October 2011 Archives

Court Denies Reinstatement to Teacher Fired for Facebook Posts

Posted by Molly DiBiancaOn October 27, 2011In: Social Media in the Workplace

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Ashley Payne resigned from her job as a teacher at Apalachee High School after the school received a complaint about pictures Payne had posted on her Facebook page. The pictures were a long way away from the type of risqué photographs we normally expect to see in a typical "Facebook firing."

The picture showed Payne smiling while holding what appear to be two glasses and a bottle--which, it was presumed, were alcoholic drinks. Payne was on a trip in Europe when the photo was taken.

Payne claims that she was pressured by school administrators to resign after they received an email complaint about the picture. It's unclear from the news reports whether the complaint was made by a parent or whether Payne's Facebook profile was public at the time of the complaint.

Payne subsequently filed suit, claiming that her due-process rights were denied because she was not given an opportunity for a hearing. But her case sat on the docket for nearly two years before the court ruled on her motion. The motion was denied earlier this month, which came as no surprise to Payne or her lawyer. Due to the length of the delay, it was highly unlikely that a court would order that she be reinstated. Payne filed an amended complaint on October 10, in which she seeks monetary damages.

The lesson to be learned for employers from this case is a familiar one--plan ahead for social-media snafus. And the best way to plan ahead is through education. These days, I'm doing quite a bit of training for managers on the potential hazards of social media. These trainings are an incredible way to get managers thinking about what does and does not really matter when it comes to what employees are doing online--and about the potential consequences of what they do online.

We're Baaaack

Posted by Molly DiBiancaOn October 27, 2011In: YCST

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Apologies to our loyal readers for the lack of posts for the past two weeks. Hopefully, it will be worth the wait. We've been hard at work behind the scenes upgrading the blog. Now that we're back online, posts will resume as normal and, in the weeks ahead, we'll finally be giving our blogroll a much-needed facelift. In the meantime, thanks again for your patience!

Smokers’ Rights in the Employment Context

Posted by Molly DiBiancaOn October 12, 2011In: Off-Duty Conduct

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Can employers refuse to hire a applicants for their tobacco use? In most states, the answer is "yes." Unless the candidate is applying for a job in a State with a "smokers'-rights statute," an employer can refuse to hire candidates who smoke.

According to the Texas Employment Law Update, that's exactly what one of North Texas' largest employers has announced it will do. Baylor Health Care Systems announced that it will not hire or consider for hire any candidate who uses any nicotine product. This is additional evidence of a continuing trend in health care.

See also

A Whirlpool of Excitement about Rights of Employees Who Smoke

Employer Quits Its Smoking-Penalty Policy

Delaware Employers & Smoking Employees--Part 1

Delaware Employers & Smoking Employees--Part 2

Delaware Employers & Smoking Employees--Part 3

Delaware Employers & Smoking Employees--Part 4

Sample Social-Media Policy

Posted by Molly DiBiancaOn October 6, 2011In: Policies, Social Media in the Workplace

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Social-media issues faced by employers continue to change and develop. Your social-media policy (or guidelines, if you prefer), should do the same.  An updated social-media policy is provided via the link below for your reference as a starting point for drafting your own workplace policy addressing employees' social-media use.  There are, of course, any number of variations that may be appropriate for your specific workplace.  The sample is intended to be just that--a sample, to give you a running start when you've got your key stakeholders seated at the table ready to discuss the approach that is appropriate for your particular workforce.  You should consult with qualified employment-law counsel before implementing any new policy to ensure legal compliance.
Sample Social Media Policy YCST.pdf

Reasons to Terminate: More Is Not Merrier

Posted by Molly DiBiancaOn October 4, 2011In: Cases of Note, Gender (Title VII), Terminations & Layoffs

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When terminating an employee, employers need only one reason. Of course, there is rarely just a single reason for reaching the decision. But the existence of multiple reasons does not mandate that each reason be shared with the employee.  In other words, when an employer makes the decision to terminate, there should be only one reason upon which the employer relies and which is shared with the employee—the “final straw.” When an employer changes its “final straw,” it raises doubts both with the employee and with the court and changing reasons are evidence of unlawful discrimination. 

In Smizer v. Community Mennonite Early Learning Center, the employer told the employee that he was being fired due to a Facebook posting he’d made. But the employee didn’t buy it.  He claimed that he really was fired because of his “tardiness and lack of cleanliness in his classroom.”  He claimed that similarly situated female employees, who also were tardy and who kept equally messy classrooms, had not been fired.

If this claim were true, and there were late and messy female employees who had not been fired and the plaintiff was really fired for these reasons, it would support the plaintiff’s Title VII claim.  So the plaintiff sought the court to compel his former employer to produce documents he claimed would show these failings of his female counterparts.

The employer responded that evidence relating to tardiness and messiness were not relevant to the suit because, as you may recall, it fired the plaintiff due to a “troubling” comment he’d made about coworkers on his Facebook page. Thus, the employer contended, the evidence that the plaintiff sought was irrelevant to his claim.

The court disagreed.  In its opinion, it stated that the plaintiff had provided “ample documentation” tending to show that the Facebook posting may not have been the real reason for his termination.  Instead, the documentation apparently showed that the employer had claimed at various other times that there were other reasons for terminating Smizer—including his tardiness and lack of cleanliness.  In employment-discrimination claims, “a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.”  Because evidence of “shifting justifications” may be admissible at trial, the requested documents were discoverable and ordered the employer to produce them. 

So what’s the big lesson employers can learn from this story?  In short, pick a reason and stick to it.  One reason to terminate an employee is all you need—and all you should have.  Certainly, there may be (and usually is) a long history of performance issues with the employee.  And all of these would be relevant to the employer’s decision to proceed to termination. But the “final straw” is not a “bail of hay.”  Pick a reason, stick with it, and don’t muck it up by giving multiple reasons for the decision at the termination meeting or in a termination letter.  If you’ve done what you’re supposed to do, you’ve addressed the other issues as they came up with the employee and he’s aware of those issues. 

Smizer v. Community Mennonite Early Learning Ctr., No. 10 C 4304, 2011 U.S. Dist. LEXIS 102212 (N.D. Ill. Sept. 7, 2011).

See also:

Bad Reason #29 to Fire an Employee

Don’t Hate Me Because I’m Brilliant: One Employee’s Tale

3d Cir.: No Protection for an Employee Who Lies

3d Cir.: Disparate Impact of Newark, NJ’s Residency Requirement

Posted by Molly DiBiancaOn October 3, 2011In: Cases of Note, Discrimination, Race (Title VII)

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In Meditz v. City of Newark (PDF), the Third Circuit concluded that the City of Newark, New Jersey’s residency requirement may have unlawful disparate impact on non-Hispanic white applicants.  The case was brought Gregory Meditz, an attorney acting pro se.  Meditz alleged that the City’s residency requirement disparately impacted white, non-Hispanics and, as a result, white, non-Hispanics were under-represented in the City’s workforce.


Meditz, a white male, applied for a job as an Analyst with the City of Newark, New Jersey.  He was rejected for the job because he lived in Rutherford, New Jersey and a City ordinance required that non-uniformed employees live within City limits.  Meditz filed suit, alleging that the City’s residency requirement negatively impacted the hiring of white, non-Hispanics.

In support of his suit, Meditz provided statistical information that he’d gathered from publicly available sources.  Newark argued that the disparity reflected by the statistics were not sufficiently substantial.  The federal district court agreed with the City and found that the statistical evidence Meditz presented did not “constitute sufficient evidence of a significantly discriminatory hiring pattern.”  The Third Circuit Court of Appeals did not agree and reversed.

The Third Circuit found, instead, that the statistics showed that the percentage of white, non-Hispanics in Newark’s non-uniformed workforce was lower than the percentage that would be expected based on Newark’s general population.  The case was remanded for the District Court to analyze the evidence in accordance with the correct standard, as described in the Third Circuit’s decision.

Meditz v. City of Newark, No. 10-2442 (3d Cir. Sept. 28, 2011) (PDF).


For more on disparate impact, see also:

9th Cir. on ADA and Drug Addiction

Overview of the Risks of Employment Testing

The Link Between Race and Obesity—Disparate Impact Waiting to Happen?

EEOC’s Proposed Regs for Age Discrimination Disparate-Impact Claims

The Love-Hate Relationship of Labor Unions and Social Media

Posted by Molly DiBiancaOn October 3, 2011In: Social Media in the Workplace, Union and Labor Issues

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Have labor unions outlived their usefulness? Yes, said nearly half of the Americans polled, according to a recent Rasmussen survey. With only 48% of U.S. workers believing that unions still serve a worthwhile purpose, there is plenty of reasons for the labor movement to market their message.  And social media has been a useful tool for doing so.  For example, see this post about the 14 Ways Unions Are Using Twitter and this AFL-CIO post from 2009 for examples of Social Media Use by Unions for some insight about labor’s efforts in the online space.

But there may be downsides to social media for unions, too.  In this Huffington Post article, Tom Hayes asks, Will Facebook Replace Labor Unions?  Hayes’ basic premise is that, with the rise of online social networking sites, like Facebook, workers don’t need a union to organize.  Instead, employees can communicate outside of the workplace, even if they work different facilities, to discuss the problems they face inside the workplace.

And that, of course, is where the National Labor Relations Act comes into play.  Employees who engage in concerted activity are protected by the NLRA against retaliation and discrimination by their employers in response to their conduct.  As the NLRB has made very clear, these protections apply online just as they do in the workplace.  So, while unions may have reason to worry about their perceived usefulness, employers should be worried, as well, if they are not familiar with how the NLRA limits the ways they can respond to an employee’s Facebook post. 

To learn more about the interplay between the NLRA and social-media

Employees’ Posts Were Protected Activity, Says ALJ

NLRB and Facebook Firings: Employer's Worst-Case Scenario

The NLRB Approves Facebook Firings

Another Day, Another NLRB Complaint Over Facebook Firing

NLRB OKs Employee Termination for Twitter Posts

Nov. 1–2: 11th Annual Delaware SHRM State Conference

Posted by Molly DiBiancaOn October 2, 2011In: Seminars

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DE SHRM’s annual conference is just around the corner.  For Delaware HR professionals, this is an event not to be missed.  Young Conaway is proud to be the Platinum Sponsor again this year.  Bill Bowser, Scott Holt, and Adria Martinelli will present the annual update, the always popular, The Good, the Bad, the Ugly: Employment Law Update, on Tuesday, November 1 from 4:30 – 6:15 p.m.  And Mike Stafford and I will be presenting a session on Off-Duty Conduct, including medical marijuana use, social media, smoking and tobacco, and wellness, on Wednesday, November 2, from 10 – 11:15 a.m.

Registration is available on the DE SHRM website.  We hope to see you there!