Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas Louisville · New Jersey · New Orleans · Orlando · Philadelphia · Portland ME · Portland OR · San Diego · San Francisco · Tampa www.laborlawyers.com Presented by: Regina A. Petty Sustainable Work Practices Keeping the Staff Afloat Western Museums Association October 27, 2009

Challenging Economic Environment Department of Labor’s Bureau of Labor Statistics January 2009 2,227 mass layoff actions involving over 230,000 employees Unemployment rates today as high as 15%

Challenging Economic Environment

Department of Labor’s Bureau of Labor Statistics January 2009

2,227 mass layoff actions involving over 230,000 employees

Unemployment rates today as high as 15%

Budget Management Hiring freeze and pay freeze Compensation reductions and furloughs Voluntary programs Reductions in force

Budget Management

Hiring freeze and pay freeze

Compensation reductions and furloughs

Voluntary programs

Reductions in force

The Furlough Alternative People furloughed or working part-time rose from 3.7 million in June 2008 to 6.5 million in June 2009 June 2009 Watson Wyatt survey found 13% of 179 HR executives had imposed furloughs and another 6% expected to do so in the next 12 months

People furloughed or working part-time rose from 3.7 million in June 2008 to 6.5 million in June 2009

June 2009 Watson Wyatt survey found 13% of 179 HR executives had imposed furloughs and another 6% expected to do so in the next 12 months

Avoiding Aftershocks Legal, retention and morale issues Fair Labor Standards Act State Wage and Hour Laws

Avoiding Aftershocks

Legal, retention and morale issues

Fair Labor Standards Act

State Wage and Hour Laws

Mandatory Furloughs Designing for exempt employees Notice issues Collective bargaining Benefits

Mandatory Furloughs

Designing for exempt employees

Notice issues

Collective bargaining

Benefits

A Key Rule Employees are strictly prohibited from performing any work during the furlough period. This includes checking work-related email and voice mail.

A Key Rule

Employees are strictly prohibited from performing any work during the furlough period. This includes checking work-related email and voice mail.

Employee Volunteers Prohibited Fair Labor Standards Act “ Bona fide” volunteer definition Person who offers their services freely and without pressure or coercion; Person is NOT employed to perform the same type of services provided as a volunteer

Employee Volunteers Prohibited

Fair Labor Standards Act

“ Bona fide” volunteer definition

Person who offers their services freely and without pressure or coercion;

Person is NOT employed to perform the same type of services provided as a volunteer

Spotting Creativity Risks Employee is given option of pay cut or donation to non-profit employer

Spotting Creativity Risks

Employee is given option of pay cut or donation to non-profit employer

Social Networking The Online Community

Explosion of Social Networking Sites Facebook has 200 million members Twitter has 17.1 million members From April 2008 – April 2009: Twitter experienced 1,298% increase in visitors Facebook experienced a 217% increase in visitors

Facebook has 200 million members

Twitter has 17.1 million members

From April 2008 – April 2009:

Twitter experienced 1,298% increase in visitors

Facebook experienced a 217% increase in visitors

Users of Social Networking Sites Not just Gen Y employees As of May 26, 2009, 56% of Facebook users were over 26-years-old In February and March 2009, Facebook’s fastest-growing demographic was 35-44 Twitter is more popular with 35-49 demographic than 18-35-year-olds

Not just Gen Y employees

As of May 26, 2009, 56% of Facebook users were over 26-years-old

In February and March 2009, Facebook’s fastest-growing demographic was 35-44

Twitter is more popular with 35-49 demographic than 18-35-year-olds

What is Twitter? Who is Tweeting? An abbreviated, casual messaging system Users publish 140 character “tweets” Each user receives a live stream of tweets from people they are following Current trendy site

An abbreviated, casual messaging system

Users publish 140 character “tweets”

Each user receives a live stream of tweets from people they are following

Current trendy site

Employment Screening Tool? Some employers now search Google as part of their regular background checks for applicants Risk may outweigh possible gain

Some employers now search Google as part of their regular background checks for applicants

Risk may outweigh possible gain

Avoiding the Pitfalls Consider the following options: Search only LinkedIn - site intended for professional networking Displays user’s education and experience, may have professional references Caveat: Savvy applicant could manipulate information

Consider the following options:

Search only LinkedIn - site intended for professional networking

Displays user’s education and experience, may have professional references

Caveat: Savvy applicant could manipulate information

Avoiding the Pitfalls Consider: Obtaining written consent before searching Internet or social networking sites If search reveals information that played a part in not hiring, keep copy of information and consider giving candidate opportunity to address the information Be consistent - if you check any , check all candidates

Consider:

Obtaining written consent before searching Internet or social networking sites

If search reveals information that played a part in not hiring, keep copy of information and consider giving candidate opportunity to address the information

Be consistent - if you check any , check all candidates

Workplace Impact Caution managers on pitfalls of becoming “friends” with employees on social networking sites Don’t reveal anything you wouldn’t say or post in the break room Diligently use privacy controls to manage flow of information Could become part of harassment or discrimination claim even though “personal” page

Caution managers on pitfalls of becoming “friends” with employees on social networking sites

Don’t reveal anything you wouldn’t say or post in the break room

Diligently use privacy controls to manage flow of information

Could become part of harassment or discrimination claim even though “personal” page

Claims From a “Wall” Post Plaintiff tried to show discriminatory animus through manager’s web page “ What’s wrong with women these days?” & “Chicks seem to have more issues these days than Jet Magazine and keep up more drama than daytime TV and Jerry Springer combined.” Derrick v. Met. Gov’t. of Nashville & Davidson Co. (M.D. Ten. Dec. 17, 2007)

Plaintiff tried to show discriminatory animus through manager’s web page

“ What’s wrong with women these days?” & “Chicks seem to have more issues these days than Jet Magazine and keep up more drama than daytime TV and Jerry Springer combined.”

Derrick v. Met. Gov’t. of Nashville & Davidson Co. (M.D. Ten. Dec. 17, 2007)

Internet Privacy Oxymoron??? Disconnect between employees and employers: 53% of employees think content of Facebook page is not a boss’s concern 60% of executives believe they have a right to know how employees portray themselves and company online

Oxymoron???

Disconnect between employees and employers:

53% of employees think content of Facebook page is not a boss’s concern

60% of executives believe they have a right to know how employees portray themselves and company online

Invasion of Privacy? Employee must have a reasonable expectation of privacy Newspaper published online journal that college student posted about home town No expectation of privacy in publicly-available material ( Moreno v. Hanford Sentinel (Cal.App. 2009))

Employee must have a reasonable expectation of privacy

Newspaper published online journal that college student posted about home town

No expectation of privacy in publicly-available material

( Moreno v. Hanford Sentinel (Cal.App. 2009))

Manage to the Policy Employee had an expectation of privacy in text messages sent over employer-provided device Manager told employees that messages would not be audited Ensure managers are not contradicting your privacy policy ( Quon v. Arch Wireless Operating Co . (9 th Cir. 2008))

Employee had an expectation of privacy in text messages sent over employer-provided device

Manager told employees that messages would not be audited

Ensure managers are not contradicting your privacy policy

( Quon v. Arch Wireless Operating Co . (9 th Cir. 2008))

Disciplinary Tool? Employees set up invitation-only MySpace group “Spec-Tator” to “vent any BS we deal with . . . without outside eyes spying in on us” Posting referred to violence, illegal drug use and copy of test for employees Manager asked employee for password to gain access and terminated employees for criticizing bosses Jury found no invasion of privacy but found wiretapping violation based on way password obtained ( Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s (U.S. Dist N.J.)

Employees set up invitation-only MySpace group “Spec-Tator” to “vent any BS we deal with . . . without outside eyes spying in on us”

Posting referred to violence, illegal drug use and copy of test for employees

Manager asked employee for password to gain access and terminated employees for criticizing bosses

Jury found no invasion of privacy but found wiretapping violation based on way password obtained

( Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s (U.S. Dist N.J.)

Invasion of Privacy? As a practical matter, many employees restrict information with privacy settings With actual permission to view information, privacy claim likely unsuccessful No “fake” friend requests

As a practical matter, many employees restrict information with privacy settings

With actual permission to view information, privacy claim likely unsuccessful

No “fake” friend requests

1/3 of users report that they never think about what the boss, coworkers or clients would think before posting materials online Employees may make untrue statements about company, other employees or managers Defamation

1/3 of users report that they never think about what the boss, coworkers or clients would think before posting materials online

Employees may make untrue statements about company, other employees or managers

Business Communications Tool? Blurring the line between personal Social media as a marketing tool Who should use When to use How to use

Blurring the line between personal

Social media as a marketing tool

Who should use

When to use

How to use

What’s the Policy? Accessing personal social networking site using company time/resources Options: Mirror your personal e-mail policy unless productivity problem arises Outright ban of access at work

Accessing personal social networking site using company time/resources

Options:

Mirror your personal e-mail policy unless productivity problem arises

Outright ban of access at work

What’s the Policy? Employee’s personal content Options: Employees who identify employer or use Company e-mail must adhere to code of conduct Outright ban on employees identifying their employer

Employee’s personal content

Options:

Employees who identify employer or use Company e-mail must adhere to code of conduct

Outright ban on employees identifying their employer

What’s the Policy? Employer’s Social Networking Policy: Prohibit unlawful harassment/ discrimination Prohibit use of Company’s Proprietary, Confidential Information without express authorization Confirm no expectation of privacy where Company-provided system or e-mail Prohibit use of employee work e-mail address for social networking account

Employer’s Social Networking Policy:

Prohibit unlawful harassment/ discrimination

Prohibit use of Company’s Proprietary, Confidential Information without express authorization

Confirm no expectation of privacy where Company-provided system or e-mail

Prohibit use of employee work e-mail address for social networking account

Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® Questions and Discussion Presented by: Regina A. Petty Phone: (858) 597-9614 Email: rpetty@laborlawyers.com Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas Louisville · New Jersey · New Orleans · Orlando · Philadelphia · Portland ME · Portland OR · San Diego · San Francisco · Tampa www.laborlawyers.com