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ICYMI: Our Social Media Posts This Week -- Apr. 26 – May 2, 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 4/26/15 we posted about whether employees are entitled to their personnel file. The thing to know in answering the question is that every state has its own law on this issue – or may have no law – and it can differ by the type of employment (i.e., private or public sector). In PA, someone can view a personnel file under certain circumstances and at certain times during employment or for a period after employment ends. If you need to know your rights as an employee or employer relative to personnel files, contact me.

TAKEAWAY: Before agreeing to or denying a request for an employee to view his or her personnel file, know what your obligations are under the law.

The post on Monday 4/27/15 told us that deactivated Facebook accounts are discoverable in litigation (or at least potentially so). Here, the employee, who was suing his employer, responded to a request by the employer that he produce his entire FB page from the beginning of his employment by saying he does not presently have a Facebook account.” That was true since he deactivated it 4 days after receiving the employer’s request. However, he then reactivated it 4 months later and provided 4000 pages from the account for the judge to review. The judge was not pleased. The judge ordered all 4000 pages turned over to the employer and, in addition, that the employee allow the employer to log into his Facebook account.

TAKEAWAY: Know the difference between deactivated and deleted FB accounts and how to preserve data in either situation.

On Tuesday 4/28/15, the post asked “I falsified my time records but I’m still suing you. What???” Yep, it happens in this grand world of ours. A federal court recently ruled that an employee can still sue for overtime (under the FLSA) even when the employee knowingly violated company policy by underreporting hours worked. Seems wrong, doesn’t it? Well, it was what is, but shouldn’t be, a common scenario. The manager told the employee the employer would not pay overtime, so the employee worked off the clock and did not report the hours. However, the company had a policy requiring accurate reporting of hours worked. The employee did not report the manager’s instructions, but worked the hours and did not report them. After he quit, he filed suit for overtime pay. The manager’s action in telling the employee not to report the hours worked trumped the employee’s failure to accurately report his time worked.

TAKEAWAY:  Managers and supervisors must be properly trained so they are not telling employees one thing when a policy (or applicable law) says something else. This can come back to bite the employer.

The post on Wednesday 4/29/15 reminded us that a search of a company vehicle is not an employee interview triggering Weingarten rights. In a unionized workplace, employees are entitled to have a union representative present during investigatory interviews. In February 2015 the NLRB issued an Advice Memorandum on the question of whether an employer’s search of a company car during a pending investigation triggered Weingarten rights. There, the employer found marijuana under chairs where the employee had been sitting; the employer summoned the employee who asked for a union representative. The rep arrived and an initial interview was held. During the ensuing lunch hour, the employer searched the company car used by the employee.  The post mentions what was found. The employer summoned the employee for a second interview and again the union rep was there. Eventually a written reminder of policy was handed out. The union grieved it; the employee then filed a charge alleging violation of her Weingarten rights via search of the company car (as a continuation of the initial interview that finally concluded after the interview after lunch). The Advice Memo is clear that the vehicle search was not an investigatory interview or a continuation of one; the post contains the reasoning.

TAKEAWAY: In a unionized workplace, not everything entitles employees to have representation present; know what does or does not.

In the post on Thursday 4/30/15, we learned that limo drivers were taken for a ride of their own. What happened? Drivers had to sign various documents, most of which they could not understand, to get paychecks. And those checks include deductions for things like vehicle repairs, uniforms, drug tests, fuel, and more (see the post). The deductions cause earnings to fall below minimum wage. The government investigated and the employer ended up paying over $230,000 to 479 employees on account of the back wages for which inappropriate deductions were taken.

TAKEAWAY: Make sure you have proper authorization (from the employee and under applicable law) to make deductions from a paycheck.

The post on Friday 5/1/15 was about a club you don’t want to join: background check lawsuit defendants. Who are some of the members of this club? Whole Foods, Check E. Cheese, Michael’s Stores, Dollar General, Panera, Publix, and K-Mart. They have all been sued for alleged violations of the Fair Credit Reporting Act (“FCRA”) related to background checks conducted by those companies on potential future or current employees. Some settled, Publix for $6.8M and Dollar General for $4M for example. What are some reasons an employer might want to conduct a background check? The employee is handling cash or is or on another person’s or company’s property. Background checks come within the ambit of “consumer reports” under the FCRA. The law requires that the employer first issue a clear and conspicuous disclosure, in writing, to the (potential) employee that a consumer report may be obtained. Then the (potential) employee must give a written authorization for the employer to obtain the consumer report. After that, the employer has to certify to the reporting agency that the report will be used for a permissible purpose and it has complied with the FCRA and applicable EEO laws. And that’s not all.  If, after obtaining the report, the employer intends to take adverse action – including a denial of employment or other decision that adversely affects an employee – there are required steps to take. See the post for some of them. An employer can be liable for damages for FCRA violations; negligent violations can result in liability for actual damages and reasonable attorneys’ fees/costs, while willful violations can result in actual damages or statutory damages between $100 - 1000 plus punitive damages and attorneys’ fees/costs. The post concludes with 10 steps to take to avoid becoming a member of this club; read the post and contact me if you need help in this area.

TAKEAWAY: Obtaining a background check on a (prospective) employee is neither simple nor a game; do it right or be prepared to fork over dough for a legal violation.

Finally, in the post yesterday 5/2/15, we talked about whether you can smack your harasser under Title VII. A federal judge in Philadelphia was faced with this question: does an employee who complains of sexual harassment and is later fired automatically lose the right to sue for retaliation because she smacked the harasser to beat back his attempt to grope her? The Judge said the answer depends on the context in which the smack occurred. If it was a stand-alone act, then that might result in forfeiture of anti-retaliation protection. If, however, it was because the harassment continued despite the employee’s complaints and employer’s alleged failure to take action, then there could indeed be liability for retaliation.

TAKEAWAY: It is never recommended that employees take physical action against each other, but there are certain circumstances where it will not only be warranted, but provide a legal cause of action to the employee.

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