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haven't seen a lot of Facebook firing cases coming out of the National Labor
Relations Board ("NLRB") recently, but on April 3, 2013, the NLRB's
General Counsel released an advice memorandum that discusses one such case.
In that case, the charging party worked as a hostess at a bar/restaurant called Character's Pub. After new owners took over, the transition did not go well. Two servers were terminated; another staff member quit; and others were upset over a new rule that servers were prohibited from discussing the menu with cook staff and could only discuss menu issues directly with the head chef.
Meanwhile,
the employees had a private group Facebook page where they "talked"
about work. After the new owners took over, complaints on the private page
increased. A few days before the Charging Party was fired, she posted,
"I just want to cry right now. Depressing...no regulars, no staff, no
fun!! I miss everyone. I didn't think they'd f*** it up this badly!!!"
When
the employee got to work a few days later, the owners of the restaurant met
her outside the restaurant. They told her, "We saw the Facebook page,"
and terminated her employment. The employee then brought an unfair labor
practice charge alleging the comments on the private group Facebook page were
protected concerted activity under the National Labor Relations Act (NLRA).
The charge was submitted to the General's Counsel office for advice.
The
General Counsel found that the posts were protected because:
While
perhaps there aren't any particularly new or unusual facts in this case, this
decision confirms that the NLRB is taking a consistent line - when an
employee is terminated for complaining about management or changes in the
workplace and the complaints are made to other employees who respond in some
way - the NLRB will find the social media posts to be protected and the
termination unlawful. The case is also a good reminder that the NLRB is still
focused on social media discipline and discharge cases and that employers
need to be careful when taking action against an employee based on social
media posts.
Perhaps
more importantly, while the case doesn't explain how the employer happened to
see the posts, since they were on a private group page, the case serves as
another reminder that making employment decisions based on information on a
private site is extremely risky. There also could have been privacy
implications caused by the employer's viewing of the posts.
Ceridian, 4/25/2013
For additional info regarding hiring, promotions and terminations based on Facebook or other social media, please contact:
The Whitford Group, 704 298-2115 phone, 704 772-0735 fax or TheWhitfordGroup@gmail.com
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Thursday, April 25, 2013
A Reminder to Avoid Prying Into Private Group Facebook Pages
Friday, April 19, 2013
Supervisor Violated Privacy Rights by Disclosing Worker's Mental Disability
Human resources managers know better than to disclose private medical information about employees. Supervisors may not.
In a recent California appellate court case titled Ignat v. Yum! Brands, Inc., the company learned what legal misfortunes are in store when a supervisor does not understand workplace privacy. Melissa Ingat worked for Yum! Brands, the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC.
Yum employed Ignat in its Real Estate Title Department. Ms. Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these were effective, sometimes not. Side effects of medication adjustments occasionally forced Ms. Ignat to miss work. Apparently her co-workers did not know she was bipolar. But that changed when a supervisor gossiped about her condition during one leave of absence.
After that, Ms. Ignat's coworkers allegedly avoided and shunned her. The employee filed suit against Yum! Brands and the supervisor, for "invasion of privacy by public disclosure of private facts." The company denied that the supervisor had discussed the employee's mental illness, and claimed that the employee herself had disclosed her condition to some of her co-workers.
The trial court granted summary judgment in favor of Yum! on a technicality. It ruled that the legal claim for invasion of privacy by public disclosure of private facts required that the disclosure be made in writing, not verbally.
On appeal, the court reversed the ruling, finding that the law does not require that the disclosure be in writing. A claim for invasion of privacy by disclosure of private facts includes the following elements: (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.
The legal claim has its origins in Roaring Twenties Hollywood. In a 1931 case titled Melvin v. Reid, a reformed prostitute who had married and led a respectable life for some years became the subject of a 1925 silent movie, "The Red Kimono," closely based on the lurid details of her former life. Although an actress played her character, the film used her real name. Inexplicably, it appears that the filmmakers also went out of their way to reveal her married name. She sued for invasion of privacy and other causes of action.
n that case, the court ruled that the right of privacy can only be violated by printings, writings, pictures, or other permanent publications or reproductions, and not by word of mouth. In the Yum! case, the court rejected the restriction that the legal claim cannot be raised where the revelation of private facts is made verbally.
Accordingly, the claim against Yum! and its supervisor based on verbal comments about the mental disability could proceed. Workplace Privacy Disclosure of private facts is not the only way an employer might violate an employee's right to privacy. Legal analysts note that privacy interests generally fall into two categories: (1) "Informational privacy" which precludes disclosing sensitive and confidential information; and (2) "Autonomy privacy" which gives employees the right to making intimate personal decisions or conducting personal activities without observation or interference.
Invasion of privacy claims are often seen in the following circumstances, among others: • Disclosure of medical information. • Suspicionless drug tests, except pre-hire exams and certain random drug tests. • Disclosure of reasons for termination to those not privileged to know. • Monitoring computer use or emails, video surveillance, secret audio recordings, where there is a reasonable expectation of privacy. • Searches of employees and their property, with exceptions. • Unreasonably intrusive investigations.
Before intruding into any of these areas, a company should consult with legal counsel to ensure that it is lawful. Medical information and other sensitive data about employee should be stored in a secured location with limited access.
Exercise control and care when disclosing information to company representatives for a variety of legitimate business reasons, including accommodations.
Fundamentally, employers should train supervisors to refrain from disclosing confidential information about employees.
Source: Ceridian, 4/18/2013
For additional information contact The Whitford Group, 704 298-2115 phone, 704 772-0735 fax or TheWhitfordGroup@gmail.com
In a recent California appellate court case titled Ignat v. Yum! Brands, Inc., the company learned what legal misfortunes are in store when a supervisor does not understand workplace privacy. Melissa Ingat worked for Yum! Brands, the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC.
Yum employed Ignat in its Real Estate Title Department. Ms. Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these were effective, sometimes not. Side effects of medication adjustments occasionally forced Ms. Ignat to miss work. Apparently her co-workers did not know she was bipolar. But that changed when a supervisor gossiped about her condition during one leave of absence.
After that, Ms. Ignat's coworkers allegedly avoided and shunned her. The employee filed suit against Yum! Brands and the supervisor, for "invasion of privacy by public disclosure of private facts." The company denied that the supervisor had discussed the employee's mental illness, and claimed that the employee herself had disclosed her condition to some of her co-workers.
The trial court granted summary judgment in favor of Yum! on a technicality. It ruled that the legal claim for invasion of privacy by public disclosure of private facts required that the disclosure be made in writing, not verbally.
On appeal, the court reversed the ruling, finding that the law does not require that the disclosure be in writing. A claim for invasion of privacy by disclosure of private facts includes the following elements: (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.
The legal claim has its origins in Roaring Twenties Hollywood. In a 1931 case titled Melvin v. Reid, a reformed prostitute who had married and led a respectable life for some years became the subject of a 1925 silent movie, "The Red Kimono," closely based on the lurid details of her former life. Although an actress played her character, the film used her real name. Inexplicably, it appears that the filmmakers also went out of their way to reveal her married name. She sued for invasion of privacy and other causes of action.
n that case, the court ruled that the right of privacy can only be violated by printings, writings, pictures, or other permanent publications or reproductions, and not by word of mouth. In the Yum! case, the court rejected the restriction that the legal claim cannot be raised where the revelation of private facts is made verbally.
Accordingly, the claim against Yum! and its supervisor based on verbal comments about the mental disability could proceed. Workplace Privacy Disclosure of private facts is not the only way an employer might violate an employee's right to privacy. Legal analysts note that privacy interests generally fall into two categories: (1) "Informational privacy" which precludes disclosing sensitive and confidential information; and (2) "Autonomy privacy" which gives employees the right to making intimate personal decisions or conducting personal activities without observation or interference.
Invasion of privacy claims are often seen in the following circumstances, among others: • Disclosure of medical information. • Suspicionless drug tests, except pre-hire exams and certain random drug tests. • Disclosure of reasons for termination to those not privileged to know. • Monitoring computer use or emails, video surveillance, secret audio recordings, where there is a reasonable expectation of privacy. • Searches of employees and their property, with exceptions. • Unreasonably intrusive investigations.
Before intruding into any of these areas, a company should consult with legal counsel to ensure that it is lawful. Medical information and other sensitive data about employee should be stored in a secured location with limited access.
Exercise control and care when disclosing information to company representatives for a variety of legitimate business reasons, including accommodations.
Fundamentally, employers should train supervisors to refrain from disclosing confidential information about employees.
Source: Ceridian, 4/18/2013
For additional information contact The Whitford Group, 704 298-2115 phone, 704 772-0735 fax or TheWhitfordGroup@gmail.com
Employment Law You May Be Breaking
How you pay your employees is governed by federal law. Violating it is easy, so be careful.
Here are the questions: If an exempt employee had to go to the doctor and missed an hour to three hours of work, can an employer dock pay? For example, a pregnant employee had an appointment and missed two hours of work. Can I dock her for two hours? Regardless of the circumstance, can an employer dock a couple of hours of pay at all for any reason?These are very common conundrums for employers. The short answer is no.
Docking pay from an exempt employee is illegal. There is a law titled the Fair Labor Standards Act (FLSA). If an employee is subject to this law (non-exempt), when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours.
If they are not subject to the law (exempt), they aren't eligible for overtime, but there are other rules that come with, like no docking pay.
This means that no matter how much it annoys you, if you have an exempt employee who takes off two hours early to do anything--doctor's appointment, soccer tournament, just plain bored and wanted to go home--you cannot dock her pay. It's helpful to think of this in terms of a "touch the wall" rule. That is, if your employee shows up for work, even if it's just for 15 minutes, you must pay for the entire day. (In the case of remote workers, if they so much as log onto their computers, call on one customer, or do any anything work related, that counts as touching the wall.)
You can discipline, fire, demote, yell at, or dock vacation time. But, you may not dock pay. And if you do dock pay? You've just made that person non-exempt. Which means you not only owe overtime going forward, you owe it going backwards. So your attempt to save $50 by docking two hours pay, could mean you'll be out thousands in back overtime pay.
Now, not only pay docking violations occur all the time, but regular violations occur where people are labeled exempt when they really should be non-exempt. And it's not necessarily easy to tell where people should be. If it's not abundantly clear to you, categorize someone as non-exempt and pay by the hour.
What makes this extra complicated is that the FLSA hasn't been adequately updated to reflect today's knowledge workforce. Here are some general guidelines for determining exempt status. Consult the FLSA website for specific questions.
In order to be considered an exempt employee, employees have to meet several qualifications. They must be paid a minimum of $23,600 per year, receive an identical paycheck each week (bonuses and commissions can be added on top of this, but you can't pay someone less), and perform "exempt" job duties. For instance:
Manager: If they supervise two or more employees, and managing these people is a big part of the job description, and have hire/fire authority (or at least strong input) over these people, they count under a manager exemption. Just slapping a "manager" title on someone does not make them exempt.
If, for instance, if the bulk of a shift manager's job is to help customers, stock shelves, keep the store tidy, and run a cash register, but this person is also responsible for seeing that the other employees get their daily breaks, the person should be classified as non-exempt, and eligible for overtime.
Professional: Some of these are easy to classify. Doctors, registered nurses (but not other nursing staff), lawyers, accountants (but not accounts payable/receivable people), and almost everyone making more than $100,000 per year are considered exempt. People who have considerable professional discretion are also exempt. That is, an analyst who works independently can be exempt. Most creative workers are also considered exempt professional staff.
Administrative Professionals: This sounds awfully similar to "admin" roles, which are decidedly non-exempt. These are really people who have a big impact on the business, work independently and make decisions on their own. The person who organizes your schedule, answers your phone, and orders office supplies does not count under this exemption. These are people who work in things like finance, HR, quality assurance, IT (although IT has its own exceptions), public relations, and other things that keep the business going but don't necessarily manage others.
Outside Sales: These people call on customers and make sales. If they are sitting inside your office making phone calls, they are considered inside sales and are non-exempt.
Pretty much everyone else needs to be paid by the hour. Which means, that if your accounts payable clerk checks her email at home, she needs to record that time on her time sheet and be paid for it. It also means that even if you don't authorize overtime, if the employee works it, you must pay him. You can fire him after paying it, but you must pay.
Source: Ceridian, 4/18/2013
Please contact The Whitford Group for additional information regarding wage and hour laws or for a comprehensive review of your employee's exempt/non-exempt status.
704 298-2115 Phone
704 772-0735 Fax
TheWhitfordGroup@gmail.com
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