Dealing With
The Nightmare Employee:
Two Case Studies
Kelly Schoening, Esq. Kevin F. Hoskins, Esq.
kschoening@dbllaw.com k...
Social Media Nightmare
Case Study from Youtube
Look at employee’s side of the story and
determine where company went wrong.
Her side of the story:
What Legal Issues Does Jenny Raise?
1.Sexual Harassment
2.Social Media
3.Internet Use
4.NLRA
What Can the Employer Do?
 Can Spencer stop her?
 Can he demand that YouTube take this down?
 Does Spencer seem to be i...
Spencer’s side of the story:
What Problems is Jenny Facing?
 Violation of non-compete? (injunction, attorney
fees)
 Violation of non-disparagement?
...
Where Company Still Went Wrong
 Responding to her via YouTube may not be
smartest move.
 Called her names and was degrad...
Social Media Policy
 Have a policy.
 Keep it current-law changes fast.
 Can prohibit posting that is harassing, abusive...
Social Media Policies
 The National Labor Relations Act applies to all
employers.
 Employees have a legal right to expre...
Second Case Study - FACTS
 10 year employee – good evaluations and raises each
year.
 New manager one year ago.
 Not pe...
Legal Issues
 Harassment
 Discrimination
 FMLA
 ADA
 Whistleblower
 Retaliation
What Should HR Do?
Toxic Employee is Setting Up the Company
 Obtain written complaint.
 Detail: who, when, what.
 Manag...
FMLA
 Grant leave if paperwork has been completed.
 Really is no choice.
 Be sure you are in compliance with FMLA
regul...
FLSA
 Answering emails on “own” time is compensable
working time.
 Hourly employees should not answer emails or
calls un...
Job Performance
 Review Supervisor’s notes – is PIP justified?
 Focus on job requirements.
 Toxic employees must still ...
Retaliation
 Biggest risk for company.
 Employees should be reminded not to retaliate.
 Coach/train supervisors.
 Do n...
Risk Assessment
 Everything you say and write can be used against you.
 Be mindful of tape recorders.
 Identify decisio...
Some Good Employee Quotes
Advice for Management
 Never give me work in the morning. Always wait until 4:00pm and then
bri...
Some Good Employee Quotes
Advice for Management
 Do your best to keep me late. I adore this office and really have nowher...
THANK YOU!
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
Employment Law - Dealing With Nightmare Employees
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Employment Law - Dealing With Nightmare Employees

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Two case studies outlining employers' risks and responsibilities when dealing with the "nightmare employee."

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Employment Law - Dealing With Nightmare Employees

  1. 1. Dealing With The Nightmare Employee: Two Case Studies Kelly Schoening, Esq. Kevin F. Hoskins, Esq. kschoening@dbllaw.com khoskins@dbllaw.com 513-357-5284 513-639-7671 Dressman Benzinger LaVelle psc
  2. 2. Social Media Nightmare Case Study from Youtube Look at employee’s side of the story and determine where company went wrong.
  3. 3. Her side of the story:
  4. 4. What Legal Issues Does Jenny Raise? 1.Sexual Harassment 2.Social Media 3.Internet Use 4.NLRA
  5. 5. What Can the Employer Do?  Can Spencer stop her?  Can he demand that YouTube take this down?  Does Spencer seem to be in trouble?
  6. 6. Spencer’s side of the story:
  7. 7. What Problems is Jenny Facing?  Violation of non-compete? (injunction, attorney fees)  Violation of non-disparagement?  Violation of social media policy?  Contract changes everything.  Jenny needs to remove the video link.
  8. 8. Where Company Still Went Wrong  Responding to her via YouTube may not be smartest move.  Called her names and was degrading.  Should have handled it outside of YouTube.  Harder now to have YouTube remove her post.
  9. 9. Social Media Policy  Have a policy.  Keep it current-law changes fast.  Can prohibit posting that is harassing, abusive, vulgar, or threatening.  Cannot prohibit employee from saying “bad” things about the company.
  10. 10. Social Media Policies  The National Labor Relations Act applies to all employers.  Employees have a legal right to express workplace concerns.
  11. 11. Second Case Study - FACTS  10 year employee – good evaluations and raises each year.  New manager one year ago.  Not performing well per new manager.  Counseling and performance improvement plan.  Prior to next counseling employee meets with manager’s boss and:  alleges hostile work environment  submits FMLA paperwork due to job related stress  alleges improper billing by new manager  complains of answering emails at home and not being paid
  12. 12. Legal Issues  Harassment  Discrimination  FMLA  ADA  Whistleblower  Retaliation
  13. 13. What Should HR Do? Toxic Employee is Setting Up the Company  Obtain written complaint.  Detail: who, when, what.  Management must address the issues.  Investigate and take notes (facts only)  Failure to address the issue makes it hard to defend  Follow-up with employee 2-4 weeks later.  Have you trained managers and supervisors to recognize the warning signs? (This is usually where the ball gets dropped.)  Ignoring the complaint is not an option.
  14. 14. FMLA  Grant leave if paperwork has been completed.  Really is no choice.  Be sure you are in compliance with FMLA regulations.  Send appropriate notices.  Job protected leave.
  15. 15. FLSA  Answering emails on “own” time is compensable working time.  Hourly employees should not answer emails or calls unless being paid.  Recent case out of Illinois with police officers awarded pay for answering e-mails on “non- work” time.
  16. 16. Job Performance  Review Supervisor’s notes – is PIP justified?  Focus on job requirements.  Toxic employees must still perform.  Identify hidden messages from employee.  Separate this from harassment issues.  Avoid premature adverse action.  Is employee being treated the same as other employees?  Give employee time to improve-it must “look” fair.
  17. 17. Retaliation  Biggest risk for company.  Employees should be reminded not to retaliate.  Coach/train supervisors.  Do not share complaints with anyone who does not have a need to know.
  18. 18. Risk Assessment  Everything you say and write can be used against you.  Be mindful of tape recorders.  Identify decision–makers.  Identify potential comparators.  Review all documentation.  Review emails and texts.  Tell employee the true reasons for counseling and/or termination. Juries do not like deceit or “unfairness”.
  19. 19. Some Good Employee Quotes Advice for Management  Never give me work in the morning. Always wait until 4:00pm and then bring it to me. The challenge of a deadline is refreshing.  If it's really a "rush job", run in and interrupt me every 10 minutes to inquire how it's going. That helps.  Or even better, hover behind me, advising me at every keystroke.  Always leave without telling anyone where you're going. It gives me a chance to be creative when someone asks where you are.  Wait until my yearly review and THEN tell me what my goals SHOULD have been. Give me a mediocre performance rating with a cost of living increase. I'm not here for the money anyway.  If you give me more than one job to do, don't tell me which is the priority. I like being a psychic.
  20. 20. Some Good Employee Quotes Advice for Management  Do your best to keep me late. I adore this office and really have nowhere to go or anything to do. I have no life beyond work.  If a job I do pleases you, keep it a secret. If that gets out, it could mean a promotion.  If you don't like my work, tell everyone. I like my name to be popular in conversations. I was born to be whipped.  If you have special instructions for a job, don't write them down. In fact, save them until the job is almost done. No use confusing me with useful information.  Never introduce me to the people you're with. I have no right to know anything. In the corporate food chain, I am plankton. When you refer to them later, my shrewd deductions will identify them.  Tell me all your little problems. No one else has any and it's nice to know someone is less fortunate. I especially like the story about having to pay so much taxes on the bonus check you received for being such a good manager.
  21. 21. THANK YOU!

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