#No Filter: Terminating an Employee for Social Media Posts

Prior to the advent of social media and especially the #MeToo movement, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct.  Those bygone times, however, have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce in an increasingly virtual world. The below sampling of cases and employer decisions illustrate how nuanced and difficult deciding to terminate an employee for a social media post can be.

Schirnhofer v. Premier Compensation Solutions, 303 F. Supp. 3d 353 (W.D. Pa. 2018).

In Schirnhofer v. Premier Compensation Solutions, Plaintiff worked as a billing coordinator diagnosed with anxiety disorder. 303 F. Supp. 3d 353 (W.D. Pa. 2018).  Plaintiff submitted a doctor’s note requesting a reasonable accommodation of two ten (10) minute rest breaks to cope with her anxiety in addition to the rest breaks provided to all employees. The employer denied her request because the request wasn’t necessary “to perform the essential functions of your job.” Id. at 361. Plaintiff took to Facebook to vent her frustration in the following posts: “[f]or every reaction there is a reaction” and “sometimes I wish I could go back to the old days and handle s*** the old way.” Id. at 362.  Plaintiff was terminated for making implied threats on Facebook shortly thereafter and subsequently filed suit alleging a failure to provide a reasonable accommodation, discrimination and retaliation. At trial, the jury awarded Plaintiff $285,000 in damage on her claims of disability discrimination and failure to accommodate, but found in favor of the employer as to her claims of retaliation.  In finding in favor of the employer as to the retaliation claim but against the employer on failure to accommodate claim, the jury appears to have taken greater issue with the employer’s refusal to grant additional rest breaks as an accommodation rather than its terminating Plaintiff for her online post. Read more ›

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Update on Texas Legislature Bill to Reverse Austin Sick Pay Law

At the beginning of the Texas Legislature session this year, it seemed like a slam dunk that conservative lawmakers would stop Austin and other cities in their tracks in their efforts to pass employment laws like mandatory sick pay. Senate Bill 15 (text here) passed through the Texas Senate Committee on State Affairs on February 28.  It would both nullify and prevent city efforts to regulate private employer benefits like sick leave. The bill, however, is broadly worded to prohibit regulation of not only paid sick leave, but other employee benefits, scheduling practices, and background checks.

Although the bill has passed through committee, there is rising opposition to the bill because the version that passed the committee did not include an earlier exemption for existing city ordinances prohibiting discrimination based on sexual orientation or gender identity. Texas has no such protections under its state discrimination statute, so many cities have established such protections, and if they are voided under this new bill, it would leave no legal protection in place.

The bottom line is that what appeared to be an easy path for the law overturning Austin’s sick pay ordinance is now looking to be a tougher road, with newfound political opposition. Currently, the State Legislature is scheduled to complete its regular session in late May, so we should have an answer in the next few months on the future of city ordinances regulating employment benefits in Texas.

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Posted in Discrimination, Labor & Employment, Wage and Hour

The Joint Employer Rollercoaster Continues: DOL Announces Proposed Changes

For the past several years, the issue of joint employer status has been in a constant state of flux, creating uncertainty for employers.  In an effort to clarify this issue, the Department of Labor (“DOL”) issued a proposed rule on April 1, setting forth a four-factor balancing test to determine whether a joint employment relationship exists.  These factors include whether the putative joint employer: Read more ›

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DOL Launches New Pilot Program on Discretionary Suspensions and Debarments

On Tuesday, the Department of Labor (DOL) announced a new pilot program for discretionary suspension and debarments to “ensure accountability and protect the federal government” from companies that have engaged in inappropriate or illegal conduct. The pilot program will be in effect from April 2019 to April 2020. Read more ›

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4 Steps Employers Must Take to Ensure FCRA Compliance

What are the four primary steps that employers must take in the Fair Credit Reporting Act (FCRA) process for onboarding an applicant? Bethany Salvatore and Bryant Andrews discuss FCRA requirements and how employers can protect themselves from liability.

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Can an Airport Skycap’s Complaint About the Poor Tipping Habits of French Soccer Players Really Become a Federal Case?

Yes!

One of the least appreciated federal workplace laws is Section 7 of the National Labor Relations Act, the 1935 law which gives most private sector employees in the U.S. the right to form and join unions.  Section 7 of the Act, which applies with equal force in non-unionized and unionized workplaces, says that employees have “the right to self-organization, to form, join or assist labor organizations … and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.” Read more ›

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Posted in NLRB, Wage and Hour

U.S. Department of Labor Publishes Notice to Update “Regular Rate” Regulations

Breaking its 50-year silence on the matter, on March 28 the U.S. Department of Labor announced its intention to update the federal regulations explaining how to calculate the “regular rate of pay” for non-exempt employees. Accurately calculating the regular rate is an essential step in paying the correct amount of overtime pay at one-and-one-half times the regular rate when a non-exempt employee works more than 40 hours in a workweek. The regulations governing regular rate requirements have not been updated since 1968, even though pay practices have changed significantly. Read more ›

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Workplace Wellness Programs – Key Legal Considerations

Wellness programs have been, and continue to be, of interest to both employees and employers. Employees are more and more aware of healthy living initiatives. Similarly, employers are being inundated with information about the importance of employee health and workplace productivity. Due to mutual interest, it is tempting to jump into the implementation of new wellness programs with both feet. Beware, however, as there are hidden concerns in wellness program implementation and maintenance. The following are a few of the key issues to consider. Read more ›

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Posted in Labor & Employment, Wellness Programs

Protecting Your Trade Secrets: Implementing an Effective Exit Protocol

We have previously posted on HR Headaches about the practical steps employers can take to protect their company’s trade secrets. You can find that post here. With this edition, we dive a bit deeper into the strategies and safeguards companies can deploy to prevent their trade secrets from walking out the door along with a departing employee. Read more ›

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How to Conduct Criminal Background Checks the Right Way

Criminal background checks are helpful in not only identifying applicants who might not be suitable for a job, but in limiting the potential liability associated with negligent hiring claims. Bethany Salvatore and Bryant Andrews answer your questions about when to conduct criminal background checks, how to conduct them, and how to protect your company from liability.

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Posted in Labor & Employment
About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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