Fired for posing for Playboy? Or, how does an employer prove a negative?

Jessica Zelinske, a 33-year-old Minnesota mom, is suing her former employer after it fired her for appearing in Playboy’s 2011 “Hot Housewives” issue. 

According to her lawsuit, she claims that before posing nude, she spoke with her boss at Charter Communications, Timothy McBain, who Zelinske says told her she would not risk her job if she posed nude. Weeks after the magazine’s publication, however, McBeain handed her a “Corrective Action Report,” notifying her of her termination for violating the company’s “standards of common decency.” The notice went on to say: “You have violated Charter’s professional conduct policy by making the personal choice to pose nude in a well-known publication.” The company claims that Zelinske never told anyone that she wanted to pose nude in Playboy, let alone ask for permission.

Zelinske’s main claim in her lawsuit is for promissory estoppel—that the company made her promise about job security, upon which she relied to her detriment by posing for Playboy. To defend this claim, the employer is in a very difficult position—having to prove a negative. The employee claims she had meeting where her boss blessed her photo shoot, and may even have notes (legitimate or not) to support her claim; the employer claims that no meeting ever took place, and certainly will not have any notes or other evidence to support an event that it claims never happened. How does an employer prove that it never made such a promise to an employee? Sadly for this employer, the answer may be a costly and time consuming jury trial. 

Proving a negative—that conversation never took place, or, you did not work those extra hours that your timesheet says you did—is the most difficult position for an employer, and, often, the most expensive for an employer to defend.

WIRTW #291 (the “if you can’t beat ‘em…” edition)

At The Employer Handbook Blog, Eric Meyer is polling his readers with the question, “Would you hire this employee?”

The employee in question, Marina Shifrin, posted this video on her YouTube page (11+ million hits to date) announcing that she quit her job.

Embracing the maxim that there are two sides to every story, the employer, Next Media Animation, posted a video of its own (with a respectible 2.2 million hits) announcing that it’s hiring (h/t Mashable).

Touché.

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

Discrimination

• The EEOC Continues Fight To “Shut Down” Judicial Review Of Conciliation Process — from EEOC Year-End Countdown
• Time’s Up, Pencils Down: EEOC Final Fiscal Year End Filing Totals Provide Surprises and Insight — from Employment Law Lookout
• EEOC’s Conciliation Efforts Shortchanges 5,000+ Employees Annually — from WinWinHR
• EEOC Responds to Criticism of its Position on Background Checks — from Minnesota Employment Law Report
• The Death of the Jury Trial in Federal Court — from Texas Employment Law Blog
• The UNEMPLOYED – A Protected Category Coming To a Jurisdiction Near You — from The Labor Dish
• Watch Out! Anti-Retaliation Laws May Protect Act Against Ex-Employees Too — from The Emplawyerologist
• U.S. Supreme Court to Kick Off New Term With Age Discrimination Issue — from Currents: Hot Topics in Employment Law
• “Voluntary” wellness programs—seeking answers from the EEOC — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• The Guide to Social Media and the Securities Laws — from Socially Aware Blog
• Discovery of Social-Media Passwords — from Delaware Employment Law Blog
• Social Media training for employees — from Gautam Ghosh on Human Resources
• Just because you own the device doesn’t mean… — from Omega HR Solutions

HR & Employee Relations

• Top 5 Reasons Employees Quit and What You Can Do About It — from In House
• Fired For Telling The Truth — from Work Place Coach Blog News
• 10 New (And Legal) Ways Your Employer Is Spying On You — from Screw You Guys, I’m Going Home
• Careful, that Slice of Pizza You’re Eating Might Be Full of Trade Secrets — from Trading Secrets
• Don’t Forget the ‘Human’ in Human Resources! — from Blogging4Jobs
• Cleansing a Toxic Workplace — from Time
• Millennials in the Workplace: More Engagement, Less Powerpoint — from The Marketing Strategist

Wage & Hour

• Supreme Court to Consider Tax Treatment of Severance Payments — from Washington D.C. Employment Law Update
• Roto Rooter OT Case Shows Interplay Between Arbitration and Lawsuits — from Wage & Hour - Development & Highlights
• Sick employee wants less overtime? Consider that a request for intermittent FMLA leave — from Business Management Daily
• They’re Heeeerrrreeee … Obamacare Exchanges Go Live — from Phil Miles’s Lawffice Space

Facebook “likes” as free speech

In Bland v. Roberts, a Virginia federal court dismissed a First Amendment retaliation lawsuit brought by a group of terminated city employees who had supported the incumbent sheriff’s opposition by, among other things, liking the candidate’s campaign Facebook page. The court concluded that merely clicking the “like” button on a Facebook page is not Constitutionally protected speech.

At the time, I took issue with the court’s opinion (quoting Eugene Volokh):

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed…. Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected.

I called for the 4th Circuit to reverse this misinformed precedent, and the 4th Circuit listened. Last month, the Court reversed the trial court’s dismissal, holding that the First Amendment protects Facebook “likes.”

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. … That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Unlike their private-sector counterparts, public employees enjoy free-speech rights in the workplace (the NLRB notwithstanding). This case reaches the common-sense conclusion that these free-speech rights extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. Thus, public employers need to take heed before taking action based on these online activities.

This post originally appeared on The Legal Workplace Blog.

Must you pay your employees for civic and charitable work?

October is Breast Cancer Awareness month, which means that businesses all over the country will be sponsoring events to combat this disease that has touched so many.

If your non-exempt employees are attending one of your charitable event, however, do you have to pay them for their time? It’s no surprise that the answer is, “It depends.”

The Fair Labor Standards Act’s regulations [pdf] differentiate between required time and volunteered time for time spent serving a public or charitable purpose.

• If the employee’s time spent at the civil or charitable event is at the employer’s request, it is compensable hours worked and must be paid.
• If the time spent is under the employer’s direction or control, it is compensable hours worked.
• If the time spent is while the employee is required to be on the premises, it is compensable hours worked.
• If, however, the employee voluntarily chooses to spend his or her time outside normal working hours at the event, then it is not compensable hours worked and can be unpaid.

And, keep in mind that if the compensable time is in excess of 40 hours in a workweek, it must  be paid at time and a half.

Before you send that next email or memo requiring employees’ presence at a chartable event, don’t, unless you want to pay employees for their time. If you are otherwise soliciting attendees, make sure you make it clear that their attendance is 100 percent voluntary to avoid having to pay employees for their time.

It’s the final countdown: How the government shutdown affects labor and employment law

In case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.

For example, the Equal Employment Opportunity Commission:

1. Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
2. Will not conduct any investigations.
3. Will not mediate any charges.
4. Will not have staff available to answer questions or respond to correspondence.
5. Will not litigate, unless a court denies a request for extension of time.
6. Will not process any FOIA requests.

The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.

Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.

Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.

While it difficult to predict how long this shutdown will last. The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.

For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.

photo credit: G0SUB via photopin cc

What Kanye West can teach you about employee relations

Ragan.com recently asked this question: “When should you fire an employee for his tweets?”

As a management-side employment lawyer you’d think I’d tell you that private-sector employees have no privacy rights in what they post online, and that an employer has the right to fire any employee, at any time, for anything posted on a social network (with a big caveat under the National Labor Relations Act). More or less, that statement is legally correct.

But just because something is legally correct doesn’t make it practically prudent. Firing an employee for what they say online ignores the risk of harm to a business if the firing goes viral.

Case in point? Consider last week’s dust-up between Kanye West and Jimmy Kimmel. In case you’re not up on the latest gossip, Kanye gave the BBC a very (even for Kanye’s standards) self-aggrandizing interview, which Jimmy Kimmel mocked by having a little kid reenact the interview on his late-night talk show. Had it stopped there, the story would have likely died. But, Kanye took the story to his nearly 10 million Twitter followers, trashing Jimmy Kimmel in a series of progressively offensive tweets, which led to Kimmel devoting an entire monologue to eviscerating Kanye. (By the way, Kanye, 1) you’re not going to win a battle of wits with a stand-up comic, and 2) deleting all of your tweets does not erase them from every news outlet that’s already posted screen caps.)

The lesson here? Social media has the ability to turn a forgotten event into a viral nightmare. Certainly there are instances when you will have no choice but to fire someone for something posted online—for example, racist, sexist, or other inappropriate conduct, or breaches of confidentiality.

Take a look at Twitter, however, and realize how fast a tweet can disappear from a stream. Now, consider your employee, who likely has 5 or 10 followers, or even a few hundred Facebook friends. Given this limited reach, how likely is it that something an employee posts will hurt your business? If the answer is not-very-likely, then give serious consideration to ignoring it. Instead of firing an employee over some marginally inappropriate or improper post, consider providing all of your employees some training on responsible posting and other online activities. Turn a potentially viral and destructive situation into a positive learning experience.

WIRTW #290 (the “magnificent seven” edition)

I’m not going to lie; it’s nice when an organization recognizes my blog. The ABA Journal has honored me for the last three years by including me in its preeminent list of lawyer blogs, the Blawg 100. LexisNexis has also honored this blog, as have several others.

With that, I want to say thank you to Paralegal 411, which has compiled its own list of the Top 25 Employment Law Blogs, based on “website popularity metrics including the number of websites linking to them, Google Page Rank, website authority, and Twitter followers.” I came in at number 7. The other 24, many of whom are friends, are worth your time checking out.

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

Discrimination

• Association Is Not A Protected Category or Is It? — from Blogging4Jobs
• Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits — from EEOC Year-End Countdown
• Does the ADA mandate transfer preferences for disabled employees? — from Eric Meyer’s Employer Handbook Blog
• Is body odor a real disability? — from Business Management Daily
• Parties Petition SCOTUS to Hear Corporate Free Exercise Issue — from Phil Miles’s Lawffice Space
• What??? Even Informal, Oral Complaints Can Support an Employee’s Retaliation Claim??!! — from The Emplawyerologist
• Does Paramour Favoritism Constitute Discrimination? — from Minnesota Employer

Social Media & Workplace Technology

• Why Employers Should Love, Not Loathe, Social Media — from Molly DiBianca’s Delaware Employment Law Blog
• “Liking” on Facebook – The Internet Equivalent of a Yard Sign — from netWORKed Lawyers
• Step Right Up to the Paperless Law Office — from Attorney at Work
• Building a Secure Corporate Culture from the Top Down — from i-Sight Investigation Software Blog

HR & Employee Relations

• Dear Evil Skippy: Should I Hire The Cocktail Waitress? — from Evil Skippy at Work
• Should I Give a Bad Coworker a Reference? — from Lifehacker
• Mr. Forthright’s Tips On How To Pretend To Work At Work — from The Huffington Post
• The 3 Common Hiring Practices That Are Completely and Totally Wrong — from TLNT
• A Background Check is More Than a Price Tag: 3 Methods for Valuable Criminal Background Checks — from employeescreenIQ Blog

Wage & Hour

• Holiday pay - five things you should know when calculating holiday pay — from Employment Law Watch
• DOL Issues ERISA Guidance on Same-Sex Marriage; Is FMLA Guidance Next? — from Jeff Nowak’s FMLA Insights
• Law firms need not pay student interns for pro bono work — from Ross Runkel Report
• FMLA Certifications: What Do With an Incomplete or Insufficient Certification — from Employer Defense Law Blog

Labor Relations

• NLRAA (the extra A stands for app) — from HR idiot
• “Minority Unionism” Targets Employee Rights — from LaborPains.org
• Authorization Cards are Awfully Tricky — from Matt Austin Labor Law
• HR: Be sure your dress codes don’t violate the NLRA — from Warren & Associates Blog