Labor and Employment Law Update - February 2010

The “Pros” and “Cons” of Social Networking for Employers
Human resource directors are being bombarded with questions as to what to do about social networking. Social networking is here to stay, and employers need to adopt policies which recognize and allow employees to social network, but which also limit what employees are saying about their employers and coworkers and the use of company symbols and trademarks. Employer policies also need to reinforce that employees not breach patient confidentiality rules – even if what they are saying is positive and/or supportive.

Unless requested by their employers or as required by law, managers should not negatively comment publically on employees they supervise or former employees. This applies to a social networking site, too. A manager should never make more than neutral comments about an employee who has been discharged for misconduct or unsatisfactory work performance despite how badly he or she may feel for the discharged employee on a social network site. Tweeting by a manager about a termination is never appropriate. Nor is it in most situations wise for a manager to “friend” or link up with a subordinate. As much as a manager thinks he or she can separate work duties from a personal friendship, things said between friends can come back to cause serious problems in the workplace.

American employees often think they have a right to free speech – that they can say anything they want without any negative consequences to themselves. That is true only where the government is involved. There is no right of free speech in or about the private sector workplace. Employees who place negative, discriminatory or defamatory information about their employer or coworkers on a social network site should be disciplined. Employees who continue to do so or whose comments are seriously unacceptable should be terminated. The employer’s discharge policy should include such conduct as a basis for immediate termination. At the same time the employer needs to be careful if a group of employees are using social networking sites to complain in a nonderogatory way about their wages, hours and/or conditions of employment. In that situation, the NLRA would make it unlawful for the employer to discipline or terminate those employees whose conduct is protected because they are acting concertedly.

Employers also need to be careful with how they secure social network information. The federal Stored Wire and Electronic Communication and Transactional Records Access Act (SWECTRA) can be violated by an employer who accesses employee social network sites without proper authorization on password protected sites. Because of the value available through social networking, employers should decide how they want to use social networking for their own benefit. An interdisciplinary group of social networking-savvy employees could be given the task of recommending ways for the employer to create and upgrade its own social networking sites. This group should report to one person, perhaps the director of human resources, who should have final authority over what employer-related material will be put on such sites.

The reviewing of social networking sites of applicants can also raise concerns. An employer may discover information that it is better off not knowing, e.g., the applicant is a member of a protected group. Heavy use of social networking sites for recruitment could potentially lead to a disparate impact discrimination claim as fewer African Americans and Hispanic are on social networking sites in comparison to Caucasians.

New Employment-Related Matters of Note

1. EEOC Claims. The EEOC received 93,277 private sector discrimination charges in 2009 and obtained monetary relief of about $376 million. The four largest types of discrimination claims were based on race, retaliation, sex and disability. Claims based on disability, religion and national origin reached record highs. Approximately 60% of all claims other than sexual harassment claims were dismissed because no reasonable cause was found by the EEOC. This seems to indicate that the government needs to better educate the public on what constitutes a discrimination claim. Dissatisfaction or anger with an employment decision does not provide a disgruntled employee the basis for a claim with the EEOC. 

2. Need to Preserve E-Discovery Information.  More and more courts are requiring electronic discovery. Employers need to establish an e-discovery process and policies to preserve e-mail and meta data and to turn off the computer processes which routinely destroy this information when there is a reasonable belief that a claim may be brought.

3. Wage Rates Fall. The Bureau of Labor Statistics reported that real average weekly earnings for most workers fell 1.3% in 2009.

4. No Retroactivity.  The ADA amendments do not apply retroactively.

5. Extension of COBRA Date. An extension of the COBRA subsidy of up to 15 months needs to be provided to involuntarily terminated employees on or prior to February 28, 2010.

6. Return of Certain OSHA Logs. OSHA logs concerning musculoskeletal disorders are being resurrected.

7. Limit on Retaliation Claim Damages. The 7th and 9th Circuit Court of Appeals have held that compensatory and punitive damages and jury trials are not provided for under the retaliation provisions of the ADA. 

8. Recapture of Training Costs. A Wisconsin appellate court recently ruled that a contract requirement that employees who agree to stay for a certain period of employment in exchange for training and agree to repay the employer the costs of the training, (e.g., the tuition and the wages) if they do not stay for the entire promised employment period is enforceable.

9. Discrimination Settlements to Hospital Employees.

a. A diabetic R.N. was paid $142,500 to settle an EEOC claim because the hospital refused to modify her part-time schedule to allow her to work three days in a row instead of alternate work days. The hospital also agreed to revise and distribute anti-discrimination policies regarding reasonable accommodations and provide training on such to employees and managers. It also agreed to comply with recordkeeping requirements.

b. An O.R. scrub technician with a hearing impairment was paid $100,000 to settle an EEOC claim. The technician had been transferred to a float position because of doctor complaints. The float position was thereafter eliminated, and the healthcare system refused to help the technician find another position. The EEOC required the system to adopt anti-discrimination policies, provide ADA training for all management and supervisory personnel and comply with record-keeping requirements.

10. A Hospital Wins One. An R.N. who refused to complete the post-offer medical exam process had her discrimination claim dismissed as the hospital had a legitimate, nondiscriminatory reason for the withdrawal of is offer – her refusal to complete the medical exam process.

11. New Wage and Hour Monitoring. 250 new federal wage and hour investigators have been hired. This will result in more wage-hour audits. Employers need to ensure their payroll records are legally sufficient and uncompensated meal periods are properly monitored and sufficient written proof exists to prove 30-minute, uninterrupted meal periods are actually taken.

von Briesen & Roper Legal Update is a periodic publication of von Briesen & Roper, s.c. It is intended for general information purposes for the community and highlights recent changes and developments in the legal area. This publication does not constitute legal advice, and the reader should consult legal counsel to determine how this information applies to any specific situation.