Social Networking and the Workplace

It seems like everyone is on Facebook, or some other social networking site. Chances are virtually every one of your employees has a Facebook profile. According to a 2009 Harris Interactive survey of over 2,600 Human Resources professionals, 45% of them said that they go to social networking sites to research job applicants. The same study also found that 35% of employers made the decision not to hire an applicant based on what they found on the applicant’s social network (Facebook) page. The Human Resources professionals found the following to the biggest no-no’s in connection with social networking sites:

· Posting indiscreet photos and information

· Posting activity involving alcohol and/or drugs

· Badmouthing former employees

Despite the permanent nature of posting information and pictures in a digital space, many Facebook users feel like “no one is watching” when they post a picture from a wild party or leave comments blasting a former boss. Yet, employers in increasing numbers are watching what job applicants post to social networking sites. These sites can give employers valuable insight as to what job applicants are “really” like, as opposed to the polished that can be found in a resume or job interview.

And for employees who use Facebook or other social networking sites, here are five tips that can help you avoid problems:

1. Don’t reveal too much information. Don’t reveal more on Facebook than you would in real life; err on the side of discretion.

2. Think twice before hitting the “submit” button. The second you click “submit,” your picture or post is “out there.” And while you can always delete it later, you never know who has seen the information in the meantime.

3. Imagine how the information you are posting would look to a prospective employer.

4. Review your privacy settings. Sites like Facebook permit users to decide what pictures and information are shared with whom – narrow your settings so only accepted friends can see your information.

5. Google yourself periodically. Every few months run a quick google search of your name to see what comes up. If something negative surfaces, there may be time to change it.

Facebook and other social networking sites are not going away. Facebook has over 600 million users, and it’s growing every day. Employers can use these sites as a powerful tool in selecting job applicants. And employees should take simple steps to ensure that their social networking endeavors do not cause problems down the road.

Emergency Action Plans

Emergency situations can happen anywhere, without warning. Virtually every day we see footage on the news of devastating natural disasters or emergency situations all over the world. What are an employer’s duties with respect to emergencies?

California law requires that every employer have an Emergency Action Plan. Such a plan must include steps for evacuating employees, providing emergency medical attention, and reporting emergencies to employees and local agencies. While every employer must have a program, not all employers are required to “keep records” of such a plan. The record keeping requirements do not apply if the employer (1) has 10 or fewer employees, (2) has 20 or fewer employees and is in a designated low-hazard industry, or (3) is a local government entity, seasonal employer or licensed contractor.

Where a written plan is required, the plan must specify the following: (1) person(s) responsible for implementing the plan or portions of the plan; (2) how to communicate emergencies to employees; (3) fire and emergency evacuation policies; and (4) personnel assigned to provide first aid and emergency medical attention.

California also requires that employers train employees when a plan is established or modified. Newly hired employees also must be trained. The best way to accomplish this training is by conducting emergency training and emergency drills periodically. Formal inspections are generally not required by California law. More information regarding Emergency Action Plans can be found at http://www.dir.ca.gov/title8/3220.html.

We all know it is impossible to predict or completely safeguard employees from all emergencies or disasters. Yet the law does require employers to take steps to protect their employees, and a big part of that is the Emergency Action Plan. If your company does not have such a plan in place, take the time to create one. If your company hasn’t reviewed its plan in several years, take the time to review it. You owe it to your employees, and it’s the law.

What does insubordination mean, anyway?

A frequent reason given by employers for terminating an employee is “insubordination.” Employers sometimes treat this word as a catch-all – if the employment relationship is not working out, employers will often simply allege that an employee has been “insubordinate”. California is an at-will state, meaning that absent an employment contract, employees can be fired with or without cause at any time. Yet terminating an employee usually makes him or her eligible for unemployment benefits. Are employees terminated for “insubordination” eligible for unemployment?

It depends.

The Employment Development Department of California (EDD) holds that insubordination generally falls into four categories: (1) disobeying an employer’s order or instruction; (2) disputing or ridiculing authority; (3) exceeding authority; or (4) using vulgar or profane language towards a supervisor. A brief discussion of each factor follows below.

In relation to the first factor, according to the California Labor Code: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.” The following conditions must be established for a discharge for disobeying an employer's order or instruction to constitute misconduct under the EDD: (1) the employer's order was reasonable and lawful; (2) the claimant's refusal was intentional; and (3) the claimant's refusal was unjustified.

As to the second factor, an employee is insubordinate under California law if he or she "makes a statement or remark, which is not the result of an error in judgment, under the circumstances which damage or tend to damage the employer's interest." Of course, not all disputes between an employer and an employee result in discharge of the employee for misconduct. According to the EDD, differences of opinion, disagreements, and misunderstandings arise, and participation in such discussions is not misconduct. Moreover, an isolated instance of an error in judgment is not misconduct.

As to the third factor, when termination results from an employee exceeding authority, there are multiple elements to consider. First, the job’s inherent authority must be taken into account - if the parameters of authority are outlined clearly and are violated knowingly by the claimant, the discharge would be for misconduct. Second, authority to take action may also be created by the failure of the employer to limit or to object to unauthorized or undesirable conduct. Third, emergency situations may arise which require the employee to take immediate action for the employer's protection or best interests.

Finally, according to California law, an employee is insubordinate if he or she addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee. According to the EDD’s website, “In determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office…Generally, a single remark or outburst uttered in a situation of stress or provocation does not constitute misconduct.”

These examples are by no means exhaustive. The determination of whether an employee terminated for “insubordination” rises to the level of “misconduct” for purposes of unemployment benefits really is a case-by-case determination. But the above factors are instructive nonetheless. So next time you consider terminating an employee for “insubordination,” take a minute and apply these factors to your particular situation.

Do’s and Don’t of Final Paychecks

Terminating an employee is never fun. No one likes to do it. Yet, for any number of reasons, there are times when it is necessary end the employment relationship. Employers need to be careful that they don’t set traps for themselves in dealing with final paychecks. This article will explain some important rules on this topic.

The first key issue is whether the employee has been terminated or has simply resigned. In the case of a termination, or lay-off with no specific return date within the normal pay period, all wages and accrued vacation earned but unpaid are due and payable immediately (see Labor Code section 201). An employer may not ask or require the employee to wait until the next regular payday for the final wages. Moreover, it is illegal to withhold a paycheck for any reason, including inducing a former employee to return tools or uniforms, pay back money that might be owed to the employer, or turn in expense reimbursement forms. The key word in dealing with terminations and final paychecks is that they must be given to the employee immediately.

The standard is different for resignations. If an employee voluntarily quits and gives more than 72 hours notice, all wages and accrued vacation are due and payable on the last day of work. Yet if the employee quits without giving 72 hours notice, all wages and accrued vacation are due and payable not later than 72 hours after notice is given. In these situations, the employee is entitled to receive his or her final wages by mail if he or she so requests and provides the employer with a mailing address. The date of mailing is considered the date of payment for purposes of the 72 hour requirement.

As for the place of final payment, quitting employees are normally required to return to the place of employment to pick up their final check. Again, employers are not required to mail the final paycheck unless the employee requests payment by mail and provides an address. Unless an employee specifically requests that their final paycheck be mailed, the safer practice is to simply hold the paycheck until the employee picks it up.

Applicant interview no-no’s

California is not an easy place to be an employer. Even an employment interview can be fraught with danger given California’s often pro-employee laws. What types of questions are fair game during an employment interview? What questions should be avoided? This article will explore certain questions that should not be posed while interviewing job applicants.

First, questions about martial status or children are never a good idea. Employers cannot ask whether an applicant is pregnant, has children, or is planning to have children. If you know that an applicant has children, you are prohibited from asking if the applicant has made provisions for child care.

Tread carefully when asking about hobbies or social activities. It is discriminatory to ask about clubs, societies, or organizations to which the applicant belongs that might indicate race, religion, sex, age, etc.

In addition, do not ask what languages an applicant knows unless the job requires the applicant to speak and/or write a particular language fluently. In any event, applicants who can speak more than one language will usually volunteer that information in their resume or cover letter.

In some cases it is proper to ask an applicant’s age. If required for the job, an employer may ask whether the applicant is over a particular age (e.g. a bartending job). Otherwise, do not ask an applicant’s age.

Finally, questions regarding an applicant’s education, while important, can create risky situations. Some questions about an applicant’s education may be interpreted as seeking information about their age. While it is of course permissible to ask where an applicant went to school and what degrees he or she has attained, questions such as “What year did you graduate?” and “Are you a recent graduate?” may be deemed discriminatory.

Job applicant interviews are a necessary part of the hiring process, and employers need to gather pertinent information from applicants before deciding whether to hire them. Yet, certain questions do pose risks. Employers can save themselves serious headaches by avoiding these pitfalls.

Avoiding a hostile work environment

The term “hostile work environment” has found its way into the vernacular in the past decade or so. These three words can make plaintiff’s lawyers rich, and leave employers on the hook for huge verdicts. Employers know they have a duty to prevent a hostile work environment. But what is an employer’s duty in regards to a hostile work environment caused by third parties? A California Court recently confirmed that an employer has a duty to take corrective measures to prevent a hostile work environment caused by third parties – even when this type of harassment or hostile work environment may be “inherently part of the job.”

In the case of Turman v. Tuning Point of Central California, the plaintiff Turman was a resident monitor at a halfway house for defendant Turning Point. Residents of the halfway house were almost exclusively male prisoners who were being transitioned back into society prior to their full release on parole. Turman alleged that while she was at work, male residents propositioned her for sex, made sexual gestures to her, and called her lewd names. When Turman complained to her supervisor, her supervisor simply suggested she issue fewer disciplinary citations for the residents’ rule violation, which he believed was the cause of their harassing conduct. The trial court found that, while Turman was subjected to severe harassment because of her gender and that such harassment created a hostile work environment, Turning Point did not “fail to take immediate and appropriate corrective action.”

However, the Appellate Court reversed the judgment, finding that since Turning Point’s response to the reported abuse – Turman’s supervisor telling her to issue fewer disciplinary citations to residents so they would be nicer to her – did not amount to corrective action to alleviate the abuse. The Court acknowledged that even though male residents living under restricted/penal conditions are likely to harass a female supervisor, and that enduring inappropriate behavior by prisoners may be “inherently” part of the job, that does not absolve an employer from its legal responsibility to take immediate and appropriate action to correct the situation.

This case puts California employers on notice of their duty to take immediate action to correct a hostile work environment, even when the problem is caused by third parties.

Avoiding waiting-time penalties

Labor Code section 201(a) requires that employers pay final wages "immediately" upon termination of an employee. Labor Code section 203 imposes a "waiting time" penalty that continues the unpaid wages for up to 30 days while they remain unpaid.

Employers – especially out-of-state employers doing business in California – sometimes enact policies that result in routine late payments of employees’ final wages. Often employers have policies where the discharged employee is paid during the next regular payday, or the final paycheck is issued by mail from a payroll location, meaning that the final paycheck may not be received until days or weeks after termination.

These frequent late payments may not result in a very large late penalty for any single employee, but the cumulative liability across an entire work force can be substantial. These late-payment policies often result in class action lawsuits, which can cost large companies hundreds of thousands of dollars.

Recently, in Pineda v. Bank America, the California Supreme Court gave a boost to such class actions by holding that late penalties under Section 203 can be collected for up to three years after the underlying final wages were paid. Prior case law applied only a one-year statute of limitations. Pineda triples the exposure of employers.

In light of Pineda, employers should give their procedures for generating final paychecks a second look. Make sure that employees are given their final paychecks immediately to avoid problems down the road.