Social media background checks : off-duty conduct laws :: oil : water

One report suggests that as many as 91% of employers use social networking sites to screen potential employees, with as many as 69% of employers rejecting a candidate because of information discovered on a social site. I’ve written before about some of the risks employers face when conducting background checks on employees via Facebook or other social media sites. Here’s one more risk for you to consider: off-duty conduct laws.

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities:

• 17 states have “smokers’ rights” statutes, which prohibit discrimination against tobacco users. (Connecticut, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming)
• 8 states have statutes that protect the use of any lawful product (e.g., tobacco or alcohol) outside of the workplace. (Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin)
• 4 states have statues that protect employees who engage in any lawful activity outside of work. (California, Colorado, New York, and North Dakota)

What do these laws mean for employers’ online background searches? Businesses need to understand that reviewing Google or Facebook before making a hiring or firing decision is a risky proposition, which could reveal myriad lawful off-duty activities that could implicate one of these statutes (in addition to all sorts of protected EEO data).

My suggestion for a best practice? Either to hire a third party to do your searches for you, or to train an employee, insulated from the hiring process, to do them. In either case, the screener should scrub all protected information before providing any report to the the person responsible for making the hiring (or firing) decision.

Notice that Ohio is missing from the list of states with off-duty conduct laws. However, if you have operations in one of the 29 states that have do have these laws, you will want to pay close attention to this issue.

Trying to make sense of the NLRB’s lastest social media missive? Good luck!

I’ve now had a few days to digest the NLRB’s latest foray into regulating social media in the workplace. I can sum up the NLRB’s report in three words: What a mess.

In a mere 35 pages, the NLRB appears to have ripped the guts out of the ability of employers to regulate any kind of online communications between employees. The NLRB found the following facially neutral, boilerplate policies to be unlawful restraints of employees’ rights to engage in protected concerted activities:

• A provision in a social media policy which provided that employees should generally avoid identifying themselves as the Employer’s employees unless discussing terms and conditions of employment in an appropriate manner.
• Work rules that simply prohibited “disrespectful conduct” and “inappropriate conversations.”
• A social media policy that prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with its mission or unprofessional/inappropriate communication regarding members of its community.
• A communications systems policy that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.
• A communications systems policy that prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department.
• A communications systems policy which required that social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments.
• A communications systems policy which required that employees state as part of posts on social media sites that their opinions are their own and not their employer’s.
• A social media policy that prohibited discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites. 

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

What policy did the NLRB conclude was lawful? A policy that limited its reach to social media posts that were “vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

What are the four takeaways for employers from this fiasco?

1. I’m not sure anyone at the NLRB actually uses social media. If they had any real-world knowledge about the topic on which they are opining, the report would read a whole lot differently.
2. If these boilerplate, facially neutral, communications policies cannot withstand scrutiny, I would venture to bet that 99% of all employers in this country have policies that the NLRB would strike down if challenged. 
3. If communications that would otherwise violate Title VII are the only types of workplace communications that employees can lawfully regulate, businesses might have to concede that they are very limited in their ability to regulate employees’ online conversations (at least until federal courts begin to weigh in on these issues and rein in the NLRB).
4. Businesses that try to implement a workplace social media policy, or discipline employees for their online activities, without first consulting with counsel are asking for trouble with the NLRB.

WIRTW #210 (the “organizing my life” edition)

I live in a constant search for the perfect task organizer/to-do list. For the past several months, I’ve been using Toodledo, which is robust, but overly complex for my needs. But, I’ve stuck with it because I can use it across all of my platforms (the PC in my office, my Mac at home, my Android phone, and my iPad—this is what life has become in 2012). Toodledo, however, is about to get kicked to the curb. Welcome to my life, Any.do. Where Toodledo is complex, Any.do is elegant in its simplicity, allowing you to add tasks to complete today, tomorrow, this week, or next week, drag and drop tasks between days, set priorities, reminders, folders, notes, and automatically sync to your contact list for emails and phone calls. Right now, it’s only available on Android, but the developer promises an iPhone app is on the horizon, as is a web app. Once the web app is released, I will say toodles to Toodledo.

Here’s the rest of what I read this week:

Discrimination

• Fired for Wearing a Fake Penis? — from Phil Miles’s Lawffice Space
• “Religious employers must cover pill, Feds say” — from Walter Olson’s Overlawyered
• Company's “100% healed” policy does not create per se disability discrimination — from Employment Law Matters
• Employee Suffering from IBS Allowed to Proceed with Retaliation Claim — from SmartHR
• Discrimination Claims At EEOC Hit Record Level — from Laconic Law Blog
• Can you be fired if your dad had cancer? — from CareerDiva, Eve Tahmincioglu

Social Media & Workplace Technology

• #McDStories: When A Hashtag Becomes A Bashtag — from Kashmir Hill’s The Not-So Private Parts
• Is It Legal for an Employer to Secretly Track an Employee’s Personal Vehicle 24/7 for One Month? Perhaps! — from Workplace Privacy Counsel
• What Employers Should Know about the Supreme Court’s Decision Concerning GPS Privacy Rights — from Minnesota Employer
• The Small Business Social Media Cheat Sheet — from Flowtown
• Married to Your Business Twitter or Facebook Account? Think Before You Say, “I sue” — from Social Media Today
• Teachers warned over befriending pupils on Facebook — from The Guardian

HR & Employee Relations

• That Comment Bubble Could Get You In Trouble — from Stephanie Thomas at Compensation Cafe
• Super Bowl Office Pools in Connecticut – What Box Are You In? — from Dan Schwartz’s Connecticut Employment Law Blog
• Why HR Professionals Should Never Rely on “the Law” as the Source of Their Power — from Strategic HR Lawyer
• Can you be fired for skipping lunch? — from Evil HR Lady, Suzanne Lucas
• Real World, Real Life: Why Your Kids Need a Good Work Ethic — from TLNT
• “No-poach” emails between Apple, Adobe, and Pixar revealed in court documents — from The Verge
• Don’t Send Me Your Kid and Expect Me to Fix The Big Problems… — from The HR Capitalist, Kris Dunn

Wage & Hour

• OFF-CLOCK WORK: “Flintstone” laws in a “Buck Rogers” world — from Robin Shea’s Employment and Labor Insider
• Three Times Employees Must be Paid Not to Work — from Reuters
• Certification of Call Center Class Given the Boot — from The Wage and Hour Litigation Blog
• Never Ever Retaliate — from Manpower Employment Blawg
• Taking Note of How Family and Medical Leave Act Interference Claims to be Decided — from Jason Shinn’s Michigan Employment Law Advisor
• Fact or Fiction: If you don't say “FMLA”, you can’t take FMLA leave? — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• Can a Neutrality Agreement be an “Improper Payment” to a Union? — from Labor Relations Update
• IKEA Workers In Maryland Vote To Unionize — from The Huffington Post
• More Lockouts as Companies Battle Unions — from Steven Greenhouse at the New York Times

The word of the day is “systemic”

The EEOC has published its draft strategic plan for fiscal years 2012 – 2016. A quick Ctrl-F for the word “systemic” reveals 16 different hits in this relatively short document.

“Systemic” cases, according to the EEOC, are those that “address a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” The identification, investigation, and litigation of this category of cases remains a “top priority” of the agency. When the EEOC publishes the final version of its strategic plan, expect to see a target percentage of systemic cases in the agency’s litigation pipeline.

What does this mean for employers? It means that company-wide policies that have the potential affect certain groups more than others very much remain on the EEOC’s enforcement radar. What are some of these issues for employers to heed:

• Arrest and conviction records
• Work-life balance and the plight of working moms
• Religious accommodations and “look” policies
• Leave of absence policies
• Credit histories
• Employment status 
• Age 

Keep an eye on these issues, because you can bet the EEOC will be (at least for the foreseeable future).

BREAKING: NLRB issues 2nd report on social media as protected concerted activity

I just received the following news release, via email, from the NLRB:

To help provide further guidance to practitioners and human resource professionals, NLRB Acting General Counsel Lafe Solomon has released a second report describing social media cases reviewed by his office.

The Operations Management Memo covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

The report underscores two main points made in an earlier compilation of cases:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Given the new and evolving nature of social media cases, the Acting General Counsel has asked all regional offices to send cases which the Regions believe to be meritorious to the agency’s Division of Advice in Washington D.C., in the interest of tracking them and devising a consistent approach. About 75 cases have been forwarded to the office to date. The report, which does not name the parties to the cases or their locations, illustrates that these cases are extremely fact-specific.

This report underscores that employees’ use of social media to discuss the workplace and work-related issues, and the impact of business’s social media policies on those discussions, remains at or near the top of the NLRB’s priorities. Because the NLRB is taking such an interest in this area, employers act at their peril if they discipline or discharge an employee for social media activities, or roll out a social media policy, without the advice and input of counsel well-versed on these issues.

You can download a complete copy of the Operations Management Memo [pdf] here.

When office pranks attack

Read these facts, from Slasinski v. Confirma, Inc. (6th Cir. 1/24/12) [pdf], and I’ll be back to discuss:

In July 2007, members of Confirma’s sales team, including Mr. Slasinski, attended a week-long seminar in Bellevue, Washington.  On the evening of July 25, 2007, Mr. Slasinski and others … attended a dinner cruise….

Near the end of the cruise, but before the boat docked, Mr. Slasinski proceeded toward the ship’s lavatory on the aft end of the boat. Before he reached his destination, Mr. Slasinski observed a colleague named Kris Daw enter the lavatory. Several other Confirma employees were standing nearby, and Mr. Slasinski observed Bickford engage an external lock on the lavatory door, thereby locking Daw inside. A few moments later, Bickford unlocked the door and released Daw to the laughter of those standing nearby.

Mr. Slasinski then entered the lavatory and shortly thereafter discovered that he also had been locked inside … approximately 20 to 25 minutes. During that time, the boat docked and the other Confirma employees disembarked. After some time had passed, Mr. Slasinski began making phone calls to colleagues on his cell phone to request assistance…. Mr. Slasinski then resorted to kicking the door in an attempt to free himself, at which point the boat’s crew discovered and released him.

Like any embarrassed employee, what did Slasinski do? He sued, for false imprisonment. After a four-day trial, the jury returned a verdict in favor of Confirma, which the appellate court upheld:

If the jury accepted Confirma’s version of the facts, and drew all inferences in Confirma’s favor, it could easily have found that Mr. Slasinski entered the lavatory knowing he would be locked inside as part of the prank, and thus initially consented to the confinement. Moreover, for at least part of the duration of his confinement, Mr. Slasinski did not knock, call out to, or otherwise beseech any of the Confirma employees standing nearby to release him. A reasonable jury could conclude, therefore, that any confinement Mr. Slasinski experienced began with his consent, and only after the passage of time became against his will. A jury could further conclude, based on the evidence, that the period of unconsented-to confinement was of such brief duration as to be only momentary or fleeting.

What does this case mean? I could draw a great lesson about or the risks of lawsuits coming from anyone at any time, or the importance of workplace training to avoid similar problems, or the synergy between employee morale and having a good laugh, but instead, watch this:

See you tomorrow.

If employees had common sense, I’d be out of a job

Last Thursday, I participated in the Social Workplace Twitter Chat (#SWchat), which covered social media policies. In response to a question on whether employers need social media policies, or if they can leave employees to their own devices, I responded as follows:  

If SM was common sense for employees, we wouldn't be having this #SWchat

– and –

That's why book is called "Think Before You Click" (something few Ees regularly do) see.sc/Ja8cav #SWchat #sorryfortheselfpromo

In other words, if employees had common sense, I (and every other employment lawyer) would be out of a job.

Case in point: long-time Philadelphia TV weatherman (and notorious playa) John Bolaris, who lost his job last week because of an interview he gave to Playboy magazine discussing a debaucherous night in Miami that resulted in the Russian mob (of all things) drugging him and scamming him out of $43,712.25. Here’s my favorite quote from the Playboy interview (courtesy of Gawker):

He saw two women on a swing. Very elegant, beautiful, classy, with jet-black hair and blue eyes… They were smoking cigarettes in that exotic European manner… “I’m a guy,” Bolaris says. “There was the thought that I might get laid.” It never dawned on him to be suspicious about two gorgeous, elegant women all over him like a wet suit, he says, because “I was used to girls in Philly coming on to me aggressively once they found out I was John Bolaris, the TV weatherman.”

Needless to say, his employer was less than pleased by his very public discussions of his escapades.

As long as employees continue to engage in public discussions about what should be private matters, the role of employers in monitoring and regulating their employees’ online activities will continue to be a very active part of the discussion. And, as long as employees lack the common sense to keep these matters private, yes, you need a social media policy to direct their behaviors and expectations.

Maybe Warren Zevon said it best (and maybe John Bolaris should have heeded his advice):

I went home with the waitress
The way I always do
How was I to know
She was with the
Russians, too?