January 22, 2013

Updating employee handbooks: now is the time

Posted in Acknowledgment, Arrest records, At-will Employment, Background Checking, Computer Use, Confidential Information, Conviction Records, Criminal History, Disclaimers, Employee Handbooks, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Internet Policies, Interviewing, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 10:47 am by Tom Jacobson

employee handbook1I recently had the privilege of speaking at and moderating a day-long seminar covering recent developments in employment law. Although the topics ranged broadly from background checks to the basics of employee leave, one common theme emerged: employers who have not kept their employee handbooks and other policies up to date are running the increased risk of liability for legal claims brought by their employees.

For example:

  • Some commonly used “at-will” employment acknowledgments, confidentiality clauses, investigation practices, and social medial policies have been deemed to violate the National Labor Relations Act.
  • The Equal Employment Opportunity Commission has published guidance on how arrest and conviction records may be used when performing background checks on applicants or employees. Among other things, these guidelines address when an individualized assessment of an applicant’s or employee’s arrest or conviction record should be done.
  • One recent litigation trend is employers and employees (or former employees)  fighting over the ownership of social media accounts and followers.
  • Recent court decisions have broadly interpreted employees’ rights to parenting leave under Minnesota law.
  • At least four states (California, Illinois, Maryland and Michigan) have adopted laws regulating employers’ access to employees’ social media sites, and similar legislation has been proposed in Minnesota.

What you need to know: If your employee handbooks and policies have not been reviewed by legal counsel and updated recently, now is the time. For more information about this process, please contact me at 320-763-3141 or 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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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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

October 5, 2012

NLRB Rules in Favor of Employer in its First Facebook Firing Case, Strikes down “Courtesy” Policy

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , , , at 8:58 am by Tom Jacobson

In its first decision in a case involving allegations of a firing over Facebook postings, the National Labor Relations Board (NLRB) has ruled in favor of the employer. In the same decision, the Board struck down the employer’s “Courtesy” policy.

The dispute centered mainly around two Facebook postings by a salesman for Knauz BMW in Lake Bluff, IL. In one, he posted sarcastic comments and photos of a Land Rover after it was driven by a customer’s 13-year old child over a wall and into a pond at an adjacent dealership. In the other post, he criticized Knauz for serving hot dogs and water at a luxury car sales event. He was fired a week later. The primary issue in the case became whether he was fired because of the Land Rover photos or because of his criticism of the dealership.

According to the NLRB, being fired for criticizing the dealership may have violated the National Labor Relations Act (NLRA). The NLRA protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. It also protects individual employees if they are acting on behalf of the group. Here, the NLRB said that because the Facebook criticism “involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions,” being fired for those comments may have violated the NLRA.

However, the NRLB also noted that posting the Land Rover photos was not protected by the NLRA. This is because they were “[P]osted solely by [the employee], apparently as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment.”

The administrative law judge who tried the case, Joel P. Biblowitz, found that the salesman was fired because of the Land Rover photos and not because of the Facebook criticism. The NLRB agreed with Judge Biblowitz and, therefore, affirmed that the dealership did not violate the NLRA when it fired the salesman.

Another issue in the case was the following “Courtesy” policy at Knauz:

Courtesy: Courtesy is the responsibility of every
employee. Everyone is expected to be courteous, polite
and friendly to our customers, vendors and suppliers, as
well as to their fellow employees. No one should be
disrespectful or use profanity or any other language
which injures the image or reputation of the Dealership.

The three-member panel split 2-1 on whether this policy violated the NLRA. The majority ruled that it did. Their reasoning was that employees may have reasonably believed that the policy prohibited any protests or criticisms, even those protected by the NLRA. The dissenting judge interpreted the rule as “nothing more than a common-sense behavioral guideline for employees” and was not “a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

What you need to know: Because the NLRB ruled that the salesman was fired for a non-protected reason (posting the sarcastic Land Rover photos), the Board did not rule on whether the criticism posted on Facebook was actually protected by the NLRA. The NLRB is likely to rule on that issue in future cases. In the meantime, the boundaries of what kinds of social media commentary are protected by the NLRA remain unclear. Therefore, employees should use care when posting work-related commentary on Facebook, and employers should use care when considering whether to take action based on such postings. In addition, employers should re-evaluate any “courtesy” rules to make sure they do not violate their employees’ rights under the NLRA.

For more information about this article or how to address social media issues in the workplace, 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

September 24, 2012

Royal Photos Shine Light on Privacy Concerns

Posted in Background Checking, Computer Use, Cyber Bullying, Employee Privacy, Internet Policies, Intrusion upon Seclusion, Invasion of Privacy, Misappropriation of Likeness, Publication of Private Facts, Social Networking, Telework / Telecommuting, Uncategorized tagged , , , , , , , at 10:30 am by Tom Jacobson

As far as I know, no paparazzi has ever caught me in a compromising photo. Well, there is one of me shaving my legs before qualifying for Nationals at the 1985 North Central Conference swimming championships.  It surfaced on Facebook 25 years later (thanks to one of my fun-loving teammates!), but my Gillette moment has obviously never drawn the kind of attention that two royals frolicking on a balcony in France get.

Me, prepping for NCC Swimming Championships (spring, 1985).

The whole Kate and William thing shines new light on an old problem: the blurred line between a person’s public life and private life. So, just what are a person’s rights when that line is crossed?

Minnesota recognizes three distinct claims for invasion of privacy: intrusion upon seclusion, misappropriation of another’s likeness, and publication of private facts.  The Minnesota Supreme Court recognized these three separate claims in the 1998 case of Lake v. Wal-Mart Stores, Inc. In that case, the Court differentiated between the three claims as follows:

Intrusion upon seclusion occurs when one intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns if the intrusion would be highly offensive to a reasonable person.

Misappropriation protects an individual’s identity and is committed when one appropriates to his own use or benefit the name or likeness of another.

Publication of private facts is an invasion of privacy when one gives publicity to a matter concerning the private life of another if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

For the most part, the issue is the same as it has always been: people have a right to live their private lives, to not have others misappropriate their identities, and to not have private aspects of their lives made public. But what has changed is the ease with which these rights can be violated. Sophisticated, yet accessible, technology makes it easy to gather information about others. And, with a few clicks of a mouse, that information can be shared with the world.

The workplace presents special privacy challenges. Employers have a need to know about the people they hire and employ, so they want to gather information about those employees. Employers also need to make sure their computers, websites, e-mail and other technologies are being used appropriately, so they may want to monitor their employees’ use of these technologies. And, once sensitive information is learned, employers are challenged to make sure it is not used or shared inappropriately.

What you need to know: To minimize the risk of being held liable for invasion of privacy, employers need to develop policies and procedures that strike a balance between their need to gather and use relevant information about employees and their employees’ privacy rights.  This is particularly true with respect to technology and social media policies.

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

June 12, 2012

NLRB Issues Third Social Media Report

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , at 9:26 am by Tom Jacobson

The National Labor Relations Board (NLRB) on May 30, 2012 issued its third report addressing social media in the workplace.  Like its two previous reports, this one analyzes social media policies used by various employers, and it describes how they are lawful or unlawful under the National Labor Relations Act (NLRA).  This report covers concepts such as:

  • Use of social media and confidential information
  • “Friending” co-workers
  • Privacy, legal matters, online tone, prior permission, and resolving concerns
  • Expressing opinions
  • Bullying
  • Reporting unsolicited electronic communications
  • Unauthorized postings
  • Media and government contact

The NLRB’s third report then concludes with the text of an entire social media policy which it found to be lawful under the NLRA.  “I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,” said NLRB Acting General Counsel Lafe Solomon.  Despite Solomon’s optimism, others predict court challenges over what may be an overly restrictive view of what workplace social media policies may say (see A. Smith, NLRB Takes Sledgehammer to Social Media Policies, SHRM Legal Resources, 6/1/12).

For more information about the NLRB’s other social media reports, see my previous articles, Social Media Report #2 Issued by NLRB and Social Media Report Issued by NLRB.

What you need to know:  It’s a fine line between social media posts that are protected concerted activity under the NLRA and those that are not. Likewise, it is a fine line between social media policies that do or do not violate the NLRA. Therefore, before action is taken against an employee because of his or her social media activity, and before social media policies are implemented, the NLRA itself and the NLRB’s position on these issues must be taken into account.

For more information about this article or how to address social media issues in the workplace, 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

February 1, 2012

Social media report #2 issued by NLRB

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , at 9:07 am by Tom Jacobson

In my October 19, 2011 article, Social Media Report Issued by NLRB, I wrote about a report issued by Lafe Solomon, Acting General Counsel for the National Labor Relations Board (NLRB).  His report highlighted several cases where actions taken against employees were evaluated under the National Labor Relations Act (NLRA).  Solomon has now issued a second such memorandum.

The new report reiterates the main underpinnings of the initial report.  As summarized by the NLRB:

    • 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.

Because Solomon’s reports quote actual practices and/or policies which were in various cases found to be lawful or unlawful, they are good resources for any employer to review when considering social media-based disciplinary action against an employee or when implementing or revising social media policies.

What you need to know:  It’s a fine line between social media posts that are protected concerted activity under the NLRA and those that are not. Likewise, it is a fine line between social media policies that do or do not violate the NLRA. Therefore, before action is taken against an employee because of his or her social media activity, and before social media policies are implemented, the NLRA itself and the NLRB’s position on these issues must be taken into account.

For more information about this article or how to address social media issues in the workplace, 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 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

October 19, 2011

Social media report issued by NLRB

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , at 8:20 am by Tom Jacobson

In a report issued by its Acting General Counsel, Lafe Solomon, the National Labor Relations Board (NLRB) has highlighted several cases where actions taken against employees were considered under the National Labor Relations Act (NLRA).  As Solomon noted in the report, “Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules.”

Among other things, the report summarizes four cases where employees were found to have engaged in “protected concerted activity” under the NLRA via their social media posts.  Conversely, the report lists five cases where no protected activity was found.  What made the difference in each of these cases was whether the employees’ posts related to the terms and conditions of their employment and whether the posts involved discussions with other employees (that is, “concerted activity”). In the cases where no protected activity was found, one or both of those elements was missing.

It’s a fine line between social media posts that are protected concerted activity under the NLRA and those that are not. For more information about this article or how to address social media issues in the workplace, 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 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 30, 2011

Parades, puppies and the “Fargo” woodchipper

Posted in Attendance, Breaks, Computer Use, Confidential Information, Contracts, Employee Privacy, Fair Labor Standards Act, Hours Worked, Leaves of Absence, Leaves of Absence, Overtime, Record Keeping, Social Media in the Workplace, Telework / Telecommuting, Vacation Policies tagged , , at 8:51 am by Tom Jacobson

Last week I took a staycation.  Despite the fact that it was one of the rainiest June weeks on record for our neck of the woods, we had a great time. We watched two parades and a swim meet, spent time with our son who is home on leave from the Air Force Academy, and we played with our litter of Labrador pups .  We even took a side-trip to Fargo to see the wood chipper from the movie, Fargo.  And, except for my first day off when I needed to put out a fire that started the day before, I managed to not check my work e-mail or voice mail for a week.

But what if I had checked my e-mail or voice mail?  What if I had texted my secretary or my clients?  What if I had decided to post this commentary from home during one of those downpours?  Telecommuting, or “telework,” would have allowed me to turn my staycation into a working vacation.

Telecommuting offers tremendous benefits.  It allows for flexible work arrangements.  It can save on fuel and other transportation costs.  It can keep employees productive when circumstances would otherwise prevent them from working.

But telecommuting can also be a trap for the unwary.  Aside from the fact that it can distract us from our R&R, working remotely raises a number of employer-employee issues, such as:

* How are working hours tracked for an employee who works remotely?

* Is the telecommuting employee getting the break time to which s/he may be legally entitled?

* Is the employee entitled to overtime when the hours worked remotely are added to his/her workweek?

* Is an employee really on “leave” if s/he is working remotely while supposedly taking time off?

* Is the employee entitled to any tax deductions for a “home office”?

* To what extent is an employee entitled to worker’s compensation benefits if s/he is injured while working from home, and does this give the employer the right to inspect the employee’s home for safety concerns?

* How secure is the employer’s data if an employee is accessing it from or storing it on his/her home computer?

* What privacy rights, if any, does an employee have with respect to his/her cell phone, computer, etc. that is used to work remotely?

* Which jobs work best for telecommuting arrangements?

* What is lost (or in come cases, gained) when telecommuting co-workers do not have face-to-face contact?

* How can the employer be assured that the teleworking employee is actually working?

To avoid falling into a telecommuting trap, employers need to understand the risks, as well as the rewards, of remote working arrangements.  Then, by developing telecommuting agreements and policies,  employers can take full advantage of the benefits that telecommuting can offer.  For more information about the development and use of such policies and agreements, 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 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

June 14, 2011

Child pornography on workplace computers — ND employees become mandatory reporters

Posted in Computer Use, Cyber Bullying, Employee Handbooks, Employee Privacy, First Amendment, Social Media in the Workplace, Social Networking, Telework / Telecommuting tagged , , , , , , at 7:59 am by Tom Jacobson

In an effort to stem the troubling tide of child pornography, North Dakota has taken a unique approach: the state has passed a law requiring that all workers who know or suspect that child pornography is on a workplace computer must report the information to the North Dakota Department of Human Services.

The new law, which goes into effect on August 1, 2011 adds the following provision to section 50-25.1-03 of the state’s Child Abuse and Neglect Law:  “A person who has knowledge of or reasonable cause to suspect that a child is abused or neglected, based on images of sexual conduct by a child discovered on a workplace computer, shall report the circumstances to the department.” Under this law, it will be a crime for an employee/mandatory reporter to willfully fail to make the required report.  It will also be a crime for an employer to retaliate against an employee who makes a good faith report.

Minnesota also has a mandatory reporting law, Minnesota Statute § 626.556, but it does not impose a reporting obligation on workers in general; only certain professionals such as doctors, social workers, law enforcement personnel, clergy, etc., are designated as mandatory reporters of child abuse or neglect.  And, it does not directly address this issue of computerized child pornography.

North Dakota’s new law is not only an aggressive move to try to stop child pornography, for it is also a regulatory foray into the intertwining world of work, technology, social media, and privacy rights.   Arguably, this law gives North Dakota employers a stronger case that their employees should not expect any right of privacy with respect to their use of company computers.  It should also be signal to everyone that new laws will likely be passed to address the complex entanglement of work, social media and related technologies.

Until these laws are on the books, or until existing laws are interpreted and applied to these ever-changing technologies, the best practice is to develop sound employment policies that clarify what every employee’s rights and responsibilities are with respect to their use of social media, computers, smart phones and whatever the next great technologies may be.

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 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

May 23, 2011

The times they are a changin’: will you sink or swim?

Posted in Computer Use, Confidential Information, Employee Privacy, Exempt/Non-Exempt Employees, Independent Contractors, Internet Policies, Social Media in the Workplace, Social Networking tagged , , , at 8:11 pm by Tom Jacobson

As I sit through the 2011 Minnesota Employment Law Institute, this 1964 Bob Dylan classic has been running through my mind:

“Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.”

The Times They Are a Changin’, Bob Dylan (1964), http://bit.ly/hAPUnh.

Dylan’s words couldn’t be more fitting for today’s employers.  The 2011 Institute points out that rising around us are floodwaters like Facebook, blogs, tweets, Wikileaks, the new Americans with Disabilities Act regulations, increased enforcement efforts by the Department of Labor, protecting confidential information and trade secrets, and the mis-classification of non-exempt employees and independent contractors.  Employers who accept the sea of change and learn how to swim through it will succeed; those who don’t will sink like stones.

To learn to swim, we hire instructors and take lessons.  If you would like more information about how I can teach you to swim though the sea of employment law change, 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 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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