TALKING TO THE UAB SOCIAL MEDIA CLASS

Last week, I lectured at the UAB's Social Media class that is part of the School of Business on how social media impacts the workplace.  Having two sons in college, who use social media on a regular basis, this topic is near and dear to me.  We talked about how HR managers are using online searches to check on potential and existing employees, and that improper postings may prevent one from being hired, or get an existing employee fired.  We discussed the fact that when you begin working at a new job, it is likely that at least one of your new co-employees will investigate you online to learn more about you.  So, the question becomes what is inappropriate?  The answer is not clear, since it depends on who is doing the hiring and firing.  I emphasized the use of common sense, if there is a picture, joke or comment that you would not show/tell your mother, it should not be posted on line.  These may include pictures in various states of undress, skimpy clothes, drinking, using drugs (remember Michael Phelps?), carrying firearms, racial/sexual jokes/comments, or criticizing current or past employers or supervisors.  I advised the class that there is nothing wrong with keeping a personal album of photographs from their college days, but if there is anything that is even close to being questionable, it should not be posted online.  This includes pictures that may be posted on their friend's sites, since the links can be easily traced. 

Yesterday, Stephanie Goldberg wrote an article for CNN.com entitled "Young job-seekers hiding their Facebook pages".   Ms. Goldberg's article notes that 70%of recruiters and hiring managers have accessed the Internet and rejected candidates based on what they found online.  She refers to a Microsoft survey that reveals that 79% of hiring managers use the Internet to better assess applicants.  One of the questions asked last week in class was about the possibility of setting up 2 different Facebook pages: one for professional purposes, and one for "fun" under a different name.  I advised the student that that was not a good idea, since there may be links or other ways of finding both sites. Ms. Goldberg also answered this question when she noted a student who did just this changed his alias after 2 weeks "when he realized Facebook users also can be searched by e-mail address, school and network...". 

Ms. Goldberg quotes several students who have changed their privacy settings to restrict access to their Facebook pages to only their "friends".  She even referred to a career counselor at Penn State who recommends "that students with potentially incriminating photos or posts change their name on social networking sites."  One of the students last week at UAB asked a similar question: what if i restrict access to my photographs?  My response to that question was what if the HR person interviewing you asks you during the interview to access your Facebook page?  If you say no, at least in Alabama, which is an employee at will state, you may not be hired.  If you say yes, and permit access, and there is inappropriate material, you may not be hired.  So, it boils down to why take the chance.

Practice pointer.  Any employee or perspective employee needs to seriously consider what information is available about him/her on the Internet: if it is inappropriate, it may have an adverse impact on your employment.  This is true even if access is restricted to your own social networking sites or you use a alias: there are ways gain access, both legally and illegally.  The bottom line is to use common sense:  if you would not want your mother so see the picture or hear the joke, don't put it on the Internet. 

IMMIGRATION AND CUSTOMS ENFORCMENT TO INSPECT 180 EMPLOYERS

 The Advocate, a Baton Rouge, Louisiana newspaper,  reports that the National Federation of  Independent Business announced that the Immigration and Customs Enforcement (ICE) division of Homeland Security will be inspecting the hiring records of 180 employers in Louisiana, Mississippi, Alabama, Arkansas and Tennessee.  The purpose of the inspections is to ensure that the employers are following immigration laws and regulations.  Technical violations can result in fines ranging from $110 to $1,100 for each violation, and knowingly hiring an undocumented worker can result in fines up to $3,200 per violation.  There is also the possibility of criminal prosecution. 

Practice pointer.  As I have written about before, it is important for all employers to properly complete and maintain I-9 forms for each and every employee.  I also recommend that I-9 files be maintained in a file separate and apart from personnel files.  This new report is an excellent example of why that should be done:  if ICE comes to your place of business to inspect your compliance with immigration laws, why give them an entire personnel file that may lead to questions or problems outside the immigration area, such as overtime, discrimination, etc?  If all they get are the I-9 forms, and they are properly completed, they should inspect the forms and go away.  In light of ICE's random inspections, now is a good time for employers to do an I-9 audit to make sure that they are not in violation of the law. 

TOO MUCH PERFUME LEADS TO $100,000 SETTLEMENT

Many years ago, when I first read my firm's policy about perfume/scents, I laughed.  I quickly realized that it is an important policy to have.  For the city of Detroit, it is not a  laughing matter.  Recently, CBS reported a $100,000 settlement was obtained in favor of a woman employee who worked in 3 separate buildings for Detroit. The employee was "chemically sensitive" and had adverse reactions to a co-worker's perfume and a room deodorizer used in the buildings.  She suffered from migraines, nausea and coughing as a result of the of exposure.   According to CBS, city workers "are now being warned not to wear scented products, including colognes, aftershave, perfumes and deodorants, or even use candles and air fresheners".  Employees who are chemically sensitive and have physical conditions that are triggered by exposure to perfumes or other scents, may be disabled under the Americans With Disabilities Act, and may need to be reasonably accommodated.  This means that the employer should engage in the interactive process to determine if the disability can be reasonably accommodated. 

Practice pointer.  If an employee complains of a sensitivity to perfumes/scents, the complaint must be taken seriously.  The employee may in fact have a disability that would be protected by the ADA.  If so, the interactive process should take place to see if a reasonable accommodation can be made.  Remember that the mere fact that someone complaints that a co-employee "stinks" or "smells bad" is not enough to qualify as a disability under the ADA: the person must have physical ailments, such as migraines or difficulty breathing,  that are triggered or caused by the perfume/scent to raise the possibility that the ADA may apply. 

11TH CIRCUIT RULES IN FAVOR OF EMPLOYER IN USERRA CASE

Sam Friedman, one of the firm's bright young associates, wrote the following summary on the case of Dees v. Hyundai Motor Manufacturing Alabama, LLC decided by the 11th Circuit recently.  The court found in favor of Hyundai and against Dees on a USERRA claim.  

Jerry Leon Dees sued his employer, Hyundai Motor Manufacturing Alabama, LLC, for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Dees claimed Hyundai discriminated against him and harassed him because of his membership in the National Guard, and he alleged that he was eventually fired because of his National Guard membership. The federal district court ruled in Hyundai's favor, and Dees appealed to the Eleventh Circuit Court of Appeals.

The USERRA provides that an employer cannot discriminate against an employee because of his or her military membership. To prove discrimination under the USERRA, an employee must show that his or her military membership was a motivating factor in the employer's adverse employment decision. An employer may rebut the employee by proving that legitimate reasons, standing alone, would have led to the same adverse employment action. Additionally, under the "cat's paw theory", an employer can be held liable for discrimination even if a party with no decision-making authority makes a discriminatory recommendation and the employer acts on that recommendation without conducting an independent investigation.

In reviewing Dees' appeal, the Eleventh Circuit held that the district court correctly ruled in favor of Hyundai on the employment discrimination claim. The court noted that Dees failed to present any evidence proving that his membership in the National Guard led to his termination. Hyundai knew of Dees' service when he was originally hired and never disciplined him for missing work for training. The court similarly rejected Dees' cat's paw theory argument.

The Eleventh Circuit also held that Dees did not have standing to bring a harassment claim. In order to establish standing, a plaintiff must show that (i) he or she suffered injury as a result of a violation of a legal right, (ii) the defendant's actions caused the injury, and (iii) a favorable outcome in court will remedy the injury. The court found that Dees did not have an available remedy because his employment had been terminated for non-discriminatory reasons.

Therefore, the Eleventh Circuit affirmed the district court's decision in favor of Hyundai.

Practice pointer.  Any time an employee returns from military service, the safeguards of USERRA must be followed.  If so, it is possible for an employer to obtain a favorable decision in the event an employee pursues a claim against it.  However, if the safeguards are not followed, monetary liability, as well as bad publicity, may follow. 

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PRESIDENT OBAMA SIGNS COBRA EXTENSION

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 which addresses the COBRA subsidy and extends the time employees may file for Federal Emergency Unemployment Compensation.  Under COBRA, the new law extends coverage for those involuntarily terminated from March 1 through March 31, 2010, the eligibility period for the 15 month, 65 percent premium subsidy.  It also permits employees to receive the subsidy if they initially lost their group coverage to to a reduction in work hours and then were terminated after the enactment of this bill.  The law also extends the time period during which terminated employees may file for Federal Emergency Unemployment Compensation from February 28 to April 5, 2010, and extends the time period during which they may claim and be paid emergency unemployment compensation from July 31 to September 4, 2010. 

Practice pointer.  Congress is still considering legislation to  extend these programs through 2010.  Since these benefits were due to expire, and Congress could not agree on a longer term extension, this short term extension was passed so Congress can continue to explore a longer term extension. 

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