Stupidest employee ever?

The above video is of a Xenia, Ohio, Burger King employee who not only thought it was a good idea to take a bath in the restaurant's utility sink, but then went one step further and posted it on YouTube. Cleveland.com reports that Burger King has fired all of the employees involved in the incident. It also released a statement that it had sterilized the sink, disposed of all kitchen tools and utensils used in the incident, and is retraining the staff in health and sanitation procedures.

A few points.

1. I knew there was a reason why I don't like to eat fast food.

2. This story provides another example of the risks employees take when posting videos or pictures on social networking sites.

3. This story is also a good example of crisis management in the workplace. Burger King handled this situation properly. It fired everyone involved, and is retraining its remaining employees in health and sanitation. Any time a crisis rears its head, whether its sexual harassment, an employee taking a bath in a food preparation area, or something it is always a good idea to send the proper message and set expectations of future conduct through retraining.

Court limits employers' access to employee text-messages

It is generally understood that employers have the right to read employees' emails sent and received through the corporate email system. The system is owned and operated by the employer, and employees should have no expectation that such communications are private.

What about electronic communications that are not stored on an employer's server - for example, text messages from mobile devices? Can an employer legitimately intercept those communications without the employee's consent? According to the 9th Circuit in Quon v. Arch Wireless, the answer might be no. For those who want more information, Workplace Privacy Counsel has the details.

The bottom line for companies is that Internet Service Providers, text messages services, and online email services (such as Yahoo or Gmail) are prohibited from disclosing stored messages without the consent of the sender or the recipient. This ruling, however, should not affect an employer's ability to control its own property, such as cell phones or computers that it owns and provides to employees to use. The key is for companies to have clearly written electronic communications policies that spell out the expectations, and make it clear to employees that they have no expectation of privacy in the use of any corporate-issued equipment.

The intersection of techology and labor law: new website for posting of compensation information raises concerns

George's Employment Blog reminds us that an employer cannot ban its employees from discussing wage and benefits without violating the National Labor Relations Act. According the NLRB's recent decision in Windstream Corp.:

[A]n employer rule which regards employee compensation and benefit information as confidential and prohibits employees from discussing such information with one another violates Section 8(a)(1) of the Act.... In examining whether a particular rule so violates Section 8(a)(1), the Board's analysis requires that the rule be such that "Employees would reasonably construe the language to prohibit Section 7 activity."

Windstream's challenged policy stated:

Employee compensation, benefits, and personnel records and information are confidential.

Only employees who need to know such information in the course of employment should access such employee information.

You should not disclose this information to any other Windstream employee unless that employee has a need to know such information in the course of employment.

Except as required to comply with law, you should never disclose this information to any party other than the employee or individual whose access has been authorized by the employee.

This does not prohibit you from disclosing or discussing personal, confidential information with others, so long as you did not come into possession of such information through access which you have as part of your formal Company duties.

(Winstream added the last sentence after the filing of the unfair labor practice charge). The NLRB found that the language violated Section 8(a)(1) because it was "so broadly stated that employees could and will construe them to prohibit discussions of wages and working conditions with others."

I was again reminded of this line of cases when I read an article in Business Week magazine this week touting the launch of Glassdoor.com. According to Glassdoor.com's press release, it will make available user-submitted, anonymous compensation information organized by company:

Compensation information by company and position. Unlike most salary services that only report aggregated data by generic position type and industry, Glassdoor provides details of salary, bonuses, and other compensation for actual positions and titles at specific companies. For example, users can see exactly what a software engineer at Google makes, along with bonuses and types of equity grants, in comparison to a software development engineer at Microsoft.

If employees have a statutory right to discuss compensation and benefit information, but lack the same right to use an employer's e-mail system for Section 7 purposes, can a company prohibit its employees from accessing Glassdoor.com without violating the National Labor Relations Act? The answer seems to be yes, as long as the prohibition only extends to company time and company equipment. A more broadly draft ban that applies to what employees do on their personal time very well might run afoul of the Windstream line of cases.

Employer electronic monitoring survey illustrates the importance of clearly defined policies

The Electronic Discovery Navigator is reporting that according to the 2007 Electronic Monitoring & Surveillance Survey from American Management Association (AMA) and The ePolicy Institute, more than half of all employers have fired an employee for e-mail or internet abuse. According to the report:

The 28% of employers that have fired an employee for e-mail misuse cited the following reasons:

• Violation of any company policy (64%)
• Inappropriate or offensive language (62%)
• Excessive personal use (26%)
• Breach of confidentiality rules (22%)
• Other (12%)

The 30% of employers that have fired an employee for internet abuse cited the following reasons:

• Viewing, downloading, or uploading inappropriate/offensive content (84%)
• Violation of any company policy (48%)
• Excessive personal use (34%)
• Other (9%)

The stat that really caught my eye is that of the 65% of companies that use software to block connections to websites they deem inappropriate for work, 18% prevent employees from visiting blogs. And, it's not only the reading of blogs that is getting employees in trouble. Both Ernie the Attorney and John Phillips' Word on Employment Law are reporting on a CNN producer fired for having a blog that CNN deemed to be unfriendly towards it. CNN has a policy in its handbook that prohibits employees from writing for any non-CNN outlet without network approval, and terminated the employee for his off-work musings.

Technology in today's workplace comes in too many forms to keep track. It's no longer just enough to have a policy that covers e-mail and internet access. Workplace technology is not going to get any less complicated, and it is important to have policies in place that keep up with the changes. Policies should also cover blackberries and other PDAs, cell phones, and even blogs. Companies have to be careful, however, not to overreach and be too draconian in what they try to accomplish with these policies. If you intend to hold employees accountable for what they do on their private free time (whether it's blogging, smoking, or any other lawful activity), it's best to have those expectations out in the open so that everyone is operating under the same ground rules, and people will have less of a reason to gripe if there is some adverse action taken.

Can employers base employment decisions on employees' personal internet activities?

Courtesy of The Washington Post comes this gem:

Kevin Colvin, an intern at the Anglo Irish Bank of North America ... e-mailed his manager on the afternoon of Oct. 31 claiming "something came up at home" in New York and that he needed to miss work the next day. For whatever reason, perhaps managerial intuition, his boss decided to inspect Colvin's Facebook page on Nov. 1 and apparently found pictures of the intern dressed as a fairy, beer in hand, at a Halloween party in Massachusetts.

Rather than reprimand him, the manager decided to have a little fun. He shot Colvin an e-mail back stating: "Thanks for letting us know -- hope everything is ok in New York. (cool wand)" with the fairy picture attached. And if that weren't embarrassing enough, the manager reportedly BCCed the rest of the company. Those images are now being forwarded to offices around the world for cubicle dwellers to enjoy.

(The article has a link to the offending picture, for those who are curious).

The internet now provides a plethora of social outlets -- blogs, social networking sites such as MySpace, Facebook, and Twitter, video repositories such as YouTube and Break, and even an entire alternate universe, Second Life. Once someone puts something out on the internet, it becomes fair game for anyone and everyone to see, employers included. The WP article cites a vault.com survey in which 82 percent of employers responded that negative information from an online profile would affect their decision to hire an applicant. Presumably a similar but likely small number would also consider negative online information in a decision to continue the employment of a current employee. It is hard to imagine that an employer is somehow invading an employee's privacy by viewing something that is publicly available on the web. If an employee is at-will, and standards are otherwise neutrally applied, there should not be anything unlawful about making a hiring or employment decision based on an employee's personal internet presence, especially if you catch the employee in a lie, such as was the case with Kevin Colvin.

Ohio Supreme Court Recognizes Claim for "False Light" Invasion of Privacy

Historically, Ohio recognizes three separate invasion of privacy torts: (1) the unwarranted appropriation or exploitation of one’s personality, (2) the publicizing of one’s private affairs with which the public has no legitimate concern, and (3) the wrongful intrusion into one’s private activities. Today,the Ohio Supreme Court, in Welling v. Weinfeld, recognized a fourth invasion of privacy theory as a tort in Ohio -- the "false light" theory. In so ruling, Ohio joins the majority of other jurisdictions that have recognized this tort.

Under the false light theory, it is a tort to give "publicity to a matter concerning another that places the other before the public in a false light ... if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." The purpose of this theory is to close a loophole in the defamation laws, which protect reputation in the community by publication of falsehoods. The false light theory, conversely, protects one's own personal sensibilities. By way of example, the Court cited to several examples of conduct that would be actionable as a false light invasion of privacy but not necessarily as defamation, such as falsely portraying someone as a victim of sexual harassment or having a terminal illness. Such false accusations might not damage one's reputation, but nevertheless could cause them harm that is not remedied by defamation law.

While this theory of recovery is new, the lessons to be learned are not. Be very mindful of information that is spread in your workplace and about your employees. Private matters, such as medical information, investigations of misconduct, or other personnel matters, should remain private. Negative job references should rarely be given. These proactive measures will help lessen the risk of claims of this ilk being brought.