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

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

March 19, 2012

Dharun Ravi Guilty in Tyler Clementi Cyber-bullying Case

Posted in Cyber Bullying, Employees' Privacy, Internet Policies, Negligent Retention, Sexual Orientation, Social Media in the Workplace, Social Networking tagged , , , , , at 10:02 am by Tom Jacobson

A jury has found Dharun Ravi guilty of 15 criminal charges stemming from the cyber-bullying of his Rutgers University roommate, Tyler Clementi. Ravi was charged with the crimes after he used a webcam to spy on Clementi and another man having sex in their dorm room. Shortly thereafter, Clementi committed suicide.  For more details on the underlying incident, see my October, 2010 post, Tyler Clementi Suicide: Lessons for HR – and for Us All.

Ravi was not charged with any crimes directly related to Clementi’s death, but he was charged with and found guilty of a number of crimes, ranging from invasion of privacy to lying to investigators and witness and evidence tampering.  For more information on the verdict itself, see NY Times article, Jury Finds Spying in Rutgers Dorm Was a Hate Crime.

What you need to know:  Although the case does not directly relate to the workplace, it does have employment law implications.  For example, many states, including Minnesota, recognize invasion of privacy as a legal claim. Therefore, it is entirely conceivable that such claims could be brought against an employer that allows its computers to be used for cyber-bullying.  Many states, including Minnesota, also allow claims to be brought against employers which negligently retain or fail to supervise employees who harm others; if the harm stems from cyber-bullying via a workplace computer, it is not too difficult to envision a negligence claim against the employer who allowed it to happen.  To reduce this risk, employers should adopt workplace technology / social media policies which prohibit the use of the company’s computer resources to commit cyber-bullying.

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 12, 2011

What does your tech policy say?

Posted in Employee Handbooks, Facebook, Internet Policies, Misconduct, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , at 8:27 am by Tom Jacobson

Facebook.  LinkedIn.  E-mail.  The web.  Smart phones.  We all know that the latest and greatest technology advances have become indispensable tools for business and personal use, but when personal use interferes with business, the troubles at work start to brew.   Employers with well-drafted technology use policies can keep those troubles to a minimum.

Washington County (MN) recently benefited from its own “acceptable use” policy in case decided by the Minnesota Court of Appeals (Misenor v. County of Washington). The case involved Lori Misenor, who was fired after the county discovered that over 25 workdays, Misenor sent 342 personal e-mails from her county e-mail account during business hours.  Moreover, her personal e-mails often contained information about her husband, children, finances, extramarital affair or affairs, critiques of her job and coworkers, her search for a new job, and racially insensitive material.  The Court of Appeals concluded that this was misconduct which disqualified Misenor from unemployment benefits.

Key to the Court’s decision was the fact that Washington County had an “acceptable use” policy regarding its information technology resources. Regarding this policy, the Court noted:

In this case, the county has a policy that limits the amount of personal use of the county’s e-mail system and also prohibits e-mail messages with material that is ‘obscene, pornographic, [or] racially or sexually harassing or explicit.’  This is a reasonable policy that establishes a standard of behavior that the county has the right to reasonably expect of its employees…. Despite this policy, Misenor sent 342 personal e-mails over a 25-workday period. Many of the e-mails are lengthy, indicating that Misenor took considerable time away from her duties to engage in e-mail correspondence. In addition, some of her e-mails contained racially insensitive and sexually explicit material. Misenor’s repeated violations of the county’s policy display a serious violation of the standards of behavior that the county has the right to reasonably expect of her.

Information technology policies are important for many other reasons.  Well-drafted policies set the standards of behavior that employers can expect, so they can provide the basis for disciplinary action and a defense to many legal claims. However, poorly drafted use polices have been held to violate the National Labor Relations Act (see NLRB challenges Facebook firingFacebook firings revisited – NLRB extends its reachFacebook firing case settled).

For more information about how to craft an effective technology use policy, 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

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

February 10, 2011

Facebook firing case settled

Posted in Collective Bargaining, Employee Handbooks, Internet Policies, National Labor Relations Act, Social Media in the Workplace, Social Networking tagged , , , , , , at 3:41 pm by Tom Jacobson

Last November I noted that the National Labor Relations Board had filed a complaint against American Medical Response of Connecticut, Inc., after AMR fired Dawnmarie Souza for posting negative comments about AMR on Facebook (see NLRB challenges Facebook firing,  http://bit.ly/ebpxp7).

The problems started when Souza posted negative comments about her supervisor on Facebook and then responded to comments her co-workers had also posted.  Souza was fired because of her commentary, and the NLRB took the position that firing her violated the National Labor Relations Act because it interfered with her right to discuss with her co-workers the terms and conditions of their employment.

The case has now been settled (see Settlement reached in case involving discharge for Facebook comments,  http://bit.ly/gAfETD.  According to the NLRB, the settlement requires AMR to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”  A private and undisclosed settlement was also reached between Souza and AMR.

Although the National Labor Relations Act was enacted long before anyone ever posted anything on Facebook,  the Souza case shows that the right of employees to discuss the terms and conditions of employment is being extended into the realm of social medial.  Therefore, the case should cause employers to take a close look at their social media policies to make sure they are not overbroad.

If you have any questions about this post, 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.

November 12, 2010

NLRB challenges Facebook firing

Posted in Collective Bargaining, Employee Handbooks, Internet Policies, National Labor Relations Act, Social Media in the Workplace, Social Networking tagged , , , , at 1:17 am by Tom Jacobson

In a case to be watched, the National Labor Relations Board claims that an employer illegally fired an employee who criticized her supervisor on Facebook.  The case involves Dawnmarie Souza who was a paramedic for  American Medical Response.  Souza posted her negative commentary from her home computer, and this prompted her co-worker Facebook friends to respond with their own comments supporting Souza.  That, in turn, lead Souza to post more criticism of her supervisor.  American Medical Response then fired Souza because her posts violated the company’s Internet policies.

The NLRB has now stepped into this Facebook firing fray.  The NLRB is a federal agency charged with safeguarding employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

According to the NLRB, Souza’s firing violated the National Labor Relations Act.  The NLRA is a federal law that gives employees the right to form unions, and it prohibits employers, whether unionized or not, from interfering with their employees’ right to discuss working conditions or unionization.  In Souza’s case, the NLRB claims that American Medical Response’s Facebook rules are overbroad and improperly limit the employees’ right to discuss working conditions.

This is the first case where the NLRB has made the argument that employees engage in protected activity when they use social networking sites to criticize their employers or supervisors.  The outcome of the case could have a significant impact on how employers implement and enforce their Internet and social networking policies.  A hearing on the case is scheduled to begin on January 25, 2011.

For more detail on the story, see NLRB: Workers’ rights extend to Facebook, http://bit.ly/cl9BbX.

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.

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