Sustainable Work Practices: Keeping the Staff Afloat
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Sustainable Work Practices: Keeping the Staff Afloat

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Sustainable Work Practices: Keeping the Staff Afloat by Regina A. Petty , Fisher & Phillips LLP for Western Museums Association, San Diego 2009

Sustainable Work Practices: Keeping the Staff Afloat by Regina A. Petty , Fisher & Phillips LLP for Western Museums Association, San Diego 2009

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Sustainable Work Practices: Keeping the Staff Afloat Sustainable Work Practices: Keeping the Staff Afloat Presentation Transcript

  • 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%
    • 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
    • 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
    • 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
    • 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
  • 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
  •  
  • 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
  •  
  • Employment Screening Tool?
    • 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
  • 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
  • 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
  • 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)
  • 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
  • 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))
  • 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))
  • 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.)
  • 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
    • 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
  • Business Communications Tool?
    • 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
  • 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
  • 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
  • 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