Fired news reporter, Shea Allen, illustrates the meaning of “profersonal” for today’s workers

It’s exactly a year to the day that I first wrote about the disappearing line between the professional and personal online. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal, social media’s intertwining of our professional and personal personas.

Yesterday, the Today Show brought us a textbook example. Shea Allen, a Hunstville, Alabama, television news reporter, lost her job because of a post she wrote on her personal blog. The post, entitled, “No Apologies: Confessions of a red headed reporter,” included the following:

• I’ve gone bra-less during a live broadcast and no one was the wiser.
• My best sources are the ones who secretly have a crush on me.
• I am better live when I have no script and no idea what I’m talking about.
• I’m frightened of old people and I refuse to do stories involving them or the places they reside.
• I’ve taken naps in the news car.
• If you ramble and I deem you unnecessary for my story, I’ll stop recording but let you think otherwise.

That an employee was fired for something she posted on her personal blog is not necessarily newsworthy. However, it makes for an interesting juxtaposition with a recently published report on business ethics and social media.

According to the National Business Ethics Survey® of Social Networkers:

• 79 percent of social networkers (defined as an employee who has an account on at least one social network) consider how their employer would react before posting something work-related on a personal social networking site
• 64 percent consider how their employer would react to personal information posted to a personal site
• 26 percent believe it is acceptable to post about their job even if they do not identify their employer.

It is comforting to read that nearly 8 out of 10 social networkers consider their employer before posting. Yet, when one considers that according to the Today Show, 53 percent of Americans side with Shea Allen and feel that she shouldn’t have lost her job, it is clear that there still is work to be done in educating employees about what it means to profersonal.

Thus, I’ll leave you with my words on this topic from one year ago, which bear repeating:

Employees need to realize that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination (even if employers can overreact in these situations). Until people fully understand that social media is erasing (has erased?) the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in a “profersonal” world.

The DOL’s “Fair Labor Data Challenge” presents an interesting strategy, but is it fair?

The Department of Labor is asking for help to create an iPhone/Android app to aid employees in tracking corporate wage-and-hour compliance.

The DOL Fair Labor Data Challenge will “help consumers locate … establishments and view their federal enforcement and violations history as well as read consumer reviews to help them decide where to spend their hard-earned wages.”

According to the DOL, the “app … would work with existing social media and would allow consumers to see if an establishment that they want to frequent has been in compliance with federal labor laws.” Its hope is that by “providing consumers with information at their fingertips about which businesses have treated their workers fairly and lawfully, the app will empower them to make informed choices about where to shop, eat, or even vacation.” Thankfully, in addition to flagging underpaying scofflaws, it “also will recognize those employers who are doing the right thing and playing by the rules.”

In other words, the DOL wants to shame employers into wage-and-hour compliance. The DOL itself says, “Our investigators can’t be in every workplace, and we’ll never reach every establishment through our traditional forms of outreach.” So, to compensate for its enforcement black-hole, the DOL is turning to viral outreach to create a way for people to soft-boycott those businesses that employees say do not comply with the wage-and-hour laws.

I will be very curious to see what this final product looks like if it ever hits the App Store. For this app to live up to its “fair” name, it must provide employers the ability to rebut negative comments. Otherwise, this app will be nothing more than a one-sided vent for disgruntled employees. Regardless, employers should keep this issue on their radars as yet another reason to get their wage-and-hour practices in line.

Court rejects use of social media evidence in defense of wage-and-hour claim

One of the difficulties employers face in defending wage and hour lawsuits alleging “off-the-clock” work is how to prove a negative. The employees say, “We worked during our lunch breaks,” (for example), and the employer says, “No they weren’t.” The trick, however, is how to prove that negative.

Could social media provide some help? If employees are posting to Facebook, Twitter, etc. at time during which they claim to have been working, can an employer argue that the posts help establish that the employees could not have been “working” during those times?

In Jewell v. Aaron’s, Inc. (N.D. Ga. 7/19/13) [pdf], the employer attempt to make that exact argument. To help prove its claim that the employee-class members did not work through their lunch breaks, Aarons sought an order compelling the production of the plaintiffs’ social media activities “during their working hours.”

Despite the limited nature of the request to “working hours” only, the district court still rejected this request:

Even though certain social media content may be available for public view, the Federal Rules do not grant a requesting party “a generalized right to rummage at will through information….” Defendant has not made a sufficient predicate showing that the broad nature of material it seeks is reasonably calculated to lead to the discovery of admissible evidence…. The exemplar evidence of Kurtis Jewell’s Facebook activity does not persuade the Court that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods. The Court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period….”

If this employer was merely guessing that there might exist something useful in the plaintiff’s Facebook account, I would have a easier time understanding the Court’s belief that the employer was fishing. This employer, however, was relying on actual time-stamped examples from the lead plaintiff’s Facebook profile [pdf].

I applaud this employer’s attorneys attempted creative use of social media to defend this wage-and-hour claim, and am troubled by this Court’s unfair hamstringing of that effort.

WIRTW #282 (the “shut yo’ mouth” edition)

Language and race have been in the news lately. From Trevon Martin to Paula Deen, it seems that everyone is talking about the meaning of race in 2013-America. It seems appropriate, I suppose, to share this video, and, maybe, bring a little levity to a very serious topic. 

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

Discrimination

• If you want to win your retaliation case, don’t be a donkey. — from Robin Shea’s Employment and Labor Insider
• EEOC suits claim employers violated genetic bias law by asking for family history in required exams — from ABA Journal Daily News
• Zimmerman Trial Leads to Whistleblower Lawsuit — from Phil Miles’s Lawffice Space
• EEOC Lawyers Discuss Misconceptions, Guidance About Criminal History Checks — from Bloomberg Law
• Sexual Harassment Claim Allowed Based On Spankasaurus And Gabbygail Comments — from Atlanta Employment Lawyer Blog
• Male Employee Who Wears “Girly” Shirts May Have Sexual Harassment Claim — from The Employment Brief
• Sexual Harassment: Crowdsourcing advice — from Mike Haberman’s Omega HR Solutions
• Illegal or Ill-Advised? More on Pre-Employment Interview Questions — from The Emplawyerologist

Social Media & Workplace Technology

• The Nasty Side of Social Media … And What Employers Can Learn From It — from Dan Schwartz’s Connecticut Employment Law Blog
• Is There a Reasonable Expectation of Privacy In Your Tweets? — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook “tagging” adds a new wrinkle to social media discovery — from Eric Meyer’s The Employer Handbook Blog
• What Bosses Can and Can’t See On Your Smartphone — from Yahoo! News
• From Crisis 1.0 to Crisis 2.0: The Need for Social Media Responsible Use Training — from Social Media Today
• Proper Etiquette For Online Lurking When You’re the Boss — from from Workplace Diva

HR & Employee Relations

• Courts Continue Chipping Away at Employees’ Rights — from Texas Employment Law Blog
• More Answers To Your Noncompete Questions — from Donna Ballman’s Screw You Guys, I’m Going Home
• Five Year Non-Compete Enforced In Indiana — from Trade Secrets and Noncompete Blog

Wage & Hour

• 7 do’s and don’ts to keep wage-and-hour lawsuits at bay — from Business Management Daily
• First Circuit Federal District Court Holds Automatic Meal Break Deduction Policy Does Not Satisfy Commonality Requirement for Class Certification — from Wage & Hour Counsel
• Wage and Hour Violations at Restaurants — from Nolo’s Employment Law Blog
• Knock, Knock…It’s The Department of Labor! — from Work Place Coach Blog News
• Can you fire an employee on FMLA leave? — from Warren & Associates Blog

Labor Relations

• What to Expect From the Incoming National Labor Relations Board : Labor Relations Today — from Labor Relations Today
• The “new” NLRB: much ado… — from Michigan Employment Law Connection
• What is this in my email? Oh, just the NLRB — from HR idiot

Giving Employee the “Milton Treatment” Leads to Discrimination Claim

And I said, I don’t care if they lay me off either, because I told, I told Bill that if they move my desk one more time, then, then I’m, I’m quitting … I’m going to quit. And, and I told Dom too, because they’ve moved my desk … four times already this year, and I used to be over by the window, and I could see … the squirrels, and they were merry, but then, they switched … from the Swingline to the Boston stapler, but I kept my Swingline stapler because it didn’t bind up as much … and I kept the staples for the Swingline stapler and it’s not okay because if they take my stapler then I’ll have to … I’ll set the building on fire...

– Milton Waddams, Office Space

I love the movie Office Space. One of the movie’s best sub-plots involves Milton Waddams. Milton works for Bill Lumbergh, and is Lumbergh’s punching bag. Lumbergh belittles him, steals his red Swingline stapler, continuously reduces the size of his cube, and, ultimately, transfers him to a basement storage closet. All the while, Milton mumbles under his breath that he’s going to set the building on fire. True to his word, Milton ultimately gets his revenge by burning down the office.

Why am I telling you the plot of Office Space? Because, according to this story in the St. Joseph, Missouri, News-Press, a former employee of the Missouri Department of Transportation is alleging that the department discriminated against her because of her age by … are you ready … moving her out of her office and forcing her to work from a moldy storage closet.

While there are two sides to every story, generally it is a bad idea to react to an employee’s internal complaint about age discrimination by moving her workspace from an office to a storage closet. Milton earned his revenge by arson. This employee is seeking hers via the courts. Either way, giving any employee the Milton treatment, let alone doing so on the heels of a complaint about discrimination or some other protected activity, is a horrendous idea.

This post originally appeared on The Legal Workplace Blog.

Is this the worst fake doctor’s note ever? And what could you do about it?

Buzzfeed recently published the above note, which an employee provided asking his boss for a day off from work. Not only did the employer refuse the time off, but, as you can see above, the employer edited the note, remarked on all of the typos, errors, and misspellings, and returned it to the employee with the caption, “How NOT to fake a doctor’s note.”

Even though an employer might have every reason to believe that a doctor’s note is fake, an employer runs the risk of an FMLA violation by summarily denying time off without following the FMLA’s procedures for authenticating a medical certification.

Authentication

• The FMLA permits an employer to contact the medical provider who purported to provide the certification to authenticate the document.
• Authentication means providing the health care provider with a copy of the certification and requesting verification that the health care provider who signed the document completed or authorized it.
• An employer may not request any additional medical information.
• An employer must first provide the employee with the opportunity to authenticate the note.
• If, however, the employee fails or refuses, the employer, through a health care provider, human resources professional, leave administrator, or management official—but not the employee’s immediate supervisor—may contact the employee’s health care provider directly for purposes of authentication.

Second and Third Opinions

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second (and possibly third) opinion:

• The second opinion must be at the employer’s expense.
• Pending receipt of the second opinion, the employee is provisionally entitled to all of the benefits of the FMLA, including intermittent leave. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the employer then has the right to retroactively designate the leave as non-FMLA.
• An employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider must be one that it does not regularly contract with otherwise regularly use the services of.
• If the opinions of the employee’s and the employer’s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer’s expense. This third opinion is final and binding.
• Upon request by the employee, an employer is required to provide the employee with a copy of the second and third medical opinions within five business days of such request.

Your gut instinct might say fire this employee, but following that instinct could get you in trouble under the FMLA if note turns out to be legit. Following the FMLA’s rules for authentication, and second and third opinions, will give you the legal ammo to fire the offending employee. In the meantime, place the employee on conditional FMLA leave, which is unpaid. A few weeks down the road, once you confirm that the note is inauththentic, you can fire the employee without having incurred much expense or burden in the interim (save a couple of medical exams if you have to go the route of second and third opinions).

For more on verifying FMLA leaves of absence, I recommend Jeff Nowak’s recent post on his FMLA Insights Blog, entitled, Is Your Employee Paying a Deception Service to Provide You a Fake Doctor's Note or FMLA Certification?

Instagram, Vine, and … the NLRB (uh-oh)

Are you concerned about the impact of micro photo and video sites such as Instagram and Vine on your workplace? For the past few months, Dan Schwartz, writing at his Connecticut Employment Law Blog, has been all over this issue, suggesting that in light of the growing popularity of these sites, now more than ever employers need social media policies, while also cautioning that the regulation of workplace photos and videos would be the next social media enforcement frontier for the NLRB.

It appears that Dan’s prediction was right on the money. Last week, the NLRB’s Office of General Counsel published an Advice Memorandum [pdf] (dated March 21, 2012, but, for reasons unknown, which sat unpublished for 16 months).

Among other issues, the memo took up the following prohibition in a supermarket chain’s social media policy:

Do not use any … photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.

According to the NLRB Office of G.C., that policy is, on its face, an overly restrictive ban on employees’ rights to engage in protected concerted activity:

We further find that the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities.

Amazingly, the only citation provided in support of this broad legal statement is a 22-year-old case, which held that an employee’s tape recording of a jobsite to provide evidence in a Department of Labor investigation is protected. Folks, there is a huge difference between recording something at work to gather evidence for a government investigation, and this.

The NLRB needs to allow employers to promulgate reasonable rules that protect their legitimate interests (e.g., confidentiality, or ensuring that employees are actually working during working hours), while protecting the rights to employees to engage in legitimate protected activity (e.g., complaining about discrimination or working conditions, or gathering evidence for a government investigation). Otherwise, the NLRB is attacking facially neutral policies because of an imagined parade of horribles that could never materialize, all the while making it exceedingly difficult for businesses to draft policies that establish reasonable baseline expectations for workers and management.

Hat tip: Labor and Employment Law Perspectives