Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

By now, we have all heard about the sex scandal at Penn State.  An assistant coach, who retired a number of years ago, has been indicted on multiple counts for having inappropriate relations with a number of children.  The President has been fired.  Joe Paterno, one of the legends of college football, has been fired.  A Vice President has been fired.  An athletics director has been fired.  A riot in the streets of State College.  Death threats.  Embarrassment.  Humiliation.  Loss of reputation as one of the school's that "did things the right way".  And the gift that keeps on giving this holiday season:  continuous coverage of a bad situation that seems to make it worse.  And the negative coverage will continue for the foreseeable future.  On a legal note, the indicted ex-coach is presumed innocent until proven guilty.

The investigations will continue, and we may never know the true story of what happened, who know about it, and when they found out.  So, what can we learn from what is happening at Penn State?  First, it is important to have the appropriate policies and procedures in place.  Second, follow the policies and procedures.  Third, train everyone, from the President (who has been fired) to the janitor (who may not have reported what he saw in a locker room at Penn State for fear of losing his job).  Fourth, take all reports of inappropriate conduct seriously, and the more severe the alleged conduct, the more serious the treatment.  Fifth, have a public relations plan in place to deal with a crisis such as this.  The President "unconditionally supporting" the vice president and athletics director was probably one of the main reasons he was fired.  Sixth, document what actions are taken once a report is made, who is interviewed, what they said, the disciplinary action taken, if any, and more training to make sure it doesn't happen again. 

In Alabama, a named partner at one of Montgomery's oldest law firms, pleaded guilty to distributing child pornography in one of the largest such cases in Alabama.  Investigators found over 200,000 images and 8,000 videos of child pornography on the lawyer's home computer.  He admitted to sharing images over 600 times.  He was also on the Board of Trustees of a religious school, and worked with youth at a local church.  There was no indication that any of the students at the school or youth at the church were part of the child pornography. 

Practice pointer.  Although these are extreme examples of abhorrent conduct, the lesson to be learned is that anyone can engage in or be accused of engaging in inappropriate and illegal conduct.  Both these cases involve well respected, hard working, pillars of their communities.  Yet many victims have been harmed, and many others have lost their jobs, been embarrassed and humiliated, and will live the rest of their lives with a soiled reputation.  Employers should have the appropriate policies and procedures, they must be followed, everyone must be trained and there must be a crisis management plan in place should the worst happen. 

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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. 

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In 1994, Ron Artest of the Indiana Pacers charged into the stands during a NBA game being played in Detroit, and fought with players and fans.  9 different players were suspended for a total of 146 games, costing those players $10 million in salary.  5 players were charged with assault, and all 5 were found guilty.  More recently, Gilbert Arenas and Javaris Crittenton, of the Washington Wizards, were suspended for the remainder of the NBA season as the result of a dispute over a card game on a team flight which escalated into guns being brought into the locker room by both players.  Arenas will lose over $147,000 per game, while Crittenton will lose over $13,000 per game.  Too often, we hear about disgruntled ex-employees, distraught spouses or ex-spouses, or others entering places of business, courts, schools, and even basketball arenas, armed with weapons, and "going postal", killing and injuring innocent people.  Since the beginning of the year, we have heard about people getting killed in Kennesaw, Georgia and St. Louis.  A total of 5 people lost their lives, and 8 were injured.  The FBI estimates that approximately 1 million people are exposed to some form of workplace violence every year. 

Violence in the workplace has no bounds, and can impact any workplace, at any time.  The Houston Chronicle recently published an article entitled "Employers can minimize risk of workplace violence.". The article listed 8 steps that can be taken to prevent or minimize the risk of workplace violence.  These steps are:  Accept reality.  Use effective pre-employment documents and conduct background checks.  Establish policies on workplace violence.  Conduct substance abuse testing.  Develop procedures for investigating threats.  Training supervisors and employees.  Implement an employee assistance program.  Audit and improve security measures. 

In addition to the tragic loss of life and devastating injuries, violence in the workplace can result in severe financial consequences to companies when it occurs.  Employees being killed or injured.  Ongoing counseling.  Lost work time and decreased productivity.  Bad publicity, often nationally.  Workers' compensation lawsuits.  Claims for negligent hiring/retention/supervision. 

Sirote & Permutt is hosting a  seminar on Workplace  Violence on Wednesday, February 17th in our Birmingham office, and it will be simulcast to our Huntsville and Mobile offices.  If you are interested in attending, please follow this link for more information and RSVP details:  seminar  

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On Tuesday, November 10, 2009, Sirote & Permutt's Labor and Employment Department  will host it's annual year end seminar.  This year, the seminar is entitled "Get Your Tools Together...The Latest in Employment Law" and will be  interactive, and address various issues, including Preparing for the H1N1 Flu, Record Retention, Interviewing and Hiring, and Legal Pitfalls of Telecommuting and Working Outside the Office.   The seminar is open to the public and runs from 8:00 a.m. to 1:00 p.m.  This year, the seminar will be held at the Cahaba Grand Conference Center.  For more information and to RSVP, click here.

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