of the employee handbook periodically to ensure that its still in compliance with the law.  Ask for guidance on terminating an employee.  Ask for an interpretation of the law, particularly when you know that a new decision was released.

If you are proactive in seeking legal assistance, you’re going to have far fewer problems and much smaller legal bills.

Tight Rope Walking: Social Media Policies and the NLRB

Social MediaI’ve written about technology and social media before, and how they are continually impacting your business. Social media, particularly, plays a huge role in your employees’ lives. And if you think they’re not accessing social media throughout the day, including work hours, I have a bridge in Brooklyn to sell you.

Over the last few years, the NLRB, whose rulings may cover both union and non-union workplaces, began targeting employer social media policies.  Under the National Labor Relations Act, an employer may not prevent employees from discussing working conditions or engaging in protected, concerted activity and the NLRB has been applying those rules to employer social media policies.  Where an employer’s social media policy directly infringes on those rights, or even if it includes vague terms or provisions without limitation, the policy may be unlawful.

The NLRB’s guidance for social media policies seems to change every day, but these are the important points to remember:

  • Don’t prohibit disclosure of “confidential” or “proprietary” information without specifically defining the terms. Even better, use examples.

  • Be careful with restricting employee’s use of your business’s name or trademark.

  • Don’t require employees to obtain permission before posting to social media, as it could appear that you’re trying to inhibit protected activity.

  • Narrowly tailor any prohibition on “offensive, demeaning, abusive or inappropriate remarks” because protected employee criticisms of labor policies or employee treatment could be prohibited.

  • Don’t prohibit employees from discussing legal matters or litigation, because employees must be allowed to discuss potential claims against your business.

  • Don’t include any language that may be read to prohibit or dissuade employees connecting on social media, because it could inhibit protected communications.

  • Include examples when requiring employee posts to be accurate.

  • Don’t prohibit employees from discussing salaries, working conditions or job satisfaction.

Unfortunately, while the NLRB’s rulings and guidance are helpful in crafting a lawful social media policy, the NLRB’s rulings may be reviewed by federal appellate courts, resulting in further changes.

In short, make sure your social media policy doesn’t affect your employees’ ability to communicate, specifically defines any terms that may have different meanings and includes examples of appropriate behavior wherever possible.

What Does the EEOC Suit Against CVS Mean For You?

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EEOCOn February 7th, the EEOC announced that it was filing suit against CVS, alleging that CVS used a severance agreement that interfered with an employee’s right to file discrimination charges or communicate and cooperate with the EEOC.

In short, the EEOC is challenging the use of a number of provisions used in most severance agreements.  The Complaint filed by the EEOC specifically addresses several clauses in the severance agreement:

  • Cooperation clause, requiring the former employee to notify CVS’s general counsel if he or she receives a subpoena or other request pursuant to a civil, criminal or administrative investigation, suit or other proceeding.

  • Non-disparagement clause, forbidding the former employee from making any statements that would negatively reflect on CVS or any of its officers, directors or employees.

  • Confidentiality clause, forbidding the disclosure of any confidential information, without the permission of the Chief Human Resources Officer, which includes information about personnel, wage and benefit structures, succession plans and affirmative action plans.

  • General release clause, which releases CVS from any and all causes of action, lawsuits, charges, including any claim of unlawful discrimination of any kind.

  • Covenant not to sue, where the former employee agrees not to initiate or file any lawsuits against CVS and requires the former employee to pay any of CVS’s legal fees for breach of the covenant not to sue.

At this point, you are probably thinking that you have most or all of these provisions in your severance agreement.  First, take a deep breath, nothing has actually changed yet.  A lawsuit by the EEOC is only an attempt at changing the current severance agreement landscape, but they need to win the lawsuit to enact any change.  Additionally, the eventual loser in the suit will likely appeal the decision, further prolonging any change.  However, it must be said: if the EEOC wins, it will significantly impact what risk an employer can bargain away through a severance agreement.

Second, if you are interested in making changes to your standard severance agreement, just in case the EEOC prevails, then you have several options.

Daniel Schwartz of the Connecticut Employment Law Blog suggests either adding a severability clause, providing that a provision found overbroad or illegal will not affect the enforceability of the agreement, or empower a court to revise any provision that is overbroad.

Or, Jon Hyman of the Ohio Employer’s Law Blog suggests adding the following provision to your severance agreement:

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws (including, but not limited to, Title VII, the ADA, the ADEA, GINA, USERRA, or their state or local counterparts) to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of the non-disparagement, confidentiality, or cooperation clauses of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such action brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

These solutions are different, but effective, ways to preserve the efficacy of your severance agreements, while still passing muster in court if the agreement is challenged.  Unfortunately, simply removing the potentially offending clauses would expose your business to significant risk and essentially render the main purpose for severance agreements, which is avoiding future lawsuits, moot.

Regardless of your preference, now seems like a good time to review your severance agreements and possibly ask legal counsel to assist with fixing any issues.