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SHRM Newsletter- EEOC Files Flurry of Year-End Lawsuits
Posted on Oct. 8, 2012

This is Utah SHRM Legal-mail no. 2012-19 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  EEOC FILES FLURRY OF YEAR-END LAWSUITS, MOST RE: DISABILITY

-  UTAH EMPLOYER HIT WITH VERDICT IN EMPLOYMENT CASE

-  CURSING AND THREATS MAY NOT JUSTIFY TERMINATION

-  NLRB STRIKES DOWN EMPLOYER’S SOCIAL MEDIA RULES

-  HERE IS THE NLRB’S APPROVED SOCIAL MEDIA POLICY

-  TEN COMMANDMENTS OF HIRING AND FIRING- WEBINAR THIS THURSDAY

EEOC FILES FLURRY OF YEAR-END LAWSUITS, MOST RE: DISABILITY: The Equal Employment Opportunity Commission (EEOC) filed a flurry of lawsuits just before its fiscal year ended on September 30, 2012. Most of the lawsuits filed involved allegations of disability bias. The allegations involved in those cases include that: (1) an employer allegedly withdrew job offers once it learned that certain applicants had disabilities; (2) an employer refused to accommodate an employee with a club foot; (3) an employer improperly denied additional leave time to an employee; (4) an employer’s allegedly-retaliatory refusal to rehire a laid off disabled employee into a vacant position that the employee had held before; and (5) an employer’s discharge of an employee it regarded as disabled even though he had returned to work without restrictions after a weeklong hospital stay. These cases are timely reminders that employers must deal carefully with health issues at work. Need further proof?  Keep reading...

UTAH EMPLOYER HIT WITH VERDICT IN EMPLOYMENT CASE: A Utah private college has been hit with a large jury verdict in an employment case. The court awarded some $400,000 in damages and over $200,000 in attorney’s fees after ruling that the employer was liable for disability discrimination and retaliation. The case involved the termination of an employee after a drug screen showed the presence of drugs that he had been prescribed for his back impairment. The employer argued that the employee was behaving erratically and taking drugs in excess of the prescription and thus was an illegal drug user not covered by the law, but the court disagreed with this argument. The court also agreed with the employee’s contentions that the employer retaliated after he complained he had been harassed with a negative performance review (the first one he got in twenty years of employment) after he returned to work from substance abuse rehabilitation. The court said the employer should have examined the harassment claims honestly. The employer is appealing the ruling.

CURSING AND THREATS MAY NOT JUSTIFY TERMINATION: The National Labor Relations Board (NLRB) recently decided that a union worker’s threatening and vulgar message to a co-worker did not justify his discharge. The NLRB ruled that even though the statements were highly-offensive and co-workers had complained about them, they were protected because they were the employee’s impulsive attempts to express his concern to co-workers over faltering support for the union. A dissenting NLRB member said the decision will improperly “fetter the ability of employers...to maintain civility and order in the workplace.” This ruling reminds employers of the risks inherent in disciplining employees- unionized or not- for statements made to co-workers about working conditions and union activity.

NLRB STRIKES DOWN EMPLOYER’S SOCIAL MEDIA RULES: The NLRB also recently struck down an employer’s rules regarding social media usage. The company’s policy prohibited electronic postings that damage the company or any person’s reputation. The NLRB found that this language could reasonably be understood by employees as limiting protected comments to co-workers about the terms and conditions of employment. The NLRB also noted that the policy did not include language that would tend to limit its application, perhaps an implicit suggestion that the policy might have stood if it had expressly stated it did not apply to conduct protected by Section 7 of the National labor Relations Act.

HERE IS THE NLRB’S APPROVED SOCIAL MEDIA POLICY: The NLRB’s General Counsel Memo on this issue, which was published on May 30, 2012, included the following approved social media policy:

Social Media Policy

At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

Guidelines

In the rapidly expanding world of electronic communication, social media can mean many things.  Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow employees or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules

Carefully read these guidelines, the [Employer] Information Systems Policy and the Equal Employment Opportunity Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful

Always be fair and courteous to fellow employees and customers, or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by communicating with Human Resources than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers or employees or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow employees, customers, or people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

  • Maintain the confidentiality of [Employer] trade secrets and private or confidential information, as those terms are defined by the [Confidentiality Policy]. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
  • Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as an employee of [Employer].
  • Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an employee and make it clear that your views do not represent those of [Employer], fellow employees, customers, or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work

Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy.

Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.

For more information

If you have questions or need further guidance, please contact your HR representative.

WEBINAR THIS THURSDAY- TEN COMMANDMENTS OF HIRING AND FIRING: In case you want to join in, I am presenting a one hour webinar on the Ten Commandments of Hiring and Firing at 10 am (Utah time) on Thursday, October 11, 2012. The program will provide some practical commandments that will help you avoid many of the HR sins that lead to expensive employment lawsuits.  Click here for more details: http://webinar-masters.com/?event=the-ten-commandments-of-hiring-and-firing

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012