Legal Trickery – Eric A. Parzianello

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Archive for the ‘Social Media in the Workplace’ Category

Pre-Hiring Social Media Screening: 3 Tips for Employers and Applicants

Posted by Eric Parzianello on June 4, 2015

social-media-iconsDid you hear the one about the Texas teenager fired for a tweet about her new job – even before she started?  Yes – that happened in Texas earlier this year when a Jet’s Pizza employee took to Twitter to post about the “f*** a** job” she was about to start.  On the day she was to start, the store owner saw her tweet and replied: “no… you don’t start the FA job today! I just fired you!”, as reported by Time.  Although this tweet cost someone her job, social media provides land mines for employers and prospective employees alike.

Employers Need to Exercise Caution When Using Social Media

In Michigan, the Texas Twitter termination would have been permissible only because the employer did not request password access to the prospective employee’s account. Michigan employers need to be aware of the “Internet Privacy Protection Act” (“IPPA”).  The IPPA imposes criminal and civil penalties on employers for requesting an employee or job applicant to permit access to that person’s personal internet accounts, such as Facebook and Twitter, by providing their private passwords. The IPPA provides that violations are punishable by fines up to $1,000 and possible attorney fees.

Additionally, an employer may not discriminate against a job applicant based on factors such as age, religion, national origin, marital status, pregnancy status or disability, all of which are often available on an applicant’s social media site.  In Gaskell v. University of Kentucky, 2010 WL 4867630 (E.D. Ky. Nov. 3, 2010), the plaintiff was not hired after another employee viewed the plaintiff’s personal website and sent an e-mail to the hiring committee expressing concern about the plaintiff’s religious beliefs.  The Court found that there was an issue for trial as to whether the plaintiff’s religious beliefs were a motivating factor in the University’s decision to not hire him.  The University ultimately settled the case by paying the plaintiff $125,000.00.

Job Applicants Can Cost Themselves Jobs Through Social Media

Job applicants should also be careful about social media usage. A recent Social Media Survey conducted by Jobvite found that 93% of recruiters will review a candidate’s social profile before making a hiring decision and 55% of employers have reconsidered a candidate based on what they find on Facebook, Twitter or LinkedIn.

The reasons for those reconsiderations?  Not surprisingly, any reference to illegal drugs leads the pack of reasons to negatively reconsider an applicant.  Posts of a sexual nature, those containing profanity and those referencing alcohol or guns also negatively impact an application according to the survey. Even bad spelling and poor grammar create opportunities for a prospective employer to reconsider hiring someone: 66% of hiring managers said they would hold poor spelling and grammar against candidates.  So, what type of social media posts can help your perception?  Posts about volunteering or charitable donations created a positive impression with 65% of recruiters according to the survey.

The Bottom Lines  

For employers, to minimize the chance an applicant may make a claim for discrimination, employers should:

1) Have a written policy detailing which social media sites are used to screen applicants and what information is considered;

2) Keep records of what negative information was reviewed to disqualify a candidate;

3) Become familiar with your state’s laws on accessing job applicants’ social media.

For job applicants:

1) Make your social media sites (other than your LinkedIn profile) private – although this will only minimize and not eliminate the likelihood of an employer finding information about you;

2) Add volunteer and charitable works to your LinkedIn profile;

3) Most importantly, don’t ever publish anything you wouldn’t want to discuss in an interview.

Eric A. Parzianello
eparzianello@hspplc.com
313-672-7300

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Posted in General Employment Law, Social Media in the Workplace | Leave a Comment »

On Twitter Bets, NCAA Upsets and “Manning Up”

Posted by Eric Parzianello on March 24, 2014

Is a one-sided bet enforceable?  NFL player Roddy White doesn’t think so.  Before last week’s first round NCAA game between 3rd seeded Duke and 14th seeded Mercer, White tweeted to a Mercer fan that he’d give him 50 yard-line first row season tickets if Mercer beat Duke.  Mercer, a 13 point underdog, upset Duke 78-71.

White went back to Twitter to say he’d only give him tickets to one game.  After getting roasted in the Twitter-verse, White tweeted:  “Y’all people are crazy on twitter you want me to man up and pay a bet to a person that had nothing to lose in the bet “.  Screenshots of the Twitter exchange can be found here.

Aside from the fact that, yes, he should “man up” after tweeting an unprovoked bet to a Mercer fan, White is legally correct.  For an enforceable agreement to exist, there must be consideration: something of value given by both parties that induces them to enter into an agreement.  Without consideration, there’s no contract here unless the Mercer fan did something in reliance on White’s statement.

Regardless, the lesson here is to shut up unless you’re ready to “man up.”

Posted in Social Media in the Workplace | Leave a Comment »

Does Your Employee Handbook Prohibit Texting While Driving? It Should

Posted by Eric Parzianello on November 28, 2011

There is no doubt that texting while driving creates incredible and often deadly dangers.  A recent Florida case not only highlights those dangers but shows the financial risks which employers may face if their employees are texting while driving company cars.

On the morning of August 12, 2008, Lawrence Daniels, a pharmaceutical representative employed by Astellas Pharma US Inc., was driving a car owned by Astellas.  That same morning, James Caskey, was riding his bicycle around his North Naples neighborhood.  He was biking home when he was struck and killed by the car driven by Daniels.   A criminal proceeding found Daniels guilty of failing to yield at a stop sign.  Now, a civil case will determine whether Daniels was texting while driving.  If so, Collier County Circuit Judge Hugh Hayes has permitted Caskey’s widow to seek punitive damages against the driver and his employer according to a story in the Naples Daily News.  Punitive damages have no relation to the actual damages incurred but, rather, are intended to punish the defendants and deter others from engaging in similar conduct.

Although Daniels denies he was using his cellphone while driving, cell phone records suggest otherwise.  Importantly for Daniels’ employer, its employee handbook did not require its drivers to pull to the side of the road to text. Daniels’ handbook simply said: “Use of a cellular phone in a company vehicle is permissible; however, cellular phone usage should be restricted as much as possible while driving.”  While Michigan laws prohibit texting while driving, Florida has not yet enacted such laws.  If Daniels was indeed texting while driving, his company’s failure to issue a policy prohibiting texting while operating its vehicles could be costly, as it eliminates at least one possible defense to company liability.  In Florida DUI cases, punitive damages of up to $500,000.00 are permitted.

While there are many employee handbooks available for download on various websites, including one found on the Small Business Administration’s website, consult your attorney to ensure particular issues which may be important to your business are addressed.

Once your policies are implemented, it’s also important to take measures to enforce them.   Last year, the Walt Disney Company updated their employee policies to prohibit the use of any electronic device to send or read text messages, e-mails or any other written communication while operating a vehicle.   Employees who fail to comply are subject to disciplinary action up to and including termination.

Posted in General Employment Law, Social Media in the Workplace | Leave a Comment »

Facebook Case Update: Case Settled; Employer’s “Overly Broad” Internet Policies To Be Revised

Posted by Eric Parzianello on March 2, 2011

In an update to last month’s NLRB Facebook case story, that case has been settled. The details of the NLRB’s complaint are found in a prior post below.

The NLRB issued a press release advising that “a settlement has been reached in a case involving the discharge of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page.” The NLRB alleged, among other things, that the company maintained overly broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. Under the settlement, “the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

Although the precise language of the original rules and the revised rules was not published, it would be surprising if the employer was not allowed to maintain a policy prohibitting its employees from referring to supervisors as “scumbags” and other vulgar names as this employee posted on Facebook. Another undisclosed aspect of this case is why the National Labor Relations Board is wasting its resources and those of a private employer in attempting to protect this type of employee behavior.

Posted in Social Media in the Workplace, Uncategorized | Leave a Comment »

“My Supervisor Is A Psychopathic Scumbag”: Protected Facebook Post? NLRB Incredibly Says “Yes”

Posted by Eric Parzianello on February 2, 2011

From an employer’s perspective, the National Labor Relations Board complaint against a company for firing an employee after she posted derogatory comments about her supervisor on Facebook is beyond absurd. The complaint was filed after an ambulance company fired an employee for venting on her Facebook account that she “love[s] how the company allows a 17 [the company’s term for a psychiatric patient] to be a supervisor,” before calling the supervisor a “scumbag” among other things.

The NLRB’s position, taken directly from its own Office of the General Counsel News Release is as follows:

“An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.”

The NLRB is an independent federal agency which has the authority to safeguard employees’ rights to organize and to remedy unfair labor practices committed by private sector employers. One reporter notes that this case appears to be the first time “the board has argued that workers’ criticisms of their companies or bosses on a social media site is considered a protected activity.”

The purported basis of the complaint rests in Section 7 of the National Labor Relations Act which permits employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

While a hearing was scheduled for January 25, 2011, a postponement of that hearing until February 8th to allow for additional settlement discussions may show that the NLRB is reluctant to have a written opinion issued in favor of the company.

A television news account of the case can be found on YouTube.

Posted in Social Media in the Workplace, Uncategorized | Leave a Comment »

Looking Through Your Employees’ Personal E-mails or Texts? Supreme Court Highlights Need For Written Policy

Posted by Eric Parzianello on September 16, 2010

Can employers delve into their employees’ personal lives by looking through their e-mails and texts? The answer could be yes, if the information is on company equipment and your written policy permits it.

In a case which was the subject of two prior blog articles below, this summer’s decision by the United States Supreme Court in the case of City of Ontario v. Quon highlights the need for employers to have written policies addressing employee use of work-issued electronic devices. In Quon, a police officer’s sexually charged text messages to his estranged wife and office girlfriend were reviewed by the officer’s police chief. Although he was only issued a reprimand for sending the personal text messages in violation of a written policy, Quon and the people he was messaging sued, claiming that the department had no right to look at the communications.

The Supreme Court held that the officer did not have a right to privacy under these circumstances since the police department had a legitimate interest in its review and the search was reasonable in scope. Importantly, the court noted that the city’s policy that allowed it to monitor and log text messages resulted in the employees having no expectation of privacy or confidentiality when using those devices. Although the decision dealt with the constitutional issues surrounding a public employer’s search of an employee’s text messages, private employers should note that the Court’s decision was based on the employee violation of an explicit policy governing the use of company-owned devices.

The importance of a written policy governing the use of employer-owned devices for electronic communications and notifying the employees of the employer’s right to monitor such use cannot be overstated. The necessity for clarity in such a policy became evident in a New Jersey case regarding employee e-mails.

In Stengart v. Loving Care Agency Inc., the New Jersey Supreme Court ruled that an employee who exchanged personal e-mail messages with her attorney on an employer-issued laptop computer had a reasonable expectation of privacy in those communications. While the employer had a policy that allowed the company to review any messages sent on its equipment, the policy also permitted personal use of e-mail. The court noted that it was “not clear” from the policy “whether the use of personal, password-protected, web-based e-mail accounts via company equipment” was covered by the policy; therefore, the policy did not destroy an expectation of privacy by the employee in her personal e-mails.

As noted in a recent Law.com article, “employers should have clearly worded policies related to the use of employer-issued electronic devices and computers. At a minimum, the policy should contain:

• specific definitions of the work devices and messages that are covered by the policy — for example, work-issued computers, BlackBerrys, and cell phones;

• a provision addressing whether an employee is permitted to use work devices for personal use; and the extent to which that use is allowed;

• a provision informing employees that the employer may monitor and log all work devices and accounts;

• a provision informing employees that the employer may access and search work devices and accounts, and that employees have no expectation of confidentiality or privacy in messages sent over those devices;

• a provision allowing for disciplinary action if the policy is violated;

• a form for employees to sign acknowledging receipt of the policy.

If there is any question about the purpose and scope of the search, the employer should consult with legal counsel prior to any action. Having clearly defined policies and procedures will define the line between personal and private use of work-issued devices and minimize the employer’s exposure to litigation.”

Posted in Social Media in the Workplace, Uncategorized | Leave a Comment »

Facebook At The Office? Make Sure It’s Covered By Your Employment Policies

Posted by Eric Parzianello on May 21, 2010

Are your employees allowed unlimited access to Facebook? Across the country, not many employers allow it and those which do are restricting usage through written policies.

A recent survey commissioned by Robert Half Technology found that 54% of American companies banned employees from logging on to Twitter, Facebook and other social networking sites from the office. Of more than 1,400 executives surveyed, only 10% gave employees unlimited access to social networks at work, while 16% allowed some personal use. Another Robert Half survey found that 38% of chief information officers interviewed have implemented stricter social networking policies — more than twice the number (17%) who say they have relaxed the rules.

A Detroit Free Press article noted that companies which allow unrestricted access to Facebook say factors such as boosting company branding and employee morale “outweigh the risks of wasted time and dips in productivity.” Ford Motor Company believes that employees on Facebook and blogs “can be powerful advocates” for the company but it also has this warning for employees: “Don’t share secret information. Don’t trade on insider information. And remember, whatever happens in Vegas, stays on Google.”

The majority of companies which prohibit access to social networking sites point to studies such as one conducted by Boston based Nucleus Research which concluded that companies allowing full access to Facebook have a 1.5% drop in total office productivity. Other concerns obviously also exist.

A waitress for Brixx Pizza in North Carolina recently lost her job over her Facebook usage. She served a couple who came in for lunch and stayed for three hours – forcing her to work an hour past her quitting time. The couple then rewarded the waitress with a $5 tip. She did what many Facebookers now do and posted a rant: “Thanks for eating at Brixx,” she wrote, “you cheap piece of – – – – camper.” She was fired for violating the company’s well-drafted policy which specifically prohibits employees from disparaging customers and “casting the restaurant in a negative light” on a social network.

As we wait to see how the Supreme Court rules on the usage of company pagers in the employee “sexting” case, at least one thing remains clear for employers: maintain a written policy on use of the company’s technology.

Posted in Social Media in the Workplace, Uncategorized | Leave a Comment »

Supreme Court Hears Arguments In Employee “Sexting” Case: Written Policy Important

Posted by Eric Parzianello on April 21, 2010

Does your company have a written policy regarding the use of company cell phones or computers? The affirmative answer to that question appeared to be a significant one in a case heard by the United States Supreme Court yesterday. A decision is expected in June in the case of Quon v. Arch Wireless Operating Company and the City of Ontario, which was the subject of a January blog.

Several months after Police Officer Quon was issued a pager by the Ontario (CA) Police Department, Quon’s boss asked for a print-out of his messages because Quon was repeatedly exceeding his monthly message allowance. The review revealed that most of Quon’s texts were not work-related and many were sexually explicit in nature including ones sent to his estranged wife, his office girlfriend and a fellow officer. Officer Quon was reprimanded for sending the personal text messages. Although the department had a written policy — issued before the distribution of the pagers — warning officers that all communications on city-owned equipment were subject to review, Quon and the people he was messaging sued, claiming that the department had no right to look at the communications.

Justice Sonia Sotomayor questioned whether the boss’s reason for looking at the messages mattered: “Let’s assume that in this police department, everyone knew, the supervisors and everyone else, that the police department people spoke to their girlfriends at night,” Sotomayor said. “And one of the chiefs, out of salacious interest, decides: I’m going to just go in and get those texts, those messages, because I just have a prurient interest.” Justice Antonin Scalia said the reason for the search was irrelevant to the case. “So when the — when the filthy-minded police chief listens in, it’s a very bad thing, but it’s not offending your right of privacy,” Scalia observed. A majority of the justices seemed to place great significance in the department’s written policy which would lead to a conclusion that the city acted reasonably in monitoring the text messages in view of its written policy warning employees they have no guarantee of privacy in the use of office computer and electronics equipment.

A decision is not expected until June but it seems likely that if the department is successful, its written policy will be a factor in immunizing it from liability.

Posted in Social Media in the Workplace, Uncategorized | Leave a Comment »

The Judge Is Not My Facebook Friend Any More

Posted by Eric Parzianello on February 12, 2010

The Judicial Ethics Advisory Committee of the Florida Supreme Court recently issued an opinion prohibiting judges from listing lawyers who may appear before the judge as “friends” on a judge’s social networking pages, including Facebook. The Committee believed that such a listing “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”

The Committee stated that the issue “is not whether the lawyer actually is in a position to influence the judge, but instead whether the . . . identification of the lawyer as a ‘friend’ on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee [concluded] that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.”

Fortunately, for Facebooking judges, the opinion does not prohibit the judges from having any friends: the Committee specifically clarified that the “opinion should not be interpreted to mean that [judges are] prohibited from identifying any person as a ‘friend’ on a social networking site.”

Also, Florida judges remain free to establish a Facebook Fan Page for their campaign and allow lawyers who may practice before the judge to become “fans”. The Committee distinguished this Facebook association because the judge cannot accept or reject the lawyer becoming a “fan”. Really?

Posted in Social Media in the Workplace, Uncategorized | Leave a Comment »