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Monday
Apr132015

ICYMI: Our Social Media Posts This Week -- Apr. 12 - 18, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

On Sunday 4/12/15 we posted about a former Kutztown University professor settling a sex discrimination suit. After termination, the former professor sued, alleging it was because he was male. The parties settled the case, with no admission of guilt or liability and payment to him of $40,000. So what led up to the discharge? He received a negative evaluation in 2011. That was his fourth year at Kutztown and the department’s chair had changed the evaluation process to include evals from 3-5 department members; he received 3 votes from female colleagues against his continued employment and 2 votes from male colleagues in favor of continued employment. The tenure committee still voted to continue his employment but he was still discharged. The suit was filed in 2013.

TAKEAWAY: Suits may or may not have merit, but when an employer considers the time and monetary resources it will take to defend, sometimes the best way to proceed is to settle with no admission. A good employment law attorney can advise on this and other facets of the case.

The post on Monday 4/13/15 was about the legal edge of employee computer use. If you are unfamiliar with the civil side of the Computer Fraud and Abuse Act, get your coffee and keep reading. So how does this work? The law says, in part, that “any person who suffers damage or loss … may maintain a civil action against the violator to obtain compensatory damages or injunctive relief or other equitable relief.” There is individual liability under the statute if the person “intentionally accesses a protected computer without authorization and as a result of such conduct causes damage and loss.”

TAKEAWAY: The key to a potential suit and recovery can be authorization; employers should be vigilant in this area and aware that court decisions have varied as to breadth of the definition of “authorization”.

In the post on Tuesday 4/14/15, we clarified that when the bell rings, act! Here, the outer bounds of the ADA were tested in a workplace threat case. What happened? A warehouse worker began suffering from severe depression along with homicidal thoughts. He sent a note to his supervisor while at work: “I’m scared and angry. I don’t know why but I wanna kill someone/’anyone. Please have security accompany you if you want to talk to me. Make sure, please. I’m unstable. I’m sorry. Taj.“ During the next three weeks, he kept trying to tell the employer of his depression diagnosis and need for medical care; he even asked about his insurance coverage. After those 3 weeks, the employer terminated him for posing a direct threat. Not surprisingly, he sued, alleging that the real reason for the discharge was his disability. The employer said the threat required the discharge. While the judge recognized the employer’s dilemma, he also took note of the 3-week delay before the employer acted. That was fatal to the employer’s request that the case be dismissed.

TAKEAWAY:  When an employee rings the bell, respond. Immediately. Delay can be harmful in so many ways.

The post on Wednesday 4/15/15 told us that resisting change in a work assignment can lead to a valid termination. The employee worked at the company for about 10 months; during that time, he had performance issues. In October, his supervisor told him about changes to his work assignment that would not change his pay, hours, location, or supervisor. He refused the new assignment so the company fired him. He sued, alleging race (African-American) and age (69) discrimination. The trial court found that the changed assignment was not adverse since it did not affect hours, pay, work location, or general duties and so dismissed the case. He appealed, now alleging the adverse decision was the termination and not the changed work assignment. On appeal the court again dismissed his suit; it said that his performance mistakes gave the employer a legitimate reason to change his work assignment and his refusal to accept the new assignment then gave the employer a legitimate reason for termination. Score 1 for employers!

TAKEAWAY:  If an employer has a legitimate, non-discriminatory reason for discharge (or other adverse action), and the employee cannot show to the contrary, any suit should be dismissed in favor of the employer.

In the post on Thursday 4/16/15, we learned about the pros and cons of solely using electronic employment applications. Pros include easier processing (due to electronic sorting and searchability); consistency among applications (both in information requested and format); and ease of tracking and analyzing data. Other pros are in the post. Cons include the inadvertent exclusion of qualified applicants without internet access; possible (unfair) rejection of an application based on software parameters; and increased number of applications due to ease of electronic application. Other cons are also in the post.

TAKEAWAY: Employers must decide whether the pros outweigh the cons or the other way around and whether it might be best to accept both electronic and paper applications.

The post on Friday 4/17/15 talked about an employer’s creation of a policy for employee social media posts being a good idea. Your company has policies for other employee actions, why not social media? Whether it is the employer’s social media or the employee’s personal social media, the employer can still be damaged as a result of the employee’s action. The employer should immediately take action, which involves an investigation and possibly discipline up to and including termination. The employer may also have to take to social media itself.

TAKEAWAY: Employers certainly have the right to protect themselves and their brand, but must be careful about adverse action against employees speaking out on social media in certain conditions’ employers should discuss any planned action with an employment law attorney prior to the action being taken.

Finally, in the post yesterday 4/18/15, we talked about a former Bloomberg correspondent filing a pregnancy-bias suit and how to deal with pregnancy in the workplace. What happened? The employee, Megan, claimed she was pulled off stories after she informed the company about her pregnancy. When she wanted to work on a story about medical marijuana, she was told it would look “weird” and a male was assigned to do the story. Another time, when Megan wanted to work on election coverage, she was told “Don’t bother with midterms. You are not going to want to leave your baby.” Finally, she alleges that after telling the company about her pregnancy, another female junior producer with less experience and who was unmarried and without children, received more on-air assignments than Megan. Other allegations are also in the post. When she questioned why she was being fired, she was told Bloomberg eliminated her position and moved its political coverage to NY; she believed that explanation was pretext because 2 male correspondents in DC were not discharged. Megan filed suit in February. Stay tuned to the story …

TAKEAWAY: Again, if employers intend to take adverse action against an employee, especially one who might be in a protected class, the employer should have a legitimate, non-discriminatory reason for the action.

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