Delaware Employment Law Blog

Many employers use social media for a variety of purposes. I am currently in Las Vegas to speak at the Advanced Employment Issues Symposium, where there will be several sessions on how best utilize social media for recruiting and hiring, employee engagement, and as a corporate-communications tool. I'm looking forward to hear about the ways that employers can take advantage of sites like Twitter and LinkedIn for all of these purposes.

But what happens after you put these tools to work? In other words, if you hire a social-media specialist to use Twitter to promote your business or even if you authorize an employee to use Twitter as part of his or her job (i.e., to recruit employees), what happens when that employee leaves for a new employer? Do you own the Twitter account?

I'd bet that many of us would guess that you would--that you (the employer) authorized the employee to start the account on the organization's behalf and that you would expect the employee to return the account, so to speak, at the end of his employment.

And that's all fine and well, provided that the employee agrees. But what if he or she does not agree? What if the employee decides that he wants to take the account with him to his next job. I mean, gosh, he put so much work into building up all of those followers, right? At least that's what the employee will surely say!

According to FindLaw, that seems to be the issue in the case of one employer, PhoneDog, who has filed suit against its former employee, Noah Kravitz. During his employment with PhoneDog, Kravitz tweeted under the handle @PhoneDog_Noah. When he quit, he changed the account name to @noahkravitz and has refused the company's requests for him to relinquish his use of the account. In its suit, PhoneDog alleges that Kravitz's use of the account consitutes misappropriation of trade secrets, interference with economic advantage, and conversion (i.e., theft).

Whether the claims will succeed is almost a side issue--there are much more immediate considerations at play. For example, even if the company were to win at trial, any benefit of the account would, by that point, likely be lost. All of the followers that PhoneDog did have would either have stopped following the account or no longer be interested in the PhoneDog perspective--by that point, they'd be more interested in the Noah Kravitz version. And, in the meantime, PhoneDog would have already had to start all over trying to build a new following.

For any company considering implementing social media as a communications, PR, or HR tool, this case should serve as an excellent reminder of the importance of planning for the worst. Consider now who owns what in the social-media realm and then put it in writing and communicate it with any employee who is granted access to the social-media accounts. Letting the ownership of social-media accounts wait until a crisis arises is never a good idea.

GOP presidential contender Herman Cain has been in the news for more than his political platform recently. Instead of addressing issues like job creation, Cain has been facing tough questions about on-the-job harassment. Specifically, Cain is having to deal with charges of unlawful harassment leveled against him when he was the head of the National Restaurant Association in the 1990s.

There likely are multiple lessons that can be learned from this story but I'll offer you just one. In short, employers should not dissuade this news story from settling a lawsuit or charge of discrimination brought by a current or former employee.

Contrary to what some of the pundits may claim, lots of people and businesses settle lawsuits even though they know they've done nothing wrong. This is the reality of today's litigious society. There are a multitude of factors that get weighed when deciding whether and when to settle a lawsuit. But the equation is always based on business factors and is, by no means, an indication of "guilt" or "innocence."

In fact, most settlement agreements include a confidentiality provision, whereby one or both sides agree not to disclose the terms of the settlement or to discuss the facts underlying the lawsuit. Sometimes, though, this is not the case, and, for a variety of reasons, the parties may agree in advance to what will be said, thereby ensuring that neither steps over the line and leaving no room for misunderstanding.

Which brings me back to Mr. Cain's story. The individual who is claiming that she was harassed by Mr. Cain apparently entered into a settlement agreement to resolve the matter. It seems that, pursuant to the agreement, she received a settlement payment in exchange for her dropping her claims. Presumably, the agreement also included a confidentiality provision. And, presumably, she violated the provision by releasing information about her claim or the settlement. If that is the case, and she did renege on her promise, those who are following the story should consider how reliable the source really is.

But employers should, in my opinion, disregard the story altogether for the purposes of deciding whether or not to settle a lawsuit or potential lawsuit. Stick to the facts as applied to your particular business at this particular time. Settling a lawsuit is not, contrary to what some of the pundits might have us believe, an indicator of wrongdoing.

Facebook has landed another public school teacher in hot water. An administrative law judge in New Jersey has recommended that a school district terminate Jennifer O'Brien for her Facebook posts, in which she referred to her first-grade students in Patterson, New Jersey as "future criminals" and analogizing her job to being a "warden" in a Facebook post.

According to the NSBA, parents initially discovered and reported the teacher's Facebook musings.
In the words of the ALJ, the teacher "demonstrated a complete lack of sensitivity to the world in which her students live. The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone." In the ALJ's view, the district's need to operate efficiently trumped any free speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

The lesson here is clear- exercise good judgment when using social media and remember, the world is watching!

Now-former NPR host, Lisa Simeone, was terminated from her contract when she was seen at an Occupy D.C. protest. A conservative website questioned her presence, claiming that it violated NPR's ethics policy, reports the Baltimore Sun.

So, what's the problem? Image. NPR is partially subsidized with taxpayer funds and works hard to ensure that it is seen as a neutral news source. Simeone, by virtue of being a host on public radio, is a public face, or voice as it were, of NPR. An agency whose image is based on political neutrality. An agent of the agency who publicly takes a political position. It doesn't work.

Or at least that's what NPR would likely argue. Which is why Ms. Simeone is no longer a freelancer for NPR.

In April 2011, a jury awarded Shana Maron $86,000, after finding that she was paid less than her former male colleagues in Virginia Tech's Office of University Development. In June, U.S. District Court Judge James Turk threw out the verdict and ordered a new trial, reports Roanoke.com.

The plaintiff was not happy about the judge's decision. So she did exactly what we would expect--she posted about it on Facebook, writing, "What's the law really worth when you can make it up as you go?" and "Turk is a Turkey." She later added, "The jury spoke, Tech lost, Turk is a biased bully, and I will still prevail."

Sure enough, one of Maron's Facebook friends reported the posts to Virginia Tech's lawyers. And, sure enough, they sought a court order seeking to compel Maron to turn over all of her Facebook postings about the case.

Why would they want to know what the plaintiff had to say during the first trial? Maybe because they thought there could be evidence that could serve as the basis for a mistrial. Or, more likely, maybe the hope to find comments she made that could be used to impeach her during the second trial.

The judge, though, didn't buy it. He denied Virginia Tech's motion on October 20, 2011, ruling that the Facebook posts (assuming they do exist), were not material to Maron's Equal Pay Act claim.

So, what do we learn from this case? First, for individuals who are parties to a suit (and their counsel), silence is golden. And silence includes Facebook silence. I've had several interesting discussions with other attorneys about whether lawyers should monitor their clients' online activities during litigation. And several plaintiffs' lawyers I know have amended their retention agreements to reflect a promise by their clients that they will refrain from posting anything about the case in any online forum, including Facebook. Second, employers' lawyers should consider whether they should monitor plaintiffs' online activities throughout litigation.

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.

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!

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

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

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

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

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

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!

Social-media policies are the hot topic in the world of employment law. Questions about the advisability of social-media policies and the legal limits on what these policies may and may not regulate continue to abound. Employers who may be considering whether they need or want a social-media policy usually appreciate helpful resources on the subject. One particularly excellent resource on social-media policies is the Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees, published last year by the Judicial Conference Committee on Codes of Conduct.

The Packet includes a brief but substantive overview of some of the ethical issues arising from the use of social media by court employees, as well as a primer for those who looking for a fundamental understanding of the tools before moving to regulate those tools.

The Packet also includes sample language for use when drafting a social-media policy for judicial employees, as well as where to find such policies already in place.

Like the rules of professional conduct, which apply to lawyers' online activities, the Code of Conduct for Judicial Employees applies to all online activities, including social medial. As explained in the Resource:

The advent of social media does not broaden ethical restrictions; rather, the existing Code extends to the use of social media.

Although directed to judicial employees, the Resource contains valuable lessons for all legal professionals, as well as for employers generally.

Social Media Policies for Judicial Employees

This is an edited version of a post originally posted on the Going Paperless Blog, where I write about technology issues affecting legal professionals. I'm reposting it here because it contains information many employers may find valuable.

See also
Our three-part series on the legal limits imposed by the First Amendment in the context of social-media policies in the public-employment context. In Part 1, we discussed the general application of the First Amendment to workplace policies and rules. In Part 2, we focused on the 3-part analysis applicable to limits on speech imposed on public employees. And in Part 3, we discussed some of the cases upholding discipline based on employees' off-duty speech, similar to the speech social-media policies attempt to address.

Vetting job candidates online, particularly with social-networking sites like Facebook, continues to be the hot topic in the world of employment law. I recently wrote about a new SHRM survey, which reports that fewer employers are checking Facebook before hiring employees. And now it seems that Congress is concerned about the potential effects of social-media background checks, reports Kashmir Hill at Forbes. Jon Hyman’s comments about this news from our Nation’s Capital mirror my own, so I’ll point you towards his blog instead of saying the same thing twice.

Instead, what I will point out as something new is Nielsen’s Social Media Report, recently released for Q3 2011. The report is full of interesting statistics regarding our use of social media. Here are just a few:

• Americans spend more time on Facebook than on any other U.S. website.
• Nearly 4 in 5 active Internet users visit social networks and blogs
• Close to 40% of social-media users access social-media content from their mobile phone.

What I also found particularly interesting was the information about who is using social media. According to the survey, females and visit more often than males. The highest concentration of visitors are those in the 18-34-years-old range. Asian/Pacific Islander was the Race/Ethnicity with the most users.

I will be interested to see whether these statistics have any effect on those who argue that social-media hiring efforts do or may have a discriminatory impact on candidates.