Wyche at Work: June 2014 Employment Update

Prepared by Ted Gentry
June 2014

Employee Handbooks and Manuals Part VI: Exploring the Blurry Line between Business and Personal through the Lens of Social Media Policies

Previous entries for Wyche at Work’s ongoing series on employee handbooks have focused on the workplace. We began the handbook series by explaining the benefits a handbook could bring to the workplace. We then spent several editions taking a look at specific policies that must or should govern any workplace by exploring contract disclaimersdrug free workplace provisions, and conduct policies. In the next two installments of our series, we will turn our attention to two policies which are increasingly common in the workplace yet evoke a fundamental question: where does the workplace end and an employee’s personal life begin?

This month we will focus on social media policies. These policies govern employee conduct on online social networking sites like Facebook, LinkedIn, Pinterest, Twitter, Instagram, and YouTube. Recent polls have shown that up to 73% of online adults use one or more of these sites. Employees’ use of these sites can have a substantial impact, both positive and negative, on the workplace and employers.

Some of the benefits of social media are obvious:

  • employers can reach new customers through social media driven marketing;
  • companies can maintain existing customer relationships by providing relevant industry information on company websites, blogs, and Twitter accounts; and
  • social media can provide an outlet for employees to share positive experiences they have had with the company.

The potential negatives of social media on the workplace are equally clear:

  • companies may lose productivity as employees can access social media sites during working hours;
  • workers may waste company resources when they use workplace computers and/or servers to access social media sites;
  • employers may encounter greater litigation exposure if employees harass, intimidate, or discriminate against co-workers on social media sites; and
  • employees may knowingly or accidently disclose confidential company information when they use social media sites to quickly transfer and disseminate confidential information.

Online conduct policies for employees can go a long way to avoiding the dark side of employee social media use. For example, these policies can be used to restrict or prohibit employees’ unauthorized use of social media during working hours and/or on company resources, prohibit harassing, intimidating, or discriminating against co-workers online, and extend existing confidentiality agreements to the online arena.

Well crafted online conduct policies can also be used to delineate between the workplace and an employee’s private space. When drafted correctly, social media policies can clarify what is company time and what is personal time and further amplify what is workplace conduct and what is personal conduct. A good social media policy should:

  • authorize when and how social media use at work or on company equipment should be used,
  • define when and how employees can speak on the company’s behalf, and
  • remind employees that what they communicate online can and does have an impact on the company and their coworkers.

Wyche at Work cautions against the temptation to craft broad prohibitions in an employee’s “on-line life,” even when such activities impact the workplace. For example, a policy that prohibits employees from transmitting disparaging comments about the company or its supervisors is likely to be carefully scrutinized and may be overturned by the National Labor Relations Board. As Wyche at Work has previously emphasized, the NLRB has increasingly protected employees’ ability to discuss their terms and conditions of employment, in an online context or otherwise. The NLRB has recently shown that it will not blindly permit the protection of company assets and reputation at the expense of an employee’s rights under the National Labor Relations Act.

Do not hesitate to contact Wyche while drafting or reviewing your social media related policies. Stay tuned for next month’s installment of our handbook series as we take a look at company equipment policies.

Pending Executive Order Expands Reach of Employment Discrimination Law

Wyche at Work has covered the potential expansion of employment discrimination and the movement to make the discrimination based on sexual orientation or gender identity illegal. The Obama administration recently signaled an intent to issue an executive order to expand the reach of employment discrimination law to prohibit discrimination based on sexual orientation and gender identity. The executive order would apply only to federal contractors and would not apply to general employers. While the United States Senate has passed the Employment Non-Discrimination Act of 2013, the United States House of Representatives has not scheduled this legislation for a vote and is not expected to pass this bill.  This inaction was a primary reason for the Obama administration’s announcement. Stay tuned to Wyche at Work as we continue to monitor and report on the anticipated executive order, ENDA, and any other updates on employment discrimination.

On the Road with Wyche at Work: DOT Proposes Wide-Ranging Rule to Prohibit Coercing Commercial Truck Drivers from Breaking the Law

Wyche at Work introduces a new semi-regular feature: “On the Road with Wyche at Work”, which will focus on employment law that relates to the transportation industry. This month we highlight news from the Federal Motor Carrier Safety Administration (the “FMCSA”).

The FMCSA is a federal agency within the Department of Transportation charged with promulgating and enforcing regulations designed to decrease the risk of and injuries resulting from commercial trucking accidents. Since its inception in 2000, the FMCSA has adopted and/or considered several rules targeting commercial trucking companies and companies that hire their own commercial truck drivers, including:

  • mandatory drug and alcohol testing for drivers,
  • mandatory sleep apnea testing for drivers,
  • maximum hour restrictions for drivers, and
  • detailed instructions on how hazardous materials must be stored and transported.

Recently the FMCSA expressed concern regarding the incentives and motivations that economic conditions place on trucking companies, the companies they ship items for, and the companies receiving items via the trucking industry. More precisely, the FMCSA stated that these conditions have caused trucking companies, shipping companies, and receiving companies to pressure drivers to take dangerous shortcuts that reduce costs and increase the speed of delivery but ultimately violate FMCSA regulations. Finally, the FMCSA was concerned that drivers who have stood up to pressure have faced reduced hours, lost assignments, and even job loss without protection from the FMCSA.

Accordingly, the FMCSA has given public notice that the agency is working on a new rule which, if adopted, would prohibit trucking companies, receivers, and shippers from pressuring drivers to violate FMCSA regulations. Anyone violating this new rule would face a fine of up to $11,000.00 per offense. Moreover, the FMCSA could punish companies violating the rule by suspending, amending, or revoking their authority to operate in commerce.

Stay tuned to Wyche at Work as we track the FMCSA’s proposed anti-coercion rule and bring you more highlights from the road.

USCIS Conducts Public Forum; E-Verify Releases Enhancements

The U.S. Citizenship and Immigration Services held a virtual forum on June 23, 2014 to discuss recent innovations and best practices regarding E-Verify, the internet-based system that allows employers to verify an employee’s eligibility to work in the United States, and the Form I-9. As we have previously discussed, virtually all employers in South Carolina and North Carolina are required to use E-Verify.

Regarding the Form I-9, speakers in the forum reminded employers to use the current form, which has a revision date of 03/08/13. Employers must provide the entire form, including the List of Acceptable Documents, to employees.

Of note in the forum were comments from the Monitoring and Compliance branch regarding the categories of noncompliance that the agency investigates:

  • Unintentional misuse (examples included not complying with the three-day rule for running E-Verify on a new employee, or verifying existing employees),
  • Suspected discriminatory use of E-Verify, and
  • Suspected fraudulent use of E-Verify.

In the case of simple misuse, USCIS may coach smaller employers via telephone or email to promote compliance; for larger employers, the agency may request desk reviews or site visits.  If the agency finds discriminatory or fraudulent use of the system, the case is forwarded to the Office of Special Counsel or Immigration and Customs Enforcement.

In conjunction with the forum, E-Verify released several enhancements on June 22, 2014:

  • E-Verify now alerts users when a case contains the same Social Security number as a previous case entered by the same employer within the last 30 days.  This duplicate case alert will display as a pop-up.
  • E-Verify now prompts users to update or validate their email and phone number when their password expires every 90 days.
  • E-Verify removed the pre-populated “Employer Representative Name” field requirement from the Further Action Notice that is generated when an employee receives a Tentative Nonconfirmation. Employers must now fill in the blank field, providing the name of the Employer Representative that initiated the case. The Further Action Notice is now available in 17 languages.

USCIS also released the E-Verify Participation and Right to Work posters in eight more foreign languages. The E-Verify Memorandum of Understanding requires enrolled employers to display four posters:

  • E-Verify Participation poster (English),
  • E-Verify Participation poster (Spanish),
  • The Office of Special Counsel’s Right To Work poster (English), and
  • The Office of Special Counsel’s Right To Work poster (Spanish).

An employer who chooses to display a poster in one of the new available languages must continue to display the English AND Spanish versions of the posters.

Speakers at the forum encouraged users to consult the E-Verify User Manual for Employers, the Memorandum of Understanding, the Form I-9 Handbook for Employers, and the E-Verify and Form I-9 websites for additional information on best practices and compliance.

South Carolina Amends Workers’ Compensation Law Regarding Drug Testing Procedures

This month South Carolina’s Governor Haley signed a bill amending the random drug and alcohol testing procedures relating to employers’ merit ratings for workers’ compensation insurance. The existing law provided a credit of at least five percent to employers who establish a program designed to prevent the use of drugs or alcoholic beverages on the job that includes provisions for random drug testing of employees and provides for a second test to be administered within thirty minutes of the first test. The amended law appears to eliminate the requirement for the second test and provides that a single sample may be split for use in first and second tests, should a second test be administered. Employers must continue to provide positive test results in writing to the employee within 24 hours of receiving the results and retain records of each test for up to one year. The law became effective June 2, 2014.

Wyche at Work lawyers published in Chambers

The Wyche employment team earned high rankings in Chambers USA: America’s Leading Lawyers for Business. Chambers identified 13 Wyche attorneys as leading lawyers in their respective practice areas based on in-depth client and peer reviews, including special recognition for Ted Gentry as a “leading lawyer” in employment law. Chambers noted that Wyche “demonstrates strength across a range of employment law matters, acting for companies and individuals in such diverse areas as disability rights, WARN Act claims, and harassment litigation.”

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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