Employment Law Update – Fall 2010
Employers Should Prepare for Increasing Use of Social Networking Media
If Facebook, which now reports having 500,000,000 users, were a country, it would be the third largest country in the world, only smaller than China and India. In addition to the explosive growth of Facebook, Twitter now reports that it has passed the benchmark of having over 50,000,000 tweets per day and the number of individuals connected on LinkedIn has similarly grown and numbers over 50,000,000. The reason that this phenomenal growth is an issue for employers is twofold: first, social networking accounts for over 11% of all time spent online, including use at work or on work-supplied computers; and second, employers are beginning to understand and take advantage of the benefits that social media can provide to employers themselves, not just in marketing but in recruitment, monitoring, and background checking as well.
Unfortunately, with this increased usage comes increased legal risks. Use by either employees or managers can create increased risks for employers, including the intentional or inadvertent release of confidential information, defamation, harassment, or discrimination. Employers need to remember that it is as easy to defame or harass someone by text or tweet or Facebook post as it is to do so face to face, by memo, or by email.
Given the associated legal risks and because the time Americans spend online on social networking sites and blogs has increased 43% since July 2009, it is important for all employers to have Social Media Policies addressing use by employees as well as by representatives of the employer. A Social Media Policy provides employees with a company’s guidelines on communicating in the online world and lets them know what they should and should not do. A policy purporting to restrict all access to social media will not be appropriate for every employer so all policies should clearly define for employees what is considered acceptable use in terms of when, how, and content. Most importantly, a Social Media Policy must inform employees that the use of social media must conform with all other company policies, including the company’s Workplace Harassment policy. It is the message, or content, not the mode of delivery, that can create liability.
As more cases find employers liable for employee usage of social networking media, more companies will adopt Social Media Policies. A policy addressing the use of social media is similar to policies that employers have been using to deal with employee use of the internet and email. As with internet and email policies, a social media policy will also facilitate employer monitoring of the use of social media at work.
Kaufman & Canoles recently hosted a webinar on Social Media in the Workplace. This webinar was very well-received and is currently available free of charge by clicking here. In addition, our K&C employment attorneys have worked with numerous companies to craft social media use policies tailored to the needs of the given business. If you have any questions about social media at work, or would like to discuss the implementation of a social media policy, please contact a member of the K&C Employment Law Team.
Humor or Sexual Harassment?
The owner of a North Carolina medical practice recently discovered that his habit of making crude jokes and sexual references in the workplace to be funny could create legal risks. He made numerous sexually-charged comments in the workplace, at times in front of patients. While the physician/owner of the Fairbrook Medical Clinic may have been attempting to be humorous, a female physician he supervised, Dr. Walters, did not appreciate his comments, including those about her breasts and offers to “help” her express milk for her infant when she returned from maternity leave. Since her supervisor was also the owner, the employee/physician felt she had no choice but to leave the Fairbrook Medical Clinic for a job with higher pay and a shorter commute.
After working for her new employer for approximately six weeks, Dr. Walters filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that the sexually-charged work environment at the Fairbrook Medical Clinic violated federal law prohibiting workplace harassment. The EEOC ultimately filed a suit against Dr. Walters’ prior employer. The federal District Court initially ruled that the owner’s behavior was not severe or pervasive enough to violate federal law, particularly since Dr. Walters did not experience any undue psychological stress or time off from work. However, on appeal, the U.S. Court of Appeals for the 4th Circuit ruled in EEOC v. Fairbrook Medical Clinic that “A jury could conclude that [the owner] altered [Dr. Walters’] environment by, among other things, bombarding her with graphic and highly personalized comments” about his and her anatomy. Accordingly, the lower court was reversed and the case was sent back to be decided by a jury.
This case points out that jokes or language Jay Leno may use for humorous effect on TV may not be acceptable in the workplace. In fact, attempts at sexual humor in the workplace are almost never a good idea and should not be encouraged even if some employees find them to be funny. Workplace harassment policies should accordingly prohibit any such sexually charged innuendo, jokes, or comments.
Supreme Court’s First Look at Employee Texting Rights Leaves Employers Scratching Heads
The law regarding employee privacy rights when using employer-owned communication devices has not developed nearly as fast as the technology and increasing use of such devices. However, most employers were somewhat comforted when the recent and much-discussed U.S. Supreme Court ruling in City of Ontario v. Quon did little to change the controlling law in Virginia. First, the Quon holding is limited to public employers, who must comply with the Constitution’s prohibition on unreasonable searches. Private employers have no such requirement and the Supreme Court ruled that the City of Ontario was not unreasonable when it fired an employee following a review of usage of employee pager text messages.
Second, while private employers had hoped the Supreme Court would provide guidance applicable to all employers in Quon, the Court essentially left open the question of when a private employee might have a privacy interest in his at-work communication activities. In Virginia, generally, it continues to be the rule that employees have no expectation of privacy when emailing, texting, or otherwise communicating on employer-owned equipment.
The best practice for Virginia employers who wish to monitor employee electronic communications is to inform employees that they should have no expectation of privacy when using company computer and communication equipment. Employers should then treat all employees consistently when enforcing policies regarding workplace usage of such equipment. Finally, employers should monitor employee communications for business reasons only – such as making sure that employees are engaged in work-related activities and that no computer activities violate other company policies (such as workplace harassment policies).
Emergency Unemployment Compensation Extended – Again
The controversial, federally funded Emergency Unemployment Compensation Program (EUC), originally enacted in 2008 has been extended for the seventh time. On July 22, 2010, President Obama signed an extension that provides Virginia employees with up to 86 weeks of unemployment compensation. Forty-seven weeks come under EUC, sandwiched between 26 weeks of regular, employer-paid benefits and 13 weeks of extended benefits funded equally between the employer and the federal government.
Former workers of Virginia employers working in other states may expect to receive up to 99 weeks of unemployment compensation. This is because an extra 13 weeks are available under EUC in states with a total unemployment rate at or above 8.5%.
The most recent extension renews the EUC Program through November 30, 2010, permitting persons with EUC eligibility remaining, but whose claims under EUC had expired in May, to again receive benefits from those claims. These “revived” claims and EUC claims made through November 30 will be paid up to 86 weeks through the present termination date of April 30, 2011. If not extended further, claimants will lose EUC weeks after that date. Benefit availability would then revert to new claims only, subject to Virginia’s standard 26 weeks of regular unemployment compensation and up to 13 weeks of extended benefits.
Richmond Judge Rules Employer May Be Liable for Hostile Environment Created by Non-Employee
A Richmond Circuit Court recently held that an employee had a valid claim for a hostile work environment against her employer created by a vendor’s unwanted sexual advances and inappropriate sexual comments. Recognition of such a claim in Poe v. Old River Cabinets, Inc. emphasizes the need for employers to police workplace harassment in their work environments even when the offending party is not one of their employees. So vendors or customers who engage in inappropriate conduct or use inappropriate language may need to be counseled to stop when this offends employees at the employer’s workplace.
27th Annual Employment Law Update – Weathering the Employment Law Storm
Recent legal developments have created the “perfect storm” of employment law risk for employers. Recognizing that companies have tough decisions to make, K&C has designed an all-new program to help employers “weather” this growing employment law storm. On November 4th the K&C Employment Law Team will host the first showing of the 27th Annual Employment Law Update at the Chesapeake Conference Center. Featuring the latest on the impact of healthcare reform, a number of timely topics will be presented. Attendees will also gain valuable experience witnessing a mock trial and deciding the fate of a litigious employee.
Attendees will select their choice of several of our educational workshops. Topics include Impact of Healthcare Reform on the Workplace; Investigating Employee Misconduct; Dealing with Problem Absenteeism; and Mediation, Severance & Release Strategies.
For more information, contact Kerry Martinolich at (757) 624-3232 or (804) 771-5722.
This program has been approved for 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at www.hrci.org.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2020.