Category Archives: Workplace Rules and Policies

Confidentiality of Workplace Investigations

Workplace complaints and investigations can polarize a workplace. If your company has to investigate sexual harassment, bullying, or other serious problems, chances are good that employees will be talking about it and choosing sides. Of course, some of this is inevitable: We’re only human, right? But employers often try to minimize the fallout — in lost productivity, damaged reputations, or even changed stories and manufactured evidence — by requiring confidentiality. Employees who are interviewed as part of an investigation are routinely told that they may not discuss the investigation with other employees and may not reveal the facts they learn during the interview.

In the past few months, however, a couple of government agencies have cautioned employers not to go too far in trying to stop employee discussions. First, the National Labor Relations Board (NLRB) weighed in. In the case of Banner Estrella Medical Center, an HR consultant asked employees who had made a complaint not to discuss the matter with coworkers while the investigation was ongoing. The NLRB found that this request violated employees’ rights to discuss the terms and conditions of employment with each other. Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees’ rights. For example, if a witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or the employer needed to prevent a cover-up, the NLRB indicated that these facts could justify a confidentiality requirement. However, the requirement must be based on facts specific to the investigation, rather than a general, blanket approach to all investigations.

The Equal Employment Opportunity Commission (EEOC) has also questioned broad confidentiality requirements. As Lorene Schaefer reports in a blog post, the Buffalo, New York, office of the EEOC sent an employer a letter about its confidentiality policy. The EEOC stated that threatening to discipline or fire employees who discussed a sexual harassment complaint with anyone was illegal retaliation. Discussing harassment complaints with others is a form of “protected opposition” to illegal practices under Title VII. The letter also indicated that employees subject to such a confidentiality rule might believe they could be disciplined or fired for discussing harassment with the EEOC.

So what should employers do, in light of these opinions? It appears that blanket “gag orders” might create some risk going forward. However, a more limited confidentiality rule (for example, one that asks employees not to discuss what is said in the actual investigative interviews, as opposed to the underlying facts) could still pass muster. And, if you have specific concerns, based on the facts of the case, about falsification of evidence or witnesses talking to each other to “get their stories straight,” the NLRB opinion would still allow a confidentiality requirement. However, there are still a lot of grey areas here.

What’s more clear: Employers should do what they can on their end to maintain confidentiality. This includes, for example, revealing only the facts necessary to conduct a thorough interview. The accused employee must be told all of the allegations, but not every witness will need to hear the details. Employers should also take this as yet another cue to be speedy in conducting the investigation. The quicker a complaint is investigated and laid to rest, the less time there is for workplace chatter to do damage.

EEOC Guidance on Using Criminal Records

About a month ago, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on the use of arrest and conviction records in employment decisions. The EEOC has long warned employers that blanket policies of excluding anyone with an arrest or conviction could lead to discrimination claims, given the much higher arrest and conviction rates of African American and Latino men. This guidance clarifies the rules for employers, giving examples of the kinds of policies and decisions that might violate Title VII and providing a framework for employers who take criminal records into account in hiring, retention, or promotions.

The guidance points out that consideration of criminal records could lead to disparate treatment or disparate impact claims. In a disparate treatment case, the employee would have to show that the employer treated people in different protected classes (for example, those of different races) differently in considering criminal records. If an employer ran a criminal background check only on non-White applicants, excused minor offenses by White applicants while excluding Latino applicants for the same types of records, or assumed that an African American with a youthful drug offense posed a safety risk while a White applicant with a similar offense did not, that employer is treating applicants differently based on their race or national origin.

The trickier situation involves disparate impact claims, in which the employer’s apparently neutral policy has a disproportionately negative effect on people in a particular protected class. Because arrest and conviction rates vary so much by race and national origin, a blanket policy of excluding all applicants with a criminal record could easily result in a disparate impact against African American and Latino men. This is the reasoning behind the ongoing “ban the box” campaign, to get rid of the check box on employment applications asking whether applicants have ever been arrested or convicted of a crime. A company that routinely disqualifies any applicant with a criminal record from further consideration for any job could well be courting a discrimination claim.

Of course, this doesn’t mean employers don’t have good reason to screen out applicants with a record of particular offenses for particular jobs. No one wants a convicted sex offender working in a classroom or someone who just finished serving a felony sentence for identity theft handling confidential customer information. The EEOC provides a three factor test, which employers can use to ensure that any criminal record exclusion accurately distinguishes between those who pose an unacceptable risk and those who do not. The employer must assess:

  • the nature and gravity of the criminal offense or conduct
  • how much time hass passed since the offense or sentence, and
  • the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

Even if this test indicates that the applicant may pose a risk, the employer should allow the applicant an opportunity to provide mitigating information demonstrating that he or she shouldn’t be excluded based on the offense. For example, the applicant might show that the criminal record is simply inaccurate. Or, the applicant might provide facts about what really happened, previous work history, rehabilitation efforts, and so on, in an effort to demonstrate that the record shouldn’t disqualify the applicant from the position.

Maryland Bans Employers From Requiring Social Media Passwords

Becoming the first state in what looks like a trend, Maryland has enacted a law, Senate Bill 433, that prohibits employers from requesting or requiring that employees or applicants hand over their passwords to social media accounts and other personal online accounts. The California legislature is currently considering a similar law, as are a handful of others. And the federal government isn’t far behind: Senators Schumer and Blumenthal have asked the Department of Justice and the Equal Employment Opportunity Commission to investigate whether asking employees or applicants for their passwords violates current federal law.

It’s fitting that Maryland was first in line: It was the case of Robert Collins, who was asked to provide his Facebook password during a recertification interview for his job at the Maryland Department of Corrections, that first publicized this issue. (Here’s my previous post about his case.)

No matter how people feel about whether employers should consider public posts in making job decisions, most everyone agrees that information an employee takes steps to shield should remain private. As Senator Schumer put it, requiring applicants to hand over their Facebook passwords is akin to asking applicants “for their house keys or to read their diaries.”

Not to be left behind, Facebook has also weighed in on the issue by making it a violation of the site’s code of conduct to “share or solicit a Facebook password.” In a statement by Erin Egan, the site’s Chief Privacy Officer, Facebook says that it has “worked really hard to give you the tools to control who sees your information”; she also warns employers that they could expose themselves to “unanticipated legal liability” by demanding user passwords.

As more states consider and pass these bills, employees and applicants would be wise to take advantage of the protection by scrubbing their public online identity and shielding their private information behind a password. Apparently, however, that’s easier said than done. A recent study (reported on ZDNet) revealed that users find Facebook’s privacy policies incomprehensible — in fact, harder to understand than government notices, credit card agreements, and even bank rewards program documents. (The good news for Facebook: Users found Google’s privacy policies even more difficult to understand.) Perhaps that explains why 13 million Facebook users, according to a recent Consumer Reports projection, either aren’t aware of Facebook’s privacy settings or haven’t tried to use them.

Meal and Rest Break Guidance from California Supreme Court

Last week, the California Supreme Court issued a long-awaited decision in Brinker Restaurant Corp. v. Superior Court, a huge class action lawsuit alleging that employees were denied meal and rest breaks and required to work off the clock. Brinker owns a number of restaurant chains, including Chili’s and Romano’s Macaroni Grill. The lawsuit, initially filed by five employees, turned into a class action on behalf of almost 60,000 Brinker employees statewide. That group was divided into three subclasses: employees who were required to work more than five hours without a meal break; employees who were required to work more than three-and-a-half hours without a rest break; and employees who were forced to work off the clock (that is, to do work for which they were not paid).

California law requires employers to provide a ten-minute paid rest break for every four hours “or major fraction thereof” an employee works. However, no rest break need be provided to employees who work less than three-and-a-half hours total. As for meals, California law prohibits employers from requiring employees to work more than five hours without giving them a 30-minute meal break; this time is unpaid. In the Brinker case, the parties argued about when (that is, in what part of an employee’s shift) these breaks must be provided and what obligation the employer had to make sure the employee didn’t work through breaks. They also disputed whether these issues could properly be decided for the whole class or whether they should instead be decided on a case by case basis.

The Court issued a broad opinion, deciding not only the issues directly before it but a few more that are sure to come up as the lawsuit proceeds. Here’s the upshot:

Rest breaks: The Court had a math fight with the Court of Appeals on the “major fraction” language. (The Court of Appeals found that an employer could provide only one break in a seven-and-a-half hour shift.) The Supreme Court concluded that employees who work at least three-and-a-half hours but no more than six hours are entitled to one rest break; employees who work at least six hours but no more than ten are entitled to a second rest break; and so on. The Court also rejected the employees’ argument that one rest break must be provided before the meal period and one after in an eight-hour shift. Although the Court agreed that this made sense “as a general matter,” it declined to state a rigid rule regarding the timing of meals and breaks.

Meal breaks: There were a couple of big questions here. First, what is the employer’s duty during meal breaks? The Court found that the employer must provide a 30-minute meal break, during which the employee is entirely relieved of duties and is free to leave the work site. The employees wanted to impose an additional requirement that employers ensure employees do no work during their lunch, but the Court refused. If the employer pressures employees to work through their breaks, however, it violates this provision, and is liable not only to pay the employee for the break time, but also to pay a penalty. Second, the employees wanted the Court to require a meal break every five hours, so that if the first one was taken toward the start of a shift, the employee would be entitled to a second break five hours later. The Court disagreed: Employees are entitled to a meal break before they finish five hours of work; if an employee works ten hours, the employee is entitled to a second break. There is no requirement that the meal breaks be no more than five hours apart.

Class claims: The Court decided that the rest break claims could proceed as a class action, because they were based on the employer’s policies and procedures. The Court sent back the meal break claim so the trial court could decide whether a class should be certified under the Court’s interpretation of the five-hour rule. The Court rejected the idea of class certification on the employees’ claim that they were required to work off the clock, finding that it was based not on a company-wide policy, but on the actions of individual employees and managers.

This case has been touted as a win for employers, and it is — but mostly in the sense that adopting the employees’ arguments would have greatly expanded their rights as previously understood under California law. The Court didn’t take away any established employee rights with this opinion. While it’s not fun to have to take your “lunch” shortly after starting an eight-hour shift, then work on without a substantial break for many hours (and trust me, I’ve been there), it’s also a fairly common practice, especially in service industries where employees can’t all take their breaks at the same time. In this case, the trial court found entirely for the employees, then the Court of Appeal reversed and went entirely for the employer. The Supreme Court’s opinion seems to just rebalance the scales to where most people thought they were in the first place.

Employee Photos on the Company’s Social Media Page?

This week, we got an interesting question via our Facebook page: A company that has recently established a social media presence wants to know whether it’s legal to post pictures of employees at company functions. As usual, the answer is “it depends.”

A number of states have laws that prohibit the use of someone’s likeness without that person’s consent for commercial purposes. The whole point of a company’s social media pages is ultimately to boost the bottom line, whether that goal is achieved through selling more products, attracting outstanding employees, building a reputation for humor, intelligence, and trustworthiness, or other means. Companies that post candid employee photos or photos of employees doing their jobs, serving the community, and so on, do so to make a good impression on potential employees and customers. So I think it’s pretty clear that this is a commercial purpose.

Employers who want to use employee photos can simply ask for the employee’s consent. Like all other employment agreements, this one would best be put in writing, and should spell out what the employer intends to do. Is the company going to post an occasional photo of employees doing their jobs? What about employees enjoying themselves at after-hours company functions? Is the company going to use the employee’s image in actual advertising materials, such as brochures or a commercial? Will the employee have the opportunity to see the photo first? Clearly, an employee might be more comfortable with some photos than others: A smiling photo of an employee helping a customer might be more welcome than a candid photo of the employee’s bathing suit riding up at the company’s Fourth of July picnic at the lake.

Most companies that ask employees to consent to use of their image find that a few are unwilling to agree. I’ve been asked about this a couple of times by folks who assume that the employee who wants to opt out is camera shy, doesn’t like how he or she looks in pictures, or has some sensitivity about appearance. That may be the case, but often the real objection is more serious: The employee has been a victim of stalking or violence, or fears becoming one. This is not information the employee should have to share with the employer in order to get out of the company’s Facebook photo album.

And some employees have a philosophical objection that goes to the very nature of the employment relationship. That argument goes like this: The employer pays employees for their labor; it does not own their image. When you look at it this way, throwing a reluctant employee’s actual personal appearance into the pile of things that paycheck is supposed to cover does seem like an overreach.

The best solution to this dilemma is to ask for consent before using employee photos and to allow employees to withhold their consent, if they wish. Don’t require employees to explain their reasons. Simply find another photo, of employees who are more than happy to show up on the company’s social media page or in its other marketing materials, and move on.

Employer Sues Former Employee Over Ownership of Twitter Account

These days, many companies employ social media specialists, whose jobs include posting about the company — or on its behalf — on sites like FaceBook and Twitter. If the account is in the company’s name, and employees post only on company time and only on company topics, it seems clear that the account belongs to the company. Among other things, this means the company retains the account when the employee leaves, along with all those followers and friends.

But what if the employee posts in his or her own name, blending professional and personal in the manner that seems to define our age? What if the employee’s personality and personal posts are the very things that attract an audience? What if the employee brings a popular personal account to the company — or is hired precisely because the company wants access to the employee’s existing followers? Who owns the account then? And what’s a Twitter account worth, anyway?

Some of these questions may be answered by a lawsuit filed by PhoneDog, a mobile phone website, against Noah Kravitz, its former employee. While employed, Kravitz began tweeting as PhoneDog_Noah, posting comments about personal interests as well as professional issues. According to news reports, Kravitz says he opened the account himself and linked it to his personal email. During the course of his employment, Kravitz reached 17,000 followers.

When he left PhoneDog, Kravitz says the company told him he could keep the account in exchange for posting occasionally about the company; Kravitz agreed. He changed his handle to @NoahKravitz and tweeted on. In July, however, PhoneDog filed a lawsuit, claiming that Kravitz’s Twitter followers were essentially a customer list, and therefore a PhoneDog trade secret that Kravitz had misappropriated. (Kravitz claims that the trade secret lawsuit is in retaliation for his claim that the company owed him back pay and a percentage of the site’s advertising revenue.) The company is seeking damages to the tune of $2.50 per follower per month, which adds up to $340,000.

The outcome of the case will turn, in part, on the factual dispute over whether or not PhoneDog told Kravitz he could keep the account. To win a trade secret case, an employer has to show that it took steps to maintain the confidentiality of the information claimed to be secret. Allowing someone else to take and use that information would undermine this argument. And of course, IP experts are very interested in how the court will value each Twitter follower, if damages come into play. I’m not sure where that $2.50 figure came from, but it’s notoriously difficult for courts to put a value on good will and reputation, which the company claims were damaged here.

Another thing that interests me about the case is the personal angle. Under traditional employment law principles, the employer owns what the employee creates as part of his or her job . But what if part of the employee’s “creation” is the employee’s personality? Experts tell us that social media works best precisely when it’s personal: when there’s an actual voice and character the audience can identify with, rather than a relentless barrage of faceless corporate pronouncements. (In fact, Kravitz attributes his popularity to the fact that his feed combines professional comments with personal posts.) At some point, does all of that personality become something that the company can’t really own? If someone like Kravitz counts his own family and (actual) friends as followers, features his photo prominently on his Twitter feed, and posts personal information, from his love of certain sports teams and restaurants to pictures of his vacations, can all that really “belong” to his employer? I don’t know the answer, but it’s just one more way that Web 2.0 is challenging existing legal doctrines.

Didn’t Get Hired? Check Your Facebook Page

There was an article in the New York Times last week about a start-up company called Social Intelligence, which exists for the sole purpose of running “social media background checks” on job applicants. The company sorts through everything on the Internet about an applicant for the last seven years, eventually creating a dossier not only of honors, charity work, and other good deeds, but also of racist comments, sexually explicit material, drug references, and weapons displays.

In case you’re wondering why employers need to outsource Internet searches, one of the answers is plausible deniability. As the article points out, these searches can yield plenty of information that employers are legally prohibited from considering in making job decisions. Perhaps an applicant is a frequent poster to a forum for women undergoing fertility treatment, immigrants from the Sudan, or Jews for Jesus. Maybe the applicant belongs to a Facebook group for parents of children with autism. Or, the applicant might have a blog recording her gender transition from male to female (off-limits as a basis for employment decisions in many states). Having a go-between collect the data and hand over only what the employer is legally entitled to consider creates a legal buffer zone.

I wasn’t surprised to see this type of company profiled in the Times, nor to see some of the things applicants have been rejected for (naked pictures, racist rants, photos of the applicant posed next to marijuana plants, or searches for oxycontin on Craigslist). Here’s what surprised me: One of the people interviewed, an EEOC employee, said that 75% of recruiters reported that the companies they hired for required them to research applicants online — and 70% reported rejecting applicants because of what they found on the Internet.

Connecticut Becomes First State to Require Paid Sick Leave

Last week, Connecticut passed a law requiring private employers to give paid sick days to service employees. Currently, San Francisco and Washington, D.C. mandate paid sick leave; a handful of other states are considering similar legislation. But Connecticut is the first to impose this requirement statewide. The New York Times reports that the new law will cover an estimated 200,000 to 400,000 employees in the state.

Here are some details about the law, Connecticut Public Act 52:

  • It applies only to companies with at least 50 employees. Manufacturers aren’t subject to the law, nor are nationally chartered nonprofits that provide recreation, child care, and education services. Employers that already provide employees with at least 40 hours of paid time off each year that can be used as sick leave (such as sick days, personal days, or vacation time) don’t have to provide any additional time off under the law.
  • Only service workers are covered. This includes those employed in the retail, hospitality, food preparation and service, administrative, health care, janitorial and cleaning, claims processing, and a number of other industries. (You can find the full list of covered job categories in the law, at the link above.) Independent contractors, day laborers, and temporary workers aren’t covered.
  • Services workers are covered only if they are entitled to earn minimum wage and overtime. In other words, exempt employees aren’t covered by the law; only nonexempt employees are protected.
  • Covered employees will accrue one hour of paid sick leave for every 40 hours worked, up to a maximum entitlement of 40 hours per year. Employees may also carry over up to 40 hours into the next year.
  • Employees may use the time off for their own illness, injury, or health condition; for a spouse’s or child’s illness, injury, or health condition; or to handle certain medical, legal, and practical issues stemming from family violence or sexual assault.

The law goes into effect on January 1, 2012.

Summer Jobs and Sexual Harassment

June is here, and it’s time for teenagers everywhere to don their uniforms, paper hats, and  flair for their summer jobs (if they’ve been lucky enough to land one). But be careful out there kids: Sexual harassment of teens is a big problem, particularly for girls. Just yesterday, the EEOC announced that it had settled a case for $290,000 against a Dunkin’ Donuts franchise, in which a manager had repeatedly touched, hugged, and made lewd comments to female teenage employees.

Although the EEOC keeps statistics on sexual harassment charges, the agency doesn’t provide the age of the complaining employee. And of course, just like adults, many girls choose not to complain or file a charge. According to one study cited in the PBS program “Is Your Daughter Safe at Work,” 200,000 girls are assaulted in the workplace every year. A 2005 study showed that almost half of the teenage girls surveyed had been harassed at their jobs.

These numbers are high, but unfortunately not that surprising. Egregious sexual harassers are predators, and predators choose their prey with care. Teenage girls are targeted precisely because they are the least experienced, least powerful, and least likely to complain. To help combat the problem, the EEOC has set up its Youth at Work website, which informs teens of their rights and responsibilities under the laws that prohibit harassment and discrimination.

Twitter Dispute at Reuters Is Resolved

A few days ago, Thomson Reuters reached a tentative contract with the Newspaper Guild (the union that represents hundreds of its employees). According to an article by Steven Greenhouse in the New York Times, the deal finally came — settling a dispute that’s gone on for more than two years — at the end of a 21-hour negotiating session. The deal settles a number of contested issues, including raises, payments to employees to cover wages lost while there was no contract, benefits, and scheduling.

And then there’s that Twitter complaint: As I posted last month, the National Labor Relations Board confirmed that it was considering bringing a complaint against Reuters over many issues in the ongoing dispute, including the company’s apparent reprimand of an employee for Tweeting a criticism of its dealings with the union. This was just the latest indication of the NLRB’s interest in social media — and more particularly, whether employer efforts to police what employees say online about the company are violating employee rights to communicate and act collectively.

As part of the tentative deal, Reuters has agreed to negotiate a new policy on social media, which will explicitly protect the rights of employees to engage in protected concerted activities: to speak about, and take action regarding, the terms and conditions of their jobs. Reuters has its current policy and guidelines for reporters on use of social media (part of its Handbook of Journalism) posted on its website. I really hope the company also posts its new policy, once it’s available. That would be a huge help to employers trying to navigate this developing area of law and commerce.