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Social Media Part II: When to Discipline and Creating a Company Policy

Wednesday, May 16th, 2012

The explosion of social media over the last decade has created unique challenges for employers. Can employers discipline an employee who causes damage to their company through social networking? When are employees protected by federal and state laws? What measures can employers implement to prevent harm to their businesses? Here are a few clear and informative guidelines.

Before You Discipline

Before initiating disciplinary action against an employee, verify that such behaviors are considered unlawful. Perhaps the action could be regarded as a legal concerted activity by the NLRA. Whistleblower laws protect employees who disclose forms of misconduct concerning public health and safety, as well as potential securities fraud violations. The state of California considers employer regulation of an employee’s political activities and affiliations to be prohibited. “Lawful conduct” laws prevent employers from demoting, suspending or firing an employee if they were engaged in a legal activity while off-duty, no matter how distasteful or careless an employer may find such behavior.

When to Discipline

The following list provides 6 social networking related reasons for possibly disciplining an employee:

  1. Using company property to engage in illegal web-based activity.
  2. Misuse of on-duty time to engage in non-work activities such as surfing the web excessively.
  3. Calling in sick and subsequently posting conflicting information.
  4. Posting information which a company could prove affected the financial health, reputation or credibility of the company.
  5. Divulging confidential company information and trade secrets.
  6. If the activity is NOT protected by the law, posting negative comments concerning the methods of operation, products or services of the company.

Creating a Company Policy

An employer’s surest method to preventing problems resulting from employees’ social media activities is to create a company policy. Most employers are unprotected; only 29% of companies maintain formal policies concerning social network usage. Companies without a policy are setting themselves up for the release of trade secrets and confidential information.

Policies should address each of the venues for electronic and social media individually:

  1. Social Media Guidelines – contends with posting on a company-sponsored website such as a Facebook, MySpace or Twitter page.
  2. Blogging – deals with posting content on-duty on one’s own or another’s personal website, log or journal. This category includes chat rooms, bulletin boards, Twitter and YouTube.
  3. Social Networking – concerns employee representation of, or declarations about the company while off-duty.
  4. Electronic Media and Monitoring Policy – addresses employees’ appropriate use of and reduced expectation of privacy concerning issued company property such as PCs, laptops, Blackberry’s, phones and other equipment.

Policy Construction

Employers creating a social media policy should ensure that legal counsel drafts, or at the very least examines, the policy. Apply existing company policies concerning laws pertaining to harassment and discrimination, confidentiality of company information and the use of company’s electronic media to social media activities. Specifically delineate threatening, harassing, abusive, hateful, bullying, defamatory, embarrassing, profane and vulgar comments or postings about other employees as prohibited, inappropriate behavior.

The policy should also ensure that employees have clarity about professional behavior expectations. This can include the requirement of employees to speak respectfully about the company’s services and products, the prohibition of employees discussing company’s clients, business partners or project plan details, and the use of protected trademarks and logos. Furthermore, policies should lay the groundwork that employees should expect compliance monitoring without prior notice.

Finally, enforce inclusion of disclaimers on social media websites. Identifying oneself as a company employee or discussing company related matters is only permitted with inclusion of a disclaimer on the front page, stating that views and opinions are strictly personal and do not reflect the company’s position.

If you have any questions about structuring a compliant and effective social media policy, please contact a CPEhr Human Resources Specialist to assist you.

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Social Media: Useful Tool or Employment Pitfall?

Wednesday, May 9th, 2012

During the last decade, social media has burgeoned to the extent that hundreds of millions of users enjoy Facebook, Twitter, MySpace and LinkedIn, to name just a few of the rapidly mushrooming social network sites. Employers may wish to tap into social media as a useful tool for gathering information about potential and current employees, but before signing in, they should be aware of the employment laws and potential risks they may face by accessing employee information in such a manner. Employers must ask themselves whether the information they are gathering is legal and absolutely necessary for business.

Privacy Laws

In a case where an employer finds it essential to invade an employee’s privacy, they should always ensure that they are backed up by a solid, defensible business reason. While an employer is allowed to ask for the personal password, they should never coerce or require the employee to do so. Always check with your legal counsel prior to taking action.

A privacy claim by an employee is unlikely to be successful if actual permission to view information has been granted. A smart move is to prepare company policies signed by employees, providing “implied,” in addition to direct, consent.

Stored Communications Act

In a precedent setting case, a restaurant located in Hackensack, NJ, violated the Stored Communications Act and was required to pay a $17,000 fine.

Two of the restaurant’s employees organized a password protected forum, upon which fellow employees could vent about the management. The employers got wind of the website and convinced an employee with access to surrender her password. The founders were fired; they subsequently sued and won. The jury maintained that the restaurant accessed the stored electronic messages through coercion, thereby violating federal law.

NLRA

Since the first Facebook related lawsuit was filed in November of 2010, over 200 NLRA (National Labor Relations Act) complaints have been filed. The NLRA maintains that even employees who do not belong to a union have the right to participate in protected concerted activities; in other words, discussing matters that relate to the terms and conditions of employment. A concerted activity is considered protected when it is the logical result of collective concerns, on behalf of a group. An individual acting on behalf of himself is not considered to be engaged in a protected activity.

Facebook Warns Employers

An increasing number of employers require job applicants to provide passwords for access to personal media accounts such as Facebook. In March 2012, Facebook threatened to take legal action against employers that request passwords from employees, based on the claim that such behavior violates its terms of service.

Is a potential lawsuit from Facebook a real concern for companies?

Facebook could claim in court that the requesting entity is attempting to compel users to violate the contractual agreement. They could certainly cancel a company’s page, which could cause serious harm to its marketing efforts.

Screening Applicants on Internet

Searching for potential employee information on the Internet will certainly open up more personal information for an employer than an application would. Will an employer be able to justify a non-biased hiring decision with access to information such as color, national origin, sexual orientation and disability?

If an employer plans to peruse a social media network, they should use LinkedIn or another professional website, which divulges mostly professionally related information. Perform background checks via authorized vendors only and eliminate alcohol and drug abusers by implementing testing policies.

Another potential pitfall of screening applicants on the Internet is the fact that many people misrepresent themselves, concerning anything from education to social behaviors. The bottom line is not to believe everything that you read!

Stay tuned for more information about employers’ utilization of social media: when to discipline and how to establish company policies.

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Understanding Team Dynamics: A Free HR Webinar

Monday, May 7th, 2012

Teamwork is the cornerstone of successful organizations and careful thought should be put into those individuals who make up the team.  There are four basic behaviors of team members and learning how to productively bring them together is critical to the success of the team, and ultimately to the company.

Registration is now open for our complimentary monthly webinar, on May 31, 12pm PDT.

Join us as we discuss:

  • The key traits of an effective team
  • The value of teams;
  • How to identify key traits of effective teams;
  • Understanding how to manage conflict within a team;
  • Recognizing the barriers to effective teams.

This webinar is presented by Linda Robinson, CPEhr’s Training Manager.

Please note: This webinar qualifies for 1.0 General HRCI CE Credits.

Register today!

Understanding Team Dynamics

Date: Thursday, May 31, 2011
Time: 12pm – 1pm (PST)

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Can HR Software Help Minimize the Risk of a Lawsuit?

Wednesday, May 2nd, 2012

As a business owner, every potential job applicant, employee and former employee represents a potential plaintiff in a lawsuit against your company. HR software could be the key to avoid litigation or increase your chances of a successful litigation outcome. If your company finds itself in a lawsuit, will you be prepared with the important documentation needed to defend your business?

By taking advantage of HR applications that assist with documentation, time and attendance tracking, and employee evaluations, companies can minimize the risk of litigation.

Protecting Against Wage and Hour Claims
When dealing with claims related to Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), companies just need to be able to identify and calculate the number of hours an employee has worked in a given work week to determine if they owe an employee overtime pay, or the number of hours worked to be entitled FMLA benefits.

Workforce management applications help HR departments keep better track of employee scheduling, attendance and hours worked, which could be key in determining if a plaintiff is entitled to additional compensation or leave.

Protecting Against ‘Failure to Hire’ Claims
While failure to hire claims aren’t as common as wage and hour or termination claims, companies can still take advantage of HR software to ensure they have the proper documentation and consistent processes in place to screen and interview job applicants. In addition to being able to electronically manage the recruiting, interviewing and hiring processes, applicant tracking software can help companies implement a more consistent application and interview process. Employers can enforce a company-wide online application and consistent interview processes based on objective criteria for evaluating candidates, and then formalize those processes within an applicant tracking system.

Protecting Against Wrongful Termination Claims
In lawsuits based on wrongful termination, a former employee usually relies on a federal or state statute such as Title 7, which prohibits discrimination on the basis of a protected classification. If an employer chooses to let go of an employee based on poor performance, the company needs to be able to prove the employee was consistently evaluated and was not able to meet the position requirements even after communicating that feedback to the employee.

One of the ways employee performance evaluation software systems can help is by automating the time consuming task of regularly evaluating employees. These systems can track performance, help supervisors track and schedule monthly or yearly reviews and then share the information with authorized users across the company. However, at the end of the day, it’s up to the employer to evaluate employees accurately and communicate those evaluations to them.

Tips to Start Minimizing Risk Now
Workforce management, applicant tracking and employee evaluation systems are some HR applications that could minimize an employer’s risk in regards to wage and hour, failure to hire, and wrongful termination claims. But according to experts in the areas of employment law and HR systems, there are some simple steps companies can take using HR software to further mitigate risk.

For one, companies can make sure their employee handbooks or policy manuals are up to date and electronically available within the company’s HRMS.

Another tip for companies to minimize overall risk is to follow their application and interview process to a T, even if that requires extra time and energy to make sure they’re hiring the right people.

The information in this blog post is for educational purposes only and should not be construed as legal advice. You should contact your attorney to obtain advice with respect to any particular issue related to employment law.

Guest contributor: Jennifer King is an HR Analyst with Software Advice, a website that compares and reviews HR and employee performance appraisal software. She writes about technology, best practices, and trends in HR. Read the full article on here.

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5 Time Management Tips to Improve Employee Productivity

Thursday, April 26th, 2012

Even as hiring continues to pick up steam, many small and mid-sized businesses still have a reduced workforce shouldering a larger burden of work than in previous years. “Trim and lean” is still a popular mantra among  small employers struggling to contain costs. So how can these businesses and their employees manage their time more effectively? Here are five tips to avoid wasting time and to help squeeze the most productivity out of your day:

  1. Don’t spread yourself too thin.  Trying to complete too many things in a short window of time can be an unrealistic expectation and lead to less-than-desired results. Instead, prioritize the tasks that must be completed each day. When prioritizing, complete the most important items first. The move down to lower priority activities, and so on.  Don’t forget to schedule some open-time for unforeseen deadlines that could shift your day.
  2. Delegate! Delegating tasks that do not require your full attention or expertise is one of the most important aspects of effective time management. While it may seem easier to “just do it yourself,”  this misconception can be overwhelming and stressful. Effectively delegating lower priority tasks frees up time to complete the more important tasks that DO require your full attentions and expertise. Do not fear that you will lose control of the tasks, since you can always review the assignment and make final edits prior to completion.
  3. Say, “No.” As much as employees would like to help their fellow co-workers, there is simply no way to say “yes” to every request, while still managing your own responsibilities. Make a decision of what you must and want to do. Then say “no” to all other request. This will empower you to be the manager of your time, while not setting unrealistic expectations to you or the person that is requesting something from you.
  4. Don’t be slave to your phone or email. There are many things that you can do to ensure that your time is not monopolized on the phone. You can have someone screen your calls, use voice mail when you don’t want to be disturbed, or schedule phone time to make and return calls. For email, many people feel compelled to respond immediately to every email they receive. Constantly checking email and responding is distracting and pulls your attention away from your current project at-hand. Schedule time, once an hour for example, to respond to and write emails. People will understand if you don’t reply immediately.
  5. Avoid procrastinating. There are a number of reasons why we procrastinate; we may feel like the assignment is unexciting, a chore or too large to start. Unpleasant tasks should be completed first. By getting them out of the way first you can turn your attention to more engaging work. For larger tasks, dividing them into smaller pieces will help make them more manageable.

Remember to incorporate what we learned in steps 1-4. For example, after dividing a project into smaller pieces, allocate time on your schedule to work on the project, delegate portions of the assignment that you are comfortable with delegating, be prudent with your time by saying “no” to assignments that do not require your attention and watch the amount of time that you are spending on the phone.

Effective time management is something that can be only mastered with practice and organization. But as more tasks are checked off your to-do list and you move on to more exciting and valuable projects, it will be well worth the effort.

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Workplace Investigation Best Practices, Part 1

Monday, April 2nd, 2012

There are eight distinct steps that create the framework of a formal, legal and effective workplace investigation. Managers are well advised to familiarize themselves with these steps and follow them to the best of their ability. The eight steps are:

  1. Document the complaint or suspicion
  2. Determine any interim action
  3. Choose the investigator
  4. Prepare the materials
  5. Conduct the interviews
  6. Assess the information and facts
  7. Make the decision
  8. Issue a summary report

In this article we examine the first three steps. Subsequent articles will cover the other steps.

Step 1. Document the Complaint

Whether you receive a formal or informal complaint, management needs to respond immediately.  If the complaint is originally presented verbally, the first step is to ask the individual to put their statement into writing and to sign that statement. Even if they refuse to sign a statement, an investigation will still be launched to ensure that if there is any wrongdoing, it is recognized and resolved. It should be noted in writing that the individual refused to sign the statement.

The documentation should answer all of the following questions:

  • Who is making the complaint?
  • About whom is the complaint?
  • When did the incident happen?
  • Were there multiple incidents?
  • Where did it happen?
  • Were their witnesses and if so who are they?

The goal is to try and isolate all the relevant and important resources and information needed to paint a whole, complete and accurate picture of the event that are triggering this complaint.

Step 2. Determine Interim Action.

There are times when interim relief or temporary change of duties is required.  Interim relief is designed to remedy harm, to stop the wrongdoing or prevent additional problems. When allegations are made, especially in cases of harassment or discrimination and especially if the accused is the superior to the accuser, temporarily suspending an individual may be necessary.  The phrase most often used by Human Resources is “suspension pending an investigation or pending the outcome of an investigation.”

Other typical preventative actions that might occur “pending an investigation” would be:

Removal of or shutting down dangerous or faulty equipment until safety corrections are in place, the suspension of a driver’s driving duties after an accident until the investigation is completed, or reassigning an employee to another department, pending the outcome of the investigation.

Step 3. Selecting the Investigator.

Selecting an investigator is important and there are some basic rules of thumb:

The 2003 Fair and Accurate Transactions Act permits third-party investigations of employee wrongdoing if they “are not for the purpose of investigating employee credit.”  A Private Investigator or outside investigator may be a reasonable resource if senior management is the subject of the investigation or if there was suspicion of possible criminal activity.  It should be noted that in most states it is illegal for a “non-employee” to act as an investigator unless that person is a lawyer or a licensed investigator.  This means that HR consultants are not acceptable investigators unless they are also a licensed investigator (PIs) or lawyer.  There are also some special disclosure rules that may apply and would require further research before selecting this option.

Supervisors and managers are permitted to look into attendance and job performance issues since they have the best perception of expectations and performance standards required.  They should not be conducting serious level investigations since they are usually closely involved with the situation.

When legal issues are involved, or when confidentiality is important, either legal counsel or a trained Human Resources professional should conduct the investigations.  In the consideration of a lawyer, they are often a good option to conduct an investigation for two significant reasons:

  1. They are able to give in depth legal advice, and;
  2. If confidentiality or secrecy is important, a lawyer’s investigation may be protected as confidential information (under the work-product and attorney-client privileges).  If so, the investigation and the investigator’s report would not ordinarily be available to other parties (such as unions or government agencies) and could not be used as evidence against the organization.

Despite the above, most companies rely on their in house Human Resources staff to conduct investigations. These individuals need to be HR professionals. They cannot be assistants, payroll personnel, office managers or clerical employees. Rather, they should be individuals who are formally trained in investigative techniques and have considerable experience in investigations and HR. Whomever is selected, they must be able to withstand intense legal challenges to their impartiality, investigative techniques, and ultimate findings and recommendations.  If the case is challenged, attempts to undermine the credibility of the case and the qualifications of the investigator will be aggressively employed.

Before conducting an employee investigation, we highly recommend contacting a Human Resources Consulting firm that employs trained HR professionals. These individuals are deeply familiar with the intricate laws involved, and as objective, third-party investigators, will add credibility and professionalism to your investigation.

 

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