Evolving Management at the Speed of Technology
Emmet Ore Well hello, everyone, welcome. This will be the fourth and final episode of our May Wednesday webinar series. My name is Emmet. I’m a digital specialist over here at Vensure, and I will be your host for the next hour. Today, our panelist, Robin Paggi, will be talking in depth about managing employees in this tech-centric world we currently are living in. Just a reminder, this is being recorded and we’ll share that recording and the slide deck with all of you after the session concludes. This webinar is brought to you, as always, by a VensureHR. Vensure is the leader of 20-plus PEO partners with clients in all 50 states.
Emmet Ore All right, today we’re going to be talking about getting information on applicants, how to use technology to do that and when not to, disciplining employees for online conduct, potential issues for employers, and recommended policy provisions. And lastly, we’ll have our Q&A, as always. So, if you hear a topic that you want a little bit more clarity on, feel free to submit a follow-up in the Q&A box.
Emmet Ore You may be asking yourself, Well, how do I submit questions? Well, you should have seen the control panel open when you enter the webinar room. There’s a dropdown section in that control panel for questions. So, just type your questions and comments into that section and hit enter. If you’re a client, please put, “client,” in your questions, so we can track that later. All questions are private, so you won’t see the questions or comments of others. And we’ll try to answer all the questions in the time we have. But if we don’t get to yours, don’t worry. You can reach out to us at any time at firstname.lastname@example.org.
Emmet Ore And we’re thrilled to have Robin Paggi joining us as our panelist today. She’s a human resource practitioner who specializes in training on topics such as harassment prevention, communication, team building, and supervisory skills. So, I will hand it over to Robin.
Robin Paggi Thank you. Before we jump into this first slide, I do want to say we’ve got a lot of info on the slides and you will get the slide deck afterwards. And so, just enjoy listening to what I have to say and then know that there’s a lot of info that’s going to be written down available for you in just a moment.
Robin Paggi So, technology. Most people use technology at work of some kind, and if they’re not using it at work, chances are they’re using it away from work. And it is very important for employers, HR professionals, supervisors, and employees to know what the legalities of technology use are and every aspect of the employment relationship. So, that’s what we’re going to cover today. So let’s go to our next slide.
Robin Paggi Now, why would an employer want to get information about an applicant online? Well, chances are if you’re single and meet someone, you check them out online before making a date with them, just to make sure you want to spend some time with them. And the same goes for employers. Social media provides so much information about people because people post so much stuff about them, about themselves, that is just right there. So if you’re trying to evaluate the character of a job candidate to pick out some red flags, it’s hard to ignore social media again because people post some amazing things. And sometimes the job interview goes really well and people sell themselves really well, but if you just get onto social media, you find out all sorts of things about them.
Robin Paggi So, this begs the question, is it legal for employers to conduct internet searches on applicants and look at things such as their Facebook page or whatever else they’re using? For the most part, yes, it is legal. Public internet searches of applicants are generally viewed as lawful. So, somebody applies for a job, you type their name into Google or whatever, you see what pops up. If you don’t like what pops up, can you refuse to hire the applicant? Well, that’s where it gets a little bit tricky. So, can you view them? Yes. Can you use the information against them? It depends. So what does it depend upon?
Robin Paggi According to the Civil Rights Act, and that was signed in 1964, and other federal and state laws, employers may not refuse to hire applicants because of their protected class status. So, that’s what the civil rights law did, section seven of the law, or Title Seven of the law, said that employers may not discriminate against employees because, or applicants, because of protected class status. And the first five at that time were race, color, religion, national origin, and sex. There are more protected class status after that. So, employers may not refuse to hire applicants because of their protected class status. And that includes what they find out about the protected class status when they’re looking at their social media. So, if a Google search reveals that the applicant is pregnant, can you refuse to hire her because of that? The answer is no. Pregnancy is a protected class. But, if a Google search reveals that the applicant took part in the Capital riot on January 6, can you refuse to hire that applicant because of that activity? Yes, you can.
Robin Paggi A 2018 survey of HR professionals conducted by the Harris Poll revealed that 70% of employers are now looking online to vet candidates prior to hiring them. And that is up dramatically from the 11% that used social media in this way in 2006. So, a decade and a half goes by and lots of people are using social media now. And employers who are refusing to hire applicants because of what they found said this was the reason. They found provocative or inappropriate pictures, videos, or information. They found information about the candidate drinking or using drugs. Discriminatory comments regarding race, gender, religion. Derogatory comments about their previous company or coworkers. They also found that candidates lied about their qualifications, had poor communication skills, that’s why you really need to pay attention to your spelling, punctuation, and grammar when you’re posting things. Candidates were linked to some type of criminal behavior and you don’t have to hire criminals necessarily if the job they are applying for is connected to the crime they committed. They didn’t hire applicants because they shared confidential information about previous jobs. They had an unprofessional screen name. They lied about absences from work. And they posted to frequently, which indicated that they had a little problem or they were spending time while they should be working, posting instead. Now, some of these behaviors are obviously more egregious than others, but you can see that sometimes employers have a good reason not to hire people because of what they have posted. And while employers might have started the social media search to verify information, then they end up finding out all sorts of stuff that then leads them to not want the candidate.
Robin Paggi On the other hand, looking at a candidate’s social media post can also be beneficial to the candidates. For example, employers find out positive information that supports the candidate’s qualifications that the candidate forgot to mention. They are impressed with the professional image the candidate displayed on social media. They were impressed with how creative the candidate looked on their social media. And so, it also helped candidates by employers poking around on social media.
Robin Paggi Now, this is all stuff that just pops up when you put somebody’s name in a search engine. If you have to be sneaky to find out information about candidates, like asking a friend who’s Facebook friends with the applicant to send you information about them, then that’s your sign that your search is probably unlawful. And, by the way, there was a time when employers were asking candidates for their password to their Facebook or what have you. And I don’t know if that was ever legal, but it’s definitely illegal now.
Robin Paggi All right. So, let’s get to the information that’s actually listed on this slide. And the first thing, if you are going to do an internet search of candidates, you have to use consistency with the searches. Now, consistency is important in every aspect of interviewing and doing background checks and all of that. If you are inconsistent with applicants, say you search this one, but you don’t search that one, that leads to all sorts of problems. And it’s more than just, OK, well, we’re going to look up information on everybody. It’s more than that. So, here’s some info about this first bullet point. You’ve got to make certain that all candidates have the same types of social media accounts to ensure that they’re all being held to the same standards and evaluated for the same criteria. Well, not everybody has Facebook. I know a lot of younger people don’t now because your grandma is on it. And so, you’ve got, you can only look when candidates all have the same social media accounts. How likely is that? Not very. And so, chances are that knocks you out of searching for people right there.
Robin Paggi You’ve got to act on the information consistently. And so, you’ve got to do some work. You’ve got to develop, standardize, and document your screening process. So, it’s very clear exactly how hiring decisions and your organization were based. You’ve got to document and record the searches performed. You have to keep meticulous records on how the information that you uncovered and how you use that information. And one of the reasons for that is because applicants can sue employers for not hiring them. And if an applicant thinks that you did not hire them because of their social media post, you’ve got to be able to verify that that’s not the reason that you used, if you did a search on them and people knew that a search was made. Now, you don’t have to tell applicants that you’re doing a search on them and you don’t have to tell them why you’re not hiring them. But people usually figure out and if they don’t figure out, they’ll still likely to just cause a claim or lawsuit anyway.
Robin Paggi You have to document how information was used, if at all. And so, what would that documentation look like? Well, if you found somebody violated a law, for example, just this morning I heard about a woman in El Paso, Texas, who climbed into the spider monkey area at the El Paso Zoo and somebody videotaped her doing it, and she’s feeding the monkeys and doing all sorts of stuff. Well, that’s against the law. Not supposed to do that. Ironically, she worked for a law firm and the keyword was worked because she does not work there any longer after they saw that video. So, that is firing somebody. But you would want to document why you did not hire somebody describing the incident that you saw and saying that this is why this person is not being hired. It’s amazing what people post online.
Robin Paggi All right. Next, document steps taken to exclude information that should not be part of the employment decision. Now, I already gave you a clue as to what cannot be a part of the employment decision, and that is information about protected classes. So, you’ve got to know what the protected classes are in your state because they differ, and at a minimum, have a trained professional, not the hiring manager, because sometimes they go rogue on you, have a trained HR professional perform the social media background check, extracting and forwarding only information that relates specifically to the job description criteria to the hiring manager. So, that’s one way to ensure that people who are making the employment decisions are not using information that they shouldn’t to make those decisions.
Robin Paggi If you can afford it, hire a third party to conduct the social media background check and then that way that relieves you of liability. However, if you do use a third party to conduct that check, now you’re subjected to the requirements of the Fair Credit Reporting Act and other similar laws in your state, and then you’ve got to notify people about things. And so, carefully consider the risk before investigating. You’re probably thinking right now it’s too much trouble. It’s not worth it. I would agree with you. But if you are going to do it, train and educate those who will conduct the searches on how to avoid the protected class pitfalls, confine their searches to job-related information, ignore posts and pictures that were posted for the enjoyment of family and friends only, and set aside their own personal biases. And see that’s one of the problems with the whole thing, is that you can avoid protected class status, probably pretty easy. The thing is, is that your personal biases are probably going to interfere with you being able to make an objective decision about someone. For example, I go back to employers said that they didn’t hire people because of their poor communication skills. I am a stickler for writing correctly, punctuation, spelling, grammar, all of that. And I would discount somebody who had poor grammar skills, even on their social media postings because I make sure that mine are perfect. And so, is that fair to the applicant? Not if it has nothing to do with their ability to do the job. And so, we’ve got to know what our personal biases are and we’ve got to make sure that they’re not interfering with making those kind of decisions on social media or otherwise.
Robin Paggi And then finally, when in doubt, call your employment attorney or your HR professional who are your contracting with to make sure that you are not making a mistake, because lots and lots and lots of lawsuits pertain to not only getting applicant information, but the information you find out when you’re actually employing somebody. And that’s what we’re going to talk about next. So, let’s move on.
Robin Paggi Oh, I did want to ask you a question, but you can just stay here, Emmet. Can an employer rescind a job offer made to an applicant after they see their social media postings? You probably guess the answer is yes. And it did happen here in California, which is unusual because usually California is a very employee-friendly state. And when employees complain about something that usually courts and government agencies find in favor of the employee, but not in this case. So, this is what happened. A job applicant tweeted the following message after receiving a job offer.
Robin Paggi “Cisco just offered me a job. Now, I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”.
Robin Paggi The message was seen by a Cisco employee who responded, who is the hiring manager? I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web. And Cisco did rescind the offer with no problem.
Robin Paggi All right, next, very interesting area, disciplining employees for their online conduct. Employers may discipline employees for inappropriate online conduct at work and away from work. So, here’s an example of online conduct at work that got an employee disciplined. A few years ago, a U.S. software developer was caught outsourcing his job. I thought that was pretty creative. He got somebody else to do his job for him and I’m assuming paid them less than what he was paid. Now, his company’s security team discovered that someone was logging in from China. And this is a U.S. Software developer. And the person was logging in using the developer’s credentials and then doing the developer’s job. Well, what was the developer doing at work while this other person was doing his job? His web browsing history revealed that he spent most of his days surfing the net. I don’t know how you can spend most of your days surfing the net and not get bored, but that was his deal. So, experts have said of all of the workplace distractions, the internet is the greatest productivity drain of them all. And granted, the software developer case is unique, but spending time at work on the internet is not. According to a salary.com survey, respondents to this survey said they spent from less than one hour to more than 10 hours each week, using their computer to update, their workplace computer, to update their Facebook status, watch videos of piano-playing cats, shop on Amazon.com, or other similar activities. And there’s a name for spending all of that time on the internet just looking at what’s there. And it’s called cyber-loafing. So, you know, a lot of people are doing it if somebody actually names itt. So, so what people are getting on the internet for an hour, a week. So what. Well, let’s put this in perspective. Let’s say a full time employee who works 260 days a year spends 10 hours. Remember, some people said they spend up to 10 hours a week doing this. So, let’s say this person spends 10 hours each week cyber-loafing. What does that amount to? That’s equal to 65 days each year that they’re being paid for not doing their job. So, that’s when it becomes a problem.
Robin Paggi In addition to being a drain on productivity and money, some internet usage by employees could lead to liability issues. For example, in a Nielson online poll, 25% of people who responded to this poll admitted to watching porn on their computer at work. Twenty-five percent of the people in this poll admitted to watching porn at work. And those are the people who admitted it. Now, I had a client one time who had a supervisor who was not only watching porn at work, he was burning it onto DVDs and then selling it to his employee. So, that’s what he thought was OK to do. Now, if an employee is subjected to their coworkers’ porn watching, can that employee who’s subjected to it file a harassment claim against the employer? You bet they can, because they were subjected to the behavior at work, whether it was on purpose or it was not on purpose. Let me give you an example of this. I used to work out with a gal who worked at the gym where I worked out. And one day after our workout we’re in the locker room and she showed me a video on her phone, and it was of an old man in an assisted care facility, and he was asking his caretaker for a particular sexual act. And so, she’s showing me this video. She thought it was hilarious. And I said to her, “You know what I do for a living, right?” And she said, “Oh, come on, lighten up. You’re not at work.” Oh, sorry, I’m this way everywhere I go. So, as I was walking out of the gym, she was up at the front counter showing one of her coworkers the video. Her coworker was laughing hilariously, but the woman standing behind her, who also worked there, was displeased. And so, I texted my friend and I said, “You might want to know that so-and-so saw you show this video, and she did not look happy.” And her response was, “I wasn’t showing it to her.” I said, “It doesn’t matter. She saw it because of you showing it to somebody else.” She said, “It’s none of her business.” I said, “It is her business because you did it at work.” She was subjected to porn at work. And that’s a lawsuit or at least a complaint waiting to happen. So, that’s one of the problems with people watching porn at work.
Robin Paggi And internet usage can also lead to security issues because of employees who accidentally download viruses and other malicious programs. So, if you’re like me, you go through training every month by your employer on making sure you are not opening attachments or clicking on links or things like that that allow viruses into your technology.
Robin Paggi Now, here’s a fun fact, or at least was fun for me. Employees are more likely to download a virus from a church website than from a porn site. That’s because the adult industry has the money to ensure their sites are secure. But nonprofit religious organizations frequently do not. So, if you think it’s OK to click on a link on your church website while you’re at work on your work computer, think again. You might be subjecting your computer to a virus.
Robin Paggi So obviously, with so many risks, employers should just deny access to the internet, right? Wrong, for many reasons. Most of us need the internet to do our jobs. Like right now. Many employees can easily access the internet on their phone, like my friend. It’s oppressive to not allow employees internet access, and it’s also unnecessary. So, what employers should do. And now we’re getting to the actual information on the slide, is first of all, ensure their handbooks, policies, disclosures, and acknowledgments include information regarding appropriate and inappropriate internet behavior. You have to tell people, don’t watch porn at work. Yes, you do. And you need to tell employees that their internet use may be monitored, and you probably should monitor it, and that employees may be disciplined for inappropriate internet behavior, because again, sometimes people just don’t know this stuff.
Robin Paggi All right, now consider possible legal issues. And frequently when I talk about disciplining employees for their online behavior, such as their social media post, someone in the audience informs me that employees cannot be disciplined for things they post on social media, especially if the posting is done away from work during non-work hours. That is simply not true. Employees may be disciplined for things they post, but just for certain things. So, it’s important to understand what those things are. So, I’m still on the consider possible legal issues, and this is the biggest one that you need to consider when you’re thinking about disciplining somebody for their online post.
Robin Paggi Section 7 of the National Labor Relations Act says that employees have the right to talk about the terms and conditions of their employment, including that they’re underpaid, overworked, and their supervisor is an idiot. This must be a discussion between employees. It can’t be just an individual person talking about these things, and even on social media. And here’s the deal, is that if an employee says my supervisor is an idiot and a coworker just likes their post, that’s considered to be a discussion. So generally, employees’ posts are not protected if they’re not about their working conditions.
Robin Paggi So, I’m going to give you a few examples on this to try to really hammer this into your head. I’m going to repeat myself several times, which I hate it when people repeat themselves, but this is the most important part of the whole thing so that you know when you can and cannot fire somebody for their post. All right. So, here’s an example. Julie Briskman lost her job as a marketing analyst a couple of years ago. Days after she was photographed flipping off former President Trump’s motorcade as it passed by while she was riding her bike. So, she’s out riding her bike, his motorcade goes by, she flips him off, somebody takes a picture of it, and the picture goes viral. But it didn’t identify Briskman as the bike rider because the person didn’t know who it was. However, Briskman herself posted the photo on her Twitter and Facebook pages and identified herself as the bike-riding flipper-offer. And she was subsequently fired for violating the company’s social media policies. That’s why you need to have policies. She then sued for unlawful termination. Now the company’s attorney argued that the company found out about a rude and profane act and decided it wasn’t interested in continuing the employment relationship with Briskman any longer. The judge said they had every right to do that and throughout the wrongful termination count. In addition to course, the National Labor Relations Board often rules on terminations based on social media postings. And they go back and forth on what is OK and what’s not OK, so that’s, I’m going to talk a little bit more about that.
Robin Paggi But let me just tell you, who is the National Labor Relations Board? It is a independent federal agency that enforces the National Labor Relations Act. And what does that do? That Section 7 of it gives employees the right to talk about their working conditions because it might lead to unionization. And the NLRB has ruled in favor of employers who terminated employees for the social media postings outside of talking about their working conditions. Now, when employees are fired for talking about their working conditions, the NLRB rules in the employees’ favor. But they routinely rule in the employers’ favor when it’s outside of working conditions. And one of the things, too, they ruled against employers for their overly broad policies. And we’re going to talk more about policies in just a moment. So, employees are generally protected from being fired or other adverse actions when they engage in lawful conduct away from work during off-duty time. And so that’s the thing, is that Briskman wasn’t doing anything illegal. It’s not illegal to flip off somebody. However, they can also fire people when it creates a conflict of interest for their employer. So, when people are off duty and they’re doing things that are not illegal, it’s difficult for employers to fire them because they don’t like what they did. However, if they present a conflict of interest for their employer, then that’s a firable offense. This normally occurs when an individual’s personal interests are at odds with the professional interest they owe to their employer. So, for example, if I posted that most employers are stupid and deserve to be sued, it could financially hurt the organization that employs me, a human resources outsourcing company whose customers are employers. My personal interest in expressing my opinion would conflict with the professional interest I owe my employer to generate revenue and not have people refuse to do business with us.
Robin Paggi Now, what I’m frequently asked when I say all of this stuff is, what about the First Amendment? The First Amendment says I can say anything I want to without anybody doing things, anything to me. That’s not what the First Amendment says about our freedom of speech. What it says is that Congress shall make no laws prohibiting our speech. Congress shall make no laws prohibiting our speech. The First Amendment protects us from the government taking action against us, not our employer. And that’s a very important distinction.
Robin Paggi Now, here’s an example of a lawful firing for an employee’s social media post that could have been unlawful, except for one thing, the employee’s coworkers left her hanging. So, remember it needs to be a discussion between coworkers. So, here’s the story. While ranting about her supervisors and a Facebook group message with nine other current and former coworkers, the employee said that her supervisors were essentially full of excrement and bragged that they seem to be staying away from her because she refused to bite her tongue around them anymore. Then paraphrasing the line from, by the movie character Dirty Harry, she posted, Fire Me. Make My Day. And the employer made her day, the employer fired her. So, the employee’s comment was posted in a group conversation visible to only the 10 people invited to the group. One might ask how the employer found out about the comment in the first place. You probably know the answer to that. One of the employees in the group showed it to a supervisor the next day. Evidently, in addition to learning that you shouldn’t dare your boss to fire you, the employee learned that your Facebook friends are not necessarily your employer, alleging that her there constituted protected activity under Section 7 of the National Labor Relations Act. The NLRB disagreed because the employee’s statements merely reflected her individual contempt for the workplace, and no other coworkers joined in her criticism. So, if you’re going to make such remarks, make sure one of your coworkers is going to at least like your post. Otherwise, it’s an individual rant that’s not protected. Once somebody likes your post, it’s protected activity. Now, while this is a win for this employer, you need to know that if the employee’s coworkers had liked her post or joined in, her comments would have been protected, and thus the firing would have been illegal. Therefore, my advice to employers is seek legal counsel before pulling the trigger in response to an employee’s social media postings. And my advice to disgruntled employees is to be careful what you wish for because you just might get it.
Robin Paggi All right. Now, other things on the slide. Consider other impacts, such as employee morale and reputation. Policies are good, but draconian policies are not. I like that word draconian, what does that mean? Overly oppressive policies. For example, restricting internet usage for business purposes, except for breaks and meal periods, is a humane and profitable policy. So, I work in more than those who are so quick to check in on what reinvigorated them and get them back to work.
Robin Paggi Next is communicate with employees if they are posting negative information about work. Negative comments on social media are the same thing as an employee making a complaint in person and should be treated as such. So, instead of firing people for negative comments about work, talk to them about their negative comments. Find out why they’re unhappy, what’s happening because complaints are often opportunities to fix things that need to be fixed. Request third party to remove posting. And so, if you don’t like somebody’s post on their own site, you know you can’t delete it, but you can report it to the site owners, such as Facebook, and ask them to remove it. And then use good faith effort to confirm and verify information prior to taking action. It’s always important to hear the employee’s side of the story before taking any action against them because often you think you know the story and you really don’t know the story and then you make a mistake. But it’s especially important when it comes to social media posts, etc., because of hacking. Have you ever had someone grab your phone and send a text to someone that you did not want sent? I have. So, make sure you give employees the opportunity to explain the postings, or the comments, or whatever before taking action against them.
Robin Paggi All right. Let’s move on to our next slide. So, we thought we’re being witty here, potential e-ssues for employers because we’re talking about electronics. So, what are some of the issues that employers need to consider before taking action? First of all, privacy claims. Employees do have the right to a certain amount of privacy. For example, employers can’t talk about our medical information, they can’t talk about how they’ve disciplined us. So, we do have some privacy. However, courts have held that there’s no reasonable expectation of privacy for information that’s voluntarily posted. Employees putting it out there themselves and that’s made available to the general public. And that’s one of the things, people often value themselves based upon how many people like their post or how many followers they have and all of that. Well, guess what? The bigger your circle is, the more followers you have, etc., the more general and to the public your posts are. And so, then trying to sue somebody because they use that information against you is going to be a little difficult.
Robin Paggi So, employers can look at not only social media postings, but also emails and other electronic communications that employees send, when they have a business necessity purpose for doing so, such as health and safety concerns. They’re afraid that maybe somebody is sending inappropriate emails to coworkers or text messages or things like that, and they need to look at all of their emails to determine if that’s true, or special obligations based upon professions, such as if somebody works for the police department, or is a teacher, or something like that. So here’s an example of the police department thing. There was a woman who worked for a police department and she began dating some criminal. And it was a conflict of interest for the police department because when you date somebody, you tend to talk to them about work, and this criminal then was getting all of this information about police officers. And so, police department looking into, because she denied the relationship, looking into her email exchanges, and texts, and all of that kind of stuff, found that the relationship was indeed happening. And so, that presented a problem for her.
Robin Paggi So, and if, an employee wants to sue for a violation of privacy, they have to demonstrate that they had a reasonable expectation of privacy. And so, that’s why you want to have policies, and in your handbook and such, that says employees should have no expectation of privacy. Emails and other electronic communications are being monitored or can be monitored with or without the employee’s approval or permission, etc. The employee also has to prove that any looking at their emails, etc., is a serious intrusion, it was an egregious breach of social norms that would be highly offensive to a reasonable person and that there was no justification for the intrusion. So, if you’re an employee and you want to claim that your employer violated your right to privacy, you might want to go and look and see what all of your policies say about your right to privacy, because chances are it says that you should have no expectation of privacy.
Robin Paggi All right. So, what’s another issue? Those off duty conduct statutes and I’ve already said about off duty, but I’ll repeat. Generally, employees are protected from adverse employment action based upon lawful conduct engaged in away from work during off-duty hours unless, and hopefully you can fill in the rest of the sentence, the employee’s actions create a conflict of interest for the employer, whether actual or potential.
Robin Paggi So, let me give you an example. A Facebook post that got an employee fired was a picture of the employee holding a cat with an arrow through its head. And this is not a fake arrow. The employee had killed the cat with an arrow, posted a picture of herself holding the cat with the arrow through its head, along with these words, “My first bow kill,” she shot it with the arrow, “At my first bow kill LOL. The only good feral Tomcat is one with an arrow through its head. Vet of the Year award gladly accepted.” So, what is this Vet of the Year award comment? Turns out the employee was a veterinarian who worked for the Washington Animal Clinic and Brenham, Texas. And the vet’s post went on to say, “And no, I did not lose my job. Like someone would get rid of me, I’m awesome.” OK, I don’t know why anybody’s posting that anyway, but whatever. Except after the post went viral and the animal clinic received over 500 phone calls in one day about the post, she was indeed gotten rid of. Was it legal for the clinic to fire her? Yes, it was for a couple of reasons and hopefully, you know what these reasons are. First is because the post was not protected. Section 7 of the National Labor Relations Act says what? It protects employees’ posts when they discuss the terms and conditions of their employment. Bragging about killing a cat is not protected activity. The second reason is because the vet presented a conflict of interest for her employer, the veterinarian clinic. Having to answer 500 phone calls or to lose business because of the employee’s actions is a conflict of interest. So, a representative of the clinic posted on their website, “Our goal now is to go on and try to fix our black eye and hope that people are reasonable and understand that those actions don’t any way portray what we’re here for and working for at Washington Animal Clinic.” We put our heart and soul into this place. And that’s the reason it presents a conflict of interest for employers who put their heart and soul into their business and then their employees post something that could destroy that. So despite the controversy, the vet who posted the picture still had some supporters, such as one who said, “She’s amazing, she’s caring, she’s a good vet. So, maybe her bad choice of posting something on Facebook was not good, but I don’t think she should be judged for it.” Well, you know she was judged for it, especially because an animal rescue group determined that the cat that the vet killed was not feral after all, but was owned by an elderly couple. And as somebody whose elderly parents loves their kitty cats, I can understand why she was judged so harshly.
Robin Paggi So, here’s what employers need to know about disciplining employees because of off-duty conduct. It must be supported by good faith and legitimate business purpose, such as it cost us business. Employer must be able to articulate facts that demonstrate an actual or potential conflict of interest between the behavior and the job, such as when vets kill cats and post about it, it makes them treating our cats look suspicious. There needs to be a nexus between the conduct and the job, a connection, as there was, and talk to the employee before you do things. Now, in that case, you didn’t need to talk to the employee because she put it all out there. The El Paso Zoo, the employee getting into the monkey cage. They didn’t need to talk to the employee. It was posted. It was there for all the world to see. But in most cases, do talk to the employee to make sure you’ve got the story straight.
Robin Paggi All right, harrassment, I’ve already talked about that. Exposure to information can create obligations to investigate, remedy, and prevent actual or suspected harassment. So, if an employee sees another employee showing another employee information that she finds offensive and she complains to the boss, the boss has an obligation to investigate, remedy, and prevent that from happening again.
Robin Paggi Retaliation and whistleblower protection. So when an employee makes a complaint, employers cannot get back at them or retaliate against them for making that complaint. People are protected by the Whistleblower’s Act or other whistleblower protections in their state. And so, that’s one of the things that’s really important, is that when you are taking action against an employee for things that they are doing online, it’s important that it does not look like retaliation, and and that, in fact, it’s not retaliation, that you especially want to make sure it doesn’t look like it. So, employers cannot require employees to refrain from discussing or disclosing conditions of their employment or for disciplining them for it. So, that’s why all of that stuff is protected, talking about the terms and conditions of your employment. And so, one of the things that, if an employer is going to terminate someone, they need to be able to demonstrate that any action deemed to be taken in opposition to an illegal practice cannot be the basis for the discipline. And so, we’re not disciplining because of this legal action that the employees engaged in. That’s not why we’re disciplining. The employer needs to be able to demonstrate a legitimate nondiscriminatory reason for the disciplinary action or demonstrate an overriding business necessity which justifies the action.
Robin Paggi And then finally, NLRA-protected activity. So, I’ve talked about this, but let’s just go into a little bit more. Again, the National Labor Relations Act says that employees may discuss the terms and conditions of their employment without employers taking action against them, and Section 7 specifically. So, in 2010, the National Labor Relations Board, which ensures that the National Labor Relations Act is being adhered to by employers, this board began receiving lots of claims by employees that they were being disciplined and terminated because of their social media post. And so, the NLRB did some investigations and they found reasonable cause to believe that some policies and disciplinary actions violated the National Labor Relations Act. So, that’s why they’re involved in the whole thing. In other cases, investigations found that the communications by employees that they got disciplined or fired for were not protected. And so, they were ruling both for employers and against employers and then what they did is presented some guidelines. And so, this is very helpful when the government agency says employers do this and this will prevent you from getting in trouble by us. So, let’s go to our next slide and find out what those things are.
Robin Paggi The NLRB said that when employers have overly broad social media policies, that’s when they get in trouble. And so, these are some of the guidelines and again, lots of information, but I’m not going to provide too much other information than what’s right here. First of all, cover all forms of online communication, conduct, and information. And so, you need to go into specific detail. Again, employers get in trouble for overly broad. So, you need to go into specific detail and also so that you don’t have employees go, “Oh, I didn’t know that my text messages were included in this.” OK, so all forms of online communication, whether it’s created, stored, accessed, used, sent, emails, texts, tweets, social media postings, everything under the sun.
Robin Paggi Require that access to social media not interfere with work, if employees are allowed access to such sites during working hours. Remember, that when they are allowed access on their breaks and meal periods, their productivity actually increases. So, you might want to limit it to that.
Robin Paggi Clearly express that employee should have no expectation of privacy or data sent or posted by a work computer system, server or network. Clearly express employer’s right to monitor computers, phones, etc., an employer’s sole discretion and obtain express consent to such monitoring practices. And employers do that by having a policy and having employees sign off on it or having it in the handbook and employees sign the acknowledgment on that. Prohibit employees from revealing confidential or proprietary information related to the company or coworkers. And sometimes you need to go into detail about what that confidential information is, such as who our clients are. Now, I’m in Bakersfield, California, and Charles Manson, you might remember him from the Manson murders. He was in jail in our county and he, at the end of his life, was hospitalized in a hospital in Bakersfield. A nurse who was treating him posted about it on Facebook and that ended her career. So, don’t talk about confidential information, including who your customers are.
Robin Paggi Prohibit employees from implying either explicitly or implicitly that they represent the company. And so you can prohibit employer, employees, from on their social media postings, not saying who they work for, not having a hat or a shirt or anything else that has the company logo on it. And state that all company policies related to harassment, discrimination, conduct codes, and discipline apply with equal force to online conduct. So, what you do away from work, on your own time, on your own social media, if it involves the protected classes and we’re made aware of it, then the employer can take action against the employee, even when it’s on their own time, on their own social media postings. OK, that’s not it. Let’s go to our next slide and there’s more.
Robin Paggi All right, next, prohibit employees from using company branding materials, such as logos, uniforms, or other trademarks, as I just said. Prohibit any online action which creates a potential or actual conflict of interest or which is otherwise detrimental to the employer’s interest. And so, again, you need to spell that out to employees so they know what a conflict of interest does. Prohibit any online conduct which violates federal, state or local laws. Provide contact person for questions or concerns so that, again, people can ask questions about, “So if I posted this, would that get me in trouble?” Or I mean, somebody has got to answer those questions. State that the violations will be subject to disciplinary action and obtain written acknowledgment of policy. And once again, that’s one of the reasons you don’t want to just hand a policy or a handbook to somebody and say sign here that you understand it. You need to have discussions about these things so that you spell things out, you answer everybody’s questions, people know what they’re signing and they know what they’re being held responsible to, because when you go ahead and do what you’re allowed to do, but it catches them by surprise, then that often leads to complaints to government agencies, which you don’t want.
Robin Paggi So, I told you, the NLRB rules for employers and against employers. A lot of times it’s against employers. But we did have something that happened in California that demonstrated they’re a little more pro-employer these days. The NLRB approved a California-based ambulance company’s implementation of a social media policy that prohibited employees from inappropriate communications related to the company. Now, most of the time, the NLRB would say that that is overly broad. They get employers in trouble for overly broad, all-encompassing policies all the time. As a matter of fact, this ruling that the employee, employer’s policy against inappropriate communications related to the company, that ruling reversed a decision in 2019, saying that the company’s social media policy was overly broad and infringed on workers’ rights. And so it was surprising that the NLRB would just rule that this employer could prohibit employees from inappropriate communications related to the company. So, that’s a small win for a moment. However, their employer-friendly at the moment, but their current majority will change in summer of this year. So like next week. And the reason for that is because the National Labor Relations Board members change just like other board members change. And so, how they rule on things changes as well. So, that’s one of the reasons you really need to be up to date on how they’re ruling and make sure that you are in compliance with what they’re telling employers to do.
Robin Paggi Now, before I wrap up, I do want to say one more thing about this. Policies must be clearly communicated and consistently enforced. And, of course, there’s a lawsuit that I can tell you about, about inconsistent enforcement. And it happened here in California. Employers written policy regarding monitoring text messages wasn’t really an operational reality. So, what happened is that there was a police officer who was told by his commander that the text messages on their police-issued, or their company-issued, phones were not monitored and that if they went over the amount of storage they had or what have you, if they went over the amount, then employees would have to reimburse the police department themselves for going over because they had a certain amount. And other than that, they weren’t really monitored. Well, police officer took that to heart, that company, or agency, is not monitoring our text messages and so sent inappropriate text messages to his wife and his girlfriend. For whatever reason, they monitored the text and they fired him for those inappropriate text. He sued and said, “We were told that we were not being monitored, and so therefore, you can’t fire me because you’re not supposed to be monitoring our stuff in the first place.” And so, what ended up happening? The agency created a reasonable expectation of privacy for the employee and as such, that was a wrongful termination. So, that’s one of the reasons that there should be no reasonable expectation for privacy. And employees need to be trained on not telling people we don’t monitor your emails, or text, or whatever, and that when people are doing things that they shouldn’t, that they are disciplined for it, consistently. All right, that’s all the info I have for you. What questions do you have for me?
Emmet Ore All right. Should employers use social media to look for applicants?
Robin Paggi Yes, that’s one of the things, is that there are so many applicants that are using social media to look for employers. Employers definitely should be out there looking for them as well. LinkedIn is one of the ways that I know employers are looking for applicants. And one of the reasons for that is because I get a message every once in a while inviting me to apply for a position. And so, that’s one of the ways that employers want to use social media is get on people’s LinkedIn sites and find out if they are qualified for your job based upon their profile and send an invitation. So, one of the things are a lot of people who are out of work who are going to be looking for work in the next month or so. And so, one of the things that where they’re looking is going to be online. So, employers definitely want to make sure that they’re online, too. Another thing, employees or applicants frequently go to employers’ websites to check them out to make sure that they actually want to work there. So, you want to make sure that your website is current, it’s active, it’s stimulating, it’s vibrant, it’s inviting, it shows employees having fun, it lists all the great perks for working at your place. Even invites applicants or people who are interested to contact somebody at the company to have a casual conversation without going through a formal application process. So, definitely applicants are using social media, so employers are missing the boat if they’re not doing it too.
Emmet Ore Alrighty? Well, I think that’s the only question we had today, but I just wanted to say thank you to everyone who’s been attending over the last nine months and especially a huge thank you to Robin for the great presentations. I know I’ve certainly gotten a lot out of these, and I know others have as well. We just got a comment in the chat that was very complimentary as well. So, thank you. We’ll definitely be doing more of these in the future as well. So, keep your eyes and ears peeled. And in the meantime, have a great week, everyone, and we’ll see you for the next one.
Robin Paggi Thank you, Emmett, I just want to say my thanks to people, too. This has been a lifeline during the pandemic to be able to reach out to all of you and Emmett, especially with you. And so, I thank you very much for tuning in and following us during this last nine months. And the best of luck to all of you out where, as we’re opening the world again and going out there and into it. Best of luck to you.
Emmet Ore Absolutely. It’s been an honor. And I just wanted to add that all of these are live. They’re up and they’re available to watch on the Vensure website, in the resources section of the website. So, feel free to check them out there and we’ll be sending out a recording earlier today as well. So, thanks, everyone. We’ll see you at the next one. Appreciate it.