HR Specialist: Pennsylvania Employment Law

Jurors in Pennsylvania are notoriously generous to fired employees. And that’s just the beginning. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This Pennsylvania-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: Pennsylvania Employment Law and the free report you’ll get when you subscribe...
 .

by Heather A. Hoyt, Esq.

National Public Radio recently aired a story about how employees working at IBM feel compelled to have a Facebook page. And it’s not just the newly minted, tech-savvy twentysomethings, either.

IBM managers “all the way up the chain” are on Facebook—and if you’re not, “You feel like you’re doing something wrong,” one employee said. The company actively encourages employees to use sites such as Facebook during working hours to build professional networks and exchange business ideas.

IBM is clearly not the only company employing growing throngs of Facebook loyalists. Facebook representatives say it’s fastest-growing demographic of users is the 35-and-older crowd.

But most businesses don’t have a social media culture like IBM’s. Instead, more than half of all U.S. companies prohibit the use of such sites at the office. Such policies may create more problems than they solve.

Advocates argue that social media function like the next generation of water-cooler chitchat. They say companies shouldn’t banish social media use just because they’re afraid of it or don’t understand it.

It’s not all positive 

Nevertheless, while social media sites can create positive networks and foster a sense of community and camaraderie among employees, they can also create real headaches for employers. What do you do as an employer when you learn too much about some of your employees?

Take, for example, a lawsuit pending in New Jersey federal district court against Houston’s Restaurant in Hackensack, N.J. An employee there created a workplace discussion group on his personal MySpace.com web page. The group was flagged “private” and was available by invitation only.

One member of the group, a hostess at Houston’s, showed the “private” MySpace discussion group to a Houston’s manager. Other managers soon learned about the group and asked the hostess to provide them access, which she did.

Management was irate when it saw that the discussion group included sexual comments about employees and customers, disparaging jokes about the company and references to drugs and violence. The restaurant fired both the creator of the MySpace discussion group and a contributing employee.

Privacy issues, legal concerns 

The terminated employees sued, claiming among other things, that the company violated the federal Stored Communications Act and invaded their privacy. The merit of this claim will probably depend on whether the hostess voluntarily consented to allow Houston’s managers access to her private account for the online discussion group, or if the hostess was coerced into providing the information, fearing discipline if she did not cooperate.

That’s a unique situation. Generally speaking, few laws prohibit employers from taking adverse employment action against at-will employees for their off-duty conduct.

With so many employees using these sites, it’s likely that some employees will invite management to join their Facebook pages or blogs—perhaps without realizing the full consequences.

Suppose if, instead of making some disparaging jokes about the company, an employee posted explicit pictures from her moonlighting job as an exotic dancer, or used a Facebook page to tout neo-Nazi sentiments or white supremacist ideas? Might the manager be inclined to terminate the part-time stripper on the basis of those pictures? Would the employer arguably be obliged to terminate the neo-Nazi once it learned of the employee’s racist and violent views?

What’s in your policy?

Before your company creates a policy on social networking, consider whether your business is in a heavily regulated industry (such as pharmaceuticals) or an industry that requires a particularly high level of confidentiality. The added legal complexities in those industries may weigh in favor of being extremely cautious about embracing social media as part of your company culture.

If you do decide to encourage employees to use social media at work, make it clear to all employees that they have a duty not to disclose confidential company information or trade secrets. That duty should extend even to social networking sites employees may consider “personal.”

Warn employees that they cannot defame the company or its employees. Be clear that any violation of the policy will result in discipline, up to and including immediate termination.

The lines between personal space and the workplace continue to blur. Odds are good that many forms of social media, such as Facebook and Twitter, are already thriving in your workplace. Who knows what technology is next.

As an employer in the 21st century, it’s best to make a conscious decision about how to address those issues with your employees. Proactively develop a policy so you don’t get stuck doing damage control—perhaps becoming the latest talk heard ’round the virtual water cooler. 

_________________________

Author: Heather A. Hoyt is an attorney with Pepper Hamilton LLP (www.pepperlaw.com), a Philadelphia-based multi-practice law firm. She concentrates her practice on counseling employers on labor and employment matters. Heather can be reached at (610) 640-7833 or hoyth@pepperlaw.com.