Employment Law Information

Archive for the ‘At Will Employment’ Category

Virtually everyone (even your employer) engages in some sort of social networking activity. Employers use social networking websites to learn more about their job applicants, employees, and the individuals who sue them. As social networking has increased so has the number of employees terminated for their social networking activities.

Two employees sued their former employer in New Jersey federal court earlier this year after they were fired for their MySpace activities. Brian Pietrylo and Doreen Marino created a MySpace forum to vent, complain, and make fun of their employer and supervisors. Management learned about the forum and terminated Pietrylo’s and Marino’s employment for violating the company’s professionalism policy. The Pietrylo case raised the question of whether an employer can terminate an employee for private statements made on a social networking website. Unfortunately, the Pietrylo case did not answer that question, leaving employees to wonder what social networking activities can result in termination. While there is not much clarity in this area, you should be aware of the following:

• You should not say or do anything that you do not want public. You must realize that nothing on the internet is private. That is true even if your profile is set to private. For instance, I worked on a case where the plaintiff told his Facebook friends to lie to the EEOC and say that he was terminated because of his race. The plaintiff’s page was set to private leading him to believe that his communications were private. They were not. The EEOC dismissed the case when it saw the plaintiff’s Facebook page. You should not say or do anything that you do not want to be publicly available, because your information or communications can be accessed by current or potential employers, coworkers, recruitment agencies, government and law enforcement agencies, among others.
• You should assume that your employer is monitoring your activities. Operating under the assumption that your employer is monitoring your activities will help you to avoid behavior that could get you fired. That tip may have saved a National Suisse employee’s job. Earlier this year, a National Suisse employee told her manager that she had a migraine headache that prevented her from using her computer. National Suisse allowed the woman to take a sick day to recuperate. Once home, the woman logged on to Facebook. National Suisse terminated the employee claiming that her behavior destroyed its trust because her Facebook activity unequivocally showed that she could use a computer. You should not make any comments, post any pictures, or engage in behavior that you do not want known by your manager.
• You should monitor what people put on your page and say about you on the internet. The internet’s lawlessness has caused some to equate it with the wild west. The internet is lawless. You may conduct yourself flawlessly on the internet and still be harmed by a comment someone else makes on your page or a picture of you someone else posts. A forklift driver was terminated when his managers saw a video on YouTube of his at-work forklift stunts which included performing burnouts, wheelies, and crashing into stacks of pipes. The video was not posted by the forklift driver. It was posted by a coworker who filmed the stunts and thought they were “cool.” You should conduct regular internet searches to see what information is available about you. You should have negative or derogatory information removed.
• You should not disclose confidential company information. Employers terminate employees who disclose confidential company information on social networking websites. Last month, Barneys’ café terminated an employee for tweeting that an actress skipped out on her check. The employee did not mention the restaurant’s name. The employee was never told that he could not tweet about customers, was not asked to stop tweeting about customers, and was not previously warned that tweeting about customers was unacceptable and could result in termination. None of that stopped Barneys from terminating the employee on his first offense. You should not disclose your company’s confidential, private, proprietary, or privileged information on your social networking website or otherwise.
• You should know your company’s policy. On September 23, 2009, the Society of Corporate Compliance and Ethics reported that “social media has caught many employers by surprise” and company policies have not yet caught up with the explosion of social media use by their employees. There are some companies that have social networking policies. If your company has such a policy, you should know what your company says about acceptable and unacceptable social networking behavior. The lack of a policy does not prevent you from being disciplined or terminated. Many companies that do not have formal social networking policies are using more general company policies to discipline employees. Companies often rely on their Confidentiality policy, Inappropriate Conduct policy, and/or Anti-discrimination policy in addressing employee’s social networking activities. In fact, two Burger King executives were terminated for their blog comments. Burger King did not claim the executives violated a social networking policy; rather, Burger King claimed that the employees violated company guidelines that prohibit employees from speaking for the company outside of official corporate releases, guidelines against disclosing information about private negotiations, among other guidelines. You should be aware of any company policy that deals with conduct or the disclosure of information before engaging in social networking activities.
• You should research whether your State has an off-duty conduct law. Employees can be terminated for virtually any reason provided the reason is not discriminatory. That general rule is changing in some States. Some States have enacted laws which prohibit employers from disciplining or terminating employees for non-criminal, off-duty conduct. For instance, New York has a legal activities law that prohibits discrimination against job applicants and employees who engage in lawful activities during nonworking hours. For another instance, Colorado has a law that prohibits employers from terminating employees for lawful off-duty conduct. The off-duty conduct laws have not been tested by an employee who was terminated for social networking activities. However, those laws would seem to apply to social networking activities which for the most part are not criminal. An off-duty conduct law should severely restrict an employer’s ability to terminate employees for social networking activities. You should determine if your state has enacted laws which prohibit discipline or termination for non-criminal, off-duty conduct.

Employees’ social networking activities are increasingly becoming the basis for discipline and termination. A recent survey found that 17% of large employers have disciplined employees for social networking activities and 8% of large employers have terminated employees for social networking activities. Those numbers will probably escalate in the future, especially given the growing popularity of social networking. So, you should continue to network on Facebook, MySpace, LinkedIn, and Twitter, but be careful because your social networking activities can result in discipline, up to and including your termination.

Shalanda Ballard is an employment defense attorney who has practiced in all facets of employment litigation. Ms. Ballard was named in the National Register’s Who’s Who and in Law & Politics Magazine as a Rising Star. She has spoken at continuing legal education conferences and employment law seminars. Ms. Ballard writes an Employee Rights blog at http://www.employeerightsblog.net.

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California Labor Code section 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”[1] Simple enough, right? Unless an there is an agreement that an employment relationship is going to exist for a specific period of time, the relationship is considered “at-will” and may be terminated by either the employee or employer, with or without cause, for any reason or no reason at all. Not so fast. What constitutes an agreement between an employer and employee? The answer is, many events may convert “at-will” employment relationships into “employment for a specified term” within the meaning of Section 2922.

Many employers incorrectly assume that their employment relationships are protected by provisions in employee handbooks. Unfortunately, even clearly worded disclaimers, specifically stating that all employment relationships within their company are “at-will” are often insufficient to avioid a finding that an employment contract exists. In fact, California courts have held that, notwithstanding such disclaimers, an employer’s past practices, policies, actions and communications may result in an assurance of continued employment that defeats the presumption of “at-will” employment.

Employers regularly rely on generic employee handbooks purchased from Internet sources or office supply stores. Still others believe their business is adequately protected by a handbook the employer prepared based on his or her experience over the years. A poorly drafted employee handbook may itself defeat the presumption and create an employment relationship that may be terminated only for cause.

Probationary or Introductory Period

Many employee handbooks describe a probationary or introductory period at the beginning of the employment relationship. This provision usually exists to, among other things, define when the employee is entitled to receive company sponsored benefits. Care must be taken to insure that the introductory period provision does not imply that the “at-will” relationship exists only during that period.

Disciplinary Procedures

Employee handbooks typically include descriptions of conduct and behavior that may subject an employee to discipline. These provisions often include disciplinary procedures that result in sanctions of increased severity upon repeated violations. If not well thought out and carefully prepared, an enumeration of offenses for which an employee may be disciplined, and disciplinary procedures, may well be read to imply that “at-will” employment does not exist. A poorly drafted description of disciplinary procedures can be intrepted as establishing conditions that must occur before employment may be terminated. Further, such provisions may be read as a promise that the employee relationship will not be terminated even upon an employee’s subsequent breaches of the minimum conduct standards set forth in the handbook.

The obvious question is, given the potential pitfalls, why do I need an employee handbook to begin with? There are many advantages to a well crafted employee handbook, drafted after careful consideration of your specific business and its unique needs and circumstances.

Standardize Application of Policy

The actions and communications of managers to employees have been found by courts to have created implied employment agreements. Employee handbooks provide employers the opportunity to establish policies relating to the actions and communications of their managers and supervisors and standardize the application of these policies to their employees.

Evaluation of Current Practices and Procedures

As noted above, an employer’s past practices and policies may create an implied promise of future employment. An employee handbook requires an employer to examine the existing practices of his or her company and modify them if necessary to comply with applicable state and federal laws.

Limit Litigation Exposure

Employee handbooks can not only protect the “at-will” nature of employment relationships, they can also limit an employer’s exposure in the event of litigation. Establishing a procedure for employees to follow in the event of workplace harassment, such as reporting and investigation procedures, can be beneficial in defending against employee claims of such a nature. A well drafted employee handbook containing procedures to for employees to follow in the event of workplace harassment, including a defined reporting and investigation procedure, make available the argument that the employer exercised reasonable care to prevent and correct the harassment and the complaining employee failed to take advantage of the preventative or corrective opportunities made available to him or her.

Just as industries and market conditions regularly change so does the law in the area of labor and employment on both the federal and state levels. Employers are well advised to remain current on these changes and adapt their operating policies and procedures to limit the exposure of their business investment. To this end, employee handbooks should be reviewed by legal counsel no less than annually.
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[1] Section 2922 defines “employment for a specified term” as employment for a period greater than one month.

Dale J. Blea has been a practicing attorney in California since 1993. Mr. Blea’s primary areas of practice include business litigation and family law. He is a partner with Joseph M. Arnold in the firm of Arnold & Blea, LLP, which also serves clients in employment law, personal injury, estate planning and criminal matters. The URL for Arnold & Blea, LLP, is http://www.arnold-blea.com The author may be contacted at dblea@arnold-blea.com.

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We continue our supervisor and human resources (HR) core training on employment laws with a brief discussion on “at will” and “for cause” terminations. Montana is currently the only state considered a “for cause” state. All others are considered “at will.” Does this mean an employer can terminate an employee’s services at any time with or without cause? Yes, that is the meaning of “at will,” but is this true. No it is not true. Here are some exceptions to the at will doctrine.

Not For Exercising Rights

While there are many lawful protections employers can utilize to guard against employment lawsuit, prohibiting employees from exercising their legal rights is not one of them. You cannot prevent an employee from bringing a charge against the company. This is their right under Title VII Laws, which are enforced by the Equal Employment Opportunity Commission (EEOC). The organization cannot put the word out that employees are prevented from talking to authorities (especially during a government audit or investigation). It might very well find itself fighting very serious obstructions of justice charges.

Additionally, it is the employee’s right to bring up illegal issues such as sexual harassment, or discrimination based on say, their religion. The employer cannot punish the employee for exercising this right when they feel violated. Here is one other example. Let’s say an employee calls the Occupational Safety and Health Administration (OSHA) and reports unsafe working conditions in the workplace. It is illegal for the organization to track down the source of the leak, and punish them for making the call, which may have initiated a full blow investigation. Not only is the employee exercising their legal right, the courts ruled that the organization has a legal duty to fix those unsafe working condition in an expeditious manner.

This is why it is of utmost important that supervisors and managers learn how to get disgruntled employees and whistleblowers working for, instead of against the organization. These are valuable skills that can be learned.

Not For Illegal Activities

Another exception to “at will” says the employer cannot fire the employee for refusing to take part in illegal activities. For example; let’s say the company is preparing to roll out a massive Initial Public Offering (IPO) of its stock. If the company can show more profits to the bottom line, the asking price may be inflated to reflect these profits (hence more money for the company and stockholders). Employees are instructed to make numerous entries in the books which are both fraudulent and deceptive. In other words, they instructed to cook the company’s books. The courts say you cannot terminate an employee for refusing to go along with the deception.

Another example is a supervisor demanding a quid pro quo relationship with an employee. Saying, you either go to bed with me or you are fired. This is illegal (whether by word or deed). You cannot fire a worker for refusing to take part in illegal activities.

Not For Taking Military Leave

Employee serving in our armed forces and National Guards are protected when they are called to actively serve at the services’ demand. Make sure your supervisors are not trying to drive the employee out because they don’t like the fact they are absent for this reason. You cannot terminate an employee- while they are on military leave.

Summary

Because of various exceptions to the at will doctrine, companies must keep supervisor up to date on violation of those court ordered exceptions. Make certain your human resources personnel and supervisors know when they are prohibited from firing an employee under the at will doctrine. This white paper explicates three such exceptions.

© 2009 Cubie Davis King. All Right Reserved Internationally.

Dr. Cubie Davis King, PhD. is an adjunct professor at National University San Diego, CA in the School of Business, where he teaches Training and Development. His latest work is the Supervisor Core Training System 1.0 (SCTS 1.0). A complete boot camp series of employment law training for supervisors (new and tenured). To gain access this highly effective and engaging training system go to http://www.goldcrowninc.com

Dr. King is a Performance Technologist with a Ph.D in Training & Performance Improvement. His resume includes 9 years military service, and 12 years executive positions with Xerox & CitiGroup. For the past 13 years he has consulted with hundreds of companies on employment laws, and trained thousands of HR professionals in Live Seminars throughout the country. Dr. King has won top performance awards at every level of his storied career and is passionate about improving the performance of employees and business owners. Dr. King takes complicated yet sobering employment laws and makes them palatable and entertaining for everyone on your staff to understand. To book Dr. King for your next meeting email him @ cubie@goldcrowninc.com

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