While the issue is scary, focusing on which employee is most likely to snap is a misuse of your time. Instead, employers should concentrate on creating a positive working atmosphere, where employees feel free to voice their concerns to management, and where employees and employers look out for each other’s well-being – an atmosphere where doing the right thing permeates the workplace.  Employees should be urged to reach out to management when they recognize that a co-worker is experiencing difficulties or showing signs of stress, whether they suspect workplace violence or not.

It is imperative that all employers train their supervisors and employees to prevent workplace violence.  Employees and supervisors also need to learn how to recognize warning signs of workplace violence. In addition, supervisors should be trained to deal with unhappy employees in a safe and positive manner. (Where such training is not provided, they at least need to know they must alert management.) 

As the recent shooting reminds us, the most important time for these precautions is during a discharge.  Supervisors need to learn what precautionary steps to take before they fire an employee, including such things as the location of the meeting, who should be present in the room, and whether there were any previous warning signs of violence from this employee which warrant extra precautions. In certain instances, it may be prudent to have security or the police nearby or on alert. In the most extreme cases, you may even do a discharge over the phone.  Finally, if you have any indication of potential violence, you need a plan to escort the employee out of the building and a plan to protect other employees as they exit the building. 

On the other side of all these precautionary words, employers must remember that announcing someone is a threat to others safety can be defamatory and subjects the employer to liability.  Your basis for making such a statement is key.  Sometimes such statements are needed, but often better alternatives exist.  You need to consider all your options.  Experienced counsel is often appropriate in such cases. 

Overall, most instances of workplace violence go unreported. To avoid a culture of secrecy, every employer should have a procedure for reporting signs of possible workplace violence and minor acts of violence or other inappropriate behavior including bullying.  One option is to implement a hotline where employees can anonymously report suspicious or unwelcome activity in the workplace. Also, employers would benefit from having a conflict management system, whereby an employee can voice their frustrations and work through them with management.  Of course for smaller employers, an effective open door policy may be the answer.  The alternatives are many; the employer’s obligation is to choose one.

Nonexempt employees (those who can earn overtime pay) who telecommute pose the biggest challenges. If an employee is working from home, exact work hours and overtime are hard to track. The employer has to take an employee’s word that the employee is or is not working overtime. It is easier with exempt employees because overtime is not a concern. Another complication arises with meal breaks. If your state requires meal breaks, how will you be sure that the employee is taking them?  Compliance with such rules is often mandatory, even if the employee claims a willingness to waive such rights. 

Another big issue is that telecommuting must be offered on a non-discriminatory basis. Employers should clearly and uniformly apply criteria in order to minimize discrimination claims. If you always grant telecommuting privileges to women, but never men, a willing plaintiff’s attorney is waiting for you!

Employers and the employee must be sure that they have the proper technology to accommodate telecommuting. You need adequate security measures, which may include data encryption, password protected computers, and/or something as simple as locked file cabinets. Also, how will the employee protect the home office? When someone is working from home, you never know who may walk into the office and you must decide if this matters to your business. Employers may want to avoid a child, spouse, or even a pet accessing important company property. This may entail requiring the home office to have a locked door.  Is such a concept acceptable to your telecommuting employee and his/her family?

Overall, telecommuting may be a great advantage to your business and your employees. It may also be a great benefit used to lure in potential employees. The question is: have you seriously considered all the possible complications and short falls that may arise? With government audits on the rise, every business should seriously evaluate their current or future telecommuting programs to ensure that they comply with both state and federal labor and employment laws.

If you want more information on telecommuting, Bob Brody is doing a webinar on this topic on September 23^rd.  You can register for the webinar at: https://secure.confertel.net/tsregister.asp?course=515922&mcode=brody. Enter the promotion code “brody” to receive a 10% discount on the registration fee.

Republicans and Democrats voted for her confirmation along party lines, with the exception of Republican Senator Lindsey Graham of South Carolina. Senator Graham said that while he disagreed on some of Kagan’s political philosophies, he found her to be well qualified for the position and of great moral character. Republicans disagree with Kagan’s past views on Second Amendment issues during her time in the Clinton administration and as a clerk for former Justice Thurgood Marshall. They also worry about her decision as Dean of Harvard Law School to prohibit military recruiters on campus.

As the youngest Justice on the court, Kagan has the potential to make significant changes to our legal landscape in the coming years. It will be interesting to see how she decides her first few cases. We can only hope that she decides each case free from partisan bias and with great deference to the Constitution.

Only two weeks later, Illinois’ Governor signed another bill into law, this time prohibiting employers from conducting pre-employment credit checks on applicants. The law seeks to end discrimination based on credit history both for job seekers and employees. Certain job categories are exempt from this new law, including those that involve trade secrets, management and control of the business, and unsupervised access to more than $2,500.

You can register for the webinar at: https://secure.confertel.net/tsregister.asp?course=515922&mcode=brody. Enter the promotion code “brody” to receive the discount.

The seminar will discuss the benefits to working off-site and the pitfalls if compliance with employment laws is not maintained. Among the issues we will address are: how do you track time for telecommuting employees?; who pays for which business expense?; who is responsible for providing a safe work environment and complying with OSHA’s safety guidelines? and; is the worker an employee or an independent contractor? 

If you have questions about this seminar, or would like us to present this seminar to your company, please do not hesitate to contact us.

The DOL said that those who provide either financial support or day-to-day care for a child may be able to show an in loco parentis relationship. A person needs to show intent to assume the responsibilities of a parent. This determination is fact specific and requires a case-by-case analysis. Factors that may be considered include the age of the child, the amount of support provided, or how dependent the child is on the person. Even if a child has two biological parents, that does not preclude another person from claiming an in loco parentis relationship.   

Examples of situations where the in loco parentis relationship may apply include an unmarried parent taking care of their partner’s child, same sex partners who adopt children, grandparents taking care of children whose parents are incapacitated, or an aunt raising a deceased sibling’s child. These situations would allow for the unmarried partner, same sex partner, grandparent, or aunt to take FMLA leave to care for the child. Not included in the expanded definition are persons taking care of another’s children while their parents are on vacation. For those of you who watch late night reruns or have a long memory, Opie’s Aunt Bee, from the Andy Griffith Show, would qualify – if she worked outside the home!

If an employee requests FMLA leave, an employer may require reasonable documentation or a simple statement stating the nature of the employee’s relationship to the child. It is important that employers with 50 or more employees remain up to date on the FMLA.

You could be liable if you use what you find in a hiring decision. Then again, you could be liable if you don’t.

Background checks are designed to use past performance-at work and beyond-to predict future success at work. The key to successful background checks is locating an unfiltered source to reveal what the applicant is really like. Of course, asking the applicant and her references seldom produces useful insight unless you can choose the referral source (e.g. the last supervisor) or get the applicant to unwittingly divulge the truth through careful questioning. Social media now offers a new approach to uncover the truth about your applicant.

The Social Media Explosion

Facebook boasts that over one third of all Americans are members. Add linkedIn, Twitter, blogs, message boards, etc. and the numbers are staggering. While LinkedIn is often a polished view of oneself, the same is generally not true of  Facebook and Twitter. These latter forms of social media encourage users to let their hair down, which gives recruiters a unique opportunity to see the real candidate. While security enhancements are somewhat limiting access to some forms of social media, the limitations are still modest.

What You Can Learn Through Social Media

Much of the social media content is unlawful for employers to consider. The typical Facebook page will reveal race, sex, sexual preference, familial status, ethnic background, and more by just looking at the pictures and profile. Religion, especially if it is a strong part of the member’s belief system, is often front and center. Social causes are also often prominently displayed. As any seasoned recruiter knows, none of these factors should be considered in the recruiting process. However, more information is often available which is legal to consider.

Surprisingly to the inexperienced visitor, social media often offers insight into job satisfaction and performance issues.  Members regularly opine on their desire to find new job opportunities. They also comment on how they feel about their job, their employer, and the stress and strain of work. All of this is very enlightening and lawful to consider.

Real-life Examples

A fast food restaurant was told by a state Wage and Hour Auditor that a specific employee filed the complaint that prompted the wage and hour audit. When we used Facebook to learn more about the Complainant, we found she wrote on Facebook that she hated her job, she thought management was unfair, and she was looking for a new position.  

In another instance, an employer wanted to confirm the employment history of an individual, and it searched the person’s name on LinkedIn. The Company discovered a current job that it was unaware the person had obtained. 

The final example is the most devastating. A law student obtained an offer from a prestigious metropolitan law firm. As her last hurrah before graduation, she made a sexually revealing video tape of herself and placed it on YouTube. Her law firm found the clip and withdrew the offer.

Legal Concerns

For more than 50 years, recruiters have been told there are certain factors that must not be considered in the recruiting process. Social media doesn’t change this. It simply grants the recruiter an enhanced likelihood of coming upon such protected information. The following is a list of some of the more common laws that prohibit consideration of such factors. As you review each factor, imagine how social media will enhance the likelihood that a recruiter will learn of such factors. Please note: this article assumes the recruiter is doing the background check “in house.” If this responsibility is assigned to an outside vendor, make sure there is full compliance with the Fair Credit Reporting Act.

Civil Rights Statutes

Federal, state, and local governments all have statutes prohibiting adverse employment actions based on such things as the applicant or employee’s race, sex, age, religion, national origin, sexual preference, arrest record, disability, etc. To the extent any such qualities are discovered in the interviewing process or in a background check, including through social media, they must not be considered.

State Off-Duty Conduct Statutes

Many states across the country have statutes that declare it unlawful to discriminate against an employee based on engaging in legal conduct while off duty. Examples of such conduct include owning a firearm, consuming alcohol, smoking, and participation in political activities. To the extent such information is found through social media, it should not be considered.

The National Labor Relations Act

The National Labor Relations Act is a federal law that regulates union related activity in the United States. It also regulates “concerted” or group activities by employees involving the workplace. To the extent one learns an employee is an advocate for other employees at work, that conduct is protected and should not adversely affect the candidate.

One Final Concern-Negligent Hiring

As a recruiter, your job is to find the best candidate. If you are wrong about a candidate, the new hire leaves, you (hopefully) redo the search and life goes on … but not always.  There is a concept knows as “negligent hiring.” This occurs when a candidate is hired, he or she damages another person – usually a customer or fellow employee (physically or their property) – and then you learn that something in the candidate’s background foretold of this risk/damage.

The worst cases are when convicted pedophiles are unknowingly hired to work with children or convicted thieves are allowed access to a customer’s home. In a few cases, where a reasonable background check would have uncovered such history, the employer has been held liable for the damages this employee caused. Now consider if social media would have helped you discover such a hidden background. If so, the next question is: are you liable for not using social media to this end?  We know of no such case, but as social media becomes part of our everyday lives, this theory is bound to be argued. Only time will tell if it succeeds and huge judgments against an employer follow.

Conclusion

One out of three managers already use Google as part of their background check, and one out of five use social media.  The question is whether everyone else will embrace this or try to fight it. If you want to fight it, how will you win the fight? Since fighting this is nearly impossible, why not prepare for it and advise your team how to use it? Remind everyone that the laws that limit areas of legal inquiry, such as age and family status, are as strong as ever. The source of prohibited information is no defense. Therefore, remind everyone of the rules, and remind them not to makes notes about information that is not job-related and is protected. At the same time, take advantage of the legal information social media may provide.

Employers can learn valuable lessons from this.   

1. If at all possible, do not publically discuss negative employment actions outside the company, especially with the press!  For most of us, this step is easy as few people care who most employers fire. 
2. For the few employers where the public is interested in your employment decisions, be sure your descriptions are accurate.   Do not “spin” your story beyond where the facts allow. 
3. If your statements are going public, get legal counsel to review your strategy before your words are in the public domain.
4. Finally, keep your fingers crossed.  Despite your best efforts, all of us are susceptible to lawsuits, whether they are well founded or not!

If you would like a copy of the PowerPoint slides from the webinar, please contact us at info@brodyandassociates.com or (203) 965-0560