Should Employers Ask Candidates for Their Facebook Password?

There has been a lot of talk recently about prospective employers asking job candidates for their password to Facebook or other social media sites. And about making a job offer contingent upon not just passing the traditional background search (criminal, job and education verification, credit check in some case0 but upon passing the employer’s idea of a “clean” social media background. Is this a good idea?

No.

While it is unlikely that doing so would violate any privacy laws (if we are dealing with private employment and thus not dealing with constitutional concerns), there is simply too much information on social media sites that an employer has no business knowing. I can look through someone’s Facebook page and learn their religion, if they are married, their sexual orientation, if they drink and what their political leanings are. Most employers know that they can’t ask these questions during a job interview, so why should they be able to learn about this information through social media, especially when the employee may have made the information “private” with the appropriate privacy settings?

In addition, there is nothing that says that even if someone did something stupid while on vacation, or went crazy at a party at took some pictures drinking beer or some cocktail, that he or she would not be a good employee. Private lives should remain that, and asking candidates for their social media passwords is prying too much into employees’ private spheres.

Employer Advice: Don’t Give Glowing Reviews on LinkedIn

Minneapolis Employment Attorney

Social media has created new issues for everyone in today’s linked-in world: employers, employees, lawyers and courts. We are learning as we go on how to navigate social media websites learning from mistakes (hopefully of others) about what not to do.

This is a good piece of advice about how employers should not use LinkedIn:

Social Media and Employment Law

Be careful about giving glowing reviews and recommendations about employees on LinkedIn. We often get requests to write them, but think carefully before you do.  Employers risk having the recommendations used against them in a discrimination or harassment suit. Just like email, notes in personnel files and all other types of documentation and correspondence can be used against an employer in a lawsuit, so can a posting or recommendation on LinkedIn or any other social media website.

Recommended Reading: Social Media and Employment

The legal issues surrounding social media use, employer and employees continues to grow as the use of sites like Twitter, Facebook and LinkedIn for professional reasons increases. This is a link to a CNN article that discusses some of the most recent cases that have arise and that demonstrate the uncertainty in this new area of law.

The article talks about the case of Phone Dog v. Kravitz, where a former employee who took his more than 17,000 Twitter followers with him after he left his job at Phone Dog, a website that reviews mobile gadgets, is now being sued by his former employer for ownership of those followers. While employed for Phone Dog, Noah Kravitz used the account name @PhoneDog_Noah; after he left, he changed his name to @noahkravitz. Once he set up this new account, he began sharing things he wrote for other tech sites, a move PhoneDog said wasn’t fair because the company had helped establish his online identity on Twitter and elsewhere. The employer is now asking for damage equal to $2.50 for each Twitter follower that he brought with him to the new account name. With 17,000 followers, that amounts to $42,500!

In the article, there is also mention of the importance of a social media policy and how many companies are now implementing one and requiring employees to follow it.

What about in your company? Have you got a social media policy? Is it followed and enforced? Have any employees ever been disciplined for their social media use?

What to do when if you are a franchisee and the franchisor goes bankrupt

Interesting story in the New York Time Small Business section the other day. It dealt with a nightmare scenario of anyone who purchases a franchise: the franchisor goes bankrupt. The article talks about the story of William Burris, who was faced with that situation only five months after he spent more than $100,000 a purchased a Australian franchise that rented moving boxes.

The story provides inspiration and idea for how to face a situation that may seem dire, but with hard work and ingenuity, can end up having a good ending.

Name Confusion Leads to David v. Goliath Fight

I read an interesting article a couple of weeks ago in the New York Time. It is about a new company called Willa (named after the founder’s daughter) that is being sued by Proctor & Gamble, the maker of Wella hair-care products. Willa makes skin-care products aimed at tweens, and P&G claims that the names are confusingly similar and has demanded that Willa stop. Willa claims that this is another case of trademark bullying, a big company using its legal and economic might to get a small company to capitulate.

However, what is usual in this case is that rather than giving in, as most small companies do when faced with a cease and desist or any legal threat by a big name like P&G, Willa decided to fight. So far, the company has racked up approximately $750,000 in legal bills but intends to fight to the bitter end what it sees as its right to use the name Willa.

The NY Times Small Business Blog had an interesting take on the fight, claiming that although the legal fees might seem overwhelming for a new company and enough to send it under, a fight like this (especially when featured in the NY Times) can be a blessing in disguise. Americans love to root for the underdog and other companies that have been in a similar position have come out ahead as the publicity brings them more business than they ever would have had without the legal suit.

Trademark law prohibits a company from using the same or a similar name to describe goods or services in the same industry from one that is already used in commerce and/or registered with the US Patent and Trade Mark Office. The test is whether the names are confusingly similar. The author of the Small Business Blog, Tom Szaky, believes that Willa and Wella are confusingly similar. The founder of Willa alleges that the names aren’t confusingly similar, as Wella is only for hair-care products while the Willa line is for skin-care products.

What do you think? Is this trademark bullying?

Law Firms With Monthly Retainer Packages

At Attenza Law, we offer Business Per Te, fixed-fee monthly membership packages for growing businesses. You pay a certain amount per month (from $199 to $1,269) and receive lots of benefits, such as:

  • Access to one of our Minnesota business and employment attorneys, ranging from 2 hours per month to unlimited
  • Discounts on other legal services that range from 5% to 15%
  • Review and drafting of agreements

Here is a link with more details.

However, we aren’t the only ones who offer these services. For those businesses in California and in particular in the San Diego area, Top Floor Legal offers the same convenient service of a monthly retainer. Go to the home page and see the great video that Nasir Pasha, the owner of Top Floor Legal, has created. Like us, Top Floor Legal stresses the convenience and predicatability of working with a firm on a retainer or fixed-fee arrangement.

California and Disability Discrimination

I was in LA not too long ago. It was the first time I had been to southern California. What a great place, with lovely weather, a beautiful ocean and lots of places to see and visit.  And speaking of California, I have been looking at their anti-discrimination statute, which is called the Fair Employment and Housing Act (FEHA). As I wrote in a previous post,  California has created a separate and independent claim for failure to engage in good faith in the interactive process. In the research that I did, no other states have this as a separate claim. There is a requirement that an employer and employee engage in the interactive process, but no claim if it is not done. I think there should be to ensure that all possible accommodations are explored before determining that an impasse has been reached.

Another provision that can’t help but catch your attention is the state’s definition of disability. In almost all other states (including Minnesota) a disability is defined as a “physical or mental impairment that substantially (or materially in Minnesota’s Human Rights Act) limits a major life activity. In contrast, California defined a disability as an impairment that “limits” a major life activity, or that limits the “achievement” of a major life activity. This is a much more expansive and easy to reach standard than those imposed on employees in so many other states and under the federal law, the Americans with Disabilities Act.

Finally, the California FEHA has a list of conditions that are per se disabilities, like the EEOC has proposed in its recently released proposed regulations. These conditions include HIV/AIDS, hepatisis, epilelsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease. Including a list of per se disabilities is the best way to ensure that defendants/employers don’t try to play the game of arguing that a disabled employee isn’t disabled, as happened in this disability discrimination case involving Abercrombie & Fitch.

Some Tips on Tip Pooling and Tips Sharing

Minnesota Employment Law on Tip Pooling and Tip Sharing

It is hard to go to a restaurant, coffee shop or bar without seeing a tip jar. For anyone who has saved their spare change, you know how quickly those nickels and dimes (and even dollar bills) can add up to signficant money. For employees in these establishments, a tip jar can be an easy and non-confrontational way to increase their income. But what about Minnesota state employment law? Are they violated when businesses put out tip jars and when the employees split the tips?

Minnesota law states that pooling or sharing of gratuities “may not be a condition of employment.” Minnesota courts have stated that tips belong to the employee who earned it and for this reason, he or she can’t be forced to share the money. Thus, an employer cannot require an employee who normally receives tips directly from customers (a “direct employee,” according to the law) to share his or her tips with other employees. Federal law, and some other states, do allow tip sharing to be mandatory. But Minnesota is different.

So going back to the tip jar. The first question would be whether baristas at coffee shops are those type of employees who normally receive tips. The answer would likely be yes. So in this case, the next issue is who has decided to start a tip jar. If it was the employer and if the employer is requiring it, that policy would be in violation of Minnesota law.

It has to be up to the employees to decide if and how they will share the tips. It would be difficult (but not impossible) to divide up the tips according to who earned them if an employee decided not to participate in the tip sharing. It would simply require vigilance to remove from the jar that person’s tip immediately after a customer deposited it in the jar. It is important to remember that each employee has the right to decide whether to participate or not and his or her refusal cannot be a reason to terminate employment.

Violations of this Minnesota law can lead to investigations by the Department of Labor and fines.

Another issue could be whether the employee who refuses is harasses by other employees and coerced to participate. Allowing such behavior to take place could lead to other liability for the employer. Click here to read more.

 

Adopt a Uniform Policy on Uniforms

Minnesota Employment Law on What Employees Can Pay For

We are all trying to cut costs and reduce spending these days. For employers whose employees wear a uniform, requiring the employees to pay for them can seem like a simple, yet cost-effective way to cut down on costs. But adopting such a policy wouldn’t be much of a cost-saver if it were in violation of Minnesota law and would expose the employer to potential fines and fees down the road. What does Minnesota law say about this?

Minnesota Statute 181.79 is the law that we have to look at for the answer to this question. The law is clear: employers may not require their employees to pay for uniforms. The statute states that employers can deduct from an employee’s wages for faulty workmanship, loss, theft, damage to property or “other claimed indebtedness running from the employee to the employer.” It talks about a loss and about an employee reimbursing the employer for such loss. A uniform would not be considered a loss.

Furthermore, it is very important to note that deductions cannot be taken from an employee’s wages unless he or she has given written authorization to the employer to do so. The written authorization must be signed after the loss has taken place.

So in a nutshell, deducations can be made and an employee can be made to pay for things like:

  • breaking company property
  • stealing company property
  • poor workmanship that cost the company money to replace or repair

BUT, the deductions can be made only if the employee authorizes the deductions in writing after the loss, damage or theft took place.

Deducting for anything else, such as uniforms, and doing so without written authorization, can leave you open to investigations by the Department of Labor, fines and attorney’s fees. Any questions about what you can or can’t do? Give us a call.

 

 

 

Workplace Bullying: Can You Be Held Liable?

What Is Your Liability for Workplace Bullying

We have all heard a lot about bullying lately, especially in the context of school bullying. Although we might not hear about it as often, workplace bullying is also a problem. In 2010, the Workplace Bullying Institute found that 35% of all American workers have experienced first-hand bullying in the workplace, while 15% have witnessed it.

I wrote this post about tip sharing, stressing that Minnesota law prohibits employers from requiring employees to take part in a tip sharing arrangement. However, when talking with an employee of a local restaurant the other day and when explaining this law to him, he asked me this: What about if the other employees harass an employee who doesn’t want to share his tips? Then what? What choice does the employee have?”

That a good question and indeed, what should an employer do if this is going on? First, the employer needs to be aware of what is happening amongst employees. This means establishing clear and open communication so that an employee who is being harassed feels that he can come forward, complain and be protected. It also means having open eyes and open ears to catch on to what is happening. Furthermore, it means educating your employees about the law, conducting trainings and reminding employees about what they can and can’t do.

If an employee is bullied by co-workers for not taking part in a tip sharing pool, an employer could be liable for the behavior of those employees. Employers are required to provide a safe and secure place to work. This duty extends not only to the public, but also to employees. This means not only repairing and maintaining equipment, but also making sure that harassment and bullying doesn’t take place and keeping violence out of the workplace.

If an employer who does not take reasonable steps to protect an employee and if the employee suffers harm as a result of the bullying, the employer could be liable for what is called negligent hiring or supervision. This means that the employer didn’t act reasonably in hiring or supervising an employee and that injuries were suffered.

The moral of the story: Train your employees. Don’t tolerate violence or bullying. Inform employees about what the law allows and doesn’t.