Delaware Employment Law Blog

Employers everywhere are facing new challenges when it comes to employees’ use of social media. These technology-based challenges are different, though, for every employer and have different nuances between industries. Certain employees’ off-duty posts on social-networking sites, such as Facebook, can have significantly more impact than others. Police officers are one such type of employee.

For example, one criminal defendant in New York, who was facing charges for weapons possession, used the arresting officer’s MySpace and Facebook pages to get the charges dismissed. At trial, the officer was questioned about his Facebook status, which said that he was “watching Training Day to brush up on proper police procedure.” And, on the day of the defendant’s arrest, the officer’s “mood” on his MySpace page was set to “Devious.”

A Columbia, Missouri police officer was issued a serious discipline after internal affairs determined that he had posted information about the juvenile record of a protester who had been photographed and quoted in a newspaper story about police brutality. Although the officer has posted the comments under a pseudonym, the protester (and his lawyer) didn’t have to jump to too many conclusions before guessing someone from law enforcement was the likely poster, simply given the fact that juvenile records are not available to the public.

These stories are just two examples of the difficulties employers face when attempting to manage employees’ off-duty Internet activities. These Web 2.0 challenges, though, are complicated anytime a public servant is involved. And, as these stories show, public employees who interact directly with the public will be held to an even higher standard than most.

For more on social media and off-duty conduct, see:

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

State Off-Duty Conduct Laws and Facebook-Friending Policies

Use Twitter, Get Fired

Should employers conduct online searches of job applicants? That’s one of the questions I’m asked most often by employers when talking about social media.  One of the less commonly asked questions is whether employers should conduct the same type of online search after the hiring decision has been made.  In other words, should employers monitor their employees’ online activities during employment? 

There are good arguments for and against this practice. For me, the most persuasive argument is logistics—it just doesn’t seem realistic for most employers to dedicate the resources required to monitor employees’ online habits.  But here’s a recent story that shows why employers may want to run a search of current employees on Google. 

Inc.com reported the story about a single mother in St. Louis who, during the day, worked for a non-profit.  At night, though, she wrote an anonymous “sex blog” called “The Beautiful Kind.”  She’d managed to keep her online identity a secret until Twitter came along. 

When she created her Twitter profile, she used her real name, thinking that only her handle would be visible. When she realized that her name actually appeared in her profile, she immediately removed it and adjusted the name field of her handle accordingly.  Immediately, however, was not quickly enough. 

Thanks to Topsy, a Twitter search engine, her original profile was cached and her real name was displayed next to her user handle. According to the blogger, senior management suggested that supervisors search the web for information about their employees.  When the blogger reported to work, she was fired by her boss, who had found out about her extracurricular “activities” on Topsy. The nonprofit claimed that it could not justify the risk to its public image caused by an employee’s racy blog.

The interesting point to this story, aside from the idea of supervisors being encouraged by senior management to spend time surfing the web, is that the employee was terminated as a result of conduct that did not involve her job.  She was blogging during nonworking time on a computer not owned by her employer or connected to her employer’s network.  In some states, where off-duty conduct is protected to varying degrees, the termination may be unlawful.  But, in Missouri, which does not have any laws offering such protection to employees, it would appear that the termination is entirely lawful.

And, if nothing else, this story is an excellent example of the principle that, if you put it on the Internet, you’d better assume that your boss is going to see it and is going to hold you accountable.

See these related posts for more about the impact of social media on employers and employees:

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

More Employers Searching Online for the Dirt on Candidates

Sample Social-Media Policy

5 Non-Negotiable Provisions for Your Social-Media Policy

State Off-Duty Conduct Laws and Facebook-Friending Policies

Follow me on Twitter @MollyDiBi

In an earlier post, I discussed the implications of "friending" by employees.  I suggested that there are a few options for employers and how they handle this sometimes awkward social-networking phenomenon.  One option is to prohibit supervisors from making friend requests to their direct reports.

Patrick Della Valle, of ELinfonet.com, made an excellent point in a comment to the post.  He noted:

I believe that some states (like New York) have "recreational activities" laws that prohibit an employer from discharging an employee for engaging in lawful activity outside of working hours. I don't know whether "friending" qualifies, but it's something to consider.

His point about off-duty conduct laws is such an excellent one that it merits more than just a comment in response. 

Continue reading "Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies" »

Employers want healthy employees. Employee wellness programs are as hot as ever.  Employees who smoke, on the other hand, aren't very popular.  Employers point to well-known statistics to support a variety of smoke-free policies.  Many companies have implemented bans on hiring smokers.  Others have taken to charging a "smokers' premium" on health insurance.  Smokers' premiums are a surcharge added to the health-care premiums of smokers, typically between $15 and $30 extra per month. 

The idea of "punishing" employees for what they do in their non-working time does not sit well for some.  Others raise questions about enforcement--how will the employer know if the employee claims not to smoke but does so "socially" or even secretly.  Should closet smokers be able to avoid the smokers' premiums by hiding what they do outside of the office?  

Our future President may be sympathetic to this secret society of smokers.  He is, after all, a card-carrying member.  Obama has admitted to being a former smoker but, in an interview with Tom Brokaw on political talk show, Meet the Press, the President-Elect admitted that he's "fallen off the wagon" on more than one occasion and did not deny that he'd avoided Barbara Walter's questions about whether he'd kicked the habit for good. 

In light of his penchant for lighting up, will the country's next President really support the current employee wellness programs sweeping the nation? 

Delaware employers--private and public--may benefit from a recent decision from the Delaware Supreme Court upholding the termination of a school teacher.  The elementary school cited "immorality" as the basis for the termination of a 34-year old male teacher.   Lehto v. Board of Education of the Caesar Rodney School District, No. 175, 2008 (Del. Dec. 2, 2008).

The court held that the teacher, who had a sexual affair with a 17-year old female student, was guilty of immorality.  The student did not attend school in the district where the teacher worked, although her sister did, but the teacher had taught her some years before in elementary school.

The teacher had renewed his acquaintance with the student when she began coming to his school to pick up her younger sister, and they began an intimate relationship. Eventually, the affair became known in the community, and the teacher was charged with fourth degree rape, but the charge was nolle prossed because the teacher was not in a position of trust or supervision over the student. After a hearing, the school board terminated the teacher, who had positive teaching evaluations, concluding that his “engaging in a sexual relationship with a minor . . . violated the common mores of society” and “interferes with [the teacher’s] important function of serving as a role model to the students.”

The termination was upheld by the Delaware Superior Court and affirmed by the Delaware Supreme Court. Even though the conduct took place outside of the school and with a non-student of the district, “there was a proper nexus between his alleged off-duty conduct and his fitness to teach.” Especially interesting and broadly significant is the court's conclusion that the public disclosure of the relationship permitted the inference that allowing the teacher to remain could "reasonably undermine parents' confidence in both [the teacher] and the District."

Private employers are often faced with decisions concerning off-duty conduct of their employees. One rationale that has been applied is whether the conduct, if it became public, could damage the employer’s reputation. Most frequently, the issue arises when employees who enter people’s homes as part of their job are charged with, but not yet convicted, of crimes. This case supports the conclusion that if public confidence in the employer would be undermined by the knowledge that the employer retained an employee who was charged with a notorious crime, that is a sufficient reason for termination.

This isn't the first time off-duty conduct has played a role in the termination of a teacher:

People, don't you understand: More Teacher Social Networking Woes 

Terminating Employees for Off-Duty Conduct 

MySpace and Employment: Another Tale of Woe

Off-Duty Conduct of College Pres Leads to Firing

Employers can terminate employees for what the employees do in their personal, non-working time.  This is true for non-contractual (i.e., at-will) employees in most states. 

Some states have laws that prohibition employers from considering off-duty conduct when making an adverse employment decision.  For example, New York State has one such statute, known as a "lifestyle-discrimination" law.   West Virginia has a law that prohibits employers from taking an adverse employment action based on the fact that an employee uses tobacco.  There are several such laws scattered across the country, known as "Smokers Rights" statutes.  But these laws are the exception--not the rule.  

Contrary to what many employees believe, the general rule is that employers have the right to terminate employees for any reason, so long as it is not an unlawful reason, such as race, religion, gender, age, disability, etc.   This means that you can be fired because you have hot-pink hair.  Or for dating your boss's daughter.  Or for being a loyal drinker of the brand of beer made by your employer's #1 competitor.  And, outside of the states where lifestyle discrimination is prohibited, all of this is perfectly legal. 

Unlawful discrimination requires, in short, some unlawful conduct. Discrimination alone is not against the law.  We all discriminate countless times every day.  The word "discriminate," is defined by Webster's as "to mark or perceive the distinguishing features of."  We do this all day long.  We discriminate between ham and turkey for lunch.  We discriminate based on our color biases when we choose between the black and navy suits.  We discriminate when we attend one child's soccer game over another's baseball practice. None of these choices are unlawful--they're just choices. 

Similarly, employers make choices and decisions for a variety of reasons that are not limited exclusively to work-related factors.  So long as these factors do not include any of the statutorily prohibited bases, such as disability, genetic information, or national origin, for example, there is nothing unlawful about doing so.   Off-duty conduct, such as what kind of car you drive, where you buy your groceries, and whether you like your eggs fried or over easy, are all legal bases for making an adverse employment decision.  [And, for the record, you'll note that I said legal but I did not say legitimate--what's lawful does not necessarily equate with wise decisionmaking.]

For more on the topic of the role of off-duty conduct in employment decisionmaking, see Dan Schwartz's recent post at the Connecticut Employment Law Blog discussing a claim brought by a teacher who was fired for his MySpace page, which Michael Stafford covered from the education-law perspective in his post, MySpace and Employment: Another Tale of Woe or any of the other posts we've written on Off-Duty Conduct here at the Delaware Employment Law Blog.

Employers have an interest in the activities of employees--even if those activities occur during non-working time.  Much to the chagrin of employees, employers do care, strongly, about the off-duty conduct of the workforce.  The "who" and the "what" of employers' focus is broad and varied.  From local newscasters to international sports superstars, all employees will be held accountable for their actions taken while "off the clock."  And whether those actions include smoking, overeating, or cheating on one's spouse, you can bet that some employer, somewhere in the country, puts a scarlet letter on any employee who may participate in them.  Although some examples of off-duty conduct seem a bit overboard, this story seems to reside fairly close to the line of relevancy.

Iowa Central Community College's Board of Trustees voted unanimously to accept the resignation of the school's President.  Robert Paxton, 52, had served as president for 13 years at the time.  One day before the incident that led to his separation, Paxton signed a three-year renewal agreement.  

And, according to ABC News, less than a week later, the firestorm began. 

A picture was published in the Des Moines Register that appeared to show Dr. Paxton pouring beer into a young woman's mouth.  The picture appears to have been taken on a boat, where Paxton is seen with a group of young people.  He is holding a small keg over the young woman's head.

The Board says that, although the incident happened while Paxton was off-duty, his choices, "it reflected poorly on the college."

Thanks to the renewal agreement that he signed just before the July 4th weekend when the off-duty conduct is said to have occurred, Paxton will receive a severance package valued at approximately $400,000, which includes his salary for two years and continued health-care coverage. 

So what's the verdict?  Does the college president's off-duty conduct (i.e., beer kegging it with a bunch of college-aged individuals), reflect poorly on the school?  So much so that termination would have been appropriate had he not stepped down? 

According to the AP, Larry Mendte has admitted that he hacked into Alycia Lane's e-mail and leaked her private information to a reporter from the Philadelphia Daily News.  This admission comes just two months after Mendte's home was raided by the FBI and his computers from home and work were seized.  Although not likely, Mendte could be sentenced to up to five years in prison when he is sentenced in November.

Mendte admitted that he viewed hundreds of e-mails after installing a keystroke-tracking software on her computer at work.  Lane maintains that she complained about the possibility that her e-mails were being leaked but her employer, KYW-TV, "treated her as if she was paranoid."  Lane claims that her career has been ruined as a result of Mendte's behavior.

Get Fit or Get Fired? No, but if you're employed by the State of Alabama, you'll have to pay higher insurance premiums.

Fat employees, beware. The State of Alabama has issued an official “crackdown” on unfit employees. That’s right. The state has issued a get-fit mandate. Employees have one year to “see the light,” so to speak. Either get moving towards thin or face a bulging health-care premium. Employees who fail to trim their waistlines will pay $25 a month for insurance that will be free to their leaner coworkers.

Alabama is the first state that has elected a “stick” approach to motivating employees to get healthy. There are a few states that offer rewards (i.e., carrots), to employees who make healthy lifestyle changes. Like many other employers, both public and private, Alabama already charges a premium to employees who smoke.

So what exactly is required? According to the New York Times article, Extra Pounds Means Insurance Fees for Ala. Workers, beginning in January 2010, state workers will be required to undergo health screenings—or face a monetary penalty if they refuse. If the screening reveals problems with blood pressure, cholesterol, or obesity, they are given one year to shape up or ship out. At a follow-up screening after twelve months, they won’t face the $25 charge.

And what will qualify employees for a passing grade when they take the screening test next year? Employees with a Body Mass Index (BMI) lower than 34 will be exempt from the “obesity charge.” A BMI of 30 is considered the threshold for obesity. And if you fail the screening? Other than being required to “make progress,” the State has not yet determined exactly how “progress” will be defined.

Maybe the most obvious question is just how the State of Alabama thinks that its out-of-shape employees, many of whom have been battling their weight, cholesterol, or other health issues for years, will suddenly develop the motivation, knowledge, and skills to make these changes. Deeply rooted lifestyle changes are not made because of an HR initiative.

If I sound cynical, it’s because I am. When employers stopped hiring smokers and charging employees who smoked, I was skeptical. Although there are obvious and undisputable benefits to a tobacco-free workforce, I worried that the proffered motivation was a bit too “glossy” to be true.

I also wondered how long it would be until there weren’t enough smokers left to make them a valuable target. At that point, what group would be the next to be targeted? I suspected it would be obese or overweight employees. It seems my prediction has come to fruition. At least for overweight government employees in a state where 30.3% of citizens are obese.

Employee-privacy rights.  Compensation-based jealousy.  Bitter co-workers.  Electronic monitoring.  Gender discrimination.  Clash of the Gen X and Baby-Boomers, even?  The continuing saga involving former news anchors Larry Mendte and Alycia Lane has all of the makings of an employment-law thriller. 

Last we checked in with the two former news anchors, KYW-TV announced its decision to terminate long-time host, Larry Mendte, following a federal investigation and raid of Mendte's home and office.  On Monday, July 21, the U.S. Attorney's office filed a federal criminal information charging Mendte with a single felony count of intentionally accessing a protected computer without authorization.  See the full Information here: 

The allegations, as detailed in meticulous fashion in the Information, are based on the government's claim that Mendte hacked into Layne's personal e-mail accounts and released the info he stole to the press and others.  The hacking is said to have gone on for a period of two years but, last quarter alone, is alleged to have tapped into her accounts approximately 537 times.  Lane's lawyer is reported so say that Mendte was jealous of his younger co-host, who garnered lots of attention and who made $100,000 more than him a year. 

That alleged jealousy could land Mendte with a jail sentence of up to six months.

The Acting U.S. Attorney Laurie Magid, explained the government's interest in the case.  "We live in an age in which many people exchange and share personal, sensitive information by e-mail every day."

This is a great lesson for employers.  Privacy rights are on the minds of employees everywhere.  It's an already-serious issue when employers monitor their employees' e-mail and internet use.  But add to that a potential threat from co-workers and privacy paranoia seems like a very realistic possibility.

For earlier episodes in the soap opera:

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Pardon Me? Anchorwoman’s Cursing Caught on Live TV

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses.

Here at the Delaware Employment Law Blog, we've been following the Alycia Lane-Larry Mendte brouhaha since it first began to brew--before Mendte was accused of snooping through his co-anchor's personal e-mails "hundreds of times;" before the FBI confirmed that it had swept Mendte's home on the swanky Main Line suburbs of Philadelphia, taking with them Mendte's personal computers when they left; before he was suspended and then fired for the "e-mail situation" (though no one is quite sure what that involved). Heck, we've been covering this story all the way back to before Lane was terminated for embarrassing the news station where she and Mendte had been co-anchors, following her involvement in a string of high-drama, news-making scandals of her own. 

There can be no dispute that the story has been as interesting as any news broadcast could hope to be.  Better than that, it's really evolved into a daytime soap opera.  The ABA Journal apparently agrees.  In her article, News Anchor Fired Over Alleged E-Mail Snooping That Brought Down Co-Anchor, Martha Neil reports that the involvement of the FBI in what appears to be an employment-law matter has raised some eyebrows.  Assuming Mendte did, as is now alleged, install keystroke-tracking software on the station's computers, enabling him to access Lane's account without her permission, that still wouldn't explain the involvement of the federal law authorities.  No crime has been alleged--at least none that I can identify. 

As the drama and intrigue continue to unfold, we'll be sure to be on high alert for the criminal element of what seems to be a straightforward, albeit juicy, employment-law scenario. Just another day in the workplace.

For earlier posts on the Mendte-Lana saga, see:

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Bad Boys, Bad Boys, Whatcha' Gonna Do . . . When They Work for You?

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses.

Is the workplace the right place to fight the battle of the bulge?  With wellness programs on the rise, obesity among employees has been one of the most targeted health issues.

There seems to be a new study every week about the types of wellness initiatives that are being used, the effectiveness of the different initiatives, and the high cost of wellness programs.  And each study seems to generate different data. 

Despite the conflicting data, one common thread among many programs is the attempt to target obesity as a health risk.  A study by the Strategies to Overcome and Prevent Obesity (STOP) Alliance reports that 80 percent of employees, regardless of weight, believe that weight-management programs belong in the workplace.  71 percent reported that weight-management issues are appropriately addressed in the workplace. 

A recent article in BusinessWeek entitled "Hide the Doritos! Here comes HR" identified some well-known organizations that have declared war on calorie over-consumption.  According to the piece, companies such as Google, Yamaha, and Caterpillar have taken a first step by removing the junk food from all company kitchens and vending machines. 

[Source:  Human Resource Executive Online]

Other Posts about Employees' Off-Duty Conduct

Employees, Prepare to Get Healthy, Like It Or Not!

DelaWELL Wellness Programs Wins Award

DOL Offers Compliance Checklist for Wellness Programs

Are Wellness Programs on the Decline?

A Whirlpool of Excitement about Rights of Employees Who Smoke

Employees Who Smoke (Part 1) Smoking Breaks

Employees Who Smoke (Part 2) Charging Smokers Higher Health Care Premiums

Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

From Cancer Sticks to Drumsticks: How far should employers go when it comes to employees' health?

Workplace discrimination based on smoking habits and tobacco use has garnered national attention as a wide-spread employment practice.  Weyco, Inc. was the first large employer to make the news for its tough stance against smoking when it fired several employees after they failed to quit smoking.  Its actions have been at the center of the debate of an employer's right to control the on- and off-duty conduct of its employees.  (See the list of prior posts on this topic, below). 

Now, PETA, People for the Ethical Treatment of Animals, an organization perhaps best known for throwing blood on people wearing furs, has called on Weyco to take its policy to the next level. PETA has written to Weyco President Howard Weyers urging him to hire only vegetarians.

In its letter, PETA points out that the consumption of meat and other animal products has been conclusively linked to heart disease, diabetes, several types of cancer, and obesity. PETA also recommends that the company provide employees with free vegetarian lunches--a program that PETA is offering to help implement--to improve the health of the company's current employees.

"When you take into consideration all the diseases that have been linked to meat consumption, it adds up to a mountain of health care costs," says PETA's Ashley Byrne. "Discouraging smoking is a great idea, but if Weyco really wants to get serious about cutting costs, it'll urge its employees to ditch drumsticks as well as cancer sticks."

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Delaware Employers & Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

Workplace discrimination based on smoking habits and tobacco use has garnered national attention as a wide-spread employment practice.  Weyco, Inc. was the first large employer to make the news for its tough stance against smoking when it fired several employees after they failed to quit smoking.  Its actions have been at the center of the debate of an employer's right to control the on- and off-duty conduct of its employees.  (See the list of prior posts on this topic, below). 

Now, PETA, People for the Ethical Treatment of Animals, an organization perhaps best known for throwing blood on people wearing furs, has called on Weyco to take its policy to the next level. PETA has written to Weyco President Howard Weyers urging him to hire only vegetarians.

In its letter, PETA points out that the consumption of meat and other animal products has been conclusively linked to heart disease, diabetes, several types of cancer, and obesity. PETA also recommends that the company provide employees with free vegetarian lunches--a program that PETA is offering to help implement--to improve the health of the company's current employees.

"When you take into consideration all the diseases that have been linked to meat consumption, it adds up to a mountain of health care costs," says PETA's Ashley Byrne. "Discouraging smoking is a great idea, but if Weyco really wants to get serious about cutting costs, it'll urge its employees to ditch drumsticks as well as cancer sticks."

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Delaware Employers & Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

Employers can (and do) consider employees' off-duty conduct when making employment decisions--in most cases. For example, in most states, it is not unlawful for an employer to refuse to hire job applicants who smoke during non-working time. 

And, as we've seen with former TV news anchor, Alycia Lane, off-duty activities such as sending bikini-clad photos of yourself to a married man, yelling a homophobic slur, or slapping an undercover police officer ended up getting Lane fired.  Now another famous name is making news with his off-duty antics.

Shaquille O'Neal made the news this week not because of his on-court moves but for his freestyle rap performed off the clock.  Shaq was seen in a video rapping about former teammate, Kobe Bryant. (The censored version of the video is below). He raps that Kobe couldn't have won three straight NBA titles without Shaq on his side.

So maybe this is a poor display of team spirit but that's not all.  He also uses a racially derogatory word and other foul language, which has been the real center of the controversy.  Critics have condemned the performance, saying that the use of such language crossed the line from bad taste to bad morals. 

It's unclear where the video was shot but it seems to have been at a private function.  Another example of the recent push to hold employees accountable for what they do on and off the clock.

This version of the video has been censored to bleep out the inappropriate words but not the bad lyrical style--sorry, but there wouldn't have been any video left. 

Also, the hat tip for this post goes to Felicia B., William W. Bowser's delightful Legal Administrative Assistant.  Felicia forwarded me an article about the pushback Shaq's rap has gotten and suggested that it was a good topic for an article about off-duty conduct.  Kudos to Felicia!  It never occurred to me that to put the two together! 

Other Posts About Off-Duty Conduct:

Starring Alycia Lane (and, recently, Larry Mendte):

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Off-Duty Conduct & Newsmakers:  The Role of Morals Clauses in Employment Contracts

Bad Boys, Bad Boys, Whatcha' Gonna Do When They Work for You?

Off-Duty Conduct, Generally:

Off-Duty Conduct In the News

There's No Hiding Your Own Bad Habits

Employees' Privacy Rights:

Employers’ [Private] Eyes Are Watching You

I Spy . . . a Wal-Mart Employee . . .Busted!

Managers, be thankful that you don't work in news television.  Apparently, news anchors aren't the easiest employees to manage.  Local news celebrities just might have the market cornered on employee off-duty conduct that causes employers the biggest headaches.  And now, employees' off-duty conduct is at the heart of an employee-versus-employer lawsuit.

Oh, those crazy news anchors!  Always making news of their own! You may recall from earlier posts the saga involving the once anchorwoman for KYW-TV Philadelphia.  Hmmm. Scandals, actually, would be more accurate. 

Let's start with Alycia, seeing as she's the trophy-holder in the scandal department.  First there was the "Dr. Phil episode." She spilled her heart (and lots of tears) on national television during an appearance on the Dr. Phil Show and discussed in detail her failed marriage and the prospect of dating.  Then she was busted sending pictures of herself clad in a skimpy bikini to NFL Network sports anchor Rich Eisen. Eisen's wife was the so-called busting party. 

Then, in December 2007, Lane was arrested in New York and charged with assaulting a police officer.  There also were allegations that she'd verbally attacked the female officer with degrading and homophobic slurs. 

The officer was in plainclothes when the incident occurred.  Oops.

KYW terminated her a month later and issued a fairly quiet (and gentle) press release. 

Then, last month, after the story trail had gone cold, Lane was back in the news.  But this time, it was her former co-anchor, Larry Mendte, who had the spotlight.  In May, FBI officials searched Mendte's home and office computers triggering speculation that Lane may have pointed the finger at Mendte for leaking the Eisen email.  It hasn't been confirmed by Lane, Mendte, or the FBI that the search may have been the result of suspicion that he'd secretly read Lane's emails or otherwise accessed her computer.

The latest?  Lane has filed suit in Philadelphia against KYW.  The lawsuit against her employer alleges that the station's management had a pattern of "deep-seated gender-discriminatory animus" towards women in the workplace. 

Today's Wilmington News Journal reports:

The lawsuit says the station told Lane to interview TV psychologist Phil McGraw in 2004 and suggested that she talk about some of her past relationships. She said she understood that inappropriate personal elements would be removed and was mortified when footage of her crying about her divorce was included in a heavily promoted KYW newscast.

The suit says that because of those decisions, Lane "was branded in the press as someone who sought to make herself the news, rather than to merely report the news.

The defamation suit alleges that the station invaded her privacy and spread malicious gossip that eventually caused her to lose career opportunities and destroying her reputation. 

Stay tuned, viewers, I feel that it's safe to say there's more to come in this drama suited for prime-time TV.

Will Bunch of the Philadelphia Daily News at Philly.com:  Alycia Tells Her Side In Suit

(AP) The Wilmington News Journal:  Alycia Lane Sues Former Reporter

Related Posts:

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses

Bad Boys, Bad Boys, Whatcha' Gonna Do . . . When They Work for You?

Employers who ban smoking in the workplace are commonplace today.  Weyco's ban on employee smoking was the first of many headlines.  In 2006, Scotts Lawn Care's termination of an employee who tested positive for nicotine landed the company not only in the news but also in court when the employee filed suit.  Despite the increasing number of employers adopting anti-smoking policies, they're not so popular with everyone.

The UAW in particular, is not the biggest fan of smoking bans for its union members.  Effective the first day of June, Caterpillar banned smoking at all of its US facilities.  The United Autoworkers filed a complaint with the NLRB alleging that workers' right to smoke is subject to mandatory bargaining, subject to the sixty-year old bargaining agreement. 

Workplace Prof Blog asks the question that hasn't yet been answered in the world of labor relations:  Does the "right to smoke" at work affect the terms and conditions of employment so that it should be considered a mandatory subject of collective bargaining.

We've posted before about the "next big thing" in employment discrimination: obesity-based bias.  (See Is Obesity the Next Protected Class? and U.S. Businesses Recognize the High Cost of Obesity–Should Delaware Employers Do the Same?)

It has been speculated that, as the cost of health care continues to rise, employers will continue to charge employees higher premiums based on certain health-related factors.  Today, it's employees who smoke.  Tomorrow will it be employees who are overweight?  French employees don't have to worry about this potential problem.

The French parliament has been working on a law that would make it a crime to promote extreme thinness.  Fashion industry experts have opposed the efforts, claiming that there should not be a legal boundary on beauty standards.

Source:  Fox News.com

Employees who smoke are currently unpopular with the nation's employers.  But they are not alone.  The Philadelphia e-zine, Philly Burbs, writes that there are five other "conditions" that employers will avoid in a potential job candidate.  You can decide for yourself whether there is any truth in this claim.

The article quotes the president of an L.A.-based wellness company who says that there are five medical conditions in particular that no employer wants to see. The five he cites include: obesity, depression, hypertension, high cholesterol and musculoskeletal disorders such as low back pain.

Wow! 

The article goes on to say:

“Obesity is quickly replacing smoking as the number one expensive liability for a potential employer,” says Thomas B. Gilliam, president, Industrial Physical Capability Services (IPCS), Inc., Hudson, Ohio. He says that IPCS research indicates that costs related to obese employees have grown from 29 percent of the new hire pool in 2001 to 39 percent in 2007. “The obese worker will cost a company about $2,000 more per year in added health care claims and another $500 per year in lost productivity.”

I've posted before about the [very real] possibility that employers will soon target obese employees as the workplace becomes ever more focused on "wellness."  A combination of factors makes this result likely.

Primarily, he number of smokers will continue to decline.  Smokers receive harsh treatment and ostracism from society in large and, certainly, from mainstream corporate America.  In addition to the social pressures to abandon tobacco use, the country's employers have proclaimed smoking as an enemy to business--both from a productivity and expense perspective. 

For nearly 10 years, employers increasingly have used employees' tobacco use as a hiring qualification ("We don't hire smokers") and as a basis for higher health insurance premiums.  But eliminating smokers from the workplace will not create the ideal productive environment nor will it prevent the cost of health insurance from continuing to increase.  So what, then?  It seems logical that, once the "problem" (smoking) is eliminated, but the effects of the problem remain (productivity and high insurance costs), employers will simply elect a new "problem" to target. 

Obesity as a "problem" is not a far-flung idea.  Already we have seen fast-food chains change their offering to include healthier options, such as salads and fruit.  Even the addition of wellness programs promotes the idea of weight loss and a healthy body size.

Further support of this argument can be seen in the recent announcement of American Airlines that it will charge passengers $15 for the 1st checked bag and additional, higher premiums for the 2nd, and 3d bags.  The airline has defended this tremendously unpopular idea by citing the high cost of fuel.  Luggage weighs more.  The heavier the plane, the more fuel that is required to operate it.  Does it seem like a natural extension of this proposition that passengers will be charged extra if they "bring" extra weight on board, thereby causing the plane to use more fuel?

Of course, you may think this is absurd.  And, I admit, so did I.  But as outrageous as the thought may be, the local news today featured an "expert" on the airline industry who said, affirmatively and convincingly, that he believed that the next step would be to charge travelers for "extra weight" the next time they fly the friendly skies. 

Again, wow.

Workplace privacy concerns aren't limited to technology.  There's been lots of buzz about GPS tracking of employees, use of biometric data in time and attendance programs, and, of course, electronic monitoring of employees' e-mails, and Internet usage. As the case below demonstrates, privacy concerns don't require hi-tech equipment or software.  Just a whole lot of nosey.

A Sordid Affair

The story centers around a Wal-Mart supervisor who had engaged in an improper affair with a co-worker.  Not only was the affair illicit but it also violated Wal-Mart's anti-fraternization policy.  The supervisor was terminated when the company discovered the relationship.  Now, the termination alone might raise a few eyebrows.  But, policy is policy, and the supervisor's relationship was in violation of policy (as well as really bad managerial skills), the company can and should take disciplinary action. 

I Spy (well, Wal-Mart spied, actually)

Where the story becomes truly noteworthy, though, is exactly how Wal-Mart came to first learn about the "violation."  It hired a private investigator to track the couple.  The investigator did just that; following them all the way to a rendezvous hideaway in Central America.

And Then Came the Lawsuit

The romantic and unemployed supervisor filed suit in Arkansas state court alleging violation of contract and wrongful termination based on public policy.  The contract claim was swiftly rejected.  The termination claim, based on the allegation that he was fired in retaliation for reporting Wal-Mart's failure to comply with it's own internal policies regarding factory certification, was equally unpersuasive.  Summary judgment was granted in favor of Wal-Mart, which was subsequently affirmed by the Arkansas Court of Appeals. 

The legal claims asserted in the lawsuit were pretty blasé when compared with the sordid facts that got him terminated in the first place.  Based on the appellate court's decision, the claims seem doomed from the start.  I have to wonder whether the plaintiff wouldn't have been better off asserting a state-law privacy claim. 

The case is Lynn v. Wal-Mart Stores, Inc., No. 07-384 (Ark. App. Ct. Mar. 19, 2008), and a hat tip to the Workplace Profs Blog, who spotted this one back in April.