Employment Law Update - Fall 2011

Screening Job Applicants Through Social Media Creates Legal Risk

According to the most recent statistics from Facebook.com, there are now more than 750 million active Facebook users worldwide. That means that the number of Facebook users is more than double the current population of the United States. Twitter usage is not too far behind, with an estimated 200 million active users. In addition to these mega-popular social networking sites, other prevalent social media include LinkedIn, MySpace, YouTube, blogs, discussion forums, news groups, chat rooms, and countless others.

Given this explosion in usage, employers often use social media sites to screen job applicants. The vast majority of job applicants will have some sort of online presence. They may be active Facebook or Twitter users, or may frequently post their thoughts to a blog or a discussion forum. Understandably, employers want to see if a particular applicant has created an online presence that would either support or prevent the applicant from maintaining a successful career with their company. Does the applicant have inappropriate photographs of binge drinking or illegal drug use on his or her websites? Are the applicant’s blog posts riddled with lewd or profane language? Does the educational or work history stated on the applicant’s resume match the information provided on his or her LinkedIn profile? All of these questions are valid concerns for the employer. However, to reduce discrimination claims from job applicants, employers should consider the following precautions:

  1. Identify a particular individual within the company, who is not involved in making hiring decisions, to research the applicant’s online presence. A review of the applicant’s online presence is certain to uncover protected class information about the applicant (such as age, gender, race, religion, or disability) that the hiring decision-maker may not have otherwise obtained and should not consider.
  2. Instruct the researcher to screen out the protected class information from any report to the hiring decision maker. While the hiring decision-maker should be made aware of inappropriate photographs, profane language, etc., the decision-maker should not let any protected class information influence his or her decision. Screening out this information will ensure that decisions are based solely on legitimate considerations and will eliminate any possible discriminatory conduct.
  3. Consider using a third-party to conduct an online background check, including social media. At least one new company, Social Intelligence, is available to provide an online background report similar to criminal background checks and credit reports.

These simple precautions will help bolster the employer’s defense to a 'failure to hire' discrimination lawsuit that could be filed by a rejected applicant. Without access to protected class information, the decision-maker could not possibly have based his or her decision to deny employment on an illegal reason.

Practical Pointer

Discrimination claims and other risks associated with social media usage will be the subject of a social media workshop at the first showing of the 28th Annual Employment Law Update to be presented by K&C at the Virginia Beach Convention Center on November 10, 2011. Attendees will receive expert guidance on the most appropriate social media practices and policies.

K&C Annual Employment Law Update to be Held at New Site 

Knowing that companies are dealing with many pieces of the employment law puzzle, K&C is pleased to announce a new program designed to help employers solve the employment law puzzle. The 28th Annual Employment Law Update 'Putting the Pieces Together' will debut at the new Virginia Beach Convention Center on Thursday, November 10th.

The K&C Employment Law Team will present a variety of educational workshops and will feature several representatives from a number of government agencies, as well as an intriguing presentation by a lawyer who specializes in suing employers. Topics to include: What Employers Should Know About Social Media; Avoiding Discrimination Claims; Handling Unemployment Claims; Current Wage-Hour Issues; Safe Interviewing/Hiring Practices; and more.

The 28th Annual Employment Law Update will provide employers with valuable tips to piece together their employment law puzzles and reduce potential liability. For more information, click here or contact Kerry Martinolich at (757) 624-3232.

Is This Outrageous Enough?

A former Pastry Chef at the New York Plaza Hotel recently filed a $25 million lawsuit against her boss, the former Executive Chef of the Oak Room, claiming he sexually and physically harassed her during the year he was her boss. Among her allegations, she alleges that her boss threw her into the trash bin and dumped chocolate sauce, heavy cream and honey in her hair on a daily basis. She also alleges that she was required to carry eggs inside of her shirt, and whenever she did something that upset her boss he would demand that she break the eggs.

While the initial allegations appear to be fairly outrageous, time will tell whether or not this case is selected as one of this year’s ten most outrageous by the K&C Employment Team.

Your Employees May Be Keeping Records Too

Recently, the U.S. Department of Labor ('DOL') announced the launch of its first application for smart phones, an electronic time sheet that helps employees independently track the hours they work and determine the wages they are owed. Why would an employee need this application? In a worst-case scenario for employers, to support a wage-hour claim or assist in a DOL investigation of his or her employer. The DOL’s press release announcing the new application described its importance as follows:

'This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.'

The Fair Labor Standards Act ('FLSA') requires employers to keep accurate records of the hours worked by employees. If a DOL investigation reveals that an employer has failed to keep accurate records, the DOL is likely to determine that the hours logged by an employee using the DOL’s smart phone application are accurate. Such a scenario could be very costly for an employer, particularly if the employee uses the smart phone application or otherwise records inflated hours of work.

With wage-hour claims and DOL investigations on the rise, employers should make sure that their pay practices and record keeping procedures are in compliance with the FLSA and DOL requirements.

Time To Update Anti-Retaliation Policies

This past fiscal year, more charges of illegal retaliation were filed with the Equal Employment Opportunity Commission (EEOC) than any other type of charge. This marked the first time in EEOC charge-handling history that race discrimination charges were not the most frequently filed claim. Also, given recent federal cases expanding retaliation rights, employees and their attorneys appear to have recognized that retaliation claims are more likely to be successful at trial than many standard discrimination claims.

With the current legal environment, employers are well-advised to make sure they have updated anti-retaliation policies in place. Such policies are often included in employee handbooks as part of policies outlining complaint procedures wherein employees are assured that they will not suffer any retaliation or discrimination for filing an internal complaint or for complaining to governmental authorities about some potential violation of the law. Other steps employers should consider include: providing training to supervisors who may not understand the scope of retaliation legal protection; maintaining confidentiality and otherwise conducting thorough investigations whenever an employee makes a protected complaint; and carefully considering the timing of any discipline of employees who have recently filed protected complaints.

FYI

As part of the November 10th showing of K&C’s 28th Annual Employment Law Update, the EEOC’s perspective on this ever-increasing legal risk will be presented along with guidance on how to avoid retaliation claims. An EEOC investigator, Michael Johnson, will participate in a workshop on avoiding discrimination claims and the EEOC’s Norfolk Area Director, Herbert Brown, will provide insights at the end of the day. In the meantime, anyone interested in drafting or updating an anti-retaliation policy should contact K&C Employment Team member David Sullivan at (757) 624-3249.

Wal-Mart Achieves Major Supreme Court Victory

On June 20, the U.S. Supreme Court issued its decision in Wal-Mart Stores, Inc. v. Dukes, holding that lower federal courts in California had acted inappropriately in allowing the sex discrimination claims of some 1.5 million current and former female employees to go forward in a single class action. In essence, the Court held, the employees could not prove 'commonality' – the procedural requirement for class action status that requires the plaintiffs to show the defendant took action against the plaintiffs on grounds that apply to the class as a whole.

In filing suit, the female employees claimed that local Wal-Mart managers throughout the nation exercised their discretion to give male workers a disproportionate share of raises and promotions. The employees argued that Wal-Mart’s failure to rein in this discretion was illegal 'disparate treatment' under Title VII of the Civil Rights Act of 1964. The ultimate question of whether sex discrimination had occurred in any particular case was not before the Supreme Court. Rather, the appeal was limited to whether the 1.5 million claims were based on common 'questions of law or fact' which should be handled together in a single class action. The Court answered this question in the negative, holding that the millions of individual employment decisions involved in the case were separate. As stated by the court: 'Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.'

The Supreme Court rejected the female employees’ contentions that there was a 'corporate culture' of discrimination; that anecdotal evidence demonstrated pervasive sex discrimination, and that the 'expert' testimony of a sociologist that Wal-Mart was 'vulnerable' to gender bias. (The Court held that the 'expert’s' testimony was 'worlds away from significant proof' of a 'general policy of discrimination.')

While this was a major win, it is still possible that a much smaller class of Wal-Mart employees may proceed with the class action, or that individuals formerly covered by the class action may choose to sue Wal-Mart in individual cases.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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