Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Photo by:  Gregoria Borgia

If you haven’t heard about the Friday crash of cruise liner Costa Concordia off the coast of Italy, you must be disconnected from all technology, newspapers, and media, because it has been the #1 news story. The employment side to this tragedy at sea, is the alleged horse-play that went on in the ship’s bridge and the fact the Captain may have abandoned ship. Today, MSNBC.com reported this is not the first time the ship’s captain, Francesco Schettino has disobeyed orders. According to Italian news reports, Captain Schettino once left Marseilles, France in bad weather, against both company policy and Coast Guard orders. He was also once reportedly caught sailing too close to the shore in another part of Italy.

In addition to the human tragedy and loss of life, this event is going to be costly for Carnival Cruise Lines, the owner of the Costa Concordia. Especially, if it is shown that Captain Schettino had previous performance issues which were not addressed by Carnival.  According to news reports, human error is primarily to blame for the cruise liner crash, and that responsibility ultimately rests with the captain. Captian Schettino deviated from the correct route for the ship and contravened safety procedures.

I don’t know if Carnival took disciplinary action against Captain Schettino for past violations of company policy, but if they didn’t, they certainly should have.  Discipline for violation of company policies is meant to correct employee behavior.  Company policies are important for a number of reasons including but not limited to notifying employees of expected behavior, and outlining safety procedures. 

As a Minnesota resident, my thoughts and prayers go out to all the families involved in this crash, especially, the Heil family of White Bear Lake, who is still waiting for word on their missing parents.
 

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There is no one-size fits all dress code for a workplace. What is appropriate attire for employees in a workplace varies drastically according to the work being performed, the physical requirements of the job, and exposure to the elements. It is important however for employees to always dress appropriately for the position they are in. Earlier this year, I blogged about the importance of reminding employees about a business’s dress code policy, especially when the seasons start to change.

MSN Careers website had a great article today on the 10 Commandments of Workplace Dress. I completely agree with the ten tips author, Beth Braccio Hering identified in the article. Most of these tips probably seem like common sense, but believe it or not, employees often need to be reminded of these rules. An Employee Handbook is the perfect place for employers to outline a dress code/appearance policy and place employees on notice of the employer’s expectations. By having a dress code/appearance policy in an employee handbook, employers can avoid some of the awkward conversations with employees when they show up for work in sweats and football jerseys.

If you are an employer and you don’t have a dress code/appearance policy or you haven’t reviewed the one you have in awhile, take a moment and do so now. First impressions are important and you want to make sure your employees are leaving the right impression about your business.

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Well, some of the fall T.V. shows had their season premieres this week. If you watched the series premiere of Free Agents on NBC last night starring Hank Azaria, I hope you would agree talking at a staff meeting about a co-worker’s evening escapade is not appropriate for the workplace. In fact, even more shocking was when the head of the company walks into the meeting and is told what the discussion is about, and encourages Hank Azaria’s character to just share “the good parts.” Hank’s character tries to shut down the conversation by stating, he met a woman last night and they had “wild animal sex” all night long. But, the discussion doesn’t end there. No, instead several colleagues begin to prod Hank’s character for more details, what was her body type, did her undergarments match, when the head of the company interjects, “Just the size and shape of breasts, straight to positions.” Of course, for T.V. the idea is to entertain, so you don’t want to just have the characters sitting around talking about work. But, if this type of discussion was occurring in your workplace, the doors are wide-open for a sexual harassment lawsuit.

It is important to remember in cases of sexual harassment, it is the welcomeness of the conduct by the recipient that is relevant to whether the conduct is harassment, regardless of whether the intent of the person engaging in the conduct is harmless or even friendly. Because it is almost impossible to judge whether conduct is welcome or unwelcome, most businesses have adopted a zero-tolerance policy with respect to sexual harassment in the workplace.

How do you protect your business?

1) Have a sexual harassment policy in your employee handbook or policy and procedure manual.
2) Train employees on the sexual harassment policy.
3) If you receive a complaint about sexual harassment, do a fair and thorough investigation.
4) If you see employees acting in inappropriate ways, put a stop to it immediately!

T.V. can be both entertaining and educational. The episode of Free Agents last night is a perfect example of what you do not want occurring in your workplace.
 

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The National Labor Relations Board’s Acting General Counsel released a report yesterday, detailing the outcome of a mixed bag of 14 cases involving the use of social media by employees, their employer’s social media policies, and in one case the improper use of social media by a union. The report is a fascinating read for employers, and shows how the NLRB is really splitting hairs on what to do about employee use/misuse of social media. Each case is extremely fact specific. The waters are beginning to clear, but there is no bright line yet.

Eight of the cases reported, involved employees using Facebook to criticize their employer, supervisor, or fellow employee. In four of the cases, the NLRB ruled the employee’s activity was protected concerted activity. In the other four cases, the conduct was deemed to not be protected by the National Labor Relations Act. The difference lies in a determination of whether or not activity is, “Engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or induce or to prepare for group action” and where individual employees bring “truly group complaints” to the employers attention. Translated, this means whether or not the employee is acting alone, or in concert with others. To the extent the employee acts alone it is not concerted activity; to the extent the employee communicates with fellow employees, the more the activity looks concerted and is more likely to be considered protected activity.

One of the fourteen cases was about an employee tweeting, and four others concerned the question whether or not an employer’s social media policy was overly broad. Three of the social media policies reviewed by the Board were determined to be overly broad, one was not.  The take-away for employers is to understand social media cases will be reviewed by the NLRB on a fact specific basis. When presented with a problem of an employee’s potential misuse of social media, an employer should carefully review the facts.

• Who was involved in the social media communication?
• When?
• What was the subject of the social media communication?
• What was the purpose of the communication?
• Does the social media communication appear to be “concerted activity”?

The second step is to review social media policies to determine if they are overly broad, and have the effect of chilling an employee’s rights under Section 7 of the NLRA. Adding an exclusion which reads, “This social media policy is not designed to hinder, restrict, or compromise an employee’s rights under Section 7 of the NLRA,” is a very good idea.

Another good resource for employers is to review the recent “Survey of Social Media Issues Before the NLRB,” completed by the U.S. Chamber of Commerce. It covers 129 NLRB decisions concerning social media and workplace issues. The Chamber reported, “The vast majority of the cases we reviewed through this survey fall into two general categories: employer policies restricting employee use of social media that are alleged to be overbroad and employer discharge or discipline based on an employee’s comments posted through social media channels.”
 

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Technology and social media use is morphing at light-speed. Figuring out clear lines and appropriate social behaviors remains very murky. The court system has been no help in providing guidance, due to the lengthy delays between the filing of a case and a final court ruling, generally issued years later. Last year, my law partner blogged about a sexting workplace discipline case. There was an eight year delay between the employee's misconduct, and the final decision issued by the United States Supreme Court. By the time the Court ruled, the pager technology used by the employee was already out of date. Judges are historically reserved and reluctant to provide much guidance because they simply can’t predict where social media and technology is headed, and can’t fathom how quickly the social media/technology landscape is changing.

I keep looking for cases to help clarify the boundaries and the new rules, but they are few and far between. What are the appropriate boundaries on social media use, and what are the new rules?
The Minnesota Court of Appeals gave us a glimmer of guidance this week, in a case having to do with a University of Minnesota mortuary science student. We can extrapolate from the tenor of the decision and start to see where social media may be headed, and what seems to matter to the Courts.

In the case, a mortuary science student commented on Facebook about a cadaver she named “Bernie,” she described embalming as cathartic, and stated she wanted to stab someone in the throat with an embalming tool. She also mentioned wanting to take out her aggression on the cadaver and about updating a “Death List.” The Facebook posts went out to fellow mortuary science students, her Facebook friends, and friends of her friends. Her Facebook comments were determined to be threatening and inappropriate, and in violation of University rules. Her sanctions included: receiving a failing grade in the class, attending a clinical ethics class, writing a letter to department faculty addressing the issue of respect in the department and the profession, and completing a psychiatric evaluation.

The student challenged the University’s discipline as arbitrary, and argued that her Constitutional right to free speech had been violated. The Court of Appeals was not convinced and ruled, “A public university’s disciplinary sanctions do not violate a student’s right to free speech where the student’s posts to a social networking website materially and substantially disrupt the work and discipline of the university.”

Important points noted by the Court include the fact the University had held an in-depth orientation for students about the treatment of cadavers, and students were required to sign acknowledgment forms indicating they had read the department policies about the responsibilities of dissecting a human body. Additionally, because the University relied very heavily on a voluntary anatomy-bequest program for donated bodies, and because the program was jeopardized, the Facebook posts were deemed to be disruptive to the work and discipline of the program and the University.

Based on the Court’s rationale, we can extrapolate a few take-aways.  Clearly, the Court took note of the fact there was an adopted social media policy which established notice and expected accountability. Training on the policy, and requiring a signed acknowledgment form indicating receipt of the policy, were also mentioned by the Court as important to their ruling. Finally, if social media use can be proven to disrupt work and discipline, it is less likely to be determined to be protected speech.  Common sense won out in the end.  If it's not a good idea to shout out thoughts and comments standing on a street-corner, it is probably not a great idea to post them on Facebook.

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I previously blogged about Minnesota workplace leave laws covering family and children issues, and wanted to follow-up with a grab bag of some unique leave laws covering specific medical conditions, the military, and voting.

As a reminder, it is important to first determine which leave laws apply to your workplace. In order to do that, you should first review the definition of employer in each situation. Some of the statutory leaves define an employer as a business employing one person, while other statutes require a workplace to employ at least 20 employees for the leave law to apply. Some of the unique employee leaves only apply to public sector workplaces such as cities and counties, while other leave laws apply to every workplace including private businesses. The important point is to determine which state leave laws apply to your workplace.

• Bone Marrow Donation Leave: Public and private sector employers employing 20 or more employees, must provide up to 40 hours of paid leave time to employees who elect to donate bone marrow. Employers may request medical verification for the leave. The paid leave is in addition to any other leave available to the employee.
• Organ Donation Leave: Only public (state, city, county, school district) employers with at least 20 employees, are required to provide up to 40 hours of paid leave to an employee, who elects to donate an organ. This leave does not apply to private businesses. Public employers may request medical verification for the leave. The paid leave is in addition to any other leave time available to the employee.
• Blood Donation Leave: Employers may provide paid leave for an employee to donate blood. This applies to all employers in Minnesota.
• Leave to Immediate Family Members of Military Personnel Injured or Killed in Active Service: All employers with at least one employee must grant up to ten working days of unpaid leave to an employee whose immediate family member has been injured or killed while engaged in active service in the United States armed forces. This also applies to independent contractors who perform work for a business or public employer. The ten days may be reduced, if an employee elects to use paid time off such as PTO or vacation time.
• Leave to Attend Military Ceremonies: All employers having at least 1 employee, must provide unpaid leave to employees of up to one day in any calendar year, to attend military ceremonies such as a send-off or homecoming for an immediate family member, unless the time off would unduly disrupt business.
• Leave to Vote: All employers must provide paid time-off for employees to go to the polls, cast a ballot, and return to work on the day of an election. This includes primary and general elections, as well as elections for state and federal legislators. Failure to provide time off to vote is a considered a misdemeanor.

A quick check of the leave laws that apply to your business will insure your workplace is in compliance with state law. Some of the unique leave laws are so limited in purpose that you may not have ever run across a situation where they apply. For example, in 27 years of labor and employment practice, I am only aware of one situation where an employee requested organ donation leave to donate a kidney to a family member. The large employer was unfamiliar with the statutory leave. I reviewed the legislative history and concluded paid organ donation leave was clearly in addition to any sick leave benefit the employee had available.

We recommend incorporating reference to applicable employee leaves into your Employee Handbook, so everyone knows who is entitled to what leave, and whether it is paid or unpaid time. Take the guess work out of employee leaves, and be prepared for a request for statutory time off from work.

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Spring is in the air, which means love is in the air, and we are fast approaching the official wedding season. It is estimated that roughly 1/3 of romantic relationships begin at work. This isn't hard to understand when you consider “...the average American spends 46 hours per week at their job, and 38 % spend more than 50 hours per week on the job,” according to the National Sleep Foundation. The workplace is the new dating arena, making it more likely that romance between employees may blossom. What does that mean for employers?

Workplace romances can be a nightmare for most employers, fraught with potential sexual harassment claims, cries of favoritism, and reduced morale and productivity on the job. Romance between an employee and a customer/client presents another set of problems in the workplace. It is best to not just let cupid run amuck at work, but instead assume a workplace romance will happen, and plan for it.

Outright prohibition of all workplace romances is not generally favored. It can be hard to define the difference between dating and “just friends,” and could invite an invasion of privacy claim, or a discrimination claim based on marital status. The better choice is to proactively advise employees about work expectations concerning romances through your employee handbook. Cupid is not the only one with arrows in his quiver. 

Consider the following:

• Place limits on supervisor-subordinate romances as these relationships are the most likely to result in a harassment claim, if the relationship turns sour. A policy should spell out this type of relationship will require one member of the couple to transfer or resign.
• Spell out professional expectations of all employees at the workplace. If a romantic relationship creates a conflict of interest or dissension amongst employees, then a transfer or resignation may be necessary.
• Require employees to notify Human Resources of a dating relationship at work, and include a penalty for not reporting. This will afford an opportunity to have a discussion with the romantic couple about professional expectations, and to document the relationship.
• Outright prohibition of an employee/customer dating relationship is different than prohibiting employee-employee romances. It is easier to identify a legitimate business need to support the prohibition of a romantic relationship, when an employee wants to date a customer/client. The employee handbook should be clear on the issue, and state employees are prohibited from dating clients or customers.

An interesting arbitration case in the public sector ruled an employer can restrict a supervisor-subordinate romantic relationship through policy, even if the policy was initiated after the relationship had begun. The case dealt with a City of Champlin police sergeant, who started a relationship with a female officer under his command. It seems looking for love in all the wrong places can even lead to a demotion.  Cupid can be managed with a little bit of planning.
 

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 Yeah! Spring is on its way with summer soon to follow. Most everyone gets excited about the warmer weather and longer days. In Minnesota, we are experiencing the unique weather pattern which normally accompanies early spring. In the morning, it may still be below freezing and winter attire is necessary, but by afternoon the temperature warms to the fifties and a lighter jacket could suffice. So, now is the time employees may start “changing” over their clothes to accommodate the warmer weather.

Most businesses nowadays allow for some type of “business casual,” whether it is only on Fridays or anytime there are no meetings in the office. Now, with the changing of the seasons and the warmer weather it is a good idea for employers to remind employees about the business’s dress code policy.

Twin Cities Business Magazine had a nice article on “How to Talk to the Employee Who’s Turning Heads at the Office (But not for good reasons)”. For example, flip-flops are generally not considered appropriate for work not only because they look unprofessional, but they can also be a safety hazard, due to the potential to trip and fall. So, what should you do if you do need to speak with an employee about their attire? Twin Cities Business Magazine interviewed Ms. Julie Haltom, who has 15 years of human resources experience. Her tips: ‘Be gentle. Try to have a sense of humor about it. Send occasional company-wide e-mails reminding everyone of the dress code. Lastly, don’t embarrass an employee by singling them out in front of others, but instead talk to them privately about the issue.’

By being proactive and reminding employees about the business dress code, employers can avoid having to have an awkward conversation with an employee about their attire. If your business doesn’t have a formal dress code in the employee handbook, outlining what types of clothing is or is not appropriate, now may be the right time to develop one and share it with the employees. If your business does have a dress code policy, now maybe a good time to review and update it, if necessary.

(Photo courtesy of Steve Johnson, Valparaiso, Indiana) 

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You smell alcohol on an employee’s breath after lunch. What should you do? One of your staff is acting weird, and you suspect they may be smoking marijuana. An employee has a motor vehicle accident with a company car, and you suspect they were under the influence when they crashed. What’s an employer to do?

From experience, more and more employers are turning to drug and alcohol testing of employees as a means of screening new job applicants, and also being able to respond to chemical use and abuse of present employees. Minnesota employers can’t just act on suspicion that an employee was drinking alcohol or using drugs before coming to work. State statute governs drug and alcohol testing of employees in the workplace, outlining what, when, where, and under what circumstances an employer can test an employee for alcohol or drugs.

Before an employer asks a job applicant or an employee to submit to testing, they must have adopted a policy that fits within state guidelines, and the individual must be given a copy of the testing policy. The policy must set out:

1. the employees or job applicants subject to testing under the policy;
2.  the circumstances under which drug or alcohol testing may be requested or required;
3. the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal;
4. any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test;
5. the right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest; and
6. any other appeal procedures available.

Employers are required to use certified labs which meet minimum qualifications, and follow specific protocols. For example, a positive drug or alcohol test must also be subject to a confirmatory test. A job applicant or employee must be notified about a positive test result, that they have an opportunity to explain the positive test results, and that they can request a confirmatory retest of the sample, at their own expense.

“Safety sensitive” positions can be subject to random drug testing. Random drug and alcohol testing means the employer has initiated a testing schedule, whereby a random sample of employees are tested on a monthly or quarterly basis. Most employees however, are not considered “safety sensitive” and would be subject instead to a reasonable suspicion standard.  Reasonable suspicion means there is a “…basis for forming a belief based on specific facts and rational inferences drawn from those facts.” This may mean a car accident with the company vehicle, observation of behavior and an odor of alcohol on an employee’s breath, or the employee caused harm to another employee.

If the workplace is unionized, drug and alcohol testing must be negotiated with the bargaining agent. If there is no union, the employer is free to adopt a drug and alcohol testing procedure that meets the guidelines of Minnesota state statute. Most employers incorporate the drug and alcohol testing policy in their Employee Handbook.

To test or not to test, that is the question? If the answer is to test- then state statute needs to be followed.

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Mr. Stagg worked for Vintage Place Inc. for approximately 14 months, during which time he struggled with tardiness and absenteeism. Vintage Place Inc. employee handbook contained a progressive-discipline policy, which provided that Vintage's employee[s] may be disciplined according to a five-step schedule. The schedule permitted an oral warning for the first unexcused absence, a written warning for the second, a three-day suspension for the third, a ten-day suspension for the fourth, and termination for the fifth. As a result of his attendance problems, Mr. Stagg had received both an oral and written warnings, and a three-day suspension, but was fired before receiving a ten-day suspension.

This summer, the Minnesota Court of Appeals reversed an unemployment law judge’s determination an employee was precluded from receiving unemployment benefits because he was terminated for misconduct. In Stagg v. Vintage Place Inc. A09-949 (Minn. Ct. App. 2010) (pdf) the Court of Appeals ruled the employee, “could have reasonably expected Vintage to follow the disciplinary steps, and because Vintage skipped the fourth step of a ten-day suspension, relator's absenteeism does not amount to employment misconduct precluding eligibility for unemployment benefits.”

I have blogged about this in the past, you don’t want to include specific discipline procedures in an employee handbook, because, “Minnesota courts (pdf) have decided when an employee handbook includes specific disciplinary steps to be taken prior to termination, an employee’s “at-will” status is modified and some job security is presumed.”

What should you do?
1) If you have a specific discipline procedure in your employee handbook and you are currently dealing with a problem employee, then you better follow your procedure.
2) If you have a specific discipline procedure in your employee handbook and you do not have a current problem with an employee, then this would be a good time to update and revise your employee handbook.

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I’ve blogged before about the importance of making sure your employees are being paid properly under the Fair Labor Standards Act (FLSA).

Last week, the U.S. Department of Labor issued two new press releases announcing investigations resulting in more than $500,000 in back wages being paid to employees. The first, involved the Walt Disney Parks and Resorts in Orlando, Florida where 69 employees will receive $433,819 in back wages due to violations of the FLSA. During its investigation the Wage & Hour Division found employees were not being paid correctly for work activities occurring before and after their normal shifts, when they worked through their meal breaks or when they worked from home. The investigation revealed, “while Walt Disney has specific rules regarding off-clock work, . . .managers within the company were not adhering to those important policies.”

The second press release, involved a Minnesota home health care company, Prairie River Home Care Inc. which was found to have violated the FLSA by failing to pay 144 current and former employees time and one-half their regular rates of pay, for all hours worked in excess of a 40 hour week. Under the Minnesota Fair Labor Standards Act (Minn. Stat. 177.25), employers are required to pay overtime for all hours worked over 48 hours in a week. Prairie River Home Care Inc. was following Minnesota law for overtime compensation. The problem arose because wages and hours of work are covered by both state and federal law. When that is the case, the law with the higher standards must be observed. So, although Prairie River Home Care Inc. was not running afoul of state law, it did run afoul of federal law, resulting in the investigation and penalties.

I’ve said it before and it is worth repeating; it isn’t just important to have a policy addressing overtime issues, it is also important to train employees on the policy, and make sure supervisors are following it. It cost Walt Disney a lot of money, just because supervisors were not following the policies which were in place. Lastly, when both state and federal law are applicable to your business, make sure you are following whichever law, has the standard which is more advantageous to the employee, so you don’t get penalized like Prairie River Home Care.

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Some would say there is nothing worse than a woman scorned, except maybe an employee scorned by their employer. Before the Internet, scorned or disgruntled employees told all of their family and friends about how bad their job was, how unfair their boss treated them, or how lousy their employer’s products were. Today the Internet can take the comments of a scorned or disgruntled employee and make them viral in a matter of hours through Facebook, Twitter, YouTube, or a blog.

No workplace is exempt from the wrath of a scorned employee, not even a law firm. The ABA recently blogged about a former associate of Levinson Axelrod, a New jersey law firm, and the “cyber-assault” created by the associate’s blog site “Levinson Axelrod Really Sucks.” The parties have reached a settlement and the blog site has since been removed, but not until many blogs were posted and a lawsuit was commenced.

Employees have taken to using the Internet to vent about workplaces, co-workers, and bosses. Several websites encourage employees to talk candidly about their jobs including:

• www.workrant.com, which offers a bulletin board for employees to express their workplace frustrations,
• www.glassdoor.com, which offers company reviews including salaries,
• www.vault.com, which offers help with resumes, career changes, and the chance to $500.00 if you submit a review of your employer, and
• www.jobvent.com which asks employees, “Love your job, hate your job, share your experience, post an anonymous review of your company.”

Workplace rants by employees using social media can be a real headache for any business. Having a plan and a strategy is the first step for any employer. The question is not whether a workplace may be attacked through social media by a scorned employee; the question is when will it happen. I have blogged about the need for any business with employees to have a tailor-made social media policy in place, and to train employees on the policy. Having the name of a good media relations firm on hand is also a good idea, to be able to respond quickly to the viral attack, and to manage the response of your business. 

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Last December, I wrote about the 9th Circuit Court of Appeals case between the City of Ontario, California and its employee, Police Sergeant Jeff Quon which was appealed to the United States Supreme Court. On June 17, the U.S. Supreme Court issued its decision (pdf).

The question before the U.S. Supreme Court was whether or not the City’s review of text messages sent and received on an employer issued pager violated Sergeant Quon’s Fourth Amendment’s protection against unreasonable search and seizure? Sergeant Quon argued, he had a reasonable expectation of privacy in the text messages he sent and received.

The Court acknowledged, we

“…must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . .Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . .At present, it is uncertain how workplace norms and the law’s treatment of them, will evolve.”

The U.S. Supreme Court did not address whether Quon had an expectation of privacy, but instead stated, “[t]he case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy.” The Court in choosing to dispose of this case on narrower grounds, assumed several propositions arguendo: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided by the City; (2) The City’s review of the transcript of the text messages constituted a search within the meaning of the Fourth Amendment; and (3) The principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court held, “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable. . .Petitioners did not violate Quon’s Fourth Amendment rights.”

Because the Court chose to decide this case on very narrow grounds, which are very fact-specific, not much guidance was provided to other employers dealing with technology issues. What employers need to continue to do is:

1. Make sure policies are updated and cover all your current technology.
2. Policies should clearly outline employees’ expectations concerning personal use of technology and equipment.
3. Insure your policies are being followed and not contradicted by management.
4. Train employees on all policies, including new or revised policies.
 

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All workplaces should have a social media policy in place which outlines behavioral expectations for employees. This includes non-profits, governmental agencies, as well as private sector businesses. It is pretty difficult to discipline an employee for spending too much time on Ebay or Facebook, or for sharing corporate news through Twitter, without specific guidelines in place.

I previously blogged about the need for social media polices in your workplace. Employers should consider the scope of their social media policy and make sure the policy fits their business model. Do you want employees to be sharing business information on social media? How does social media use by employees fit into your business public relations plan? Is it necessary to limit an employee’s use of social media? What are potential business advantages and disadvantages as a result of employees using social media? Should you exercise some type of control over social media and funnel it through one source?

If you are still not convinced you need a social media policy, the Federal Trade Commission recently posted its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."   It indicates employers could be liable for false statements about their  buisness/products made by employees through social media, and that employees are required to disclose their employment relationship to your buisness when making any endorsements.

Social media policies should address your unique business needs. Many model policies are available on-line, however one size does not fit all.  You don’t need to recreate the wheel while drafting your own social media policy, you just need to tailor it to fit the needs of your business.

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Daniel Schwartz reported on his recent attendance at the 2010 Legal Tech Conference in New York. Finally, it seems businesses are realizing someone on the web is talking about them, and it may not be the media relations message they had in mind.

Several years ago while Walmart was using its cheerful elderly greeters in an ad campaign for their stores, an internal memo from Walmart top management was busy sending a very different message. The internal memo discussed trying to reduce health benefit costs by getting rid of older and sick employees. The contradiction caught on fire on the web. It was a disaster for Walmart.

Businesses can address social media messages with employees by adopting social media policies. As technology has evolved from pagers and cell phones to e-mail, and now Twitter & Facebook, personnel policies must also evolve.

It is not necessary for your business to redesign the wheel. It is necessary to draft a social media policy which captures the philosophy of your company, and the values of management. Matt Leonard blogged about, “Why employees need Social Media Guidelines,” and offered links to 22 useful social media resources including model policy examples. Start with a model policy and see what will work for your business.

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Many employers mistakenly think if they don’t have a written contract with employees or their employees don’t have a union, then the employees are “at-will.” “At-will” employment may be terminated by an employer or an employee at any time for basically any reason.  In Minnesota, employees are presumed to be employed “at-will.”

It is possible for an employer to unintentionally alter an employee’s “at-will” status and create an expectation of job security. Minnesota courts follow two major exceptions to “at-will” employment. One being an employer may not discharge an employee when the termination is against a well-established public policy, for example, firing an employee for filing a workers’ compensation claim after being injured at work. The second is the creation of an implied contract based on either policy statements made in an employee handbook or oral representations made by an employer to an employee.

If your employees are “at-will” employees, do not include the following in your employee handbook:

• Probationary terms – “At-will” employees are “at-will” before, during, and after probationary periods. Having probationary language may be interpreted as providing a guaranteed term of employment.
• Specific discipline procedures - Minnesota courts (pdf) have decided when an employee handbook includes specific disciplinary steps to be taken prior to termination, an employee’s “at-will” status is modified and some job security is presumed.
• “Just cause” for termination – Can create expectations of job security.
• Defining employees as “permanent” – Can create expectations of job security.

If you have “at-will” employees, you should not make specific promises in your employee handbooks which could lead employees to believe they had a guarantee to continued employment, and you should include clear and prominent disclaimers to prevent the creation of unilateral contracts with employees. 
 

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As the New Year dawns, it is the perfect opportunity to do a check-up of your current business practices and determine if any changes are in order. Everyone needs a check-up every now and then, and this includes your business. A business check-up will help you reach your 2010 goals to increase revenues and productivity.

Some things you should review and questions to ask:

• Employee handbook or policy manual - Are all policies current? Do your actual business practices follow these policies or do they conflict? Do you need to add any new policies?
• Rental leases – Is everyone living up to the lease? Is an extension in order?
• Business contracts – Are there any changes needed in any vendor or supplier contracts?
• Insurance policies – Is your insurance coverage adequate to protect your business?
• Marketing practices - Did each effort bring in new business as expected? Why did you choose certain marketing options, was it to stay in front of clients or to try to get your name out to new clients? Do you feel your efforts were successful?
• Membership in Associations – Does this membership serve your business plan?
• Office technology – Do you have a replacement schedule? Do you need to upgrade or replace any office furniture or technology?

Often businesses can get stuck in a rut. There is no better time to kick start new ideas or to stop wasting time and money than the start of a new year. Take the time to do a check-up on your business practices and kick-start 2010.

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Just this week the United States Supreme Court granted review of an important case (pdf) that will impact employers; public employers in particular. The Supreme Court will decide whether employees have an expectation of privacy in the text messages they send on devices owned by their employers. This case is opening the door into the new frontier of law and technology in the workplace.

The case stems from a police sergeant’s use of a City owned pager to send business and personal text messages. The City of Ontario, California had a general computer usage, internet and e-mail policy which was applicable to all employees. The policy stated, users should have no expectation of privacy or confidentiality when using internet and e-mail resources and usage may be monitored. The City had no formal policy governing the use of department pagers, but there was an informal policy established by a police lieutenant that text usage would not be audited, so long as the employee agreed to pay any overage charges for exceeding a 25,000 character limit.

The Supreme Court decision is not expected until next summer, so what can you, as an employer, do now? 

1. Make sure policies address all your technology.
2. Insure your policies are being followed and not contradicted by management.
3. Train employees on all policies, including new or revised policies.

Remember policies are the workplace rules you have set for your employees to follow, and you need to review these rules on a regular basis and change them when necessary.

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Why is it important for a business to have an employee handbook or personnel policy manual? There are many reasons.

Handbooks or policy manuals can set the tone for a business. They put all the employees on the same page with respect to workplace rules. They outline benefits for uniform and consistent treatment of employees, and they set forth the legal obligations of the employer.

Having an employee handbook or policy manual can show a good faith effort by an employer to comply with applicable laws, like EEOC, FMLA, and FLSA.

Types of polices to consider including in handbooks or policy manuals are internet usage at work, personal cell phone usage at work, attendance/punctuality, confidentiality and use of social media. If a business has decided employees will serve “at-will,” they should not include policies outlining probationary, introductory or trial periods, grievance procedures, or a lock-step discipline process. These types of policies in Minnesota could be interpreted as a guarantee of work or a contract between the employer and the employee (pdf) effectively eliminating an employee’s at-will status.

Employee handbooks or policy manuals should be tailored for each specific business; one size does not fit all when it comes to these documents. Employee handbooks or policy manuals make for better workplaces, because employees know what to expect and what is expected of them.

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