Posts Tagged ‘Employee Litigation’

Employers Can Learn from Paula Deen’s Mistakes

Wednesday, August 7th, 2013

employee screening, employee credit checkEarlier this summer, TV chef Paula Deen was known more for her teary performances on talk shows than for her down-home cooking on her own show, after she was accused by an employee of using racial slurs. Deen was subsequently dropped by the Food Network, as well as several other companies with which she’d held endorsement deals.

Employers can take a lesson from the fallout that Deen has experienced since her employee’s lawsuit came to light. Sexually explicit or racially charged language has no place in the business world, but sadly, it is not unheard of. Now is a good time to re-establish rules and reinforce them with your employees–and to take them to heart yourself, if necessary.

Watch your language: Racial slurs, sexual comments and biased language should not be allowed, period. From the boss on down, establish a zero-tolerance policy, and enforce it. Doing otherwise opens your company up to liability.

Show respect: No matter whom you are interacting with, pay attention to your behavior. Your words, actions and body language might make others uncomfortable, which could create a hostile working environment. Don’t assume that just because someone is of your gender and race that you can use language with him or her that demeans those who are not. The plaintiff in Deen’s case is a Caucasian woman.

Protect your brand: You’ve worked hard to create a company with a good reputation, but accusations of racism, sexism or intolerance can turn off both your current clientele and prospects. Consumers vote with their dollars, and word of bad behavior can bring about disastrous results.

Treating everyone fairly, keeping harmful language out of the workplace and creating a positive, respectful organizational culture can only strengthen your company. It makes it a better place to work. And it’s the right thing to do.

New Password Protection Law in California

Friday, October 26th, 2012

employee screening, background checkLegislators around the country have been reacting to reports of employers requesting or requiring employees and/or applicants to provide access to their personal social media accounts. Maryland and Illinois both enacted “password protection” laws, followed by the California, where Governor Jerry Brown recently signed a new bill into law.

California’s law generally prohibits employers from requesting employees and applicants to provide access to their personal social media accounts and content. However, it is not as broad as the Illinois law, which prohibits employers from demanding access in any manner to an employee’s or prospective employee’s account or profile on social media sites. Illinois employers may not ask for log-in information, look over employees’ shoulders to gain access to it, or request screen shots of social media posts.

Maryland employers may not directly request log-in credentials, but are allowed to access an employee’s social media account when the request is in conjunction with securities fraud investigations or improper use of trade secrets.

California’s law also prohibits employers from requiring employees to access their social media accounts in the employer’s presence (“shoulder-surfing”) or to provide log-in information. In addition, it prevents employers from requiring employees to share any social media content, such as the Facebook posts of co-workers.

However, California’s law permits employers to ask workers to divulge personal social media content if there is a reasonable belief that it would be relevant to investigations of employee misconduct or violations of laws and regulations.

Note that this part of the law does not apply to job applicants. In addition, California’s law states that employers may not discharge, discipline or retaliate against an employee or applicant if they refuse to comply with a request or demand for access to a personal social media account.

Expect more of these laws to be passed around the country in the near future.

When hiring new employees, be sure to conduct proper background screening. The best pre-employment screening process includes employee background checks, employee credit checks, and criminal background checks. You’ll know you’re hiring safe when you screen employees before offering a position.

Terminating an Employee for Theft

Thursday, March 29th, 2012

employeescreeningblog, employee screening, pre-employment screeningWe’ve been talking lately about employee theft, and how it affects employers of all kinds. In this third article in our series, we look at what to do when you’re faced with this unfortunate situation.

The most sophisticated video camera systems won’t stop an employee from stealing. And unfortunately, the evidence they contain won’t always protect you from an unlawful termination suit. Even the most blatant thieves may try to protect themselves by bringing a lawsuit—and even if you win, you’ll still have to expend a great deal of time and effort.

You cannot avoid all the unpleasantries of terminating an employee, but if someone is stealing, you cannot let it continue, either. If you fear that employees are stealing from your business, keep the following dos and don’ts in mind:

  • Before you take action, take the time to do a thorough investigation. Accusing an employee is a serious charge, and you’ll need to thoroughly document your case. So don’t fire someone in the heat of the moment.
  • Do have at least two people involved in the investigation to avoid false accusations by the employee of framing for retaliation or bullying.
  • When conducting your investigation, don’t resort to crime-movie tactics. By law, you cannot go through an employee’s personal belongings, or use a baby monitor to listen to their private conversations.
  • Be careful of what you say. Stating a fact, such as “Steven stole $600 worth of merchandise,” can subject you to accusations of slander. Do state things in terms of opinion: “We have reason to believe that Steven may have taken the merchandise.” Even if it’s true that Steven stole the merchandise, you could still be sued.
  • Be sure you can prove the reasons for termination. Do terminate for performance or failing to follow company procedures, instead of for theft that could possibly be explained by the employee—however weak the explanation may be.
  • If an employee admits to theft, don’t terminate until you have obtained a written statement in his or her handwriting. If the employee wishes, do allow this to happen in private, to avoid any accusation of coercion.

Legal disclaimer:

The contents of this article are intended for general information only, and should not be relied upon as a substitute for obtaining professional legal advice applicable to your situation.

Employer Claims Ownership of Twitter Account in Lawsuit

Saturday, February 18th, 2012

employee screening, employee background checkIn today’s business world, many firms hire a social media manager , who is in charge of a company’s Facebook page, Twitter account, YouTube channel, and other social media marketing platforms. They’re tasked with promoting the company, gaining followers and engaging customers.

In other organizations, employees have a looser affiliation with the company’s official social media presence. They may have a personal Twitter account where they post both business and individual messages.

A new lawsuit is bringing the value of a social media account into question. Namely, can a company claim ownership of an employee’s social media account?

In this case, an employee for Phonedog.com, a mobile phone site, set up a Twitter account under the handle Phonedog_Noah that grew to 17,000 followers. He left the company, which at the time said he could keep his Twitter account if he tweeted on the company’s behalf from time to time. He agreed and changed his handle, but kept his followers.

Eight months later, PhoneDog Media sued him, saying the follower list was a customer list that the company owned. It sought damages of $2.50 per follower per month—a total of $340,000. The employee claims the suit is in retaliation for his own lawsuit against PhoneDog for unpaid wages and profits. He also disputes the worth of the Twitter followers.

This case puts the spotlight on an increasingly difficult problem for many employers. While tweeting and posting to Facebook or LinkedIn are often assumed to be an employee’s prerogative, which can improve (or at times, harm) the company’s reputation, while enabling employees to network and learn information that can improve their job performance.

The California District Court, which is hearing the case, may issue a ruling that puts the decision back in Twitter’s hands. After all, Twitter owns the entire site and everything that happens on it.

Companies that wish to avoid such interruptions and expenses should immediately craft clear social media policies, covering questions about ownership and portability.

When hiring new employees, be sure to conduct proper background screening. The best pre-employment screening process includes employee background checks, employee credit checks, and criminal background checks. You’ll know you’re hiring safe when you screen employees before offering a position.

After Injury, Volunteer Firefighter is Out of Luck

Thursday, July 7th, 2011

employee screening, employee background checkA volunteer firefighter in Vermont was recently denied a workers’ compensation claim for an injury he suffered while at the station. He wasn’t in the line of duty at the time, according to the insurance company, because he was fixing insulation—not fighting fires.

While on a ladder performing the repairs, Jason Stech fell, fracturing his ankle, breaking his foot and shattering his heel. His injuries require surgery and will keep him from working at his paying job for four months. Although he submitted a workers’ compensation claim, it was denied by the insurance company, based on Vermont’s definition of “line of duty,” which is limited to when a firefighter is responding to a fire, drill or test, participating in a parade or fundraising.

In Vermont, where more than 90% of fire departments are volunteer, the decision could send a negative message and hurt volunteer recruitment efforts, some say. Stech says he’ll keep serving his community, but will be more cautious about what he’s willing to do. In the meantime, he’s hiring an attorney and appealing the decision.

Does it make sense that a volunteer firefighter would likely be covered for breaking an ankle while walking in a parade, but not while fixing insulation? Stech assumed he’d be covered for any injuries suffered while doing anything related to the fire department, which seems reasonable enough. Perhaps this firefighter’s willingness to take on the fight will result in a change in the law that will benefit all volunteer firefighters, who deserve more consistent coverage.

Supreme Court Ruling Seen as Win for Employees and Employers

Thursday, May 26th, 2011

employee screening criminaldata.comIn a case that will result in significant changes to laws covering employee benefits, the Supreme Court this week ruled in Amara v. Cigna. The case was brought on behalf of 25,000 Cigna employees who disagreed with the company’s handling of changes in its pension plan back in 1998. The employees claimed that the company misled them that a new plan, which actually froze pensions of older, retired workers was “an overall improvement in retirement benefits.”

The Supreme Court ruled that a lower court could award the employees the benefit Cigna led them to believe they had coming. Viewing the ruling as a victory for employees, the assistant secretary of labor at the U.S. Department of Labor’s Employee Benefits Security Administration, which filed a brief on behalf of the Cigna employees, said the court’s decision “goes a long way toward restoring…common fairness.”

Analysts say employers scored a win, too. In the same case, the court agreed with Cigna that when there are conflicts between documents employers give to employees (“summary document”), and those not seen by the employees (“plan document”), employees do not have grounds to sue to enforce the terms of the summary document.

The lower court had ruled that Cigna deliberately provided misleading information to employees and successfully concealed the pension freeze, depriving employees from taking action, such as protesting or seeking employment elsewhere. Cigna argued that employees were legally entitled only to the less-generous benefits described in the formal plan document, which they did not see. Justice Stephen Breyer wrote, “It is not difficult to imagine how the failure to provide proper summary information, in violation of the statute, injured employees.”

Cigna employees could receive an estimated $70 million in pension benefits.

Supreme Court Ruling Affects Employers

Thursday, March 3rd, 2011

employee screening blogMost employers know that federal law requires them to allow military reservists to take time off for training and service obligations—and most comply, even when losing an employee is difficult on the business.

But one reservist was fired from his job, sued his employer, and won. And the U.S. Supreme Court this week ruled in his favor in an employment discrimination case. The case was brought by Vincent Staub, an Army Reserve first sergeant, who was fired from his job after 15 years as a hospital angiograph technician.

Staub had no problems for the first ten years working at the hospital. But starting in 2000, a new supervisor would schedule him to work during times he was supposed to be at reserve training.

Then in 2005, Staub was called to active duty. Soon after, his supervisor accused him of violating a company rule and issued a disciplinary action against him. When he was fired, he sued the hospital. He alleged that his immediate supervisors were hostile to his military service and that they made false allegations upon receiving notification of his call to active duty.

Staub won his initial suit, but a federal appeals court threw out the award, ruling that the hospital could not be held liable because the decision to fire him was made not by his immediate supervisors, but by the VP of human resources, who had no such hostility to the military.

The Supreme Court, in a unanimous decision, reversed this decision, saying the liability for firing cannot be separated from a supervisor simply by giving the responsibility to a higher-up member of the management team. The justices ruled that discrimination did take place and cause an adverse employment decision.

This ruling could have far-reaching effects, encompassing discrimination claims based on race, gender and religion. Some employers have sought to protect themselves from such suits by putting final decision-making authority in an HR department; the Supreme Court ruling clearly states that this will no longer be a viable option.

Are Employers Responsible for Scents and Smells in the Workplace?

Friday, October 29th, 2010

pre employment screening, employee background checkThe Americans with Disabilities Act makes it unlawful for employers to discriminate against individuals with disabilities. Since the law passed in 1990, there have been a number of legal decisions to determine who is a “disabled person.” It is an employer’s duty to reasonably accommodate requests made by disabled employees to allow them to perform their job duties. This may include making a restroom accessible, or lowering a work surface so a person in a wheelchair can reach it.

In the case of people who are sensitive to chemicals and scents, how far does an employer need to go to accommodate them? A recent case in Detroit provides a clue. A city planner submitted a claim against the City of Detroit that she was allergic to a co-worker’s perfume. She won a monetary settlement ($100,000) and the City had to adopt a “no-scent” policy, where employers working near her must refrain from wearing scents: cologne, perfume, after-shave and hair products.

The city planner was not only sensitive to the smell of her co-worker’s perfume—she had difficulty breathing. Clearly, it could be argued that the inability to breathe would “substantially impair” a major life activity of the employee. Breathing can certainly be considered a “major life activity.”

The court found that the city did not make a reasonable accommodation for the city planner—there was no policy enacted, asking for restrictions on the use of perfume; there was no attempt to move the planner so she wouldn’t have to suffer the inability to breathe; and there was no attempt to have the perfume-wearer simply stop wearing perfume.

Employers don’t necessarily have to write a “no perfume policy or install expensive air filtering systems when a staff member informs them of chemical sensitivity. Making reasonable accommodations is all that is required. Employers may also ask the suffering employee for verification that the condition actually exists.

But the lesson from the City of Detroit case is clear. When a worker makes a complaint about conditions interfering with their ability to function (like breathing, for instance), the employer may be held liable for ignoring the problem. It’s certainly less costly to enact a simple policy to make the air easier for everyone to breathe than to defend your actions (or inactions) in court!

Legal disclaimer:
The contents of this article are intended for general information purposes only, and should not be relied upon as a substitute for obtaining legal advice applicable to your situation.

Hiring? The best pre-employment screening process includes employee background checks, employee credit checks, and criminal background checks. You’ll know you’re hiring safe when you screen employees before offering a position.

Can “Toxic Bosses” be a Business Liability?

Thursday, October 21st, 2010

employeescreeningblog, employee screening, pre-employment screeningBullying in schools is all over the news right now—and for good reason. Workplace bullying has been a trend as well. Can so-called “toxic bosses” be a liability to businesses? The answer is a resounding “yes.”

There are strong feelings on both sides of this argument; but today we’ll focus just on the information employers need to be aware of.

The Healthy Workplace Bill gives employers incentives to prevent workplace bullying with policies and procedures that apply to all employees. The bill would protect “workers from what can be considered malicious, health-harming abusive conduct committed by bosses and co-workers.” Is such legislation necessary? Some say yes; others say no. A survey conducted by The Workplace Bullying Institute in September, 2010, which found that 64% of all respondents supported such a bill, while nearly 24% were opposed. 12% had no opinion or were not sure.

17 states have introduced legislation in recent years to curb workplace bullying. None have become law, but in New York, the Senate recently passed a measure that would allow workers who have been abused on the job—either physically, psychologically or economically—to sue their employers in civil court. The bill applies to organizations of all sizes—not just larger employers. It holds employers responsible for bullying behavior of workers and supervisors.

Some experts think that if New York’s measure becomes law, a chain reaction across the country is likely to occur. The bill includes a broad definition of bullying, including repeated insults, epithets and derogatory remarks. It also includes “conduct that a reasonable person” would find humiliating, intimidating or threatening.

Employers are already seeking advice on how to avoid litigation from some New York law firms. Others already have a handle on creating a positive, anti-bullying culture—always a good idea, but especially now. New York’s anti-bullying legislation says that employers “may not be held liable if they take steps to prevent or promptly correct abusive behavior.

How to Prevent Workplace Bullying

  • Create a policy that prohibits bullying by supervisors and co-workers.
  • Avoid hiring workers with a history of bullying (pre-employment background screening is a must).
  • Avoid hiring workers with abusive tendencies by asking the right interview questions.
  • Provide training on proper workplace behavior for all employees.
  • Take a look at your own management style: high turnover and yelling are good indicators that you could be perceived as a bully.

Defining the difference between discipline and bullying is a tough one—but if in doubt, ask your employees. Some reports say that between 16% and 21% of employees have experienced “health-endangering workplace bullying, abuse and harassment.” Florida State University’s College of Businesses conducted a survey in which 23.5% of respondents working for companies with 100 or fewer employees reported experiencing supervisor bullying on a weekly basis. The number for 100+ employee organizations was slightly less, at 21.3%.