Employees Behaving Badly – The Social Media Edition

twitter fire

“Privacy is dead, and social media hold the smoking gun” – Pete Cashmore, CEO of Mashable   

It seems like every week there is another story gone “viral”  of an employee posting something colossally stupid or offensive on a social media site, getting fired, and the employer left scrambling to repair its damaged reputation.  Here are just a few of the recent gems:

1.  ESPN suspended outspoken anchor Keith Olbermann for engaging in a heated twitter debate with Penn State University (“PSU”) students.  After a PSU alum brought to his attention an annual fundraiser at PSU that raised $13 million for pediatric cancer, Olbermann tweeted “PSU students are pitiful  because they’re  PSU students – period,” and called another student a “moron.”  Olbermann later apologized (via Twitter of course), calling his comments “stupid and childish.”

2.  A school bus driver thought it was a good idea to take a “selfie” holding a full bottle of beer to her lips as she sat behind the driver’s wheel, and then post it on Facebook.  Nothing says “student safety” like a brewski and a 15,000 pound vehicle, right?  The school district promptly fired the driver  after concerned parents rightfully went ballistic.  Fun Fact:  the driver never actually opened the bottle.

3. A Texas teenager fired off an expletive filled tweet complaining about starting her new job at a local pizza joint the next day, complete with a string of “thumbs-down” emoji characters:

fired

The boss saw it and tweeted back: “no… you don’t start the ** job today! I just fired you! Good luck with your no money, no job life.” Not to be outdone in this social media throwdown, the boss added some crying emoji faces. Not surprisingly, his corporate ownership was none too happy with the public airing of the dispute (think angry emoji faces).

So how can employers reduce their legal and reputational risks from their employees’ social media abuses?  For starters:

1. Adopt and enforce a clear social media policy. (Easier said than done given the NLRB’s views on the subject).

2. Train employees to think twice before tweeting, posting or sharing. And then think a third time.

3.  Train employees to ask themselves:  is this tweet/post/share something that I would say or do in front of my boss, my spouse, my parents, or my kids?  If not, don’t tweet/post/share it.

4.  Train employees to further ask themselves: is this tweet/post/share something that I am comfortable explaining and/or defending to the individuals mentioned above, or to a judge,  jury, or the mainstream media? If not, don’t tweet/post/share it.

 5.  Train employees to remember that although “what happens in Vegas stays in Vegas,” what happens on Twitter/Facebook/Instagram will stay on the internet forever.  Or, as they used to say,  “this will go on your permanent record.”

6.   Bottom line –  Everyone (from the CEO to the rank-and-file worker) should recognize “you are what you tweet,” and that all must choose their words, videos, pictures, and yes, emojis, carefully.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws

 

 

Avoid These 3 Common HR Mistakes

The numbers are simply staggering: In 2013, individuals filed over 93,000 employment discrimination charges with the Equal Employment Opportunity Commission (“EEOC”). The EEOC collected $372 Million in damages from employers during that time. Similarly, thousands of minimum wage and overtime claims were brought against companies under the Fair Labor Standards Act, and the Department of Labor collected $250 Million in back pay damages in 2013. Moreover, approximately 20% of the lawsuits filed in Federal Court in 2013 stemmed from an employment dispute. It feels like litigation roulette – you never know when your company’s time is up, but if you keep playing the game (i.e. running your business), eventually you will get sued.

Given this, companies should take steps to reduce the risk of becoming the next defendant, and put themselves in a solid defensive position. One way to do so is to avoid making one of these 3 common human resources (“HR”) mistakes:

Mistake #1: Failing to properly screen applicants. Remember the old principle “garbage in, garbage out”? Hire a loser and all you get is a loser employee you can’t get rid of fast enough. How about avoiding that hassle? Start with a laser-like focus on the employment application. Has the applicant never held a job longer than 3 months? If so, why do you think he would last any longer at your place? Has the applicant conveniently failed to answer the “reason for leaving” question after a former employer’s name? This silence should speak volumes. Worse yet, does it say something disturbing like “dispute with supervisor”? And how did the applicant answer the “conviction record” question? These answers and/or omissions all need to be addressed with the applicant. Trust but verify with reference checks; a recent survey of hiring managers revealed that 60% found false information on applicants’ job applications and/or resumes. Finally, never hire someone based solely on the recommendation of a friend or co-worker.

Mistake #2: Failing to terminate a poorly performing employee. Not all hires turn out well. Some employees are simply poor performers. But why are they still employed by your company? Are you running a business or a charity? Managers should give employees clear performance expectations. If an employee fails to meet them, he should receive progressive discipline. If the employee still does not improve his performance, the company should terminate his employment. Consider the alternative – lowered workforce morale and a less profitable company bottom line. Retaining a poor performing employee can also result in a good deed getting punished: if you terminate someone else for the same poor level of performance, and the terminated employee falls into a different “protected classification,” you will be sued for discrimination. Like bad wine, life is too short to work with bad employees. If you have the opportunity to terminate one, take it.

Mistake #3: Failing to recognize threat levels. You need to be able to recognize potential legal risks and plan accordingly. Does the employee you intend to terminate fall into one or more protected classifications (i.e. race, over 40, disabled, etc.)? Has the employee mentioned an “L word” – lawyer or lawsuit? Has the employee referenced the “EEOC” or “discrimination”? Has the employee cited chapter and verse of the requirements of a particular statute? Has the employee requested a copy of her personnel file? Is the employee trying to tape record conversations? If any of these have occurred, you are approaching litigation threat level “DEFCON 1.” To reduce the threat, make sure that you have all of the facts, have reviewed the employee’s prior disciplinary record, have looked at your disciplinary practice in comparable situations, have adequate documentation, and a legitimate business reason for the employment decision.*

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPA’s October, 2014 magazine, The Bottom Line.

 

 

 

 

If Your Employee Does This … You Might Be Getting Sued

“If you’ve ever had to remove a toothpick for wedding pictures, you might be a redneck.” 

-Jeff Foxworthy

jeff-foxworthy-2__large

Remember Comedian Jeff Foxworthy’s “you might be a redneck” jokes?   They were tell-tale signs of human behavior that revealed a person was a classless and/or clueless hick. They were funny because you either knew someone who acted like the character in the joke, or could easily see someone behaving that way.

But, my human resources (“HR”) and management friends, did you know that there are also tell-tale signs of employee behavior that reveal that your company will likely be sued?

So without further ado (and with apologies to Mr. Foxworthy), put your hands together and give a warm HR welcome to this Edition of  “You Might Be a Redneck Getting Sued”:

1. If your employee submits a 4 page, single-spaced typed rebuttal to a verbal warning, you might be getting sued.

(And if your dog and your wallet are both on a chain, you might be a redneck)*

2.  If your employee urgently demands a copy of his personnel file and says he needs to take the afternoon off for “personal business,” you might be getting sued.

(And if you’ve ever financed a tattoo, you might be a redneck)

3.  If your employee attempts to tape record her performance review, you might be getting sued.

(And if you have the local taxidermist’s number on speed dial, you might be a redneck)

4.  If your employee recites the requirements of an employment law statute better than your HR Department can, you might be getting sued.

(And if you’ve been on TV more than 3 times describing the sound of a tornado, you might be a redneck)

5.  If your 70 year old employee (with 35 years of service) that you just terminated has a personnel file thinner than a potato chip, you might be getting sued.

(And if you think the French Riviera is foreign car, you might be a redneck)

6.  If your employee walks around with a bulging notebook documenting every conversation she has had with co-workers and supervisors, you might be getting sued.

(And if you’ve ever mowed your lawn and found a car, you might be a redneck)  

7.  If your employee goes on an epic Facebook rant that his supervisor is treating him “unfairly,”  you might be getting sued.

(And, finally, if your idea of a “7-course meal” is a bucket of KFC and a six-pack, you might be a redneck)

Ba dom bomp!  Thank you! Don’t forget to tip your waiters and waitresses. I will be here all week…

Of course, getting sued by an employee is no laughing matter. Watch for the above warnings signs.  If you observe any of them, make sure that you have a sound business reason (backed up by sufficient documentation) before taking any disciplinary action against the employee.  Otherwise, the joke will be on you.

*All jokes courtesy of Mr. Foxworthy

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
              @wagelaws 

 

 

 

Texas-Sized Employment Terminations Via Twitter

Human Resources Managers know the drill when they want to terminate an employee.  They bring the individual into a private room, tell him he is terminated, cite a couple of reasons for the termination decision, maybe give him a termination letter, and escort him out of the workplace.  Thereafter, the termination decision and reasons for it are typically only shared with those in management with a legitimate “need to know.”

But as they say, “everything is bigger in Texas,” including apparently, the way one announces an employee’s termination.  And in “BIg D” they have taken it to a new gunslinging level.

Dallas, Texas Police Chief  David O. Brown routinely announces the terminations of his law enforcement officers via his Twitter account, @DPDChief, to his 7,000 plus “followers.”  Limited by Twitter’s 140 characters, he then posts lengthier explanations for the termination on  Facebook for several thousand “friends.”

One recent example:

“I have terminated ######### for public intoxication, damaging a person’s property, and making offensive contact with a person.”

(I omitted the name – blame the lawyer in me).

Part of me likes the boldness of the strategy, and the stated goals of ensuring government accountability and transparency.  It also sends a strong message to other employees not to engage in the same conduct.  And the Dallas Police Department is doing some very creative things utilizing social media as a law enforcement strategy to catch bad guys.

But is it a sound personnel practice?  Let’s see…

Humiliating the employee to thousands of strangers?  Check.  Inviting a potential defamation lawsuit?  Check.  Locking in the employer’s position in future litigation in 140 characters or less?  Check.  Giving the City’s lawyers nightmares?  Check.  (Of course, many people would say giving lawyers nightmares is not necessarily a bad thing).

I would assume the Chief vets his Twitter posts with his legal counsel before their mass distribution.   But as anyone who uses Twitter knows, typos occur, mistakes can be made, and words can be misinterpreted.  And in employment lawsuits, words matter.

Chief Brown found out the dangers of Twitter recently:

Chief David O. Brown ‏@DPDChief  Mar 11

Today I terminated Officer Edgar Garcia for being involved in a disturbance resulting in his arrest for assault Family Violence.

Chief David O. Brown ‏@DPDChief  Mar 11

Correction: the officer terminated was Officer Edgar Garcia Martinez  

I hope the Police Department doesn’t employ an “Officer Edgar Garcia.”

From a purely legal perspective, the risks of such a practice seem to greatly outweigh any potential benefits.  Many times I have defended employers in lawsuits where it was clear the employee pursued litigation simply because he/she felt “humiliated” in how the termination was handled.  The employee was angry, feeling either the termination meeting was unduly harsh, or embarrassed by being escorted off the premises in full view of co-workers.

Now imagine the employee’s motivation to sue after having his termination and the reasons for it publicly aired to thousands of people.  Oh, and the employer still needs that little thing called “evidence” to back up the assertions in the tweet.

As any cowboy will tell you, “when you mess with the bull, you sometimes get the horns.”  Save yourself a legal goring – don’t post terminations or the reasons for them on social media sites.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Better Call Saul

“You were smart to call me. Now you just sit back, relax and let a professional take over.”             Saul Goodman – Breaking Bad

Saul Goodman, the street smart, delightfully sleazy criminal defense attorney from the ground breaking television drama, Breaking Bad, had a simple but memorable marketing slogan to attract clients – “Better Call Saul.”  Unfortunately for most of his clients (but good for Saul), they only called after they had gotten into trouble with the law.  It then became all about damage control.

But one client, Walter White, the cancer stricken high school science teacher turned virtuoso meth lab cook, often did call and consult with Saul before he took certain actions that he knew could potentially result in serious legal consequences.  Perhaps it stemmed from his scientific background, but Walter would often discuss options with their potential outcomes and associated legal risks with Saul before ultimately settling on a course of action.

Human resources managers would be well served to follow Mr. White’s lead in one limited respect.  (NO, I repeat, NO, not cook meth nor plan criminal acts).   Companies can reduce the possibility of significant monetary damages and legal expenses from employment law claims by investing a little time and money in consulting with their legal counsel about difficult employment situations before litigation is commenced. Below are just a few of scenarios where the “call to Saul” (or whoever your employment lawyer is) should be made:

  • An Employee (Or His Attorney) Makes A Personnel File Request.  The employee is not asking for her personnel file to check for spelling errors, or to make sure her emergency contact information has been updated.  The employee wants ammo, or better yet, the actual “smoking gun.”  The request is the legal equivalent of a warning shot across the bow.  An employment attorney can advise on how to respond to the request, including what not to provide, as well as establishing parameters to ensure the preservation of files and emails for future litigation.
  • The Employer Wants To Terminate An Employee Who Falls Into One Or More Protected Classifications.  As there are almost 100,000 discrimination charges filed with the Equal Employment Opportunity Commission (“EEOC”) every year, a company who wishes to terminate an employee who falls into a “protected classification” such as age, race, gender or disability faces potential liability.  As literally every employee falls into some protected classification, the company should make sure that it has all of its legal ducks in a row before termination.  Talk through the facts, evidence and reasons for the termination with employment counsel, paying special attention to how the company has disciplined similarly situated employees not in the same protected classification(s).
  • The Employee Mentions The “L Word”.  Frequently employees claim that they are contacting a “lawyer,” or intend to file a “lawsuit.”  Although many times this is simply bluster, sometimes they actually follow through.  Regardless, the simple mention of these words greatly increases the likelihood of the employee filing a retaliation claim in the event the company takes an adverse employment action against him.  Any discipline or discharge that comes shortly after utterance of an “L word” will likely trigger the filing of a retaliation claim.  Bottom line – when an employee starts talking about his lawyer, you should probably call yours.
  • The Government Comes Knocking.  If you receive a letter, phone call or surprise visit from a government investigator representing OSHA, the Department of Labor, the EEOC, or OFCCP, contact your employment lawyer immediately.  Often, steps can be taken to narrow down the government’s burdensome requests for information, and secure adequate time to gather relevant information in order to prepare a coherent response.

Just like an ounce of prevention can be worth a pound of cure, a billable hour spent on one of the tricky employment situations described above could avoid potentially costly legal consequences.  Take a page out of Walter White’s (cook)book and make the call.

Mitchell W. Quick,
Attorney/Partner – Michael Best & Friedrich LLP
Suite 3300, 100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter@HRGeniusBar @wagelaws

HR Tip – Save Those Voicemails

Probably every Human Resources Manager has received a voicemail from an employee advising them he is “quitting.”  Sometimes the employee even “thanks” the HR Manager and/or the company for the “opportunity,” and does not say anything negative about his employment experience.

I strongly recommend saving such voicemails from any employee the company suspects is a “litigation risk” (in their original audio format) for at least a year, and preferably two.

Why save them?  Employees often conveniently change their “stories” or recollections after quitting.  Such voicemails present compelling evidence to defeat an employee’s later claim that he was “fired” or “forced to quit”  (aka “constructive discharge”).  They are particularly useful in knocking down unemployment compensation claims and previously unreported claims of harassment.   The employee is left to “explain away” his own statements, and will not appear credible in doing so.

Why save them that long?  Under most federal and state laws, claims for discrimination, harassment and retaliation generally have to be asserted within 300 days of the alleged adverse employment action.  Retaining the voicemail for at least a year will ensure you have it available if a claim is filed.  Keeping them two years is preferable because claims under the Federal Family and Medical Leave Act (FMLA) and the Federal Fair Labor Standards Act (FLSA) can be asserted 2 (or even 3) years later.

Bottom line:  don’t hit the “delete” button, and you may “save” your case!

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
@HRGeniusBar
@wagelaws