EEOC to host meeting about social media on March 12, 2014 – this should be lively!

March 11, 2014 at 7:52 pm | Posted in EEOC, Employee, Employer, Employment Law, Facebook, New employment laws/amendments, Social Media/Social Networking | Leave a comment
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PRESS RELEASE DIRECTLY FROM THE EEOC’S WEBSITE

3-5-14

Next EEOC Commission Meeting on March 12

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) will hold a meeting on Wed., March 12, at 9:30 a.m. (Eastern Time), at agency headquarters, 131 M Street, N.E., Washington, D.C. 20507. In accordance with the Sunshine Act, the open session of the meeting will be open to public observation of the Commission’s deliberations.

The Commission will hear from invited panelists on how the use of social media in the workplace is impacting the enforcement of equal employment opportunity laws. Participants will address a range of issues, including recruitment and hiring, harassment, and records retention and discovery. The Commission is scheduled to hear from the following confirmed panelists during the meeting (in order of appearance):

  • Carol Miaskoff, Acting Associate Legal Counsel, EEOC, Office of Legal Counsel
  • Rita Kittle, Senior Trial Attorney, EEOC Denver Field Office (via video teleconference)
  • Lynne Bernabei, Partner, Bernabei & Wachtel PLLC
  • Renee Jackson, Associate, Nixon Peabody LLP
  • Jonathan Segal, Partner, Duane Morris LLP; Managing Principal, Duane Morris Institute, testifying on behalf of the Society for Human Resource Management

Seating is limited, and the EEOC encourages visitors to arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. Visitors should bring a government-issued photo identification card to facilitate entry into the building.

The Commission meeting agenda is subject to revision. Additional information about the meeting, when available, will be posted at http://www.eeoc.gov/eeoc/meetings/index.cfm.

As part of the EEOC’s commitment to cut costs whenever possible, every effort is being made to utilize local resources and technology to facilitate testimony. The agency will continue to fulfill its mission to stop and remedy employment discrimination by balancing the need to provide service to the public with fiscal responsibility.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

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NLRB strikes down yet another Social Media Policy, this time it is Georgia-Pacific’s policy that must be revised

January 24, 2014 at 8:14 pm | Posted in Employee, Employer, Employment Law, Facebook, Legal, Social Media/Social Networking, union | Leave a comment
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The NLRB has reached a settlement with Georgia Pacific regarding the Company’s Social Media Policy.  Georgia Pacific’s Social Media Policy had prohibited employees from sharing “personal information” such as wages/compensation, hours, and other “terms and conditions of employment.”  Georgia Pacific must now post a notice, approved by the Regional Director of the NLRB, telling the Company’s employees about their rights to:

1.  Form, joint or assist a union;

2.  Choose a representative to bargain with Georgia Pacific on the employee’s behalf;

3.  Act together with other employees for the employees’ benefit and protection;

4.  Choose not to engage in any of these protected activities.

Take a look at the notice that must be posted:  http://www.local1097.org/index_htm_files/NLRB.pdf

Georgia Pacific must also post information that it will NOT issue policies that interfere with the employees’ right to share information relating to wages, hours, and other terms and conditions of employment with other employees, including on social media sites.

Social Media issues continue to be a hot topic, evolving it seems on a weekly basis.  Take out your policy, review the policy, and examine how far your policy goes in limiting the information employees can share.

The above is not legal advice nor is this posting the creation of an attorney client relationship between the Sensenig Law Firm and the reader.

Manatee County Teacher who posted unflattering comments about a student on Facebook is not disciplined by the Florida Department of Education

August 11, 2012 at 1:39 am | Posted in Employee, Employer, Employment Law, Facebook, Legal, Social Media/Social Networking, union | Leave a comment

The Florida Department of Education has declined to apply discipline to Lauren Orban, the Manatee County Music Teacher who made snarky comments on her personal Facebook page regarding a student in her class.  The Manatee County Superintendent, Tim McGonegal, had previously asserted that teachers were governed 24/7 by the amorphous  Teacher Code of Conduct such that Ms. Orban’s conduct could be sanctionable.  This author respectfully disagrees that someone’s status as a teacher means they can’t ever be frustrated with a student, or that they can never think an unflattering thought about a student.  Ms. Orban made a poor judgment call in sharing work related comments with social network “friends”, not all of whom were necessarily inclined to keep her comments confidential.  While the First Amendment does not usually apply to your employer’s premises, this writer would argue it does apply to a personal web page created during personal time and accessed and used during non-work hours.

It is significant that the Manatee County School Board does not currently have in place a social media policy.  This lack of a policy could have had an impact on the DOE’s decision not to assess discipline against Ms. Orban; without a policy in place to provide guidance to teachers, teachers are not aware of the rules that could be applied to their personal web usage – on their own personal time.

In this case, Ms. Orban was disciplined by her Principal.  The matter was thought to have been resolved at that level, but the student’s Mother was unhappy with what she perceived to be a lack of punishment for Ms. Orban.  Publicity ensued, a report was made to DOE, and the DOE  just recently refused to further sanction any of the teachers involved in making the Facebook comments.  For want of a social media, a child was embarrassed, a teacher’s reputation was harmed, and a School District was maligned.

This unfortunate situation shows the need for employers – public and private sector – to have clearly defined policies as to the employer’s guidelines – and prohibitions – when using social media.

For more information, please refer to the recent Sarasota Herald Tribune article:

http://www.heraldtribune.com/article/20120808/ARTICLE/120809646

Also see ABC 7’s site for an article and an interview with me on this topic:

http://www.mysuncoast.com/content/topstories/story/What-you-can-safely-say-on-social-media/aOaZBBBvAUqDK_gmqpyS1g.cspx

 

 

Manatee County School Board in News Again For Teacher Facebook Comment Problems

July 10, 2012 at 12:22 am | Posted in Employee, Employer, Employment Law, Facebook, Social Media/Social Networking, union | Leave a comment

The last time Manatee County’s School Board was in the news it was due to a teacher’s comments on Facebook about allegedly being inebriated, including alleged profanity Facebook style.  See my prior October 2010 and January 2011 blog postings.  Challenges were filed regarding the disciplinary action attempted, and the parties agreed to settle their differences outside of the administrative process.  The Manatee County School Board said then it would attempt to draft policies about Facebook use by teachers and staff; those policies were never issued.  This author hypothesizes that it was just too difficult to come to  consensus on a policy that balanced the privacy rights of teachers with the School Board’s asserted duty to uphold their Handbook policies and the various codes and statutes that govern teacher conduct.

Manatee County is again in the news because a music teacher in Manatee County, Ms. Lauren Orban, recently made disparaging comments on her Facebook page about one of her second grade students.  The teacher’s friends on her Facebook page, including fellow teachers, joined in the conversation.  One of these Facebook friends provided copies of the conversation to the administration at Ms. Orban’s school.  At some point, the media learned of the incident and now the student’s parent is calling for Ms. Orban’s termination.   Ms. Orban has been reported to Florida’s Department of Education for additional inquiry into whether her conduct violates the very broad Teacher Code of Conduct.

Manatee County’s School Board is back to the drawing board on the need to create policies that govern Facebook and teachers.  Teachers – and other professionals – have been warned as a matter of good professional practice not to “friend” students or subordinates.  In today’s modern age, students communicate via technology – text, Facebook, or IM – rather than via older more traditional methods like phone trees and fliers.  Teachers of drama or other clubs have found Facebook to be an effective method of communicating with their students as to practices and event reminders.  When creating policies, the District may want to carve out exceptions for this type of “friending” or communication.

In an interview with ABC 7 here in Sarasota, Florida, Manatee County School District Superintendent McGonegal stated that teachers need to be aware that wherever they are, their Facebook postings could be an issue.  This statement is troubling in that I do not think the Manatee County School Board has the right to govern what teachers do or say in the privacy of their own homes behind closed doors, say at 1:30 a.m.?  Teachers, and other public employees, have due process rights in their jobs.  In the private sector here in Florida, an “at-will” employment state, as long as a termination is not based upon a discriminatory reason, an employee can be terminated for no reason at all.  Writing Facebook policies governing private sector employees is a simpler task due to this “at will” status.  Facebook policies reflecting the expansive view expressed by Superintendent McGonegal will likely be met with a challenge from the local teacher’s union as well as civil rights groups.

For more information, go to ABC 7 reporter John McQuiston’s article about the issue, along with my reported comments:

http://www.mysuncoast.com/content/topstories/story/What-you-can-safely-say-on-social-media/aOaZBBBvAUqDK_gmqpyS1g.cspx.

For more information about the series of events at issue, including the actual comments made by Ms. Orban, go to ABC 7 reporter Max Winitz’s article:

http://www.mysuncoast.com/content/topstories/story/Bradenton-teacher-in-hot-water-after-Facebook/Kw8YaII46kyi4U7bys4WAA.cspx.

I will post updates to this story as they occur.

Update on NLRB Social Media and Facebook suit

April 17, 2011 at 9:19 pm | Posted in Employee, Employer, Employment Law, Legal, Social Media/Social Networking, union | Leave a comment

One of my November blog posts discussed the NLRB filing an action on behalf of an employee dismissed for criticizing her employer on Facebook.  Of importance to this case is the union environment in which the employee worked AND that co-workers joined in the on-line “conversation” to discuss “working conditions.”  The employer in this matter, American Medical Response of Connecticut, had social media policies in place.  The employee was terminated for violating those policies due to the disparaging remarks she made about her supervisor on her Facebook page.  The NLRB alleged the employer’s social media policies were “overly broad”, particularly as they related to concerted activity.

In February of 2011, the NLRB and American Medical Response of Connecticut reached a settlement agreement in which the employer agreed to revise its social media policy to ensure that the policy did not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.  Again, this agreement is predicated on a collective bargaining agreement and the workplace being a union environment.  The employer revised the policy to show that employees would not be disciplined or discharged for engaging in such discussions on social media venues.

To review the actual settlement agreement between the NLRB and American Medical Response of Connecticut, go to:

http://www.minnesotaemploymentlawreport.com/NLRB%20Facebook%20Settlement.pdf

At least we now know social media handbook language that has been pre-approved by the NLRB.  This area of the law will continue to evolve.  With employees having social media at their fingertips via their smart phones, this area of employment law will continue to be hot.

Manatee County is not alone in suspending a teacher due to social media use- Teacher in Pennsylvania suspended for expressing her frustrations on her blog

February 17, 2011 at 1:50 am | Posted in Employee, Employer, Employment Law, Legal, New employment laws/amendments, Social Media/Social Networking | 1 Comment

A high school English teacher in suburban Philadelphia complained about the trials and tribulations of teaching today’s students, along with making comments about her life in general.  Teacher Natalie Munroe complained on her personal blog that “My students are out of control.  They are rude, disengaged, lazy whiners. They curse, discuss drugs, talk back, argue for grades, complain about everything, fancy themselves entitled to whatever they desire, and are just generally annoying.” Munroe made snarky comments that many Human Resources people would love to make – but know better to avoid:  “I hear the trash company is hiring”; “I called out sick a couple of days just to avoid your son”; “Just as bad as his sibling. Don’t you know how to raise kids?”; “I hate your kid.”

Importantly, Munroe did NOT use her full name, instead she referred to herself as Natalie M.  Munroe did not identify herself as a teacher, did not identify her school, nor did she specifically name any students in the blog so she took steps to not only protect her privacy but the privacy of those she commented upon – rather like actually using the privacy settings on one’s Facebook page.  Somehow, Munroe’s students discovered the blog and brought it to the attention of administration.

The debate is now raging as to whether Munroe’s comments should be the subject of discipline as the comments were made on a personal blog, were not publicized at the school, but were put in the public forum as Munroe’s blog was not subscription only and was accessible to anyone surfing the net.

Munroe has commented that she believes the debate as to the topics she covered – the need for high school students to take personal responsibility for not only their education but for their actions in her class – is one worth having.  She states she has no regrets about her blog posts.

Munroe is currently suspended while her school district determines how to address the issue.  School Districts all over the country will be facing this issue over and over again.  Proactive policies balancing the privacy – and constitutional rights – of teachers to express personal feelings must be viewed against the school district’s need to protect students’ privacy and confidentiality.  Students up to a certain age have no choice but to be in school; they have no choice but to subject themselves to the scrutiny of those who teach them.  With that being said, as a public sector employee, Munroe and other teachers have a First Amendment right that is not shared by those in the private sector.

Munroe has hired an attorney, who is arguing that Munroe’s comments were protected by the First Amendment.  During an appearance on ABC News, Munroe’s attorney Steven Rovner said the district has stated that Munroe’s posted comments were egregious.  Signs are pointing to Munroe losing her job over her posts.  Munroe and her counsel appear ready to litigate any termination through the courts.  Whether this will be the case that gives employers guidance as to how to navigate the complex world of monitoring the social media activities of employees remains to be seen.

Update on Manatee County School Board v. the Manatee Education Association Social Media DOAH Case

January 29, 2011 at 11:19 pm | Posted in discrimination, Employee, Employer, Employment Law, harassment, Legal, Social Media/Social Networking, union | Leave a comment

This blog provided information in September and October of 2010 about the Manatee County, Florida School District/School Board’s proposed imposition of a social media policy upon Manatee County School employees.  The Manatee Education Association – the teacher’s union – filed an administrative action with the Florida Department of Administrative Hearings protesting the proposed policy.  The case was scheduled for a hearing in January of 2o11.

In December of 2010, the Manatee School Board  and School District entered into an agreement with Manatee Education Association – the teacher’s union in Manatee County – to “stay” the proceedings before the Department of Administrative Hearings.  Based upon a Joint Motion filed by the parties, the case will be put on hold for a year because:

The parties have since conferred about the issues alleged in the Petition to Invalidate Proposed Rule and foresee that a resolution may be possible. However, settlement discussions between the parties may be ongoing for several months and, depending on whether the proposed rule is altered in the interim, the Petition may be mooted by subsequent changes.

To review the Motion, please use the following link:  http://www.doah.state.fl.us/docdoc/2010/009760/10009760M-121410-15094309.PDF

Resolution instead of a litigation is usually a good idea but in this case I was truly looking forward to see what an administrative law judge would do with a broadly worded and somewhat intrusive social media policy for public employees.  The issue may arise during bargaining between the parties – updates will be posted.  This area of the law continues to evolve; privacy rights must be balanced against an employer’s right to protect its reputation, or brand.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

Employers, your mail this holiday season may include more than holiday greeting cards – DOJ just issued Social Security Mismatch Number FAQ’s and Guidance

November 30, 2010 at 2:34 pm | Posted in Employee, Employer, Employment Law, I9, Immigration, Social Media/Social Networking | 1 Comment
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The Department of Justice decided that the holiday season, a time of hiring seasonal help, was just the right time to issue new Frequently Asked Questions and Guidance regarding an issue that’s been dormant for some time – the issue of what to do when an employer is notified that there appears to be a mismatch for a reported social security number of an employee.  The DOJ asks employers to recognize that:

  • Name/SSN no-matches can result because of simple administrative errors.
  • Employers should check the reported no-match information against the employer’s personnel records.
  • The employer must inform the employee of the no-match notice.
  • The employer should ask the employee to confirm the name and social security number reflected in the employer’s personnel records.
  • The employer should advise the employee to contact the Social Security Administration (SSA) to correct and/or update his or her SSA records.
  • The employer should give the employee a reasonable period of time to address a reported no-match with the local SSA office.  It appears that the DOJ is borrowing the 120 day period from the E-Verify program as a “reasonable” period of time in which to allow for the mystery to be solved.

Employers need to have a policy in place regarding how mismatches are addressed as failure to apply the same procedures for all employees regardless of citizenship status or national origin could result in discrimination claims under both Title VII, state anti-discrimination laws, local ordinances, and the Immigration Nationality Act.

Once the employee has been advised as to the mismatch, the employer should periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.  If there are any corrections, the employer or employee should submit corrections to the Social Security Administration.

The DOJ states in its Guidance that employers should NOT:

  • Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
  • Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
  • Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.  Engage in this reverification at your peril.
  • Follow different procedures for different classes of employees based on national origin or citizenship status.
  • Require the employee to produce specific documents to address the no-match.
  • Ask the employee to provide a written report of Social Security Administration verification – or written proof of having visited any governmental agency.

The Office of Special Counsel is available to provide employers and employees with more information on the social security mismatch issue, and on anti-discrimination provisions of the Immigration and Nationality Act.  The Office of Special Counsel can be reached at 1-800-255-7688/1-800-237-2525 (Hearing Impaired/TDD) or visit the website: http://www.justice.gov/crt/osc.  It is always a good idea to review the information provided by the various government agencies to learn how it is the agencies will interpret certain acts.  Having standard policies in place prior to receiving the next round of mismatch letters to be issued is a good proactive plan.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

The National Labor Relations Board files a complaint based on Facebook comments – with the NLRB entering the mix, will a ruling alter social media/social networking policies in the private or public sector?

November 10, 2010 at 8:23 pm | Posted in ADA, discrimination, Employee, Employer, harassment, Legal, New employment laws/amendments, Social Media/Social Networking, union | Leave a comment
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The National Labor Relations Board – “NLRB” – has taken up the cause of a Connecticut employee who was fired after making a post on her Facebook page.  The employee in question used some vulgar language when making comments about her supervisor, and then maligned the supervisor’s psychiatric state by using one of her Company’s codes for a psychiatric patient in her post: “Love how the company allows a 17 to become a supervisor.”  The termination caught the NLRB’s attention as the employee suggested she posted the criticism because the supervisor in question would not let a union representative prepare a response to a customer’s complaint regarding work she had done for the customer.

The company at issue, American Medical Response, took the proactive step of having a policy in place governing conduct Facebook and other social media/social networking sites.  I regularly advise my clients to have such policies in place as having rules in place reduces confusion later – and protects one’s brand and reputation in the cyberspace community.

The NLRB argues that the Company’s policy is overly broad.  Even more interesting is the NLRB’s theory that the Company’s policy violates the National Labor Relations Act’s prohibition against punishing employees for engaging in or soliciting discussions about working conditions or unionization.  A lawyer for the NLRB likened the Facebook posting to a “water cooler discussion among co-workers.”  Is Facebook analogous to the public square such that the protections of the NLRA apply?  Is it ever acceptable to hurl insults at one’s supervisor and expect no repercussions?  Does the inquiry change if the employee in question had her privacy settings set so that the general public could not see her posts?  Does commenting on a supervisor’s mental health status implicate the employer’s anti-harassment/anti-discrimination policies or perhaps the ADA?  Would the decision be different in a state such as Florida where we have a constitutional right to privacy guaranteed by Florida’s State Constitution?  Does the First Amendment come into play considering the comment was likely made on the employee’s own time?

To aid in framing the discussion, the NLRB provides guidance as to when Facebook comments lose protected concerted activity status under the NLRA.  Where is this guidance found?  On the NLRB’s Facebook page!  The NLRB states that a four point test applies: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

Employers would be wise to review their social media and social networking policies for overreaching in light of the NLRB’s stance. The bigger picture question is whether a successful action by the NLRB results in employee rants, however vulgar,  being deemed protected activity under the NLRA?  While it is unlikely that protection will be found for an employee’s publicly ridiculing of a supervisor and suggesting that the supervisor was mentally unstable, stranger things have happened when dealing with the NLRB.

A hearing on the NLRB complaint is currently scheduled for January 25, 2011.  Updates will be provided on this blog.  You can also check out the NLRB’s Facebook page for updates on the issue as well:  http://www.facebook.com/NLRBpage.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

Manatee County Drama Teacher Suspended for Classroom AND Social Media & Social Networking Issues

October 31, 2010 at 7:06 pm | Posted in Employee, Employer, Employment Law, Legal, New employment laws/amendments, Social Media/Social Networking, union | Leave a comment
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My last few blogs have been on the Manatee County School District’s desire to implement a broad and potentially chilling social media/social networking policy governing the on-line behavior of teachers on and off the job.  There’s a case pending before DOAH challenging the proposed social media/social networking policy but while that matter is pending, the School Board has started proceedings to terminate a drama teacher, partially based on postings found on the teacher’s Facebook page.  The teacher, Charles Willis, “friended” over 100 current students and posted comments that could be viewed by all his “friends”, including posts regarding drinking too much, and posts which referenced popular internet abbreviations that usually include profanity, such as “WTF” and “LMFAO.”  Other allegations are being made regarding Mr. Willis but the notion that the complaint against Mr. Willis includes numerous references to his virtual life as posted on Facebook makes this an interesting matter from the employment law perspective.

The Herald Tribune in Sarasota has written several articles on Mr. Willis and the actions of the Manatee County School District, which links are provided below:

http://www.heraldtribune.com/article/20101021/ARTICLE/10211054

The Herald Tribune also provided a link to the allegations being alleged against Mr. Willis such that his ability to continue to teach is in jeopardy:

http://www.heraldtribune.com/article/20101021/ARTICLE/10211054

Readers, what do you think?  Do you believe teachers should be held to a different standard than other professionals as regards to their on-line communications?  Should a teacher be allowed to “friend” students?  Should teachers be prohibited from communicating with students for any reason – including extra curricular service clubs or for community service purposes?  Should teachers be restricted in criticizing administration, the School Board, curriculum, or laws regulating education or educators?  How does the First Amendment come into play, or does it?

Tom Lyons, a regular columnist for the Herald Tribune, provided two recent columns on the issues of both the Manatee County School District’s proposed policy and Mr. Willis.

http://www.heraldtribune.com/article/20100921/COLUMNIST/9211019?p=2&tc=pg

http://www.heraldtribune.com/article/20101021/ARTICLE/10211054

While I do not necessarily agree with the views expressed by Mr. Lyons, I do think there’s fodder for debate and discussion in both of his columns.  As someone who represents companies and sometimes individuals in employment related disputes, the notion of the blurring of private life vs. public life is regularly blurred and confusion about the “rules” exists on both sides of the table.  Taking the step of having policies in place provides a level playing field but overreaching will result in morale issues, some of which may be insurmountable.

Gentle readers, I look forward to your thoughts on these very current issues.  Times are changing, how we communicate and interact with each other is changing too – should we focus on how to address those changes or should we be the proverbial ostriches with our heads in the sand?

I will continue to provide updates on this issue – and on the rule challenge filed by the teacher’s union related to Manatee County School District’s proposed social media/social networking policy.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

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