Sustainable Work Practices: Keeping the Staff Afloat

Fisher & Phillips LLPATTORNEYS AT LAW

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Presented by:

Regina A. Petty

Sustainable Work PracticesKeeping the Staff Afloat

Western Museums AssociationOctober 27, 2009

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Challenging Economic Environment

Department of Labor’s Bureau of Labor Statistics January 2009

2,227 mass layoff actions involving over 230,000 employees

Unemployment rates today as high as 15%

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Budget Management

Hiring freeze and pay freeze

Compensation reductions and furloughs

Voluntary programs

Reductions in force

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The Furlough Alternative People furloughed or working part-time People furloughed or working part-time

rose from 3.7 million in June 2008 to 6.5 rose from 3.7 million in June 2008 to 6.5 million in June 2009million in June 2009

June 2009 Watson Wyatt survey found June 2009 Watson Wyatt survey found 13% of 179 HR executives had imposed 13% of 179 HR executives had imposed furloughs and another 6% expected to do furloughs and another 6% expected to do so in the next 12 monthsso in the next 12 months

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Avoiding Aftershocks

Legal, retention and morale issues

Fair Labor Standards Act

State Wage and Hour Laws

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Mandatory Furloughs

Designing for exempt employees

Notice issues

Collective bargaining

Benefits

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A Key Rule

Employees are strictly prohibited from performing any work during the furlough period. This includes checking work-related email and voice mail.

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Employee Volunteers Prohibited

Fair Labor Standards Act

“Bona fide” volunteer definition Person who offers their services freely

and without pressure or coercion; Person is NOT employed to perform

the same type of services provided as a volunteer

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Spotting Creativity Risks

Employee is given option of pay cut or donation to non-profit employer

Social NetworkingThe Online Community

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Explosion of Social Networking Sites

Facebook has 200 million members

Twitter has 17.1 million members

From April 2008 – April 2009:

– Twitter experienced 1,298% increase in visitors

– Facebook experienced a 217% increase in visitors

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Users of Social Networking Sites

Not just Gen Y employees As of May 26, 2009, 56% of Facebook users

were over 26-years-old In February and March 2009, Facebook’s

fastest-growing demographic was 35-44 Twitter is more popular with 35-49

demographic than 18-35-year-olds

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What is Twitter? Who is Tweeting?

An abbreviated, casual messaging system Users publish 140 character “tweets” Each user receives a live stream of tweets

from people they are following Current trendy site

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Employment Screening Tool?

Some employers now search Google as part of their regular background checks for applicants

Risk may outweigh possible gain

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Avoiding the Pitfalls

Consider the following options:

– Search only LinkedIn - site intended for professional networking

– Displays user’s education and experience, may have professional references

– Caveat: Savvy applicant could manipulate information

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Avoiding the Pitfalls

Consider:

– Obtaining written consent before searching Internet or social networking sites

– If search reveals information that played a part in not hiring, keep copy of information and consider giving candidate opportunity to address the information

– Be consistent - if you check any, check all candidates

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Workplace Impact

Caution managers on pitfalls of becoming “friends” with employees on social networking sites

– Don’t reveal anything you wouldn’t say or post in the break room

– Diligently use privacy controls to manage flow of information

Could become part of harassment or discrimination claim even though “personal” page

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Claims From a “Wall” Post

Plaintiff tried to show discriminatory animus through manager’s web page

“What’s wrong with women these days?” & “Chicks seem to have more issues these days than Jet Magazine and keep up more drama than daytime TV and Jerry Springer combined.”

– Derrick v. Met. Gov’t. of Nashville & Davidson Co. (M.D. Ten. Dec. 17, 2007)

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Internet Privacy

Oxymoron??? Disconnect between employees and

employers:– 53% of employees think content of Facebook page is not a boss’s concern– 60% of executives believe they have a right to know how employees portray themselves and company online

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Invasion of Privacy?

Employee must have a reasonable expectation of privacy

Newspaper published online journal that college student posted about home town

No expectation of privacy in publicly-available material

(Moreno v. Hanford Sentinel (Cal.App. 2009))

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Manage to the Policy

Employee had an expectation of privacy in text messages sent over employer-provided device

Manager told employees that messages would not be audited

Ensure managers are not contradicting your privacy policy (Quon v. Arch Wireless Operating Co. (9th Cir. 2008))

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Disciplinary Tool?

Employees set up invitation-only MySpace group “Spec-Tator” to “vent any BS we deal with . . . without outside eyes spying in on us”

Posting referred to violence, illegal drug use and copy of test for employees

Manager asked employee for password to gain access and terminated employees for criticizing bosses

Jury found no invasion of privacy but found wiretapping violation based on way password obtained(Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s (U.S. Dist N.J.)

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Invasion of Privacy?

As a practical matter, many employees restrict information with privacy settings

With actual permission to view information, privacy claim likely unsuccessful

No “fake” friend requests

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1/3 of users report that they never think about what the boss, coworkers or clients would think before posting materials online

Employees may make untrue statements about company, other employees or managers

Defamation

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Business Communications Tool? Blurring the line between personal

Social media as a marketing tool– Who should use

– When to use

– How to use

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What’s the Policy? Accessing personal social networking

site using company time/resources Options:

– Mirror your personal e-mail policy unless productivity problem arises

– Outright ban of access at work

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What’s the Policy?

Employee’s personal content Options:

– Employees who identify employer or use Company e-mail must adhere to code of conduct

– Outright ban on employees identifying their employer

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What’s the Policy? Employer’s Social Networking Policy:

– Prohibit unlawful harassment/ discrimination– Prohibit use of Company’s Proprietary,

Confidential Information without express authorization

– Confirm no expectation of privacy where Company-provided system or e-mail

– Prohibit use of employee work e-mail address for social networking account

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Questions and DiscussionPresented by:

Regina A. PettyPhone: (858) 597-9614

Email: rpetty@laborlawyers.com

Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas

Louisville · New Jersey · New Orleans · Orlando · Philadelphia · Portland ME · Portland OR · San Diego · San Francisco · Tampa

www.laborlawyers.com

Sustainable Work Practices: Keeping the Staff Afloat

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