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Firing for a Facebook Post? Maybe Yes, Maybe No

Wednesday, October 5th, 2011

An NLRB administrative law judge has ruled that a Chicago-area luxury car dealership did not violate federal labor law when it terminated a salesman who posted pictures and  comments about an accident on his Facebook page. The judge rejected the NLRB’s argument that the termination was motivated by other Facebook postings by the employee related to a customer  event  that mocked the quality of the food and beverages provided.

KPA’s partner law firm Ford & Harrison represented the dealership.  Frequent guest speaker at KPA’s  webinars Jim Hendricks, was the attorney of record.  A full review of the case is  available at http://www.fordharrison.com/shownews.aspx?Show=764

When firing for  a Facebook post what many private sector employers do not realize is that – employee may engage in “protective concerted” activity”  under the National Labor Relations Act (NLRA) .  Facebook posts and the subsequent “wall” posting and comments  and other social media  communications can be protected concerted activity within the meaning of Section 7 of the NLRA.

While the firing of the sales person was upheld in Chicago,  in another case involving Facebook posts the firing were deemed illegal.  In a case a case called Hispanics United of Buffalo, administrative law judge Arthur Amchan said HUB violated the National Labor Relations Act when it fired five employees who commiserated about their jobs on Facebook. Judge Amchan’s ruling endorsed the NLRB’s stance that employees are protected from retribution for job-related postings.

So can you fire for a Facebook post?

According to Jim Hendricks “Employers, especially non-union employers, must be mindful of the concept of protected concerted activity before taking adverse action against an employee. Also, employer policies and practices need to keep pace with emerging technology, including social media. This remains a largely uncharted area of the law. If one of your employees publishes something offensive or confidential on Facebook, Twitter, or YouTube, proceed with caution before taking action.employer policies and practices need to keep pace with emerging technology, including social media. This remains a largely uncharted area of the law. If one of your employees publishes something offensive or confidential on Facebook, Twitter, or YouTube, proceed with caution before taking action.”

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E-Verify Self Check Now Available in Spanish

Wednesday, September 21st, 2011

Effective August 15, 2011, the United States Citizenship and Immigration Services (USCIS) launched the Spanish version of the E-Verify Self Check accessible in twenty-two states (the English version was launched in March, 2011 and was only accessible in six states). Self Check is a voluntary service that allows individuals to input their personal information into the E-Verify database, which will confirm employment status by cross-checking the Department of Homeland Security (DHS) and Social Security Administration (SSA) records. If a mismatch occurs, the system will provide information for how to correct the mismatch. For further information, please go to the USCIS website at www.uscis.gov.

Tamara Lischer, KPA HR Client Advocate discusses the pros and cons of the E-Verify system including why USCIS has developed the employee “self check” feature.

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Love Contracts and Anti-Harassment Policies

Thursday, September 15th, 2011

What exactly is a “love contract” and what role does it play in protecting your organization from harassment and discrimination lawsuits? Watch this short video to learn more as the HR Client Advocates at KPA discuss the pros and cons of “love contracts”. With more than 50 years of combined HR management experience, Tamara Lischer, Michele McMann and Kathryn Carlson provide you with practical HR advice and insight into the latest HR trends and practices.
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Unionized or Not, NLRB Rules Apply to Dealerships

Thursday, September 1st, 2011

On 8/25/11, the National Labor Relations Board (NLRB) issued the final rule that requires nearly all private-sector employers to post a notice notifying employees of their rights under the National Labor Relations Act (NLRA).  Agricultural, railroad, airline employers and the U.S. Postal Service are exempt at this time but auto, truck and equipment dealers must post the notice.  The deadline for posting the notice is November 14, 2011 however the NLRB hasn’t provided a final version of the required poster at this time although a draft is availalbe at https://www.nlrb.gov/
Remember that many  NLBR rules apply to non-unionized organizations with some exception for “very small business”- you should consult with your attorney or finance advisor to determine if your business is a “very small business”.

The NLRB (National Labor Relations Board) has been very active in 2010.  In May the NLRB issued a complaint against a Chicago area dealership for allegedly illegally firing an employee for critical comments regarding the dealership posted to Facebook. http://www.nlrb.gov/news/chicago-car-dealership-wrongfully-discharged-employee-facebook-posts-complaint-alleges.   Having a social media policy is a good idea, but given the current regulatory climate make sure that the policy has been reviewed and approved by an attorney who is very familiar with the NLRB position on social media usage as a protected activity.

 

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OSHA Proposes Changes to Recordkeeping Requirements for Dealerships

Thursday, June 30th, 2011

OSHA is currently requesting comments for a proposed regulation change to their recordkeeping requirements.  Currently, new and used car dealerships classified under Standard Industrial Classification (SIC) code 5511 are considered a “low risk industry” and are partially exempt from OSHA’s recordkeeping requirements.  In this proposed regulation, in an effort to embrace a new industrial classification system introduced in 1997, OSHA is reclassifying new and used car dealerships as North American Industry Classification System (NAICS) Code 4411 – Automobile Dealers.  This new classification and the associated injury and illness statistics place dealerships outside the “low risk industry” profile, disqualifying them from the partial exemption.  If this rule is accepted as is, dealers will be required to maintain additional accident information and post summaries of this data at the dealership every year.

Additional changes in this proposed regulation will require businesses to report work-related amputations to OSHA and all work-related fatalities and in-patient hospitalizations.  Currently reporting is only required for work-related fatalities and in-patient hospitalizations of three or more employees.

If you’d like to voice your opinion to OSHA on this proposed regulation  they would love your feedback on the following:

1. Should any additional industries be exempt from any of the recordkeeping requirements in Part 1904?

2. Should OSHA base partial exemptions on more detailed or more aggregated industry classifications, such as two-digit, three-digit, or six-digit NAICS codes?

3. Which industry sectors, if any, should be ineligible for partial exemption?

4. Instead of using an average DART rate of 75 percent of the most recent national DART rate, is there a better way to determine which industries should be included in Appendix A?

5. Should OSHA consider numbers of workers injured or made ill in each industry in addition to industry injury/illness rates in determining eligibility for partial exemption?

6. Are there any other data that should be applied as additional or alternative criteria for purposes of determining eligibility for partial exemption?

7. Should OSHA regularly update the list of lower-hazard exempted industries? If so, how frequently should the list be updated?

8. Are there any specific types of training, education, and compliance assistance OSHA could provide that would be particularly helpful in facilitating compliance with the recordkeeping requirements?

Comments may be submitted online at Regulations.gov

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How to Implement a Successful I2P2 Program

Tuesday, May 24th, 2011

Like most Auto Dealers, you probably want to know how OSHA’s I2P2 (Injury and Illness Protection Program) will impact your business. Last week, EHSToday published an article “AIHce 2011: The Ins and Outs of I2P2 and Worker Involvement” about a roundtable discussion with William Perry, CIH, deputy director of OSHA’s Directorate of Standards and Guidance, and Bill Kojola, who works in the safety and health department at AFL-CIO.

My take-aways from this article came from the comments from Kojola. He said that for an injury and illness prevention program to be successful, it must accomplish the following goals:

  • It must encourage reporting – not just injuries, but ideas to control hazards.
  • It must shift from lagging to leading indicators.
  • It must get at root causes.
  • It must make use of documentation.
  • It must remove barriers to worker participation.

It’s no coincidence that our online safety system myKPAonline can be the make-it-or-break-it answer to implementing such a program. myKPAonline was partially driven by California’s IIPP program which can be considered as a precursor to I2P2. The picture shows a screenshot of myKPAonline for a dealership and provides reporting, documentation, root causes, and actionable information to implement a safety program.

Implementing I2P2 with myKPAonline

Implementing I2P2 with myKPAonline

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Who Are You Really Hiring?

Tuesday, May 17th, 2011

If you aren’t doing background checks and drug screens before you hire then you really don’t know who you are hiring.  KPA has found that over 30% of applicants we process through our HR system do not provide complete or accurate information on their application. To make a good hiring decision and to protect yourself in the event of a negligent hiring lawsuit a background check and drug test are a must. I’ll never forget having to testify against a client when I worked for one of the largest background companies in the US. The plaintiff’s attorney asked me if the client could have seen a history of substance abuse and traffic accidents if they had just been willing to spend $60 for a background check. I had to answer yes, the client had access and in fact had ordered background checks and drug tests in the past. Unfortunately a supervisor at the client company shortcut the process and put a person to work without the required background check. The new employee then promptly got drunk on the job and ran a company truck into the back of a car. The HR manager was not aware that the process had not been followed until after the accident had happened.  The settlement reached with the injured parties was over a million dollars.  Lessons learned?

1) Standardize the process for obtaining and reviewing background checks and drug tests.  If possible use software that will automate and force compliance to company policy for not just background checking but for the complete hiring process.

2) Don’t be penny wise and pound foolish.  A background check and drug testing will cost in the range of $60 to $75 dollars if you use a third party. A very small investment to make sure you know exactly who you are hiring.

3) Use a third party provider (they have  expertise, and access to data you won’t have ) but select with care.  Understand how they obtain their data. Make sure they provide compliance assistance as there are a  number of regulations at the state and federal level that govern the use of drug testing and background checks in hiring.

4) Never establish a policy that states “we don’t hire anyone with a criminal record”.  In many states this would be considered discrimination.  Each background check must be reviewed against the actual job and factors such as time since the criminal act, age at the time of the act, efforts at rehibiliationa and the serious of the crime must be considered.  Employers can determine that it is not in their best interest to hire a person with a criminal record but must show that the decision was made fairly and without discrimination.  Providing a ranking using specific criteria is where  third party provider can really add value.
For more information on background checking go to http://www.kpaonline.com/hr/hr-management-system/background-checking-drug-testing.html  or http://tandemselect.com/

Join the conversation: Do you always obtain a background check and drug test on a new hire?

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The 100 Best Companies To Work For-Could Your Company Make The List?

Wednesday, April 27th, 2011

Fortune Magazine just published their annual listing of the 100 best companies to work for.  The companies run the gamut from services (law, accounting, consulting) to construction to non-profits to retail to hi-tech.  Healthcare and Professional Services are the most represented industries on the list but there are also three companies in the automotive market -#15 Mercedes-Benz USA, #16 JM Family Enterprise and #81 CarMax.  So are you thinking, it’s easy for these big,  publicly traded companies to be a “best place to work” but not so easy for the average company? Think again, your company may not make Fortune’s list next year but you can learn from and implement the best practices that make a company a “best place to work. Why bother?  Being know as a “best place to work” locally, regionally or within an industry makes it easier to attract and retain the best employees, which has a direct positive impact on your company’s bottom line.  Companies on the “Best Companies to Work For” list have consistently outperform major stock indices since 1998. 

 So what makes a company a best place to work?  According to the Great Places to Work Institute to be a great place to work employees ”"trust the people you work for, have pride in what you do, and enjoy the people you work with.”   The trust factor of an employee  is ” related to management’s credibility, job satisfaction, and camaraderie.”    Providing  fair and competitive pay and benefits, have good hiring practices,  open internal communications, abundant training opportunities, meaningful recognition programs and a committment to diversity all create a best place to work.   To learn more about how any company,  big or small,  in any industry can be a best place to work check out the Great Places to Work website at http://www.greatplacetowork.com/index.php

Join the conversation: What makes a company a best place to work?

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Empowered Employees Increase Productivity, and Morale

Monday, April 25th, 2011

Workers who feel empowered by their employers are more productive and have higher morale, regardless of their industry.

These are the findings of a new study by lead researcher from the University of Iowa, Scott Seibert. He explains, “Empowerment is an effective approach for improving employee attitudes and work behaviors in a broad range of industries, occupations and geographic regions.”
The article, reported in EHS Today, lists four characteristics of an effective empowerment initiative:

  • High performance practices: Managers share information, decentralize authority, involve workers in decision-making, provide training opportunities and pay well.
  • Socio-political support: Managers make their employees feel like a valued part of the organization and encourage employees to recognize each other’s importance.
  • Leadership: A manager who inspires, provides strong feedback and is a good role model enhances workers’ feelings of competence and helps employees find meaning in their work.
  • Work design characteristics: Managers encourage training and provide individual workers with challenging work assignments.

“Managers in these studies reported that empowered workers were more innovative and more willing to take the initiative to solve problems on their own,” Seibert said. “Employees said they were more engaged in their work when empowered, that they felt like they had an influence and an impact on the business around them.”

What do you think? Do these initiatives improve team and individual performance, or do results vary in practice?

If you have experienced some of these workplace characteristics, leave a comment and share your insights with the community at the KPA blog.
Similar articles:

Stop Whistleblowing by Handing Out Whistles 

http://blog.kpaonline.com/2011/03/stop-whistleblowing-good-communication/

How Much is Employee “Slacking” Costing Your Company?

http://blog.kpaonline.com/2010/12/employee-motivation/

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The Lawsuits are Coming, Get Ready to Pay

Friday, April 22nd, 2011

  The Cleveland Plain Dealer reported that over 6,800 private-sector lawsuits were filed nationwide in 2010. The DOL (Department of Labor), handled about 32,000 wage and hour complaints in 2010, a jump of 33 percent in just two years.  The Equal Employment Opportunity Commission reports that pay and promotion cases are now the biggest category of employment discrimination filings but discrimination cases are also on the rise.  Broadly defined but complex new regulations on ADA (Americans with Disabilities) and GINA (Genetic Information Non Discrimination Act)  make it likely that even the best intentioned employer may inadvertently discriminate against an employee or applicant.

  Looking forward into the rest of 2011 and then on to  2012 employers should expect more new rules, with the DOL, ICE and IRS allocating more resources towards enforcement of those rules.  The DOL is planning to issue new rules on the Family Medical Leave Act and the Fair Labor Standards Act.  The National Labor Relations Board has proposed a new rule that, if adopted, would require almost all private-sector employer in the US to notify employees about their rights to unionize.

 The DOL has hired 250 new investigators and has launched the “We Can Help“ program that includes a website and bilingual public service ads designed find and correct the incorrect classification of exempt employees and other violations of wage and hour laws.  To “help” employees even more, on November 19, 2010, the U.S. Department of Labor announced a joint initiative with the American Bar Association to help employees find lawyers to enforce their rights under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). Since December 13, 2010, employees who bring FMLA or FLSA complaints that cannot be resolved by the Department of Labor have been given a toll-free telephone number to contact a newly created ABA-approved attorney referral system that will provide information about participating attorneys in their geographic area.  The U.S. Immigration and Customs Enforcement (ICE)  will continue to increase its investigations and raids on employers who hire illegal workers, over 1000 notices were issues in the first 4 months of 2011. Don’t forget the IRS, in 2011 the IRS will conduct over 6,000 payroll tax audits focusing on companies misclassifying workers as independent contractors, fringe benefits and executive/deferred compensation, as part of a new federal and state focus on the miscallification of workers as independent contractors. 

Complex regulations, increased enforcement and easy access to plaintiff’s attorney are creating the “perfect storm” for employment lawsuits.  Are your payroll and employment practices ready? If you don’t have EPL (Employment Practices Liability) coverage call your broker now.  Consider an independent audit of your HR practices. Use automation (software) to ensure consistent process and good documentation. Plus keep your attorney on speed dial, you probably will be calling  them more than ever.

Join the conversation:  Are you worried about employment lawsuits or audits in 2011?

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