Social Media: Should You Use Social Media in an Internal Investigation?

Investigating Employees Through Their Social Media Accounts

Social media can provide a lot of information about people’s lives. Why would an employer want to know what an employee is doing through social media?

An employer may suspect that an employee is doing other things during work that do not relate to his or her job, such as posting on Facebook, watching Youtube videos, etc. An employer may also wonder if the employee is speaking badly about the company or discussing private company information.

Any number of reasons could motivate an employer to pressure an employee for social media account information or to access the employee’s site without permission.

What laws protect the privacy rights of employees?

The American Bar Association warns employers about not violating the Stored Communication Act (SCA). The SCA includes social networking sites when it states that individuals are subject to criminal and civil actions when the individual:

“Intentionally accesses without authorization a facility through which an electronic communication service is provided”

“Intentionally exceeds an authorization to access that facility”

(By intentionally accessing) “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system”

Keep in mind that a government institution may obtain a subpoena for an investigation and through court approval access social networks for information. However, a private company conducting an internal investigation does not have this right.

Employers who obtain access to social media under false pretenses or through duress can be held liable and courts typically do not view favorably attempts to access an employee’s account information or the private account of a “friend.”

However, in some instances where employers obtain the information without asking or pressuring an employee to provide it, the courts have allowed it.

Get Legal Help with Your Questions about Employment Law

It is often wise to seek legal advice when you have questions about accessing an employee’s social media information. Stephen Hans & Associates offers seasoned legal guidance and representation to assist business owners with employment issues.

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The Stop Sexual Harassment in NYC Act

A New Law to Further the Prevention of Sexual Harassment in NYC Workplaces

The New York City Council recently passed legislation called the Stop Sexual Harassment in NYC Act. If Mayor Bill de Blasio signs the bill, it will go into effect on April 1, 2019.

What changes were introduced?

  • Several major changes included:
  • Mandatory anti-sexual harassment training
  • Employer requirements to display anti-sexual harassment posters of rights and responsibilities and to provide information sheets to employees
  • City Commission requirements to post resources on their website about sexual harassment

Who must receive the mandatory anti-harassment training?

All employers with 15 or more employees (including interns) must conduct yearly anti-sexual harassment training for all their employees. Supervisors and managers must also receive the annual training. The training must cover sexual harassment definitions and examples, bystander intervention education, and education about how to file complaints within the company and at the city, state and federal levels.

New NYC employees who work 80 or more hours per year on a full or part-time basis must receive the training within 90 days of initially being hired. If the employee received the training while working for another employer within the yearly training period, the employee can wait until the next year for annual training. Employers must receive a signed acknowledgement from the employee that he or she received the training.

What notifications must employers provide?

Employers must display a poster of anti-sexual harassment rights and responsibilities in a conspicuous spot and provide new employees with a sexual harassment information sheet that the City Commission has designed. This requirement takes effect 120 days after the mayor signs the act into law.

The City Commission must post resources about sexual harassment on its website and provide specific examples of sexual harassment, retaliation, information on bystander prevention and explanations regarding how to file complaints with the city, state and federal agencies.

(Further information is available at the National Law Review.)

Get Legal Help with New York City Anti-Harassment Law

If you are facing a sexual harassment claim, Stephen Hans & Associates can assist you in protecting your rights. Our firm offers seasoned legal guidance when advising and representing employers in disputed employment issues.

 

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What Employers Should Know About the New York Women’s Equality Act

Clarifications for Employers for Women in the Workplace

In June of 2014, the Governor Andrew Cuomo of New York signed amendments to the New York State Human Rights Law, which bolstered civil rights for women.

It’s important for employers understand the changes under the Women’s Equality Act so they can abide by the law and avoid discrimination disputes in the workplace.

Womans Equal Rights, NY Equality Act

How does the act affect pay equity?

Women must receive the same pay as men when performing the same work. However, the previous law enabled employers to suspend or terminate employees for discussing their wages with each other. This law prevents employers from firing or suspending employees who discuss wages with each other and also increases the amount in damages an employee can seek if an employer violates the new law.

How did the definition of “employer” change in respect to sexual harassment?

Previously, business owners with four or fewer employees were not considered “employers” under the Human Rights law, and therefore the sexual harassment law did not apply to them. The new law eliminates this distinction, and employees subjected to sexual harassment while working for any size company may file sexual harassment complaints.

Is it lawful to not hire or promote a woman because of her status of being a parent and her familial duties?

The new law prohibits employers, employment agencies, and labor organizations from discriminating against women based on their familial status. They cannot assume that because a women has children or plans to have a family that this fact disqualifies her for hiring or job promotion.

What changes were included in the act that affects pregnancy discrimination?

Employers are obligated to provide reasonable accommodations for pregnant women, due to the fact that certain pregnancies involve medical conditions. The previous law was confusing and often was wrongly interpreted. The new act clarified employers’ responsibilities to perform a reasonable analysis for pregnant employees.

Do You Have Questions about Women’s Rights in the Workplace?

Our attorneys are glad to answer your questions and address your concerns.

Stephen Hans & Associates provides decades of experience to business owners regarding employment related issues.

 

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Wage and Hour Investigations: What You Should Know About Them

Facing investigation by the New York Department of Labor for alleged unpaid wages is a serious matter. How you handle the investigation can often determine the outcome, and it is wise to retain an experienced employment law defense attorney from the outset to represent you and protect your rights.

Under the guidance of your attorney, here are some actions you should take:

Respect the agency doing the investigation. If you provide ample opportunity for discussions and engage in earnest, you may be able to avoid an administrative hearing or enforcement proceeding in court. Showing respect and cooperation are vital for avoiding further legal actions.

Provide complete and detailed records. Investigators expect employers to be forthcoming and not hide information. Suspicions that employers may be trying to deceive them or hide information can lead to more severe actions. Cooperation is the best policy.

Make corrections and comply with regulations. If you conduct a self-audit to correct any underpayment activity and take steps to ensure compliance, you can turn the investigation into an opportunity to identify errors and reform payroll practices that were problematic. This type of action can often prevent worse problems from developing.

Follow your attorney’s advice and guidance. Through seasoned assessment and evaluation of your situation, an attorney can advise actions you can take to limit your liability with the investigating agency.

Potential Results of Poorly Handled Wage and Hour Investigations

According to the New York Department of Labor, the Labor Standards Division investigates claims for unpaid wages and will attempt to resolve the differences between employers and employees.

However, it is crucial to understand that the Commission of Labor has broad authority in such matters and is authorized to do the following, if necessary:

  • Institute criminal proceedings for failure to pay wages
  • Require an employer to pay interest and civil penalties on unpaid wages
  • Take over handling the employee’s wage claim
  • Institute a civil lawsuit to recover wages that are due
  • Require the employer to pay up to 100 percent of the claim in liquidated damages

Get Legal Help with New York Labor Board Investigations

If you are under investigation for wage and hour violations, Stephen Hans & Associates can assist you. Our firm offers seasoned legal guidance when advising and representing employers in disputed employment issues.

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How Broad Sweeping Can Retaliation Claims Be?

retaliationRetaliation, according to the EEOC (Equal Employment Opportunity Commission) must consist of three elements:

  • An employee’s participation in protected activity, which typically would be filing a discrimination or harassment complaint
  • An adverse action that the employer or manager takes against the employee
  • A causal connection between the protected activity and the adverse reaction

The protected activity can be a direct or indirect complaint. Whether the employee’s complaint is true or not, as long as the employee believed it was true and acted in good faith, any adverse employer action could be viewed by the EEOC as retaliation.

 

A Landmark Case that Changed the Scope of Retaliation Claims

In 2010, the U.S. Supreme Court heard a case that changed how courts view retaliation. According to the International Risk Management Institute (IRMI) in the case of Thompson v. North American Stainless, 2011 U.S. LEXIS 913, No. 09–291 (Jan. 24, 2011) the Supreme Court voted unanimously to reverse the district court’s decision, which had granted a summary judgment in favor of the employer.

Details of the Case

Miriam Regalado had filed a claim with the EEOC that alleged discrimination against her by supervisors based on gender. About three weeks after her employer had received notification from the EEOC about the claim, the company terminated her fiancé Eric Thompson (who later became her husband). Thompson then filed his own claim with the EEOC and alleged that retaliation based on his fiancé’s claim was the reason for his termination.

On appeal, the appellate court ruled that anti-retaliation protection only applied to individuals who have personally engaged in protective activity or made a charge or assisted in an investigation and not to a third party. Thompson had not personally engaged in any of those protected activities.

However, the Supreme Court ruled that Thompson had a standing to bring a lawsuit under Title VII of the Civil Rights Act. The Supreme Court decided that employer retaliation covered a broader scope of conduct, including action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Specifically, in this case, the worker might not have engaged in protected activity if she thought her fiancé would be fired.

Despite the defendant’s argument that extending claims to third parties could put employers at risk for having to defend themselves whenever firing a family member or close relation, the Court held its ground and set a new precedent in retaliation cases.

Get Legal Help to Deal with Your Employment Dispute

Stephen Hans & Associates offers seasoned legal representation to assist business owners with employment issues.

 

 

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Job Termination: What Should You Know?

Frequently Asked Questions About Job Termination

Deciding to fire or layoff an employee is often a tough decision. Sometimes employees have adverse reactions and retaliate if they believe the termination was unjust.

Here are some answers to common questions about termination provided by the New York Labor Law website:

Does New York State have “employment-at-will”?

New York is an employment-at-will state, which means if your employment contract has no restrictions against terminating an employee’s job, such as a union agreement, you can fire the employee for any reason and at any time. The employee can also resign without giving notice and suffer no legal repercussions. You can fire an employee for any reason or no reason at all.

However, you cannot fire an employee for reasons of discrimination based on the employee’s:

  • Race
  • Creed
  • National Origin
  • Age
  • Disability
  • Gender
  • Sexual Orientation
  • Marital Status

Doing so violates the New York State Division of Human Rights, which is a division of the NY government that can sue you for discrimination.

Other statues, § 201-d and § 215, of the NY State Labor Law also prohibit termination based on:

  • Political or recreational activities outside of work
  • Legal use of consumable products outside of work
  • Membership in a union
  • For complaints made to the employer, Commissioner of Labor or Commissioner’s representative about provisions that are covered in the NY Labor Law.

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What is your responsibility for giving terminated employees their last paycheck?

You must pay the employees’ paychecks by the regular payday for the last pay period that the employees worked. If employees request that the paycheck be mailed, the employer must mail it.

When you decide to lay off employees, must you give notice of termination?

In 2008, the NY legislature passed the New York State Worker Adjustment and Retraining Notification (WARN) Act, which requires the following:

Employers in the private sector who have 50 or more employees (part-time employees excluded) must provide at least 90 days notice before closing their business. This refers to shutting down a single site of employment that results in laying off 25 or more full-time employees during any 30-day period. Employers must send a WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

If employers are doing a mass layoff (excluding part-time employees) but not closing down the business, they must still provide at least a 90 days notice about the layoff when the layoff affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. Employers must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

Stephen Hans & Associates  provides decades of experience to business owners with employment related issues.

 

 

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Sexual Harassment in the Workplace: Correction

Once an investigation reveals that sexual harassment in the workplace has occurred, the next step is correction. Employers must take corrective measures so harassment stops and does not reoccur. This is also the next step for any type of workplace discrimination that is discovered.

Solution Problem Solving Share Ideas Concept

By following EEOC guidelines  for correction, employers can ensure the steps they take are effective.

What Correction for Harassment Is Suggested by the EEOC?

Disciplining the harasser is one form of correction and the correction should correspond to the severity of the harassment. Management should inform the complainant and harasser of the measures it will take to correct harassment. Employers walk a fine line because if they are too lenient and harassment reoccurs, then they could be found liable. On the other hand, if the discipline is too harsh, then they may be subject to claims of wrongful discharge.

If the harassment was a minor action and the harasser had no prior history of misconduct, then oral reprimand may be sufficient. In contrast, if the harassment was severe or persists, then job suspension or termination may be appropriate.

The employee who filed the complaint should not be adversely affected by the discipline. For example, deciding to separate the harasser and complainant by reassigning the complainant to a job or location that the complainant does not desire would be unfair and would penalize the complainant instead of the harasser.

Healing Diagnosis Treatment

What Are Some Examples of Correction Employers Can Take?

  • In dealing with the harasser, an employer could take actions, such as:
  • Oral or written warning or reprimand
  • Transfer or reassignment
  • Demotion
  • Wage reduction
  • Suspension
  • Discharge
  • Required training or counseling to ensure the harasser understands the violations
  • Monitoring of the harasser to ensure the harassment ends

What Are Some Examples of How to Correct the Effects Harassment Had on the Complainant?

Employers can ameliorate the effects on complainants by:

  • Restoring a leave taken because of the harassment
  • Eliminating negative evaluations in the complainant’s personnel file that resulted from harassment
  • Reinstatement
  • Having the harasser apologize
  • Monitoring the employee’s treatment to ensure no further harassment
  • Compensate the employee for losses

Get Legal Help to Deal with Sexual Harassment in the Workplace

It is wise for employers to seek legal advice immediately when dealing with sexual harassment or other discrimination issues. Stephen Hans & Associates offers seasoned legal guidance to assist employers with harassment issues.

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