What Would Clooney Think?
What Would Clooney Think?

Your employee that you are firing should not hear about his firing from a television report first.

I suppose that would seem an obvious rule to follow. But apparently not.

Let me back up.

Earlier today, the President fired FBI Director James Comey — an act that really is more for politics blogs, than an employment law blog.

But as the details of the firing trickled out in the evening, one detail jumped out at me — James Comey found out he was fired through the television.

From The New York Times:

Mr. Comey was addressing a group of F.B.I. employees in Los Angeles when a television in the background flashed the news that he had been fired.

In response, Mr. Comey laughed, saying he thought it was a fairly funny prank.

Then his staff started scurrying around in the background and told Mr. Comey that he should step into a nearby office.

Now, I’m sure there are many who don’t feel sorry for Mr. Comey; but still, where’s the humanity in firing someone via television?

Of course, this kind of schtick isn’t reserved just for politics. I remember back in 2009, I gave the following tip as well: Do not do layoffs or firings via e-mail. Period. (And last year, I wrote about how to conduct firings without getting sued too.)

So, for employers that are having to conduct firings, let me offer five suggestions for the actual informing of employees that they are being fired.

  1. Do it in person if possible, and have a witness.  If it’s not possible (distance, other circumstances), a phone call is a backup option.
  2. Do it in private.  Pick a time perhaps near the end of the day (or beginning) and perhaps in a location in the office that is away from crowds.
  3. Be brief and direct.  And plan in advance, what you are going to say.  Don’t draw it out, and don’t use wishy-washy language.  Some employers start with the “I have some bad news for you today.”
  4. Don’t argue with the employee or get into lengthy discussions regarding the termination. Be clear that the decision is final.
  5. Be sensitive.  Yes, firing an employee is typically hard on the employer, but guess what? It’s harder on the employee. Always.  Acknowledge the employee may disagree with the decision but be consistent with your message.

There is obviously a lot more to a termination meeting than this. Successful meetings are the result of preparation and practice.

But just remember: Your employee should find out he is being fired first from you — not a third party.

robertsWith the new year upon us, cyberthieves are once again attempting to prey on unwitting HR professionals, as my colleague William Roberts explained in an article last week for SHRM on phishing.

The scam goes like this. As an HR professional, you get an e-mail from your boss (or your boss’s boss) that seems legitimate…and urgent. Something like this:

I’m in the middle of a negotiation so won’t be available by cell or e-mail but I need you to send W-2s for the management team to our new accountants. You can e-mail them to [____________]. Needs to be done today. Sorry for the rush on this and please take this as an exception to normal protocol. Thanks. – Alan

It’s happened before.  Indeed, as Bill explained in the article:

“Alan was the chief financial officer,” said William J. Roberts, a Hartford, Conn.-based data privacy attorney with the law firm Shipman & Goodwin LLP. But in this case, it wasn’t Alan who was sending the e-mail. Despite the company’s policy prohibiting employees from sending sensitive documents through e-mail, a newly hired junior HR professional fell for the phishing scam and sent the W-2s to the cyberthief’s e-mail address.

That’s more than just an “Oops” moment.

Although the IRS is taking steps to help reduce this, the best defense is for HR professionals to be aware of this scam.  I previously discussed this back in March 2016 with a quick post but it’s worth looking at some of the tips presented in the SHRM article including:

  • Train employees on cybersecurity awareness. Many companies do not.
  • Use common sense and avoid making electronic requests for sensitive data. It’s not just an e-mail threat; phishing by text is also on the rise….
  • If you receive an e-mail from upper management, verify the request….

starrMy colleague Gary Starr returns today with a story worth reading about the need for employers to secure confidential information.  Although it is based on Massachusetts, the concepts it covers may have some carryover to employers elsewhere as well.  

Employers that maintain records of their employees and customers and allow employees have access to confidential information have long needed policies that not only secure the information, but ensure that employees who have been granted access to such information are complying with the corporate policies and are trustworthy.

An insurance agency in Massachusetts thought it had done everything right, but was sued for negligence in its retention of an employee that it thought was trustworthy, but was not.

An employee used her computer to access confidential information that she then gave to her boyfriend about the identity of a witness to a car accident in which the boyfriend had been involved with her car.  The boyfriend used that information to contact and threaten the witness.  The witness reported the threat to the police and ultimately the boyfriend and the employee pleaded guilty to witness intimidation and conspiracy.  After the police visited the employer to obtain information about the threat, which was traced back to the employee, the employer fired the employee.

That, however, did not end the tale.

The witness then sued the employer for failing to safeguard personal information, and for negligent retention and negligent supervision.  While the trial court dismissed the case, the appellate court has determined that the facts alleged are sufficient to go to trial.

Where did the employer go wrong?  The company had adopted a data security plan and policy that prohibited employees from accessing or using personal information for personal purposes.  The computer software even required employees, who wished to access the data base with confidential information, to agree to use the information for one of four limited purposes, all of which were business related.

Those were positive steps.

The problem arose because the unrestricted access did not stop the employee from reviewing information that had an impact on her personally.  The second failure had to do with an inadequate investigation of the employee’s background and simply taking the employees word about a weapons arrest that occurred during her employment in another state.

The employee told her boss that the arrest was a misunderstanding, that she was clearing it up, and subsequently said it was resolved.  The employer simply took her word for it.

What he would have discovered with a very simple inquiry was that there were serious issues with her honesty and fitness for accessing other people’s personal information.  The company could have learned that she was traveling with her boyfriend when they were stopped for speeding and that she was arrested for having two semi-automatic guns concealed in her purse, one had the serial numbers filed off and the other was stolen.  She also had a half-mask and police scanner.  After her arrest, she told the company that there had been a misunderstanding as the weapons belonged to her boyfriend, that she didn’t know anything about them and that she was exonerated.

Her story was not true, but her account itself should have raised questions about her having access to personal information.

The court said that the company had a duty to protect the confidential information and that it was foreseeable that the employee could access information and use it for personal gain.  The company had an obligation to investigate the employee’s continuing fitness after the arrest.  The court said that a jury could decide that the failure to take action under these circumstances was unreasonable as the company knew about the weapons charge and could have learned of her lies and her willingness to commit a crime with her boyfriend.  The company did not take sufficient steps to limit the risk of harm to those whose personal information its employees could access.

There are steps to take to avoid this problem.  After an employee is hired, that does not end the need to be vigilant about their fitness for the job.  When information comes to light that may raise questions about the actions of an employee, an employer cannot simply take his/her word for what occurred.  It must take affirmative steps to explore what the underlying issue is, analyze the employee’s story, and assess the risk the employee poses if access to confidential information is abused or if other employees and the public may be put at risk.

 

Confession: Back to the Future is my favorite movie (though ask me in two months and I’ll probably say it’s actually Star Wars — employment lawyer’s prerogative).

So, how could I let “Back to the Future” day pass without an employment law-related post!

For those (strange) people who don’t know what I’m talking about — today’s the day that Michael J. Fox (or at least his character “Marty McFly”) travels to in “future” in the Back to the Future trilogy.

Most news outlets are focusing on the lack of hoverboards as a “failed” prediction on the future. (And the Cubs winning the World Series now seems a bit far fetched today too).

But something else that hasn’t been mentioned much — the workplace. There’s a notable scene in Back to the Future Part II in which an older Marty McFly engages in some type of illegal transaction on the evening of October 21, 2015.  He scans a card — seemingly for a black market product.  fired

Only problem? Marty’s boss — Ito Fujitsu — is monitoring the illegal scan.  He immediately sets up a video telephone call with Marty at his home. And tells Marty he’s fired. To reinforce that fact, he sends Marty a fax reading “YOU’RE FIRED!!!” to all the fax machines in Marty’s house.

I remember watching this scene when the movie came out and two things still stand out: 1) It seemed pretty awful to fire someone via telephone call; and, 2) How cool is it that Marty had fax machines in bunch of different rooms!

(I also thought how strange it would be to wear two ties — thankfully that fashion trend went nowhere.)

Now that we’ve reached the date — how does it hold up?

Well, in some ways, not well at all.  Fax machines are nearly extinct and no one has them in various rooms in their house.

But in other ways, I still think we feel the same way about firing someone “over the phone”, or now e-mail — it seems pretty harsh.  Recall the outrage that people felt with Radio Shack laid off people via e-mail nearly a decade ago.

And so, one lesson we can still learn from the movie today? It’s still best to do important employment decisions in person.

And whatever you do, don’t send a fax saying “You’re Fired!!!”  After today, that’s history.

secretsEarlier this month, The New York Times ran another column in its Workalogist series that asked the following question:

Are conversations with a human resources department confidential? I’m contemplating retirement in about three years and would like to gather benefit information from human resources now — but I do not want my supervisor to know. Once I decide, I would like to give three weeks’ notice.

In responding, the Workalogist quotes one SHRM professional as saying that, “An H.R. professional should maintain the employee’s confidentiality to the extent possible.”  But note the caveat: HR is at the “razor’s edge of balancing confidentiality with the overall needs of the business.”  He notes that many workers assume some confidentiality even where it doesn’t exist:

Workers often assume there’s some sort of H.R. parallel to the confidentiality they’d expect from a doctor or a lawyer. That’s not the case, says Debi F. Debiak, a lawyer and labor and employment consultant in Montclair, N.J. Barring circumstances involving, for instance, a medical condition, “there is no legal obligation to maintain confidentiality” about a retirement discussion, she says.

Suzanne Lucas, the Evil HR Lady (her name, not mine), has often touched on this subject in her blog and columns.  She was asked whether it was “illegal” or immoral for the HR representative to forward to the company’s COO an employee’s angry e-mail:

Well, it’s not illegal (she says in her non-lawyer, non legal advice way). HR people are not required to keep a confidence as a doctor, priest or lawyer is. In fact, part of our job is to blab. Which means that I’m also going to suggest that it wasn’t necessarily immoral either.

Indeed, there may be times when such a referral is necessary to protect the company. Complaints of sexual harassment often need to be investigated, or reviewed.  In those instances, employers may not be able to honor a request to keep things “confidential”.

In short, those in human resources should realize that they shouldn’t make promises they can’t keep.  Protecting the company and investigating harassment complaints are two common areas when HR should be speaking up — instead of keeping silent.

The NLRB, right now, is union-friendly. We know it. Employers know it. Politicians know it. The unions know it.

It’s stacked 3-2 with Democrat appointees so the NLRB taking its training wheels off and is doing what it has always done. It has shifted its decisions based on the politics.

Yesterday represented just the latest in a long line of decisions where the NLRB has suddenly “seen the light” from a prior decision and overrules itself without much real logic.

It’s not right or wrong. This is just how the NLRB works. When Republicans controlled the Board, it did the same thing.

The NLRB rewrites its decisions. And creates fantastical changes with the use of a crayon (or pen, or keyboard) — just like that childhood story about Harold.

So, yesterday’s decision in Purple Communications, Inc. regarding the usage of an employer’s e-mail system should come as no surprise (and won’t be if you attended my firm’s Labor & Employment seminar in October where we talked about this case coming down just like this.)

I asked one of our labor gurus and a frequent blog contributor Jarad Lucan, to first recap what is going on.  He talked about this case at our October seminar:

Oh, 2007. Those were the days for employers.

The Sopranos made their exit. The last Harry Potter was released.

And the NLRB issues the Register Guard decision (see Dan’s post from way back then).  

The decision said that employees had no rights under labor law to use an employer’s email system, let alone to use it for statutorily protected communications, such as union organization efforts, as long as the restrictions placed on the email system by the employer were nondiscriminatory. 

According to the Board:

Nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.   That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that the union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation for Avon and the union. 

Yesterday, a divided Board overruled Register Guard declaring that it was incorrectly decided.  

In its Purple Communications Inc. case, the Board held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system.” 

Put differently, if an employer has allowed its employees to use its email system for non-work related  reasons (i.e., incidental personal use), then an employer must also allow those employees to use its email system for communications protected under the Act, such as communications about union organization efforts or the scheduling of solidarity marches to protest the employer’s conduct. 

Continue Reading NLRB and the “Purple” Crayon: NLRB Rewrites Its Decision on Employer E-mail

My colleague, Jarad Lucan, returns today with a primer on what it takes to establish a “prima facie” case of discrimination — the bare minimum to get the case to be considered by a court.  Today, we focus on the third element — the “adverse employment action”. What is that, you ask? Read on.

If an employee hopes to have any chance of succeeding on a discrimination claim, she must first be able to establish a prima facie case.

Generally, this means that an employee must establish that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) the adverse action took place under circumstances permitting an inference of discrimination.

Given that there are so many protected classes recognized by state and federal law (including race, gender, religion, gender identity, disability, sexual orientation, and veterans status), establishing the first prong is not particularly difficult.

In fact, in many cases (except for disability cases) an employer may concede an employee’s protected status.

Likewise, an employee can usually establish the second prong with ease. After all, employers generally do not hire individuals who are not qualified for the position.

Where an employee is likely to run into difficulty is with the fourth prong. Unless an employer chooses to openly flout the anti-discrimination laws, there is rarely obvious proof of a discriminatory action.

Now, for those of you keeping tally, you may notice that I skipped over the third prong. This was not accidental. When an employee is terminated, suspended or not promotes, there is no question that she suffered an adverse employment action.

But what about when the employee suffers some other action short of the foregoing examples? Are there certain actions an employer can take that do not amount to an adverse action as the term is understood in employment discrimination parlance?

Two recent cases, one from a Superior Court and one from the Connecticut District Court, answer that question in the affirmative.

In Powell v. Connecticut Department of Mental Health and Addiction Services, a registered nurse who was terminated after she failed to take sufficient disciplinary action against a staff member who had violated a work rule by sleeping on the job. On the day she was terminated, the nurse’s supervisor sent an e-mail to the staff notifying them of her termination. The nurse grieved her termination under the collective bargaining agreement and was reinstated.

The nurse also filed a discrimination claim not based on her termination, but based on the e-mail sent announcing her termination. According to the nurse, the employer had never announced a termination in such a manner and typically did so at a staff meeting.

In granting DMHAS’ motion for summary judgment the Superior Court indicated that the e-mail announcement as opposed to an announcement at a staff meeting was not an adverse employment action. Such an action is not a significant change in employment status.

In Avino v. Stop & Shop Supermarket Co., LLC, an employee was suspended without pay after he contacted several managers, despite instructions not to do so, having called one of them a “puppet” and another a “liar.” The employee, however, never served the suspension, instead taking advantage of vacation and sick days and an extended leave of absence before voluntarily retiring.

According to the District Court, a suspension that is never served is not an adverse employment action.  For support, the court also relied on a 2005 case out of Illinois that came to a similar conclusion.

For employers, defense of discrimination claims isn’t a one-size-fits-all proposition. Be sure to consult with your counsel about the best way to defend yourself even before a claim may be filed.

 

 

Last year, employers were taken aback when a New Jersey court ruled that an employee did have some expectation of privacy of e-mails she sent to her attorney using work computers.  The case, Stengart v. Loving Care Agency became one of the most talked about cases of the year. 

Last week, a California court came out with a decision based on California law that basically said the opposite. The New Jersey Employment Law Blog has this good post describing the key aspect:

Recently, in Holmes v. Petrovich Development Company, the California courts held that an employee who was consulting with counsel in connection with a pregnancy discrimination claim used a company system for privileged communications at her own risk.

[T]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer‟s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. By using the company‟s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) Consequently, the communications were not privileged.

What are we to make of this apparent split in how courts are reating the issue (besides differing state laws)? Well I think Frank Steinberg is dead-on with his suggestion for employees. "The question is, Stengart notwithstanding, why would an employee take the foolish risk of compromising the protection provided by the attorney-client privilege by using her employer’s e-mail system? After all, most everyone owns or has access to a personal computer, a wireless phone or Blackberry, on which secure communications can be sent."

For employers in Connecticut, the electronic monitoring statute is a must to know and follow.  I’ve previously covered it in prior posts.  Employees have no private cause of action under it (as the Connecticut Supreme court ruled in Gerardi v. City of Bridgeport, 294 Conn. 461, 985 A.2d 328 (2010) but that doesn’t mean employers can simply ignore it.

Still, courts in Connecticut have not fully adjudicated this issue. As a good summary of this issue said in a recent Connecticut Bar Association newsletter article, "in-house counsel and other attorneys who retrieve privileged information as a result of a search of the employee’s work computer — even if the data is itself “owned” by the employer — should proceed cautiously and comply in all respects with the applicable Rules of Professional Conduct." 

Moreover, employers can review their personal use policies and consider notifying employees that while personal use of computers may be permitted, employees should have no expectation of privacy of such communications. 

Another day, another story about an employee in hot water over Facebook posts

It’s becoming so commonplace that I must admit a bit of Facebook Fatigue on the subject.  I mean, how many stories do we need about an employee who says something that they think is private on Facebook only to later discover that what goes on Facebook, just doesn’t stay on Facebook anymore?

So, I’m ready to call it: Social media has officially taken over the workplace. You may not have seen the signs, but it’s here and it’s here to stay. 

If your workplace doesn’t have a social media policy, you need one.  Not 2 years from now. Now. Employees (particularly those with smart phones) can access Facebook anytime, anywhere and without guidelines, misuse and abuse is bound to occur. (Do you really think those firewalls you’ve set up are stopping much of anything anymore?)

But beyond that, I’m also calling for a bit of restraint now on the reporting of such incidents. It just doesn’t seem as newsworthy anymore. Employees get into trouble for a whole host of reasons and we don’t highlight those situations each and every time they occur. It strikes me that the "Facebook posting syndrome" is falling into the category of things we ought to expect in a workplace.

In other words, it’s the new norm. The novelty of an employer having to deal with an employee’s Facebook post that has consequences in work is wearing off.

And for employers, it should as well.  These types of episodes (to generalize) show more of a lack of common sense and discretion than anything else.  That’s not to say that you shouldn’t take them seriously — you should. But we also need some perspective on this; it’s often not the worst offense that occurs in the workplace and often times that behavior can be easily modified through some counseling and warnings.

Think back to 10-15 years ago when e-mail was introduced; in some instances, employees were misusing it through the sending of inappropriate jokes or offensive pictures and stories.  Employers went through a period of re-educating the workforce about how e-mail should and should not be used in the workplace setting.

I think we’re going through the same learning process on social media.  So use this time period as a way to educate your employee population of your expectations as an employee in this social media age.  And anticipate the Facebook issue in your workplace. With 500 million users on it, it’s not likely to go away anytime soon.

With my work on the Law & Technology Symposium for the Connecticut Bar Foundation last week, there are several employment law topics that I haven’t had time to discuss in full.

While I’ve shared some of these links via my Twitter feed (which you can find at twitter.com/danielschwartz), I thought I would recap some of the most newsworthy items of the month so far.