November 15, 2012

Post-election Facebook faux pas shine light on need for workplace policy

Posted in Computer Use, Discrimination, Employee Handbooks, Facebook, Internet Policies, Race, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 4:19 pm by Tom Jacobson

It’s been barely a week since the 2012 presidential election, but already we are learning of the post-election Facebook faux pas of several employees. For some, their on-line reactions to the electoral outcome have jeopardized their campaigns for continued employment.

For example, one of my readers (thanks, Jay S!) shared with me a Huffington Post report about a  South Carolina teacher who has been suspended and a Ohio teacher who is being investigated — both for their alleged post-election Facebook posts. In the South Carolina case, the teacher is said to have posted, “Congrats Obama. As one of my students sang down the hallway, ‘We get to keep our fooood stamps’…which I pay for because they can’t budget their money…and really, neither can you.” And in the Ohio case, the teacher supposedly posted, “Congrats to those dependent on government, homosexuals, potheads, JAY-Z fans, non Christians, non taxpayers, illegals, communists, Muslims, planned murder clinics, enemies of America, Satan You WON!”

The Los Angeles Times also reports that in Turlock, CA a Cold Stone Creamery employee jumped on Facebook after President Obama’s re-election and posted a racial slur about him, adding, “maybe he will get assassinated.” According to theTimes report, Cold Stone fired her and then tweeted, “The employee is no longer w/the company. We were as shocked as you were by her outrageous & completely unacceptable comments.”

Lastly, WXIA-TV of Atlanta, GA reports that a Georgia clinic worker was recently fired after supposedly posting on Facebook a post-election racial slur about President Obama .

Cases like this do not, however, mean that employers have unbridled discretion to fire employees who they believe have engaged in harmful or offensive social media behavior. There are numerous cases where employees and/or government agencies have successfully challenged employers who have taken such action. Indeed, I wouldn’t be surprised if any of the employees noted above were to challenge their employer’s actions.

What you need to know: If you are an employer, then before disciplining or discharging an employee because of his/her on-line behavior, you must understand and carefully consider the risks. To be proactive, implement and enforce legally sound social media policies. If you are an employee, think twice (or maybe three or four times!) before posting a comment that could cost you your job.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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November 9, 2012

January 16, 2013 Employment Law Update Announced

Posted in Acknowledgment, Age, Arrest records, At-will Employment, Background Checking, Color, Conviction Records, Criminal History, Disability, Disclaimers, Discrimination, Employee Handbooks, Facebook, Fair Labor Standards Act, Family and Medical Leave Act, Gender / Sex, Harassment, Hiring and Recruiting, Interactive Process, Leaves of Absence, National Labor Relations Act, National Origin, Posting Requirements, Posting Requrements, Protected Concerted Activity, Race, Reasonable Accommodation, Religion, Retaliation, Sexual Harassment, Sick Leave, Social Media, Social Media in the Workplace, Workplace Posters tagged , , , , at 10:28 am by Tom Jacobson

Need continuing education credits?  Want to keep up to date on the latest developments in employment law?  If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2013. The day-long event has been approved for 6.5 hours of HRCI and CLE credit, 1.0 hour of HRPD credit, and 8.0 hours of CPE credit.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 13!

P.S. Don’t forget to ask me about a discount on the registration fee!

November 2, 2012

NLRB’s Halloween at-will advice is not so scary

Posted in Acknowledgment, At-will Employment, Contracts, Disclaimers, Disclaimers, Employee Handbooks tagged , , , , , , at 10:28 am by Tom Jacobson

Wednesday was Halloween, and my neighborhood was crawling with trick-or-treaters. The scary part was not the kids or their costumes. Rather, it was the insomnia-inducing sugar rush I got after working quality control on the night shift.

Also on Wednesday, one scary trend in the world of employment law seems to have been averted. The trend was that in a couple of National Labor Relations Board (NLRB) cases, common at-will employment clauses were interpreted as violating the National Labor Relations Act. However, on Wednesday the NLRB’s Acting General Counsel, Lafe Solomon, issued an Advice Memo which analyzed two such clauses and reached the not-so-scary conclusion that they did not violate the Act.

In one case, a handbook which had been issued by Rocha Transportation of Modesto, CA included the following at-will clause:

No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will …. Only the president of the Company has the authority to make any such agreement and then only in writing.

In the other case, the handbook used by Mimi’s Café in Casa Grande, AZ said:

No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.

The scary part was that in other recent NLRB cases, similar clauses were interpreted as being unlawful waivers of employees’ rights to engage in collective bargaining under the NLRA. If that trend were to continue, the at-will clauses in countless employee handbooks across the country would be subject to challenge.

However, the NLRB’s Halloween Advice Memo allays those fears somewhat by concluding in the Rocha case that because the at-will clause explicitly states that the relationship can be changed, employees would not reasonably assume that their NLRA rights are prohibited. Similarly, regarding Mimi’s Cafe, the Advice Memo notes that the at-will clause was not unlawfully broad because it does not require employees to agree that the employment relationship cannot be changed, but merely stresses that the employer’s representatives are not authorized to alter it.

What you need to know:  At-will employment generally gives employees and employers alike the flexibility to end their relationship at any time, with or without notice, and for any lawful reason. Handbook clauses like the ones noted above are intended to help preserve that status. However, if they are not properly drafted, or if they are inconsistent with an employer’s other documentation, the clauses may be unlawful or may not actually preserve the at-will employment relationship. Therefore, to ensure compliance, employers should have their at-will employment documentation reviewed by legal counsel.  

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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