With social media, all of your employees are brand ambassadors; train them accordingly

A Hockessin, Delaware, restaurant has gotten itself into a bit of hot water after it was discovered that its employees posted offensive photographs to the restaurant’s Facebook and Instagram pages. The photos were of receipts of bad-tipping customers, and included offensive and racist comments, including “'#deuchbag”, “#cheapass”, “#hillbillies”, “#cheap #jerk #indian”, and “#cheap #jew”.

While the accounts have been disabled, Daily Mail posted some of the screen-caps.

Whether you like it or not, social media has turned each of your employees into a brand ambassador. Can you afford to have your brand sullied by the offensive or racists rants of one of your employees? More importantly, how do you undo the damage caused? While an offending employee should be fired for the transgression, the firing won’t remove the stain left on your business. In this case, the owner posted a public apology to his customers, but that apology will not undo all of the viral damage done by a rogue employee. Additionally, the power to delete the post cannot stop others from publicizing the screencap of death. For example, this restaurant deleted the posts, but they live on in the Daily Mail story and in this post.

What is the answer?

1. Training, training, training. Employees need to understand that they will be held accountable with their jobs if they write something online that damages the reputation of your brand. Do not entrust this issue solely to your employees’ common sense. They will disappoint you.

2. Monitor your brand online. You do not want to find out about something like this for the first time with a reporter asking you for a comments. There are myriad tools available online to monitor your brand’s social presence. They are well worth the investment, especially when compared to the potential harm one disgruntled or renegade employee can cause. Google alerts are free, and are a great starting point. They will not, however, catch much of the social chatter. Two popular paid solutions (which I am not endorsing, but merely informing) are Radian6 and Wildfire.

3. Secure your IT and social media accounts. According to the owner of this restaurant, the accounts were hacked because he “left [his] iPad and stuff all around.” You need to secure your technology to ensure that employees cannot appropriate social media channel to which they should not have access.

If you want to see an example of one large scale organization trains its employees on the appropriate and responsible use of social media, specifically to address the risk of viral damage from negative or irresponsible posts, take a look at the training video Zurich Insurance has made available on YouTube:

YouTube also has available similar examples from Citrix, Sodexo, and KPMG. As with any policy or training your are considering implementing, check first with your own legal counsel.

WIRTW #271 (the “too hot to work” edition)

Do you remember the dental hygienist whom the Iowa Supreme Court declared too hot to work? Earlier this week, she attempted to “redeem” herself by appearing on a recent episode of Comedy Central’s Tosh.0 [h/t Above the Law] (NSFW):

Tosh.0

I’m happy to see that Ms. Nelson doesn’t perceive herself as a piece of meat to be inappropriately ogled by men. After Ms. Nelson lost her sex discrimination case I had sympathy for her because I thought the Iowa court made bad law. I still believe Nelson’s case is bad law; my sympathy for her, however, has gone down the drain.

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

Discrimination

• Senator Murphy: Prospects “Not Too Good” for Federal Bill Prohibiting Sexual Orientation Discrimination — from Dan Schwartz’s Connecticut Employment Law Blog
• Senate must act on gay workplace rights — from The Washington Post
• Hooter’s Waitress Alleges That Brain Surgery Resulted In Her Losing To Losing Her Job — from Workplace Prof Blog
• What Does GINA Have to Do With Employment Practices? — from The Emplawyerologist
• EEOC Checkup: Where Things Stand — from employeescreenIQ Blog
• What The Interactive Process Requires — from California Employment Law
• A Workplace Harassment Case for the Record Books — from i-Sight Investigation Software Blog
• Teach Employees about Sexual Harassment — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Monitoring employees’ use of company trademarks in social media — from Technology for HR
• If worker social media accounts are private, how can financial firms check for trading issues? — from ABA Journal Daily News
• Breaking Bad? NM is the 6th state to pass social media workplace law — from Eric Meyer’s The Employer Handbook Blog
• Federal Court Allows Service On Foreign Defendants Through Facebook — from Trading Secrets
• The top 5 trends in mobile and BYOD security — from Consumerization Blog

HR & Employee Relations

• California Court Tosses Idea Theft Suit Over LOST Television Show Out to Sea — from Trading Secrets
• From bullying, to mobbing, to ouster: The story of Ann Curry — from Minding the Workplace
• Being Proactive May Reduce Risk for Corporate Raiding and Loss of Sensitive Company Information — from netWORKed Lawyers
• Workplace Violence: Some things an employer can do — from Robin Shea’s Employment & Labor Insider
• Lessons from Boston: Employers confront terrorism — from Michigan Employment Law Connection
• How Elevators Reveal Office Pecking Order — from Fast Company

Wage & Hour

• Department of Labor to Increase Frequency of FMLA On-Site Investigations — from Jeff Nowak’s FMLA Insights
• Can Employers Limit FMLA Leave for Married Co-Workers? — from Hiring & Firing
• Employing teens – is it ok not to pay them for “training time”? — from Warren & Associates Blog
• Are Unpaid Interns Handy Helpers or a Source of Liability? — from Labor & Employment Law Perspectives
• Do FLSA Settlements Require Court Approval? — from Phil Miles’s Lawffice Space
• Payment of Wages While on Lock-Down — from CPEhr

Beware bans on pay discussions among employees

Pop quiz. What’s wrong with the following paragraph, which appeared in the April 17, 2013, Wall Street Journal article entitled, Workers Share Their Salary Secrets?

At Brian Bader’s orientation for a tech-support job with Apple three years ago, he says, human-resources managers ran down the list of guidelines workers were expected to follow. Don’t use explicit language on calls with customers. Treat other employees with respect. And, he says, they told the assembled recruits, don’t discuss your pay with co-workers.

If you answered, “An employer can’t legally prohibit employees from discussing how much they make,” give yourself a prize.

As the 6th Circuit explained in NLRB v. Main Street Terrace Care Center:

A rule prohibiting employees from communicating with one another regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees’ right to engage in protected concerted activity…. [T]he fact that the rule was promulgated orally rather than written in an employee handbook, for example, makes no difference….

Does your handbook have a policy that prohibits employees from discussing how much you pay them? If so, get rid of it.

Do your managers and supervisor know that they cannot terminate or discipline employees for discussing how much they make? If not, train them on these rules.

NLRB confirms legality of most at-will disclaimers (and employers everywhere rejoice)

The NLRB has confused me with its apparent reasonableness. Last week, the NLRB published an advice memorandum from its Office of General Counsel, in which it opined that the at-will disclaimer in an employer’s handbook did not violate employees’ Section 7 rights to engage in protected, concerted activity.

Recall that last year, the NLRB launched a preliminary offensive against handbook at-will disclaimers.

In its most recent proclamation [pdf], the Board considered the following at-will language:

Employment with the Company is at-will which means the employment relationship may be terminated with or without cause and with or without notice at any time by you or the Company. In addition, the Company may alter an employee’s position, duties, title or compensation at any time, with or without notice and with or without cause. Nothing in this Handbook or in any document or statement and nothing implied from any course of conduct shall limit the Company’s or employee’s right to terminate employment at-will. Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.

The NLRB’s Office of GC concluded that the italicized language is lawful because it cannot reasonably be interpreted to restrict employees’ Section 7 rights to engage in concerted attempts to change the employment at-will status. The Office of GC contrasted this language with other language that an NLRB Administrative Law Judge has previously found unlawful: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The difference, according to this memo, is the ability to modify the at-will nature of the employment in the future.

The take-aways?

1. The NLRB will examine at-will disclaimers on a case-by-case basis, and I do not expect we will see the Board take the unreasonable position that all at-will disclaimers are unlawful.
2. You should take a look at your current at-will language to make sure it does not foreclose the possibility of future modifications of employees’ at-will status.

I’ll leave you with one final thought. In a footnote, the Office of GC made the following comment: “The Board repeatedly has said that potentially violative phrases must be read in context and that it will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity.” If that statement is true, how can the NLRB continue to justify its over-the-top policy statements on social media policies? If the NLRB can carry its reasonable position on at-will disclaimers over to social media policies, I think we might just become friends.

Staged RIFs qualify for heightened protection from age discrimination

Employers who eliminate headcount as part of a reduction in force receive special protection under the age discrimination laws. In a bona fide RIF, the employer has a built-in legitimate, non-discriminatory reason for a termination—the business considerations and economic necessities that caused the job eliminations. In such a case, an employee cannot establish a prima facie case of age discrimination without some additional direct, circumstantial, or statistical evidence showing that age was a factor in the termination. The mere termination of a competent employee in the face of economically based cutbacks is not enough to establish a prima facie case of age discrimination.

What happens, though, when an employer cuts headcount in stages? For example, what if an employer facing economic distress lays off a number of employees, and a year later lays off someone else? Can the employer claim the benefit of the more stringent age discrimination test that accompanies a bona fide RIF for the later termination?

Such was the case in Weisfeld v. PASCO, Inc. (Ohio Ct. App. 4/17/13) [pdf]. In 2009, PASCO lost a contract that accounted for 80 – 90 percent of its revenue. As a result, it laid off more than 80 percent of its employees. Most of those firings happened shortly after the lost contract. The company waited a year, though, to fire six key employees, including Todd Weisfeld, its 48-year-old director of technology, who declined a restructured job as a network coordinator.

In his ensuing age discrimination lawsuit, Mr. Weisfeld argued that the passage of time between when PASCO terminated him as compared to the bulk of his co-workers precluded the company from claiming that Weisfeld’s termination was part of a reduction in force. The court, however, disagreed:

Contrary to Mr. Weisfeld’s understanding, an employee is terminated pursuant to a reduction in force whenever “business considerations” are the driving force behind the company’s decision. It is immaterial that PASCO eliminated some positions immediately after losing the California contract and waited over a year to eliminate other positions. So long as the company’s decision was because of business considerations and it did not replace Mr. Weisfeld with another employee, his discharge was pursuant to a reduction in force.

Absent any evidence that PASCO lacked a legitimate business reason for eliminating its director of technology position, Mr. Weisfeld’s age discrimination claim failed.

This case shows the powerful advantage that employers hold in defending discrimination cases that arise out of reductions in force. It also shows that RIFs can occur in stages and over time. At least according to Weisfeld v. PASCO, an employer can retain key employees during a layoff and still claim the evidentiary benefit of the RIF when economic realities dictate a later termination of those key employees.

NLRB offers further guidance on confidential workplace investigations

Last July, I cautioned employers about the NLRB’s decision in Banner Estrella Medical Center. In that case, the NLRB held that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. At the time, I wrote the following:

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

I’m not certain that the NLRB heeded my warning, but last week it did signal that it is backing off its unreasonable position. In a recently published advice memorandum, the NLRB’s Office of General Counsel clarified the Board’s position on confidential workplace investigations.

The GC considered the following policy:

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.

To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In the opinion of the NLRB’s Office of General Counsel, this policy’s blanket confidentiality restrictions placed on workplace investigations violated employees’ rights to engage in protected, concerted activity. The Office of GC believed that while the first paragraph is perfectly legal, the second is overly restrictive. In its place, the Office of GC suggested provided substitute language that would pass muster under Section 7. Specifically, he suggested that replacing the last two sentences of the policy with the following language would render the policy legal:

[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In other words, if an employer makes confidentiality discretionary, on an investigation-by-investigation basis, the policy would pass Section 7 scrutiny.

Some may herald this opinion as a victory for employers. To me, its a difference without a distinction. All workplace investigation should be confidential. Otherwise, an employer can lawfully carry out its obligation to conduct an untainted investigation. Even if you have the suggested “discretionary” language in your harassment or workplace misconduct policy, you should nevertheless exercise that discretion in every investigation.. So, I ask, if every investigation should be confidential, what is the harm in providing for mandatory confidentiality in a policy?

I applaud the NLRB’s Office of General Counsel for offering employers suggested language. I still believe, however, that the NLRB fails to understand the importance of confidentiality in workplace investigations, and further fails to understand the realities of how workplace investigations work.

[Hat tip: Lorene Schaefer’s Win-Win HR]

WIRWT #270 (the “… and the home of the brave” edition)

Have you seen the video of the National Anthem at last night’s Boston Bruins’s game? Do you want to get choked up watching 17,565 Bostonians sing their collective hearts out? Well, here you go [h/t: The 700 Level]

 

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

Discrimination

• Case Of Muslim Employees Denied Time For Prayer To Go To Trial — from Employment Discrimination Report
• ADA accommodation talk should occur before employment decision — from EmployerLINC
• It Is All About How You Handle an Equal Opportunity Harasser — from Employer Law Report
• A reminder: retaliation claims can (and often do) succeed even where the Underlying Claim Fails — from Warren & Associates Blog
• Dear Evil Skippy: Is It Harassment To Call An Employee “Stupid”? — from Evil Skippy at Work
• Playing with the Cards Your Dealt Is Critical to Resolving Employment Discrimination Claims — from Jason Shinn’s Michigan Employment Law Advisor
• “Looks” discrimination can be a problem even if you're in retail, fashion, or marketing — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Workplace Issues Now Grow on “Vines”; Why Employers Need a Policy More Than Ever — from Dan Schwartz’s Connecticut Employment Law Blog
• Survey Says: Why Doesn’t HR Believe in Social Media Employment Background Checks? — from employeescreenIQ Blog
• The New Résumé: It's 140 Characters — from the Wall Street Journal
• Instagram Post Lands Delaware Restaurant Manager In Hot Water — from Molly DiBianca’s Delaware Employment Law Blog
• You’ve Got (No) Mail! Major Law Firm Blocks Employee Email Access — from Above the Law
• The Computer Fraud and Abuse Act and Disloyal Employees: A Narrow Bridge To Nowhere? — from Trading Secrets
• TimeRescue Joins Market for Time and Productivity Tools — from Workforce

HR & Employee Relations

• Why Courts Like Non-Solicits over Non-Competes — from Smooth Transitions
• A whopper of a resignation — from Passive Aggressive Notes
• Pregnant at Work — from Lawyerist
• The Do’s And Don’ts Of Discussing National Tragedies At Work — from Workplace Diva

Wage & Hour

• DOL Publishes PowerPoint Presentation to Help Train Employees about FMLA from Jeff Nowak’s FMLA Insights
• Supreme Court Vacates 7th Circuit Class Certification Ruling, Signaling Shift In The Landscape Of Wage-And-Hour Litigation — from Wage & Hour Defense Institute
• Use Of Preemption Defense In Wage-Hour Lawsuit May Kill Entire Action — from Wage & Hour - Development & Highlights
• Guess What We Got With the Acquisition? A $500,000 FLSA Bill — from TLNT

Labor Relations

• In dust of Strongsville teachers strike is myriad of legal questions — from Cleveland.com
• House Votes To Freeze NLRB — from Workplace Prof Blog
• 3 Things Employers Need to Know About the NLRA — from Workplace Insights
• Circuit Court Affirms Healthcare Facilities' Single Employer Status Under NLRA — from Labor Relations Counsel