16

August, 2022

Employer’s Enforcement of Social Media Policies May Turn on State Law

Can you discipline or even fire an employee for postings on a personal social media account that convey a message inconsistent with the values of the organization?  The answer may depend on geography.

State borders affect employees’ workplace rights.  One example of this is the varying approaches that New Jersey, New York and Connecticut have taken with regard to employees’ “free speech” rights.  Technically, employees working in the private sector have no First Amendment free speech rights, as I recently discussed in a prior blog article, because the Bill of Rights only applies to government action.  But state laws can also grant employees free speech protections.  Connecticut has done so; New Jersey has not; New York is sort of in the middle.

Connecticut Protects Employees’ Free Speech

Connecticut prohibits all employers from disciplining or discharging  an employee for exercising rights guaranteed by the First Amendment or similar provisions in the Connecticut Constitution, provided the activity does not “substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”   On its face, the law does not protect all forms of employee speech, and the courts have interpreted the law to include two additional limitations, consistent with constitutional law principles:

  1. 1. The employee’s speech must pertain to a matter of public concern, and not merely an employee’s personal matters; and
  2. 2. (a) The employee generally needs to be speaking as an individual, and not in an official or representative capacity for the employer; or

(b)The employee’s speech in an official capacity must be related to a matter of significant public interest that involves dishonest or dangerous practices by the employer, and the employee’s interest in speaking up must outweigh the employer’s right to control its own employees and policies.

There are few reported cases in which an individual working for a private employer successfully established protection under the statute.

The current legal standard for analyzing these claims was outlined by the Connecticut Supreme Court in Trusz v. UBS Realty (CT 2015).  In the subsequent history of that case, the federal district court in Connecticut held that the head of UBS Realty’s valuation unit could proceed to trial with a claim that he was wrongfully terminated under Connecticut’s free speech law for a whistleblower complaint.  Trusz complained that he had repeatedly raised concerns that the employer’s failure to disclose property valuation errors to investors and adjust its management fees based on those errors was a violation of the company’s fiduciary, legal and ethical obligations to its investors.

Subsequent courts have allowed claims to proceed against private employers in analogous whistleblowing contexts:

  • for declining a supervisor’s direct request and expressing discomfort with creating fraudulent time sheets for services a non-profit had not provided, to be presented at an upcoming state audit;
  • for twice objecting to driving a tractor trailer transporting hazardous waste on public highways using vehicles that presented safety issues; and
  • for expressing concerns to the owner of a used car dealership that a supervisor was having firearms delivered to the office and storing them unlocked under his desk.

In contrast, the courts have declined to allow claims to proceed that involved matters of employer policy or individual behaviors.  For example:

  • dismissing a claim based on a manager internally raising a pay inequity among supervisors;
  • striking an employment discrimination claim that an employee was disciplined because of her personal friendship with a former CEO; and
  • striking a claim based on concerns raised in an open workplace forum that the company was paying large bonuses to executives in a poor economic climate that would hurt shareholders and the public good.

The modest number of private sector cases under the Connecticut free speech law is indicative of the limitations in its reach, and none appear to have considered the law in the context of an employee’s social media activity.

The Trusz case and other decisions suggest that social media posts that pertain to whistleblowing activity may fall within the protections of the free speech law.  Employers that are looking to discipline employees for social medial activity on other subjects, such as political expressions on race, religion, abortion, or other sensitive matters that may not align with the employer’s expressed values, should first consult with legal counsel as to whether the employees’ conduct is likely to be considered protected.

New Jersey Does Not Provide Free Speech Protection

The hypothetical situation of the employee posting on social media was directly considered by the New Jersey Appellate Division in McVey v. Atlanticare Medical System (May 20, 2022).  The case originated in 2020, during the height of the nationwide protests responding to the death of George Floyd.  The plaintiff, who held the title of Corporate Director of Customer Service, participated in a Facebook discussion related to the Black Lives Matter movement and responded that she found the phrase to be racist and bothersome because it “causes segregation.”  In response to a further post that Black Lives Matter is bringing attention to the plight of Black people who are dying in America, she replied, “’[T]they are not dying…they are killing themselves,” and she later posted that she “’support[ed] all lives . . . as a nurse they all matter[,] and [she] d[id] not discriminate.’”

The employee’s job title and affiliation with her employer were clearly identified on her Facebook profile, and her postings came to the attention of senior management, who asked her about them.  The employee acknowledged the posts, and in a subsequent meeting with senior managers she revealed she was recording the conversation.  The employee was promptly terminated for “repeated instances of poor management judgment” and a “failure to uphold the company’s values.”

The employee sued, asserting that she had been wrongfully terminated in violation of public policy, citing the First Amendment and the corollary protections under the New Jersey Constitution.  The New Jersey Appellate Division held that neither the First Amendment nor the New Jersey Constitution reflect a clear mandate of public policy that prohibited the employee’s termination.  The Court observed that these constitutional protections apply to state action, and not actions taken by a private employer toward an at-will employee, and specifically noted that New Jersey had no corollary to Connecticut’s free speech law.

New York’s Middle Ground

New York law does not expressly provide employees with free speech protections in the private sector, but it does protect employees’ right to engage in certain lawful activities outside of work.  Four types of activities are expressly protected by New York law:

  • certain political activities – running for public office, campaigning for a political candidate, or fund-raising for a candidate, political party or political advocacy group – if conducted completely outside of work;
  • legal use of “consumable products” (ie: alcohol, tobacco products and now marijuana) if conducted completely outside of work;
  • legal recreational activities – sports, games, hobbies, exercise, reading, watching television or movies and similar leisure time activity – if conducted completely outside of work; and
  • union membership or related organizing activities.

Evan as to those protected activities, the law expressly allows employers to take actions to protect trade secrets, proprietary information and other business interests; to direct employees into a substance abuse or alcohol program; and to align with union contracts.

The statute’s limited definition of “political activities” would not extend to most employee social media activity.  Rather, such activities may fall within the third category of “legal recreational activities.”  There is a difference, however, between an employer disciplining an employee for blogging or posting in general on social media, and an employer responding to the content of specific messages or images that an employee may post or respond to on social media.  The former is likely protected; the latter may not be.  Again, employers should consult with legal counsel before taking disciplinary action in this context.

Employers Should Proceed with Caution

The McVey decision should give New Jersey employers some comfort and bright-line principles for addressing employees’ social medial activity, at least where employees have directly identified their employer affiliation in their postings.  Employers in Connecticut and New York should be mindful that there are legal protections that extend to employees in this context, and should seek legal advice relative to specific factual situations before taking responsive actions.

By Tracey I. Levy

 

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4

August, 2022

Workplace Investigations: Video vs. In-Person Interviews

Prior to the pandemic, in-person interviews were generally considered the preferred method of conducting workplace investigations. They allowed the investigator to build rapport with the interviewee, the investigator could observe behaviors by the interviewee that might be relevant to credibility, and the investigator could know who was present for the interview and ensure a private meeting.  But in March 2020, that all had to change.  My Cornell colleagues and I wrote an article at that time, assessing the opportunities that videoconferencing offered as a virtual alternative to in-person interviews and identifying the caveats and precautions for which the investigator should be prepared.

Nearly two and a half years later, while employees have returned to their workplaces to varying degrees, I continue to conduct virtually all my workplace investigations by videoconference. Yes, it saves me a commute, but I actually like getting out into the world with people and I care deeply about ensuring the integrity of my investigations, so saving the commute would not suffice if it compromised my quality standards. Rather, over the period that remote interviews were the only viable option, I have come to appreciate some enduring advantages that they offer over in-person interviews.

Ensuring Privacy

Pre-COVID, one of the greatest challenges I faced when conducting in-person interviews was in securing a private location for those meetings. Most workplaces have shifted to glass-walled offices and conference rooms, many with little or no shading to afford visual privacy. I would strategically situate myself so that I faced outward, and only the interviewee’s back would be visible to passers by, but that afforded only a limited degree of anonymity. I would request to use a conference room or office that was off the beaten path, or at least in a different location than the coworkers of the people I would be interviewing – with mixed success.

For one investigation, I visited nearly every coffee house in a five-town radius of the client’s office.  No interviewee felt comfortable that the office could afford privacy and each had a different idea, in relation to their own hometown, as to where our presence would go unnoticed.  Investigation interviews can be conducted successfully in a coffee house or similar public space, but it requires the right mix of variables – other people conversing, so that my interview will not be a prominent sound in the space; a table spaced far enough from others such that it will be difficult for the people closest to us to eavesdrop; and frequent turnover or activity so that if we lingered longer it would not be noticed.

Videoconferencing spares me most of those logistical challenges. With the caveat that my interviews are generally conducted in areas where wifi access is abundant, I have extremely rarely had to shift from video to audio only interviews. Even employees who do not have a laptop or tablet are able to meet through their smartphone. The challenge with videoconferencing is that you never know who may be offscreen, just as you never know if your conversation is being recorded, so confirming the person is in a private place to speak sets a baseline expectation.

Keeping Everyone Safe

Videoconferencing offers the ultimate assurance of social distancing. While we may have moved past the worst of the pandemic, the need to quarantine or isolate due to exposure to COVID-19 can still arise at any time, and side-line plans for in-person meetings.

Videoconferencing also reassures all parties against exposure to other infectious diseases and milder ailments.  Years ago, when I was conducting investigations internally as an Employee Relations specialist, I once came to work while fighting a bad head cold so I could proceed with the scheduled interview of the respondent, a relatively senior manager who had a very busy schedule. After the interview, I received feedback from the HR Business Partner that the respondent complained I had been sneezing throughout our meeting. Rather than being  appreciated for my perseverance and commitment, I had made the manager uncomfortable by my physical presence. It was an interview that I should have postponed, or taken from the safer distance of a video screen.

More recently, I met in person to interview the respondent for a particularly sensitive matter.  Having just recovered from COVID-19 and completed my 10 days of isolation, I was feeling unusually secure about meeting in-person.  The day after the interview, I developed symptoms and tested positive for a rebound of COVID, and was put in the uncomfortable position of having to reach out to the respondent and others who had been present for that interview to advise them of their possible exposure.  Meeting by videoconference ensures that the investigator, the interviewee, and any third-party representatives are all safe from infection.

Moving Things Along

One of the other benefits of videoconferencing is that it enables speedier coordination of meetings.  Scheduling time to meet with individuals who travel frequently or work in multiple locations is much simpler when they can join via videoconference from virtually anywhere.

Making Exceptions

Notwithstanding these benefits, there still are times when videoconferencing may not be an ideal option. In particular, videoconferencing makes it slightly more challenging to build rapport and make the interviewee comfortable enough to provide the investigator with responsive information.  For that reason, when conducting interviews of individuals who report having experienced traumatic situations, such as sexual assault, in which building and maintaining that rapport and comfort is essential, the benefits of meeting in-person may outweigh the challenges.

There is no one right way to conduct workplace investigation interviews, provided there is a considered process behind decisions that are made.  Videoconferencing offers advantages, and my old bias toward in-person interviews has given way to a new reality.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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21

July, 2022

Workplace Investigations: When Should You Consider Retaining an Outside Investigator

Increasingly, organizations are conducting workplace investigations in response to employee concerns – both those raised formally to human resources or through a written complaint or attorney demand letter, and those raised informally in a conversation with a supervisor that is brought to human resources’ or an equivalent function’s attention.  Matters that, in the past, might have been handled by a conversation with the subject of the complaint and perhaps one or both parties’ managers are now referred for an investigation.  That typically comprises documented interviews with both parties and others believed to have relevant information, as well as a review of other materials, including documents, electronic communications, recordings, and physical items.

Human resources is most typically tasked with conducting these types of investigations.  In organizations with a larger HR function, there may be a dedicated employee relations function or equal employment opportunity (EEO) office to handle the investigation of matters potentially involving serious policy violations, such as the EEO or workplace violence policies.  Complaints about workplace conditions (not involving health or safety concerns) or more generalized issues of unfairness or favoritism (not based on any protected characteristic) are often looked into by the HR generalist supporting that business function.

Sometimes, though, an organization is best served by retaining someone outside the organization to investigate a workplace concern.  In my 15 years conducting workplace investigations, I have found that determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management.

Conflicts of Interest

CEOs/business owners, board chairs and other senior leaders can be the subject of an employee complaint reflecting a potential serious policy violation.  Or a workplace concern may involve the head of the organization’s human resources, compliance or legal function.  In each of those circumstances, the individuals within the organization who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organization.  The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation.

Even if the internal investigator feels equipped to disregard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome.  The complainant may raise concerns about the process to coworkers, and employees may be disinclined to raise concerns internally in the future.

An outside investigator can help an organization avoid these conflict-of-interest concerns.  The outside investigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organization who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within human resources or legal).

Sensitivity of the Issue

Sometimes the nature of the concern raised warrants retaining an outside investigator.  For example, matters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle.  A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-ended questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible.  These attributes of a trauma-informed approach are arguably best practices for any workplace investigation, but if the internal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.

Skills and Experience

Smaller organizations often do not have an internal human resources function.  HR support may be provided through a professional employer organization (PEO) or may be assigned to the business owner, the head of operations or the finance head.  Or perhaps an organization does have one or more internal people responsible for human resources, but their role and experience has primarily focused on recruiting, benefits administration or HR advisory work, with little or no experience conducting workplace investigations.  In these situations, leveraging the skills and experience of an outside investigator is helpful.  Some organizations will retain an outside investigator for support on an ongoing, as-needed basis, while others may retain an outside investigator more ad hoc, if a concern has been raised where an investigation seems appropriate.

Workload Management

Finally, sometimes an internal HR or investigations team just has too much on its plate or is short one or more staff and needs additional resources on an interim basis.  In these situations, the outside investigator still offers the benefit of more independent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support.

Final Considerations

An experienced outside investigator can be a helpful resource to organizations in a range of situations.  It is helpful to articulate to the investigator at the outset the business issue that prompted reaching out to someone external to the organization.  If, for example, an outside investigator is being retained due to a conflict of interest, then clarifying to whom the investigator will be reporting is important to ensure there is no perpetuation of the conflict.  And if the investigator is simply an extra set of hands to manage workload, then it is important to clarify when and how the investigator will be engaged for specific matters.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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18

July, 2022

EEOC Removes Employers’ Blanket Authorization to Test Employees for COVID-19

Responding to the evolution of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has concluded that we are past the emergency stage when it was always considered appropriate for employers to require screening tests of employees for COVID-19.  Updated guidance provides that, going forward, employers will need to treat COVID-19 testing like other medical examinations, under the standards of the Americans with Disabilities Act (ADA).  Most significantly, this requires that any mandated test be “job-related and consistent with business necessity.”

When COVID Testing Is a “Business Necessity”

The EEOC explained that “business necessity” is met in various circumstances:

  • To comply with government requirements or guidance – If guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, or state or local public health authorities recommends COVID-19 testing, then employers’ compliance with those guidelines will be considered a “business necessity.”
  • Based on likelihood of infection and transmission – This requires employers to weigh the relevance and impact of a range of factors, including: the level of community transmission, the vaccination status of employees, the accuracy and speed of processing various types of COVID tests, the degree of breakthrough infections among employees who are current on their vaccinations, the ease of transmissibility of the current variant, the possible severity of illness from the current variant, the types of contacts employees may have with others in the course of their work, and the potential impact on operations if an infected employee enters the workplace. The EEOC’s guidance does not elaborate on the weight to be accorded to any specific factor, or how many factors need to be present to reach the level of “business necessity,” but it does advise employers to check the latest CDC guidance to determine whether screening testing is appropriate based on the listed factors.
  • If an individual is exhibiting symptoms in the workplace – On an individualized basis, an employer may require further screening or COVID-19 testing if the employee at work is exhibiting symptoms or an employer otherwise has a reasonable belief based on objective evidence that the individual has COVID-19, and testing would be consistent with recommendations by the CDC or other public health authorities.

The EEOC’s guidance permits employers to require COVID-19 viral screening when one of the above circumstances apply.  However, the guidance is emphatic that employers cannot require employees to submit an antibody test (as distinguished from a viral screening test) before reentering the workplace.

Screening Questions Are Still Permitted

Under the updated guidance, other types of less-intrusive screening for COVID-19 remains permissible.  Employers can ask employees who are physically entering the workplace if they have COVID-19 or associated symptoms, and whether they have been tested for COVID-19.  Employers also can ask employees who work on-site and report feeling ill or who call in sick questions about their symptoms to the extent those symptoms relate to screening for COVID-19.

Those who respond that they are infected or exhibiting symptoms may still be excluded from the workplace, but employers cannot entirely prohibit them from working if remote work is feasible.  Similarly, employees who refuse to respond to the employer’s screening questions may be excluded from the workplace.

Screening and Evaluating Job Applicants

Employers may additionally screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided that screening is similarly administered to all employees in the same type of job who are entering the workplace.  At the pre-offer stage, screening of job applicants before they come in for an interview is only permissible if the employer screens all individuals, including visitors and contractors, before permitting entry to the worksite.

Given the relatively short period of time required for isolation or quarantine for those who test positive for COVID-19, the EEOC’s updated guidance limits the circumstances in which an employer can withdraw a job offer for an applicant who has tested positive for COVID-19.  The employer must be able to show that the job requires an immediate start date, the CDC guidance recommends the person not be in proximity to others, and the job requires that the individual be in proximity to others (it cannot be done remotely).

By Tracey I. Levy

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11

July, 2022

Maximize Your Talent Pool: 3 Ways to Ensure Your AI Is Not Screening Out Qualified Job Candidates with Disabilities

My son has been applying for hourly, entry-level summer jobs. Through his process, I am seeing first-hand, from the applicant’s perspective, the varying ways in which software, algorithms and artificial intelligence now predominate the job application process at this level.  When I was his age, I walked into different establishments, asked to speak with a manager, completed a paper application and then moved on, hoping to be called for a phone or in-person interview.  Now, from his experience:

  • Walk-in applicants are directed to a website, either that of the business itself or of a third-party vendor, to find postings for open positions;
  • All applications are submitted electronically, through on-line portals;
  • Initial screenings may be conducted by a series of questions texted to the applicant, and a wrong answer can shut the process down with a polite but firm response that the organization will not be proceeding further with the application at this time;
  • A next-level screening may be a video “interview,” which comprises the applicant self-recording, on the applicant’s phone with video enabled, responses to scripted questions posed by the organization and then submitting the video through a portal for review – perhaps by a human, but more likely first run through software that screens for certain substantive responses and stylistic behaviors; and
  • Scheduling of actual, in-person interviews may proceed through text or email, and the delayed responder may lose the interview opportunity, but the quick responder may, eventually, meet with an actual human being, in-person or via videoconference.

My son is very tech-savvy and was non-plussed by the AI aspects of his experience.  I, on the other hand, thought of the challenges my friends and I all have had, to varying degrees, trying to assist older family members use some of the same technologies deployed in my son’s job application process.  And I wondered, how would any of them be able to apply for an entry-level job under the current processes?  So too, the EEOC says, with regard to individuals with disabilities. 

In recently-issued Guidance, the EEOC considers these myriad ways in which automated processes and artificial intelligence can reject individuals with disabilities who would be qualified to do the job if provided a reasonable accommodation.  The EEOC recommends that employers account for this in various ways.  They include:

  • Notice – provide clear notice and instructions for applicants to request a reasonable accommodation in the context of the application process;
  • Relevance – assess algorithmic decision-making tools to confirm they measure only necessary skills and do not screen out individuals with certain disabilities; and
  • Disclosure of Process – disclose in advance information about which traits are being measured by an algorithmic tool, how they are being measured, and which disabilities might potentially score less favorably.

Artificial intelligence, we need to remember, is only as good as the information that was first used to program it.  The biases of the program designers and developers can influence the types of questions posed, or the way information is presented or analyzed, and thereby result in outcomes that disproportionately impact individuals possessing certain protected characteristics.  While some software vendors test for these disparate impact outcomes and will certify their products as having been tested to be “bias-free,” the EEOC cautions that those “bias-free” certifications pertain to Title VII-protected characteristics: race, sex, national origin, religion, and color.  Disabilities are unique to each individual, as is the requirement to provide reasonable accommodations for individuals with disabilities who are otherwise able to perform the essential functions of a job, and automated tools may thereby impact differently-abled individuals, even if they have the same diagnosed condition.

The EEOC encourages employers to develop and select tools that only measure abilities or qualifications that are truly necessary for the job.  While particularly resonant in the context of accommodating individuals with disabilities, the EEOC’s recommended approach will equally help employers to avoid inadvertently screening out individuals based on other protected characteristics.

Central to the EEOC’s guidance is encouraging employers to equip individuals with disabilities with sufficient information about the employer’s job application process so they know when they may need a reasonable accommodation to succeed in that process.  Particularly in the currently tight labor market, where employers are casting ever-wider nets to attract job applicants, a reassessment of screening tools can help to ensure that readily-available candidates are not rejected prematurely for reasons unrelated to their actual ability to perform the job.

By Tracey I. Levy

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