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The following information was presented by me to the Social Media Club of Hawaii’s Social Media “Boot Camp” for Hawaii Recruiting, Staffing and Hawaii Human Resources Professionals on Friday, February 22, 2013.  You can find a downloadable pdf version on the “Resources” page of my website. Here was what was discussed:
Legislative Updates

Summary: Generally, speaking states are moving to prohibit employers from asking for usernames, passwords, and access to an employee’s or potential employee’s personal social networking account.  The argument goes that they need access to the personal accounts as a way to protect proprietary information, trade secrets, to comply with federal or trade association regulations, or to prevent an employer of being exposed to legal liability (due diligence).  The countervailing argument is that the personal account has nothing to do with one’s application to a job or doing the job, and is an invasion of privacy.  Thus far, it seems privacy advocates are carrying the day as four states last year, Illinois, Maryland, Michigan, and the latest California have adopted laws that prevent employers from accessing personal social media accounts of employees or potential employees. Hawaii’s 2013 legislative session has two bills fashioned after California’s.

Federal: Representative Eliot Engel of New York has recently introduced H.R. 537, the ‘Social Networking Online Protection Act’ (SNOPA).  The bill if enacted would prohibit employers from requiring/requesting that the employee or applicant provide the employer their user name, password, or other means for accessing the employee/applicant’s private email account on any social networking website; OR discharge, discipline, discriminate in employment or promotion, or take adverse action against them for refusing/declining to provide a user name, password, or access OR if the employee/applicant files a complaint under the Act (basically asserting their right to sue to protect themselves).  Finally, it gives the US Secretary of Labor to assess a civil penalty of up to $10,000 for violations and stopping the violating actions. Further, US district courts can give relief to the affected person through employment, reinstatement, promotion, and the payment of lost wages and benefits.

State: During this 2013 Hawaii Legislative session, two bills, HB713 and SB207, work for the most part, very similar to the Federal law, and the language is based mostly on California’s recently adopted law.  I will focus on HB713 as I have worked with this bill in particular.  The current incarnation of HB713, is an HD2 that was passed out of the House Judiciary Committee, yesterday (2/21) and basically uses broad language to prohibit an employer from asking an employee or potential employee their user name, password, or trying to get access to their personal social networking account.  Currently, the HD2 would have the Hawaii Civil Rights Commission investigate a claim, and would operate similarly to any other investigation that the Commission already does for other issues under its authority. Prior variations had DLIR handle the investigation.

Bottom line:  This issue is not going away, and it is clear that as time goes on it is more likely than not employers will be denied access to personal social media accounts.  However, this still does not prevent workplace investigations and other necessary steps when there may be a violation, and the social media account is involved. For example, situations where there is workers’ compensation fraud or the wrongful transmission of trade secrets.  The best situation for employers is still likely that workers use their personal devices and personal time to do their personal social networking, and not on company time, company devices, and company email accounts. As always check with attorney or HR specialist on policies and procedures.

 

NLRB Rulings

Summary:  The National Labor Relations Board (NLRB) continues to apply the National Labor Relations Act (NLRA) to situations where the employer has taken adverse actions against employees due to postings on social media sites.  Further, it has frowned on overly broad social media policies by companies trying to regulate employees’ social media behaviors. However, a recent DC Court ruling has stated that President Obama’s recess appointments to the NLRB were invalid. However, this should not be taken as a sign that employers can ignore the recent rulings on social media policies and firings.

In Hispanics United Buffalo, the NLRB held that the termination of five employees due to their Facebook posts, where the company claimed harassment by the five on another employee, violated the NLRA. The posts and comments were deemed as a discussion of job performance, and dealt with the preparation of co-workers to defend against allegations of poor work.  The comments were prompted when one threatened to complain to the boss that others were not working hard enough, which in turn prompted these comments: “My fellow co-workers, how do you feel?” “Try doing my job. I have five programs,” “What the hell, we don’t have a life as is,” as well as other expletive-laden responses. The NLRB ruled this was “concerted activity” for “mutual aid.”

However, in The Arizona Star Daily situation, a reporter that had posted Twitter comments stating that “What?!?!?! No overnight homicide. … You’re slacking, Tucson.” Another began, “You stay homicidal, Tucson.” was not protected as those comments were offensive, and not concerted activity, nor about working conditions.  Similarly, an Illinois bartender fired for posting on his Facebook that he was unhappy about not receiving a raise in five years and calling customers “rednecks” and that he hoped they chocked on glass as they drove home also did not meet protective-worthy status.

NLRB on Social Media Policies: Wal-Mart’s social media policy, after working with the NLRB, received praise, where it prohibits “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”  Contrast that with the finding that General Motor’s policy was unlawful for instructing that, “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.”  The NLRB felt it proscribed a broad spectrum of communications that would included protected criticisms of the employer’s labor policies or treatment of employees. Similarly, Costco struck out on an overly broad blanket prohibition against employees’ posting things that “damage the company” or “any person’s reputation.”

While, it is hard to draw any clear distinctions, it does seem clear that employers should adopt social media policies that are specific rather than impose across-the-board prohibitions; the NLRB seems to take into account chilling effects on speech in concert by workers through social media platforms, especially where working conditions are touched upon. However, a worker’s general gripes and disparaging comments about customers or groups of people will less likely be protected under the NLRA.

 

Overall Reminders:  Recent court cases have indicated that a series of emails can be taken together as a contract.  Therefore, when engaging in employment activities, such as using LinkedIn, recruiters or HR persons should be careful not to make a written offer.

Also social networking is becoming a part of people’s everyday Internet interaction. By now it is clear that information is permanent when published on the web, as many people  can screen capture, take a picture with their mobile device, etc . . . so companies should take great care when using social media as delivery system for information.

While this is a concern for marketing and PR, HR should remember it has the responsibility of dealing with the pieces of terminating, disciplining, and investigating the marketer or executive who creates the firestorm on social media.  Therefore, all decision-makers in a company need to understand social media policy.

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LEGAL DISCLAIMER: The information provided here is meant to be general information, and should not be taken as specific legal advice that pertains to any particular situation.  The reader should not base any decisions on the information here to act or refrain from acting regarding a legal problem.  If you believe you have a legal problem please seek legal advice from a licensed attorney in the relevant jurisdiction.

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So for the past couple of weeks I spent talking about how consideration is the cornerstone of contracts and what is good consideration.  Now, in typical lawyer fashion I am going to tell you that there is a situation where you will have a contract-like situation without consideration.  Another words, an exception.  That exception is known as reliance.

Why did you say Contract-like?

First, remember that consideration is a two-way street.  Both parties in a contract MUST give good consideration for a contract to be formed.  In Contracts law, all law students learn that there are contracts, and then there are situations that look like contracts.  One of these contract-like situations is promissory estoppel.  As I don’t want to confuse you with legalese in this post I will refer to it by its other name, detrimental reliance.

What is Detrimental Reliance?

It is when one party reasonably relies on the other party’s promise to their detriment.  Detriment in this situation is when the promisor reasonably expects to induce an action or forbearance from the promisee, and there is actual action and or forbearance by the promisee.  In other words, the promisee has had to have a change in position.

I am sure you have no clue what I just said, so it is time for an example and pictures:

Example: Construction Projects and Subcontractor Bids

Let’s say a subcontractor (S) submits a bid of $7,100 to a general contractor (GC) trying to secure a public works construction project.  The general contractor uses this bid to prepare his own final bid.  The general contractor is awarded the job.

The following day the subcontractor tells the general contractor that it had underestimated the cost and refused to perform the job for less than $15,000. The general contractor then hires another subcontractor (AS) to do the work for $11,000.

The general contractor sues the original subcontractor for the difference between $11,000 and $7,100.  The main argument is that the general contractor relied on the offer by the subcontractor.

In this situation, the general contractor relied on a promise, there had been no consideration exchanged from the original subcontractor to the general contractor.  However, the general contractor changed his position based on the subcontractor’s bid (he made the final bid with it calculated into the cost).  In this case, a court would award the general contractor the difference of $3,900 as the damage done to the general contractor for detrimentally relying on the subcontractor’s promise.

Last Word: Real World Reliance

Reliance is not some kind of legal fairy-tale that lawyers come up with just to tell you stories.  While it is an old English law concept, it still has very real world consequences.  It has been used successfully in option contracts, employment agreements, franchise arrangements, and as you just saw in construction projects with subcontractor bids.  The example is actually based on a real case.

Detrimental reliance frequently comes up in the situation of employment law;  the typical situation is where the HR person makes a lot of assurances and promises to prospective employee.  However, for whatever reason the job never materializes, but the employee has quit their previous job, moved, and other changes to their life.  Angry and frustrated they usually sue the company that offered them the job or made them certain promises with the claim being detrimental reliance.

Many times lawyers will advise their employer-clients (as well as marketers) not to make promises that they cannot or do not intend to keep, especially in those situations where the other side is going forward with its plans based on those promises.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

So the option that won from the poll was to do a brief overview of employee legal issues.
As it is a huge topic, I will only really briefly touch upon large aspect of the employer-employee relationship.   To keep this as brief as possible, I am going to focus on just employment of non-unionized employees.  In addition, today’s focus will be about how to think about dealing with employee legal issues with a HR perspective.  I will follow-up with a couple more Draw the Laws that focus on narrower aspects of employment law it will also be poll-based.

The Puzzle that is Employment Law

In general, employment law cares about the interactions of the business with its employees.  Both the state and federal governments have created laws to regulate hiring, workplace conditions, wages, and the like.  Due to our system though we have many laws that overlap, further exceed, or just contradict with each other.   In many times, the HR function of a business is playing puzzle-maker trying to get pieces to fit together that do not quite match.

So there are multiple ways to try and figure out how to be in compliance with employment laws.  Here are some ways to cope with dealing with the law.

Size

If you are a small business, generally the owner-operator is handling the HR function (along with marketing, operations, and everything else).  Due to the fact that you are so tiny, many laws do not affect you, as the have an employee threshold.   You can kind of think of the business as a growing bubble, as you add employees the more laws the bubble comes in contact with and must comply with.  For example, most of the federal anti-discrimination laws cover employers of fifteen or more, whereas Consolidated Omnibus Budget Reconciliation Act (COBRA) is 20 or more, and something like Family Medical Leave Act is 50 or more.

Other times a law will cover an employer based on its gross annual volume of business, such as Fair Labor Standards Act (FLSA), Equal Pay Act (EPA), and the National Labor Relations Act (NLRA).

Finally, there are laws that always affect you no matter how small or big you are like Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and Occupational Safety and Health Act (OSHA).

Timing/Process

Where are you in the process of dealing with the employee?  Are you hiring a new employee?  Did you hire the employee and are now training them?  Is this an older employee that has been with the company for a while?  Or is this an employee you may want to terminate?

Certain laws come into play depending on what stage of the process you are in.  In this case, you can kind of think of the laws interaction with your business in stages with on and off switches representing what you can and cannot do at certain stages of the process.

Never Enough Time

I have barely scratched the surface of employment law, but I hope today’s Draw the Law has helped give you a couple ways to think about them.  In general, it does seem there is never enough time for dealing with this type of law.  However, there are some great resources on the web, and I have some links on my site to help out.

Plan Ahead: Policies, Procedures, and Handbooks

A business’s best tool when dealing with employment laws is plan ahead.  It will save you some stress and worry later.  For me (as seen by these Draw the Law) I like to diagram and sketch things out, as it gives you a kind of map to navigate the issues. If you feel you do not have the energy or skills it is best to hire someone to help develop strategies for you to deal with your worker issues, as noncompliance can lead to penalties by the government and lawsuits from employees.  Due to the complexity of employment laws an attorney can advise and help draft your handbooks on polices and procedures.

As always if you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

So earlier today I posted my Draw the Law on independent contractor status.  In that post I said I would do something different in regards to the next Draw the Law.  Well, here it is, you get to choose the topic based on the below poll.  It is my way with interacting with the readers of this blawg and giving you some more control because as we all know life as a small business owner is crazy!
The three options are between discussing independent contractor in regards to factors other than control, a brief overview of the laws that affect employees, and finally worker agreements, like nondisclosure agreements.  So please vote in the poll below and next week I will focus on the topic that gets the most votes.

[polldaddy poll=5351610]

*I will select the topic by Wednesday evening of next week (8/10/11).  So whatever topic that gets the most votes by that deadline will be talked about.

Have a good Aloha Friday!

-RKH

In this series of Social Media and the Law I have touched upon some of the major legal areas of concern when dealing with social media and employment.  To see what was talked about or for a refresher click on the following links:

Having a Social Media Policy

First of all, let me say I understand that a lot of this can be overwhelming.  You may feel that even crafting a Social Media policy is not even a part of the bottom line and seems to be difficult endeavor, especially if you are a small business owner worried about inventory or keeping customers, now you have to think about Facebook, Twitter, and blogs?  So you have one of these initial responses: a) close your eyes and hope for the best; b) create a social media policy that is so general that it is unenforceable or has no meaning; or c) completely ban social media use.

I find a lot of smaller organizations feel this way because they feel they do not have the resources to be effective in this matter.  First of all, smaller organizations are closer to their employees and can directly work with them to craft a good policy.  Secondly, there are many affordable attorneys that can either review what you create or draft something as a pat of your handbook and employee agreements package.

With that being said let’s look at some of the things you should think about when creating a social media policy.  I will start out with the legal landmines you want to avoid when crafting a policy.  It will be followed with some business questions you should ask yourself.

Legal Considerations

One of the goals of a good media policy is one that should help protect the employer from lawsuits.  I will do a brief run through of the various laws that affect your policy, and use examples of what might be considered a good response or way to handle the situation.

Employment Law

Protected Statuses and Discrimination – remember that certain demographics of the population have protected statuses under both federal and state laws.  Therefore, in this area you should avoid using an applicant’s Facebook page to make the decision to hire them.  Once again, remember Hawaii now protects gender expression.

Harassment – as an employer you are legally obligated to create a safe work environment for your employees.  Therefore, if you have a case of “sexting” (sexual texts) or cyberbullying you need to take action or run the risk of violating the law.

Fair Credit Reporting – remember if you use a third party to obtain background information on a potential employee you must get their permission.  As part of the hiring process you could have potential hires fill out authorization forms.

National Labor Relations Act (NLRA) – the National Relations Board, which enforces the NLRA has been keen on clamping down on employers that have broad social media policies that ban protected activities or respond to negative postings on Facebook/Twitter by firing the offending employee.  A couple things about this situation:

  1. Narrow the scope of your social media policy.  Avoid blanket policies that prohibit everything and implement a review policy if you find an offending comment by an employee on a social network site.  Be careful and make sure the comment is offensive and not a commentary on the working environment.
  2. Create a grievance process. If your employees are bad-mouthing your company or managers you may not have a good venting mechanism or allow them to air their grievances.  So they are turning to an outlet, which gives them control over their complaints.  You might need to investigate where the tension is coming from.

Intellectual Property

Trade Secrets – remember that if an employee discloses protected information to a new employer, that new employer could be faced with liability from the former employer.  In general, all companies that have an employee who has access to sensitive information should have that employee sign non-disclosure and non-compete agreements.  In addition, if you are in the habit of providing electronic communication devices (i.e cellphones, laptops, etc . . .) you should remind the employee that the equipment is company property along with all the data contained on it.   You also want to make sure your employees do not post things that are supposed to be secret.

While, this is not a trade secrets situation, this video report by KITV news on a Honolulu Liquor Commission employee highlights the problems of Facebook posting when an employee has access to sensitive information (which includes the identity of fellow employees).

Specific Professions

HIPAA – if you are medical provider or a business affiliate of one should be highly sensitive to staff having access to protected health information on their computers that have Internet access.  Recall that a woman got in trouble for posting a patient’ HIV status on her MySpace.  Excellent training and careful security protocols are a must in this area.

Legal Ethics – attorneys, your paralegals and secretaries should avoid talking about what they are doing at work.  If you have a client who does not want to be identified, and a paralegal inadvertently identifies them through a Tweet or posting a picture you will be in violation of legal ethical rules.  Similar to HIPAA, a lot of training and explicit policies should help you prevent such problems.

Business Considerations

This is not meant to be a comprehensive list, but from a business owner/manager’s perspective these are some questions you should consider when crafting your social media policy:

  • What is your corporate culture?
  • What is the function/nature of your business?  Does it require a lot of confidentiality?
  • Who would you like to have access to the company’s information?
  • Does your company use social media for its advertising and marketing?
  • What is the size of your company?
  • When (during the day/week) is your company in operation?  What is your break-time policy?
  • How sophisticated is your workforce?
  • How important is computing, Internet access, and mobile usage to your company?

You should have some realistic expectations about creating a social policy and then implementing it.  Having absurd goals, like you are going to check all your employee’s Facebook pages at the end of the workday does not do you any favors.   Your policy should be fair and practical because at the end of the day you are are the one who has to get it to work.

Before I get to implementation considerations I will touch upon another aspect of creating a Social Media policy.  As we have seen Facebook, Twitter, and the like do not solely affect your relationship with your employees.  These platforms are sometimes integrated into a company’s marketing strategy and there are certain legal concerns of their use when you engage the world outside the organization.  So next time, (which will be July 5th due to 4th of July celebrating) I will discuss Crafting a Social Media Policy and the Outside World.

Don’t forget if you enjoy this series or any of the other series on my blawg feel free to subscribe in the right-hand corner of this page to receive e-mail updates on posts.  If you are on Facebook be sure to “Like” “Ryan K. Hew” to get updates there as well.  See you next time.

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Act 34: Protecting Gender Expression or Identity in the Workplace

Business Impact: Act 34 prohibits discrimination on the basis of gender identity or expression as a matter of public policy, specifically with regards to employment.  Basically, if you or the work environment you foster is insensitive to gender expression or identity of your employees, you may face enforcement action by the Hawaii Civil Rights Commission for discriminatory practices.  Discriminating against an employee expressing their preferred gender would be the same as discriminating against women, handicapped persons, or people of a certain race.

Specifics of the Law:  This new law amends two parts of Hawaii law, Section 368 and 378.  By amending Section 368, the law gives the Hawaii Civil Rights Commission (HCRC) the enforcement power over gender identity or expression discrimination cases.  In addition, by amending Section 378, the law aims to prevent discrimination in the workplace by making gender expression and identity a protected status similar to other categories, such as disability, race, age, and sexual orientation.

What Does “Gender Identity or Expression” Mean?

As you may already know the State already protects sexual orientation from discrimination.  You may think that sufficiently covers what is known as “gender identity or expression.”  However, that is not necessarily the case.

Sexual orientation is only describing one’s preference based on the gender of the partner.  In terms of gender expression and identity, a transgender person can have any sexual orientation.  Basically, the gender status is not the same as one sexual preference.  Gender identity is one’ internal feelings of being male or female or along those lines.  Gender expression represents all of the social and behavioral characteristics associated with femaleness or maleness.

Example

Consider a male truck driver wishing to make the transition to female.  Their appearance at work continues to be more and more feminine.  Other workers, due to the change, harass the transitioning worker.  The truck driver comes to you to discuss the harassment and gender transition.  If you suspend them for this action, then you would likely  face a visit from the HCRC for discriminating against your employee’s gender expression and identity.

Bottom line:  Is your company’s policies and procedures equipped to handle this change in the law?  Does your handbook reflect the changes?  Consider the following situations for reasonable accommodation or to prevent bias in the workplace:

  • Restrooms
  • Self-identification papers, check cards, etc . . .
  • Housing and facilities like locker/dress rooms
  • Dress code

There may be other situations that you may need to safeguard from gender expression or identity discrimination.  You should consider a legal review of your work policies, procedures, and handbooks.

Next law to be covered: Act 37, allowing non-profits to take actions by ballot and electronic voting, use of electronic notice, and conduct of meeting by teleconference. 

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.