The 2nd episode of my “Employment Law Now” podcast is now released! If you have already subscribed before (and thank you), it should have appeared in your podcast feed automatically by now. Otherwise, feel free to subscribe to the podcast and get new episodes as they are released every two weeks.
In this week’s episode, we talk about employment law developments involving the DOL and Supreme Court nominees, regular attendance as an essential job function, and a potential new category of damages for certain FLSA cases. Also joining me is former FBI Special Agent Austin Berglas to discuss recent cybersecurity and data breach issues for employers.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
What better way to use a social media and employment law blog than to use social media to plug employment law?!
My new “Employment Law Now” podcast is now up on iTunes and Google Play so that you can easily subscribe (and listen) to automatically have each new episode download and appear in your feed as soon as the episode is released.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
I am very pleased to provide the link below to the inaugural episode of my new podcast: “Employment Law Now.” This first episode highlights recent noteworthy developments on sexual harassment, age discrimination, and class action waivers, and also presents an outside guest analysis of the likely impact that the new Trump administration may have on employers.
We will be working through some of the technical issues going forward to make future episodes sound even better for you, but I hope you will decide that it is worthwhile to make this employment law podcast a regular part of your routine. Details to follow on how to subscribe directly so that all future episodes (twice a month) will appear automatically as they are released.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
I hope you had a very happy holiday season and New Year. Both seem to be distant memories at this point. Many of the upcoming posts in 2017 will undoubtedly address, and be impacted by, the nature of the new Trump administration and the extent to which the primary (federal) government agencies will begin to retreat a bit from the aggressive positions taken over the past eight years. But some things just may not change.
We continue to see significant growth in the use of live feeds, video feeds, selfies, and generally the use of social media in the workplace. Not even the “traditional” workplaces: Pittsburgh Steelers wide receiver Antonio Brown set off a three rivers firestorm late Sunday night when he provided a live feed into the Steelers’ post-game locker room celebration while his head coach was giving a fiery speech that might have been different if he had known that the outside world was watching and listening.
Finding the most satisfying balance between permissible and impermissible use of social media in the workplace is often very hard. On the one hand, you can’t generally have a bare policy that prohibits any and all picture taking in the work place. On the other hand, employees’ rights may be left exposed with an effort to use pictures and videos to build a defense to a potential claim. Take, for example, the recent case of Furcron v. Mail Centers Plus (11th Circuit) in which the company allegedly fired a mailroom clerk for taking a picture (and showing the picture to others) of a co-worker’s crotch, in order to “document” alleged sexual harassment because of the co-worker’s “constant erection.”
Can’t make this stuff up.
The co-worker has Asperger’s Syndrome, which, according to the court decision, often results in the individual exhibiting “mannerisms that are generally considered awkward and inappropriate, including staring, brushing up against employees, and talking in people’s faces.” In turn, the clerk observed that her co-worker “frequently (‘on a daily basis’) exhibited an erect penis while staring at her. More significantly, she said [her co-worker] would deliberately bump and rub his erection against her.” After the clerk took the picture of her co-worker and brought it to the attention of her superiors and others, the company ultimately expressed the following as the reason for terminating her employment:
“Taking sexually suggestive pictures of a male associate’s private area without his permission or knowledge. Stored them in her camera and displayed the picture to other associates….”
The federal court of appeals for the 11th Circuit addressed, among other issues, the clerk’s retaliation claim against the company. Specifically, the court found that the clerk was not merely attempting to use pictures to document improprieties she witnessed in the workplace. Rather, the company was able to defeat the retaliation claim by proving that she was not fired in retaliation for complaining about harassment, and instead that her taking and showing photos of her co-worker’s crotch was itself a violation of the company’s separate, lawful anti-harassment policy.
Employer Take Away: What should you as an employer take away from this development?
There are currently lawful reasons for employees to use social media in the workplace, such as to attempt to collectively memorialize certain union-related activities. But your company can still regulate social media use that clearly violates a lawful workplace policy, such as one that prohibits the disclosure of trade secrets or one that prohibits harassment or discrimination. The key is to make sure your written policies are narrowly-tailored and precise, enforced consistently, and do not leave your employees hanging when it comes to knowing what is and what is not permissible conduct.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
It is this time every year, as I am wrapping things up over at “social media and employment law blog” central, – and particularly in this latest political election year – that I am reminded of that election campaign more than twenty years ago when Bill Clinton coined the phrase: “It’s the economy, stupid.” Well, the economy is still trying to sprout, and Clinton’s message still resonates in my mind as I reach the end of another year. Just as I came back to it at the end of last year: “It’s still the relationships, stupid.”
Social media and technology continue to be great things. Both have revolutionized our lives in ways never before imagined, and, at the same time, have dramatically impacted the relations between employer and employee to an extent that will never go away. Employees are using wearable technology in the workplace, and “selfie” has even been added to our dictionary. We have continued to discuss and dissect many instances in 2016 where employers have been told to toe the fine lines and manage the interplay between social media and employee relations.
For example, making sure your company crafts the narrowly-tailored social media policy that protects your legitimate business interests, while at the same time avoiding the overbroad and undefined terms that may chill your employees from engaging in protected concerted activity. Reaping the benefits of the World Wide Web as a source of information on applicants, but making sure you don’t learn “too much information.” Maintaining your right to monitor what goes on in your workplace and on your working time, but being mindful of your employees’ privacy and off-duty rights. And, understanding how compliance with traditional laws such as wage and hour requirements can be increasingly difficult with employee use of social media and technology. The rules and opinions, and the prognosticator do’s and don’ts, will continue to evolve, and most likely repeatedly change, as we dart past another New Year’s Eve later next week.
But I guess my point at the end of this year too, ironically enough, is to stop reading electronic posts like this for a minute, get your face out of your smartphone or monitor, don’t worry about capturing your hundredth selfie (that same afternoon), and simply look up to talk to someone. Anyone. Let’s turn off the technology for a moment, and ask why your company is (and will be) ultimately successful. Let’s also ask why your company may be able to successfully avoid legal pitfalls and litigation. The answer: It’s still the relationships, stupid.
I will always maintain that the definition of a “plaintiff” in a lawsuit is a “pissed-off employee.” The more you communicate with your employees, the more you walk and talk the hallways, and the more your relationships with your employees are valued within the bounds of existing law, the more successful your business will be and the more likely it is that you can avoid employment disputes. Valuing, being responsive to, and maintaining your inter-personal relationships with your employees, customers, clients, vendors, and business partners will still prove to be the most important precursor to a successful bottom line.
Employer Take Away: So, what is the final takeaway from 2016? What should you as an employer take away from this development? The rapid explosion of social media, and its impact on the workplace, will never take away from the value of true inter-personal relationships. As great as today’s advances are, it doesn’t always have to be about apps, status updates, and mass communication from behind a keyboard. It also doesn’t mean that we need to give into technology at the expense of our interpersonal relationships, and the face-to-face communications that still must take place.
Individually, we are no different than we are professionally. We spend so much time connecting to someone who is not in front of us, that it’s easy to ignore what is right in front of us. We are so worried about tomorrow and next week, that the happy, meaningful and productive parts of today go unnoticed. We are so obsessed with typing to the world in words and pictures about where we are and what we’re doing, that we’re not at all focused on precisely where we are, what we’re doing, and who we’re doing it with. To me, we are successful – professionally and individually – through the relationships right in front of us.
So maybe for this holiday season, we can find even an hour to put down the iPhone and BlackBerry (they still exist?), get to that e-mail or text in a little while, and keep the terrific picture we were about to post solely in our own heads for now. Enjoy the moment right in front of us, as it will always be about those relationships, stupid.
I greatly appreciate the time you have taken to read my blog this year, and I hope that I have provided you with some useful, informative, and perhaps occasionally entertaining insights on the interaction between social media and employment law. I look forward to continuing that effort for you in 2017. I wish you and your families a very healthy, happy and prosperous New Year.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
This is the time of year to anxiously look forward to all that is anticipated to come in 2017. But it is also the time to look back at all that has happened in 2016. Rather than simply give you links to all of my stimulating blog entries from the year that has passed (I’m confident you know how to search “archives” on this blog), I thought I would instead do the “2016 Year In Review” in song, as I have done this time the past few years. So, if you know the tune to “The Twelve Days of Christmas,” please close your office door and sing along to this reminder of the many 2016 social media/employment law concepts that I leave with you for the holidays. Part 2 of my year-end wrap up will come tomorrow.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
“I wish the U.S. Department of Labor could issue more workplace regulations before Inauguration Day,”
– said no employer anywhere ever.
Questions about the new overtime regulations aside, there might just be another DOL initiative that falls by the wayside before it even began.
You may remember the DOL celebrating Memorial Day back in 2015 by issuing its then-Spring regulatory agenda, which included RIN number 1235-AA12 entitled “Hours Worked Under the Fair Labor Standards Act.” That agenda item was not the publication of a new rule, but rather an announcement that the DOL intended to publish a request for information in August 2015 to determine whether the creation of a new rule would be appropriate and necessary. Specifically, the DOL described that agenda initiative as follows:
“The Department is seeking information from stakeholders on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work[.]”
To be fair, one of the biggest employer pitfalls that employment attorneys regularly discuss is the failure to pay for all hours worked by an employee when (1) the employee is performing work after hours and off premises using social media or some smartphone device, and (2) the employer does not necessarily know about that work because it is being performed after hours and off premises. This age of technology has, in many cases, created the 24/7 work day and the virtual “office” that is no longer constrained by the walls and ceilings of the company’s physical office building.
Take, for example, the supervisor who sends work-related e-mails to one of her subordinate employees, and then that employee decides to look at and respond to the e-mails from her stadium seat at halftime of a Dallas Cowboys football game on a Sunday night. Or, consider the vacationing employee having drinks in a sun-drenched Cancun palapa, who receives a call from his manager asking him to quickly promote a sale on his Facebook page. Is all or any of that “work” that must be recorded and compensated?
The DOL’s concern has been two-fold: First, making sure that employees are properly compensated for work performed. Second, and perhaps not as obvious, but gleaned more from other agency action, trying to reduce employer encroachment on employees’ personal time, sick leave and family time off. In other words, this initiative is part of others that attempt to regulate work/life balance issues. Some work-related assistance may be reasonable or even necessary during certain types of leave, though other requests may be more intrusive when the leave involves certain physical or mental conditions.
Since 2015, the DOL apparently has had bigger regulatory fish to fry, and never actually sent out its request for information. Yet, the initiative has been included in each of its regulatory agenda since. However, in its most recent semiannual regulatory agenda, the DOL just moved the initiative to a longer-term agenda, meaning that it’s not expected to be released before the end of this year. That also means: (1) it’s not likely to happen before the Trump Administration’s DOL takes office; and (2) it, therefore, may not happen ever (well, at least for the next 4 or 8 years).
Employer Take Away: What should you as an employer take away from this development?
Whether or not the government ultimately forces action on the issue, employers should still focus on technology and employee activity by also taking inventory of certain practices and policies before any further DOL action is taken. A few thoughts for consumption:
Make sure your policies (and practices) regarding working time, overtime, and the recording of hours worked are effective, accurate, and updated to reflect today’s realities and the realities of your employees’ positions.
It is not sufficient simply to have a written policy that admonishes after-hours and off-site work when it is nothing more than a “wink-wink” policy that is not implemented in practice by direct supervisors and managers. E-mail and technology curfews, and other policies and practices less formal, must be cultural and emanate from the company’s c-suite all the way down.
While it is perfectly acceptable to implement policies addressing the boundaries of work time and the need for approval to work overtime, it is less wise to discipline violations of such policies through wage or salary deductions than through the normal channels of performance discipline, even up to and including the termination of employment.
Develop a strategy and practice regarding the common practice of “working through lunch.” No one wants to be George Orwellian to an extreme in the workplace, yet well-intentioned practices can come back to haunt you if the waiver of a lunch break is prohibited in your jurisdiction, or if your employee comes back years later and argues that he or she was really working through lunch and was not compensated.
Give serious thought to whether it makes sense to limit the number of employees (and positions) who have company-issued smartphones or can have access to the company’s e-mails and systems from outside of the office. Perhaps there is a benefit to giving such devices and access only to those truly exempt employees, for whom you have fewer recordkeeping obligations when it comes to hours worked. That also assumes the company has properly classified its exempt employees. Oh, how this all interconnects.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
In the holiday spirit? Find yourself singing alone in the car to Mariah Carey’s “All I Want For Christmas Is You” on Lite FM (of course, I don’t, I’m just asking you)? Thought the most interesting thing on your Twitter feed in the past two weeks was news that Adam Sandler updated his Chanukah song?
Or…. That excitement and extra pep in your step you feel just may be that your office holiday party is right around the corner some time over these next couple of weeks. However, from a risk management perspective (and isn’t that why you’re reading this blog anyway?), employers should also heed the orange caution hue when it comes to office holiday parties. Otherwise, employers will quickly live the old adage that no good deed goes unpunished.
That is not to say that Ebenezer Scrooge should be your adopted holiday persona and that holiday parties should go the way of cassettes and fax machines. Nevertheless, I offer our Top 10 tips to avoid potential trouble with your office holiday parties, including several that deal specifically with the social media/employment law interaction.
#10 – Alcohol. So obvious an issue, yet so often still ignored. Without question, alcohol consumption is considered to go hand in hand with a party, and restricting or eliminating alcohol altogether may dampen the morale and sprit of those attending. Yet acts of alcohol consumption and reasonable restrictions are not mutually exclusive. Consider the following: (i) restricting the number of drinks permitted (through drink tickets), the type of drinks permitted (no shots and plenty of “cool” non-alcoholic options), or the time that drinking is permitted (last call prior to departure time); (ii) ensuring sufficient food is available and passed around to help slow absorption, (iii) offering vouchers/paid cab rides or incentives to employees to act as designated drivers.
#9 – Selfies. Today’s biology lesson: We were born with two hands so that, while one holds the drink, the other can hold the smart phone. Very few go a minute these days without snapping a picture or video of themselves or others. Alcohol lowers the inhibitions there as well (see #10 above). Make sure your employees are sensitive to the privacy wishes of those around them, as well as the fact that delete never truly means delete.
#8 – Compensation/Bonuses. Recent Presidential Executive Orders and NLRB decisions suggest that you cannot prohibit employees from discussing wage-related issues in person or via social media. Consider advising your employees of end-of-the-year salary adjustments and bonuses after putting them all together in a party room, particular if the economic climate dictates a downward trajectory on dollars for your partygoers.
#7 – Dress Code. Good news: You no longer are likely to have the costumes that your office Halloween party paraded in. Not-so-good-news: Employees still change attire when leaving the office to go to a holiday party. Make sure employees are aware of your reasonable dress code expectations, and that inappropriate and overly suggestive attire is not acceptable for any office-related function.
#6 – No-Shows. There is a myriad of reasons why your employees may choose to avoid the office holiday party. Perhaps an employee has suffered a personal loss at this time of year, or is generally uncomfortable with mixing “business with pleasure.” Perhaps an employee has another commitment that evening, or simply wants to spend the time with family. In any case, the point of the holiday party should be to celebrate and reward employees who want the celebration and reward, and not retaliate or ostracize those uncomfortable with it.
#5 – Non-Secular. In a similar vein, it is often difficult to see the harm in adorning the party room with the Menorahs and Christmas trees, or having the CEO come in white beard and red coat to hand out the Secret Santa gifts. As with any work time issue, however, employers should understand their religious accommodation obligations under the law and be sensitive to those who may be particularly sensitive with overly-secularized party themes.
#4 – Spouses/Parties/Others. We assume the goal of your office holiday party is to boost the morale of your employees and reward them with a company-sponsored party for another productive year. Not to create a wild-wild-west, anything goes forum. To properly strike the desired balance, perhaps consider the additional proactive step of inviting spouses, partners, and significant others to your party to keep the atmosphere disciplined and professional.
#3 – Location. They say in real estate that “it’s all about location.” Many believe the same is true with holiday parties. Again, if the goal is to provide a fun morale boost (see #4 above) and still keep the decorum professional, consider holding the holiday party in the office. Your employees are less likely to forget that office policies and protocols still apply regardless of where the office personnel congregates. Which brings us to #2…
#2 – Policies. Office policies and protocols still apply regardless of where the office personnel congregates. So important, it is worth repeating verbatim. And also so important that it is worth having you or your HR professional consider the following: (i) making sure you have comprehensive, lawful workplace policies (harassment, discrimination, retaliation, complaint process, social media) in place, and (ii) circulating a memo to employees prior to your holiday party that reminds them of your workplace policies, that those policies apply equally to on- and off-premises parties, and that the company will not tolerate inappropriate behavior and violations of its policies. It is not difficult for someone to file a harassment and discrimination complaint generally; as employers, you want to make sure that you do not make it even easier through your hosted events.
And the #1 Tip To Avoid Potential Trouble At Your Office Holiday Party – Mindset. There is always the unexpected occurrence, and even the forgotten rule or law. But employers are best equipped to anticipate and address any issues concerning the office holiday party if they develop the appropriate mindset from the start. They say you cannot start talking to your children for the first time when they become teenagers, and it is equally futile to start developing the appropriate mindset on workplace protocols and employee relations for the first time at holiday time. Spend the entire year creating the right atmosphere in your workplace, understanding the do’s and don’ts when it comes to employee obligations and rights, and speaking with counsel when you are not sure. In fact, once your holiday party is over, consider including all of that in your New Year’s resolution.
Employer Take Away: What should you as an employer take away from this development?
Read #10 through #1 above to yourself, and share it as a gift to your HR professionals and managers. Do what you can to adopt a mindset that includes any or all of the above, while still being able to maintain the office holiday party as a means for appreciating and thanking your employees for a wonderful year.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Are you tired of people refusing to take accountability for their actions? Tired of excuse after excuse for potentially offensive words? Sick of folks blaming grammar lunacy on their iPhones?
If you answered “yes” to all three questions, please join my crusade to rid the world of the misnomer that is “autocorrect.” Or, as I like to say, “autowrong.” A close cousin to the curious “near-miss” used when two objects fortunately avoid hitting each other (wouldn’t that be a “near-hit”??), my experience with “autocorrect” is that it results in more wrong than correct. But as usual, I digress.
Shall we take this back to social media and employment law? A new lawsuit filed in Ohio entitled Warmack v. University of Cincinnati may explore the issue. In Warmack, plaintiff claims that he was copied on an e-mail between an academic director and plaintiff’s supervisor that said “I hate [N-word], was not able to get in.” In the course of its investigation, the university has apparently stated that the message was not the product of intentional racial animosity, but rather the result of a prank by an unknown individual who gained access to the supervisor’s iPad and altered the autocorrect setting to substitute “he” with the phrase “I hate [N-word].” The supervisor apparently didn’t notice the autocorrect (autowrong?) change and sent messages containing the offensive phrase.
We shall see where this goes.
Employer Take Away: What should you as an employer take away from this development?
We all know by now that social media and electronic communications make it so easy and quick to send messages to one individual or the masses. If the university’s response is true, who ultimately should be the responsible party here – an individual who may have unlawfully gained access to the iPad or the individual who nevertheless sent an offensive message because of autowrong? Perhaps this case will sort through that.
In the meantime, this is another great cautionary tale about social media use by employees and employers. It is no longer critical that you are only extra cognizant of who is going to receive the message (click here for my rant 5 years ago on the similarly annoying/troubling use of “reply to all”), but also extra cognizant on what you are sending in what you may have thought was an informal communication that can’t be taken back and can’t really be permanently deleted.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
Follow @MschmidtEmpLaw
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by 