The SESCO Report – October 2019

Disciplining Employees for Social Medial Use

A SESCO Staff Recommendation

This SESCO Staff Recommendation is designed to assist in determining whether an employee may be disciplined or terminated for objectionable content posted via a social media site. For use of this staff recommendation, it is presumed that the employee engaged in posting objectionable content is a non-union employee.

Consider Whether Employee Discipline May Be Appropriate for Unlawful Social Media Post

From Facebook to Twitter to LinkedIn to Blogger, social media platforms are widely used by employees. From time to time the nature of the content posted on social media platforms can be harmful or destructive for individuals within or businesses to which the content relates. When employees post objectionable or offensive content online, SESCO clients should take into account the following considerations before imposing discipline.

Analyze the Content of the Objectionable Social Media Post

As a starting point, carefully analyze the nature of the content and the reasoning behind potentially imposing disciplinary action against the employee. For example, does the content constitute an unauthorized disclosure of confidential, intellectual property or trade secret information? Or is the content false and defamatory, harassing or offensive? Does the content amount to a violation of your social medial policy, anti-harassment policy or standards of conduct?

Review Social Media Policies

Your social media policies and procedures are critical in determining whether or not an employee has acted inappropriately. SESCO prepares employee handbooks and related policies and if you question whether or not your policy is adequate, have SESCO conduct a review. A well-drafted social media policy must strike a balance between providing clear guidance as to what is acceptable in light of company culture and expectations without infringing on speech (National Labor Relations Act). A tailored and comprehensive social media policy will address the types of activities while acknowledging that certain speech is permitted and will incorporate examples to ensure clarity and compliance.

After reviewing the social media policy for potential red flags, determine whether the employee's misconduct was in violation of your policy and if so, what type of discipline may be imposed.

Topics to be Covered in a Social Media Policy

  • Define social media
  • Address when the policy applies
  • Identify information that is considered proprietary and confidential and discuss importance of non-disclosure
  • Inform employees that they are responsible for what they post on any social media forum.
  • Identify topics not to be discussed such as negative statements about a competitor, or a client, negative statements about other employees, revealing confidential or private information, etc.
  • Provide and maintain a list of "FAQ's" with examples of what content is discouraged
  • Address the potential consequences for violation of the policy (disciplinary action up to and including termination)

Consider These Scenarios (Actual SESCO Cases)

Case 1

Issue: An employee with your organization was terminated after she posted a complaint on Facebook claiming that she was never paid the overtime wages that she was owed. She is now suing your organization alleging that you unlawfully retaliated against her in violation of the FLSA. Was she successful?

Answer: No. In a case with similar facts, a Federal District Court in Florida ruled that an employee who complained on Facebook that her employer did not pay her overtime did not file a "complaint" within the meaning of the FLSA. The employee in this case never lodged a complaint with her employer; she merely "voiced her disagreement" with the employer's pay practices on Facebook.

Case 2

Issue: After one of the Regional Vice Presidents left your organization to work for a competitor, he posted information about his new employer on Facebook, touting his professional satisfaction with that company's product. Since his departure, he has been actively posting information relating to his new employer on his personal Facebook page and his Twitter account has generated invitations to your associates to join the social networking site. Believing that his social media activity breached your company's non-solicitation agreement, you are seeking to enjoin his Facebook and Twitter activities. Will he be successful?

Answer: Probably not. In a case with similar facts, a Federal District Court in Oklahoma ruled that an employee's ongoing posts to his personal Facebook page relating to his new employer did not constitute solicitation under the terms of his employer's non-solicitation agreement. There is no evidence that the employee either intended to or had solicited anyone other than a single colleague to leave.

Common Mistakes Managers Make That Trigger Significant Employer Liability

In our assistance with handling clients' day-to-day questions and problems, we find that the "problems" or "issues" are created by managers who simply do not know or understand the rules or regulations, do not count to 10 and involve human resources or are simply having a bad day and ignore or worse inappropriately respond to an employee.

Most employment issues are not caused by intentional or aggressive comments or acts. However, even though they are typical day-to-day oversights or unintentional mistakes by managers, these issues cost significant time and money to address and or respond to if ever alleged wrong doing is demonstrated such as unemployment claims, EEOC/discrimination charges, wrongful termination lawsuits, etc.

As such, it is critical that all organizations conduct some basic training for all managers and supervisors of any sized organization to ensure that they know and understand the basics and the importance of their actions or lack thereof. Please consider these following training excerpts from SESCO's certified management training programs:

1. Poor Documentation - Many cases are not won with "smoking gun" evidence. They are proven circumstantially and often through basic documents or statements made by managers. Documents, particularly email, can help the employee show discriminatory intent. Managers need to be reminded to always speak and write as if their comments will be held up in a jury and most importantly, they should avoid emails and text messages when entering into any type of investigation or disciplinary matter.

2. Not Being Aware of Policy or Understanding the Intent of Published Policies — Courts expect supervisors to know and understand their organization's policies and procedures. Ignorance is not a defense and most importantly managers need to understand not only what their policies and procedures are but the intent and purpose of all policies.

3. Inaccurate Performance Appraisals — One of the most difficult issues for SESCO or any outside third party to overcome is the inappropriate performance review. For example, an employee who was recently terminated files an EEOC charge claiming discrimination on a protected category. When the file is reviewed, the supervisor or manager did not provide an accurate performance review and as such, the most recent performance review contained "expected" performance. All documentation, especially the most recent performance review should support a termination, especially if related to performance.

4. Ignoring an Employee's Complaint - The kiss of death, especially in a discrimination or a sex harassment lawsuit is where a supervisor ignored and did not take seriously an employee's complaint. One hundred percent (100%) of all complaints should be heard and also investigated by the appropriate human resources personnel and/or SESCO. Whether the actual complaint results in an illegal harassment issue is not the point. The law requires supervisors and managers to hear and address all complaints.

5. Inappropriate Interviewing Questions — Managers and supervisors are rarely trained on how to interview and even more importantly are rarely provided a script of questions to ask. Thus, they are asking illegal questions and also asking questions that really do not provide them with what they need to make an effective hiring decision.

Questions like:

  • Do you have effective transportation?
  • How long have you lived at this address?
  • What are your daycare plans?
  • Can you pass a physical?

6. A Manager's Attitude is Everything - A manager who is rude, shrugs off an employee's complaint, is mean spirited, or just simply stressed and feels like he or she doesn't have the time, is the manager who typically has the most employee turnover as well as the greatest risk for legal issues. It is all about effective management and supervision and understanding that the organization's most valued asset is their employees. The manager and supervisors must understand this and be at all times sensitive to their employees' needs.

DOL Issues Long Anticipated Final Rule – Overtime Regulations

On September 24, 2019, the Department of Labor (DOL) released the long anticipated final rule defining Overtime Exemption requirements, including guaranteed salary requirements, for the White-Collar Exemptions — Executive, Administrative, Professional, and Highly Compensated.

Key provisions of the final rule are as follows:

  1. The new rule goes into effect January 1, 2020.
  2. The new guaranteed salary requirement is a minimum of $684.00 per week ($35,568.00 annually). This salary requirement applies to the Executive, Administrative and Professional Exemptions.
  3. For the Highly Compensated Exemption, the new salary requirement is $107,432.00.

Of noted importance, and as it relates to the Executive, Administrative and Professional Exemptions (Highly Compensated excluded), is the ability for the employer to apply Non-Discretionary Bonuses and Incentive Payments (including a valid commission payment) to satisfy up to 10% of the guaranteed salary level requirement of $35,568.00. Please note that Non-Discretionary Bonuses and Incentive Payments, such as commissions, must be well defined and meet the DOL’s requirements under the regulation.

The DOL did not change any of the White-Collar Exemption duties tests. Further, the DOL permits the compliant use of the Fluctuating Workweek method of payment which is a pay plan that may be recommended for select positions/cases by SESCO.

We recommend that you begin to review positions that may be impacted by the new salary threshold, but you do not need to make any pay plan changes at this time. The SESCO team is available to discuss pay plans with our clients and client associations. Additionally, as a reminder all of our retainer clients can receive a Wage and Hour/HR compliance assessment. If you are not a SESCO retainer client, simply call or email us and we’ll be happy to discuss our monthly Service Agreement.

For assistance, please contact us at 423-764-4127 or by email at sesco@sescomgt.com

Special Thanks to New SESCO Clients!

Martin Management Group
Bowling Green, KY

Morgan County Medical Center
Wartburg, TN

Truett McConnell University
Cleveland, GA

Alan's Plumbing Services, LLC
Hebron, MD

Midwest Auto Care Alliance
Gladstone, MO

Tennessee Primary Care Association
Nashville, TN

Shop Fix Academy
Franklin, TN

Shepard Exposition Services
Atlanta, GA

Ellis Funeral Home and Cremation Service
Nashville, TN

Insights Training Group, LLC
Marion, VA

SESCO Client Feedback

"Bill, thank you very much for your time and consideration! It is a tremendous help and peace of mind having you preview this, as well as being able to talk through this situation prior to our meeting." ~ Tim Beer — Beer's Automotive

"Bill, please know how much I appreciate your willingness to present education and attend QSC @ CONNECT in Indy recently. Your presentation was perfect! I look forward to our next opportunity to collaborate and please let me know any time I can offer assistance of any kind." ~ David F. Chic, Program Director, Quality Service Contractors & Construction Contractors’ Alliance — Plumbing-Heating-Cooling Contractors-National Association

Featured SESCO Client

Currently Worldwide Equipment, Inc. operates in six (6) states including 16 full-service dealerships, 15 leasing locations, 5 satellite part stores, 2 detail shops, 1 custom fabrication shop, and 1 drive line shop. Worldwide Equipment employs over 1,000 employees.

Worldwide Equipment was established in 1967 and as such, their history assures their clients that they can depend on Worldwide Equipment for the products and services their clients need.

Of significant note, recently the CEO, Terry Dotson, and Director of Human Resources, Carla Stapleton, were honored to be invited to a Presidential round-table on the Tax Cuts and Jobs Act of 2017. Dotson and Stapleton were given the opportunity to offer their appreciation to President Trump for the positive changes enabled by the tax reform.

As seen on NBC News, Terry Dotson expressed to President Trump, "Your tax cuts have made a difference and I can tell you our people know that they've made a difference. I can tell you it is not crumbs to them when they can pay their car payments and invest in their children's future." Carla Stapleton further explained that Worldwide Equipment was able to give bonuses to their employees.

Sesco's Fall Seminar Series 2019

Human Resources for the Advanced Professional
November 13-14, 2019 Bristol, VA
November 19-20, 2019 Richmond, VA

Richmond, Virginia Location:
Virginia Community Healthcare Association (VCHA)
3831 Westerre Parkway
Henrico, VA 23233-1330

Bristol, Virginia Location:
Courtyard by Marriott
3169 Linden Drive
Bristol, VA 24202

(SESCO has partnered with one of our valued clients, Virginia Community Healthcare Association, to host our Richmond Seminar Series.)

Visit our website atwww.sescomgt.com

State and National Business and Trade Associations, Chambers of Commerce and Human Resource Associations are welcome to contact SESCO to book a professional speaker for annual conventions and seminars. Contact Bill Ford at 423-764-4127 or by email bill@sescomgt.com.