A few days ago, The New York Times, ran a series of short essays from people on its “Room for Debate” page. The question it posed? “Should employers get tough with strict policies about social media activity, so that employees face consequences at work for what they say online?”

Standing on a soapbox

Not surprisingly, the opinion’s ranged from the “What you do or say on the Internet is none of your boss’s business except in the rare case where it affects the company” to “Absolutely, employees should face consequences at work for what they say on social media – sometimes”.

You will notice, of course, what these seemingly opposite statements have in common — the exception. 

That is, you should or shouldn’t take action — except when it matters.  Defining “when it matters” though is the tricky part.

For a hospital or financial services company, it may matter a lot more given how regulated those industries are. 

Indeed, the SEC issued guidance last week on how social media should be used in compliance with Regulation FD.  And last fall I highlighted the issue when some analysts were fired for disclosing insider information on Facebook. 

For a small company with a client base that isn’t tech-dependent, it may matter a lot less. 

The problem, of course, is still answering the question of “Does it really matter what the employee does online all the time?”

I would suggest, as I have before, that there is just not a one-size-fits-all answer to this.  Social media continues to go through “growing pains.” And companies need to figure out if the “punishment” fits the supposed “crime” online. 

What’s an employer to do if it hasn’t figured this out yet?

I’ll use what I said over a year ago:

Social media does not mean you have to throw out your existing rules. The rules on confidentiality, or anti-discrimination, for example, still apply on the online world. Employers just need to understand that they what happens in the workplace isn’t necessarily staying in the workplace anymore.

It’s been nearly two months since Connecticut’s “medical marijuana” law became effective.  Yet many employers have been blissfully ignorant about what the law provides, perhaps because Connecticut does not yet have a home-grown supply of marijuana and the registration process is just beginning.

But because of the law’s appeal, I would expect the impact to increase substantially in 2013.  Here are some key facts employers ought to know now:

What does the law provide?

  • It is legal for certain individuals to possess limited quantities of marijuana for “palliative use.”

    Are Policies “Up In Smoke”?
  • “Palliative Use” refers to the alleviation of a “qualifying patient’s” symptoms of a “debilitating medical condition.”
    • A “Qualifying Patient” is a Connecticut resident aged 18 or older who has been diagnosed by a physician as having a debilitating medical condition.
    • A “Debilitating Medical Condition” includes cancer, glaucoma, AIDS or HIV-positive status, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, Crohn’s disease, PTSD, and any other medical condition approved by the Department of Consumer Protection pursuant to regulations to be adopted.
  • Persons who may possess marijuana include qualifying patients and their “primary caregivers.”
How is the law being implemented and enforced?

What is the impact for employers?

  • Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.
  • Employers may discriminate if required by federal funding or contracting provisions.
  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.
  • But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.
What about the interaction with the ADA?
 
There has yet to be a Connecticut case on this, but a recent case from the Ninth Circuit suggests the answer to the question: “What do I do if my employee asks to be permitted to smoke medical pot at work as a reasonable accommodation for a disabling medical condition?”  Because federal law still prohibits possession/use of marijuana, the court concluded that the ADA does not require this accommodation.
 
Will Connecticut law follow? We likely won’t have an answer to this question for some time.
 
What should employers consider doing now?
 
Employers should educate their staff as to the requirements of this new medical marijuana law and update policies, where necessary, to reflect the new legal requirements. 
 
For more on the national marijuana legalization trend, see this article in today’s Employment Law Daily.  And for more on the Connecticut law in general, see this article from the Connecticut Lawyer magazine (CBA membership required.)

The EEOC yesterday released important new guidance for employers on the use of arrest and conviction records by employers under Title VII.  You can read the guidance here as well as a short question-and-answer document too. 

For employers in Connecticut, this new guidance only adds to the state-specific rules we have here in state and should leave most employers scratching their heads about yet another goverment regulation on something that had previously been cleared for use.

You can read my prior posts about the use of criminal records in Connecticut here, here and here.

The EEOC guidance doesn’t go as far as some has feared by banning background checks entirely but it still suggests a plan of action that will be onerous for many employers. 

Now, you may be asking how the EEOC is even involved in this issue given that their realm is typically discrimination cases.  But the EEOC says that they are concerned about two types of actions which may violate federal law. 

There are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”). First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.

Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

 How can employer  consistently meet the “job related and consistent with business necessity” defense?  The EEOC suggests two situations:

  • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job … The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.

Of course, the EEOC also notes that such an individualized assessment is not required by Title VII “in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”

As Jon Hyman, of the Ohio Employer’s Law Blog, is quick to note — some of this guidance may be overreaching by the EEOC.  Nevertheless, employers would be wise to read it and consider implementing some of the best practices suggested by the EEOC. Among them:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

The New York Times this week published a series of articles revealing studies that showed that drivers who sent text messages were 23 times more likely to get into a collision.  Even the casual use of cell phones while driving may increase the risk of accidents.

In light of these reports, what — if anything — should employers be doing about this? That is the subject of a recent blog post by Russell Cawyer of the Texas Employment Law Update.   He suggests a fairly strict approach:

Given that we live in a world where Darwinian principles don’t work quickly enough to thin the herd of those too "distracted" to realize that they should not text message while driving, employers should considering adding specific prohibitions against using laptop computers, personal handheld devices, GPS/navigation devices and text messaging while driving to their vehicle fleet usage policies and other policies that govern employees who may drive as part of their duties and responsibilities….

Employers should ensure that their fleet usage policies are updated to prohibit the types of activities employees may engage in while using company vehicles or on company business and should vigorously enforce those policies. Failure to do so can give rise to potential tort claims when those employees are involved in accidents and there is an indication that the driver was distracted because of cell phone, PDA or other non-driving activity.

It’s hard to disagree with such wisdom in the abstract. After all, using a laptop while driving isn’t the safest thing.

But the problem with such blanket prohibitions is two fold: First, it treats all smart phone use in the car the same. Obviously, being stopped a traffic light to look down at a BlackBerry or get directions from an iPhone is different than typing out a letter on a laptop.  Talking on a hands-free device on a back road may be different than texting while zooming down the interstate.

But second, employees are under tremendous pressure from work to "stay connected" and to be responsive when out of the office.  While it may have been acceptable to be "out of touch" while in your car 15 years ago, that expectation has changed. And until a corporate culture is revised to make it "acceptable" again to be unreachable while driving a car, the push-and-pull of cell phone use will continue to be an issue.

Each company will need to review their policies and determine what is the appropriate level of risk and tolerance it has. Some companies will continue to ban the practice outright, which has a certain appeal to it. Others, instead of an outright prohibition, may want to focus on a overall safe driving practice, while minimizes telephone calls and suggests that employees use hands free devices. 

In any event, ensure that your company’s practices are consistent with state law. Connecticut, for example, has placed certain restrictions on the use of cell phones while driving.  And word is that the U.S. Senate is now considering linking highway funds with an outright ban on texting. Stay tuned.