Delaware Employment Law Blog

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. 

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.

Delaware's capital, the City of Dover, recently rejected a proposed social-media policy for its employees. Apparently, Dover's City Council was influenced by a letter from the ACLU of Delaware. The ACLU Delaware's Legal Director also spoke at the Council's meeting and, according the Wilmington News Journal, called the proposed rules a "clear violation" of First Amendment rights and "told the committee that public employees are not subject to any special restrictions on their speech because of the nature of their positions."

With all due respect to the ACLU's Legal Director (who I happen to know and think very highly of), I must, respectfully, disagree. In my humble opinion, the policy as proposed did not violate the First Amendment in any way--and certainly did not constitute a "clear violation" of any law. And, contrary to the Director's claim that public employees "are not subject to any special restrictions on theirs speech" by virtue of their employment with the government, although public employees do not leave their First Amendment rights at the workplace door,

it is plain that those rights are somewhat diminished in public employment.

Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 336 F.3d 185, 192 (2d Cir. 2003).

Because social media is a "new" technology, there are only a few cases that address whether a public employee may be disciplined or terminated as a result of online conduct that occurs while the employee is off duty. But those cases "clearly" provide legal support for the adoption of Dover's proposed policy.

In Stengle v. Office of Dispute Resolution, 631 F. Supp. 2d 564 (M.D. Pa. 2009), a hearing officer employed by the State of Pennsylvania maintained a blog, the description of which stated that its intended purpose was to

share information about inclusion and the implementation of the Gaskin Settlement agreement from the perspective of a parent of a class member and to provide a means to share information with other class members.

The "Gaskin Settlement Agreement" was a very hot topic in Stengle's local community. It was also the settlement of a matter over which she was presiding in her capacity as a hearing officer. When her contract was not renewed after she declined to recuse herself from the matter. Stengle sued, alleging that the non-renewal of her contract constituted an unlawful violation of her First Amendment rights.

The district court disagreed. It first looked to whether she wrote her blog in her official capacity as a hearing officer. You'll recall from Post 2 in this series that this first step was explained by the Supreme Court in its Garcetti decision. If an employee is speaking in his or her official capacity, First Amendment protections do not apply. Here, the court concluded that the blog's explanation of its intended purpose was sufficient to show that blog was written in Stengle's capacity as a citizen, as opposed to a hearing officer.

The court skipped the second step because the defendants conceded that the blog posts discussed matters of "public concern." Speech made by an employee on matters of public concern, as you may recall, receives constitutional protection. Therefore, the court proceeded to the third step.

At this stage, the court asks whether the public employee's interest in her speech outweighs her employer's interest in promoting workplace efficiency and avoiding workplace disruption. The court noted that this analysis recognizes a pubic employer's "need to have wide discretion in running an efficient operation."

The court easily concluded that the hearing officer's blog posts did not deserve constitutional protection. The court explained that the employer need show only that the employer's speech had "some potential" to affect the workplace. The employer need not wait until the bad things actually happen because of an employee's speech before taking action. The court then reviewed the several problems that the defendant-employer had offered as ways that its operations could be disrupted, finding that these potential disruptions were sufficient to justify its decision not to renew Stengler's contract.

A blogging case decided by a court on the opposite coast reached the same result. In Richerson v. Beckon, No. 07-5590-KJA (W.D. Wash. Mar. 27, 2008), aff'd, 337 Fed. App'x 637 (9th Cir. 2009), a school-district employee's job duties were reassigned when district officials learned of her blog, where she'd written posts criticizing coworkers and others. The posts were personal attacks of the individuals she worked with and were "racist, sexist, and bordered on vulgar. " One post also disclosed confidential information acquired in the course of her employment with the school district.

The court concluded that, although the underlying topic of the posts--the operation and management of public schools--could be considered a matter of public concern, the personal attacks and stereotyping "far exceeded normal standards of decency." The nature of the posts, the court found, disqualified the posts for the protections afforded to speech on a matter of public concern. Thus, the speech was not constitutionally protected and the claim was dismissed.

On appeal, the Ninth Circuit assumed without deciding that the speech was a matter of public concern but affirmed the dismissal under the balancing test. The court found that the employee's blog posts had caused co-workers, students, and members of the community to lose faith in her as a confident and otherwise impaired her ability to secure the trust that was essential to her position. Therefore, the court concluded, the school district was reacting to actual disruptions caused by the employee to the workplace and had not acted unlawfully.

There are other cases that do not involve social media but do involve off-duty conduct and are, therefore, similarly applicable to those discussed above. I will save my discussion of those cases for another post but, for now, the two decisions addressed above demonstrate, in my opinion, that there is no "clear violation of First Amendment rights" arising from a social-media policy that merely clarifies that an employer's anti-discrimination, anti-harassment, and other, similar workplace policies, apply to employee's off-duty and/or online activity.

See the earlier posts in this series, Government Employers Can (and Should) Have a Social-Media Policy, Part 1 and Part 2.

The Society of Human Resources (SHRM), released the results of a recent survey about employers’ use of social-media in the hiring process. The findings may surprise some. According to SHRM’s survey, there are fewer employers using social-media sites to screen job applicants than there were in 2008. The employers who participated in the survey responded that three primary concerns were serious enough to deter them from looking online for information about a candidate prior to making an offer. Specifically, they identified: (1) “legal risks,” including potentially discovering “information about protected characteristics;” (2) lack of verifiable data; and (3) lack of job relatedness.

I agree completely with the third reason cited. Before surfing the web for information about an applicant, employers should make an internal assessment of whether such a search is appropriate and necessary for that particular position. If it’s not necessary, the employer should make an official decision that online searches should not be performed—by anyone in the organization. If, however, there is a reason that an online search or social-media search may be appropriate, the employer should make an official decision reflecting this and then implement a policy about who will be authorized to perform the search and under what conditions.

Of course, regular readers will know that I wholly disagree with reason #1. So long as the employer adopts, implements, and enforces a clear policy about who will (and, perhaps, more important, who will not), have access to the information obtained during the search, online searches can be performed effectively and lawfully.

Regular readers also will know that I disagree with reason #3, above. As part of any defensible plan to incorporate social-media searches into a background-check program, employers absolutely should provide any negative information about a candidate. Not only is this the right thing to do as a simple matter of fairness but it also is critical to ensure that the information is accurate. Unfortunately, according to the survey, only 27% of employers who do use information obtained online in hiring decisions actually give the candidate an opportunity to explain the information that is found.

One more thought on the results of this survey—I have to question the validity of the survey results. I teach a lot of seminars to employers about social-media in the workplace. I also teach social-media seminars to graduate and professional students—who soon will become employees. In every seminar that I teach, I ask attendees whether they are using social media for hiring or, in the case of students, whether they believe they’re being Googled by their potential employers. The answer in both cases is a resounding “yes.” So, the results of the SHRM survey seem difficult to align with ,my experience. One possible explanation to the discrepancy? Perhaps there’s a hesitancy by employers to admit that they’re using social media to screen job applicants.

See also:
45% of Employers [Still] Don't Have a Social-Media Policy
Can an Employer Sue an Employee for On-Duty Facebook Use? Probably Not.
Screening Job Applicants with Facebook: Parts 1, 2, and 3