Yesterday’s CED summarized some of the legal risks involved in disciplining over social media use. Today, again courtesy of national employment law firm Jackson Lewis, LLP, we'll tackle the tricky issue of social media policies, and we'll take a look at a one-stop resource for all of your employee handbook policies—specifically for California employers.

The precise contours of an employer’s social media use policy will depend on the organization, its culture and approach to social technologies, and the nature of work performed, Jackson Lewis says.

For instance, a social media use policy for educators may be very different from a policy aimed at employees who are encouraged to use social media for developing client relations. However, there are some basic issues all employers should address when implementing a social media policy.

First, employees should be warned that postings including the following will not be tolerated and will subject the individual to discipline:

• Proprietary and confidential company information;
• Discriminatory statements or sexual innuendos regarding co-workers, management, customers, or vendors; and
• Defamatory statements regarding the company, its employees, customers, competitors, or vendors.

Social media use policies should also make clear that if the employee mentions the company with which he or she is affiliated, he or she must also include a disclaimer stating that any opinions expressed are the employee’s own and do not represent the company's positions, strategies, or opinions.

Got an updated social media policy that’s California-compliant? We do.

The policy should specify that these prohibitions apply to postings and blogging occurring at any time, on any computer.

Policies should also provide a detailed explanation of what is considered “acceptable use” (e.g., business use only, limited personal use, or unlimited personal use), Jackson Lewis notes.

Employers can also implement a policy that reduces the level of privacy employees expect in their work computer systems, email, and Internet use. Indeed, courts have routinely considered whether an employer has an electronic communications policy when determining whether an employee had a reasonable expectation of privacy.

While such a policy will not necessarily insulate an employer from all potential liability, it will reduce employees’ expectations of privacy and provide the employer with more discretion to take action against employees who engage in misconduct, Jackson Lewis says.

Other provisions employers may choose to incorporate into a social media use policy include the following:

• Employees are expected to comport themselves professionally both on and off duty.
• Managers are prohibited from using any informal review systems on social networking sites (e.g., LinkedIn).
• Company policies governing the use of corporate logos and other branding and identity apply to electronic communications, and only individuals officially designated may “speak” (whether orally or in writing) on the company’s behalf.
• Employees must comply with all other company policies with respect to their electronic communications (such as rules against conduct that may result in unlawful sexual harassment).
• The company’s systems may not be used for any illegal activity including downloading or distributing pirated software or data.
• The company reserves the right to take disciplinary action against an employee if the employee’s electronic communications violate company policy.
• A statement that the policy is not intended to interfere with rights under the National Labor Relations Act.
• A designated management representative within the organization as the point of contact for policy violations or questions concerning the policy to ensure consistent application.
• Notice that monitoring will occur—to reduce an employee’s expectation of privacy.
• A reporting procedure for violations of the policy.

A social media use policy should be written with the assistance of counsel for distribution to all employees in employee handbooks, policy manuals (as a stand-alone policy), paycheck reminders, and annual or more frequent email reminders. Employers may also consider requiring employee acknowledgments for receipt of all of the above.

Protect Your Workplace with the California Employee Handbook Template—Fully Updated for 2012!  

You shouldn’t attempt to do business in 2012 without a fully updated social media policy. There are plenty of other policies you need, too, of course: Equal employment, FMLA/CFRA, at-will employment … the list goes on and on.

A clear, updated collection of consistently enforced employment policies will go a long way toward keeping your workers informed and happy. Do you have one?

You do now. The California Employee Handbook Template is a complete collection of 101 vital policies—written specifically for employers in California—along with guidance on which policies apply in which situations. You get:

• At-Will Employment
• Employee Classifications
• Social Media Code of Conduct
• Right to Observe Employees
• Voice Mail, Email, Electronic and Computer Files, and Usage
• Appearance and Courtesy; Uniforms
• Equal Employment Opportunity
• Harassment Prohibited
• Retaliation Prohibited
• Bullying Prohibited
• Accommodation of Disabilities
• Zero Tolerance for Drugs or Alcohol in the Workplace
• Terminations
• Final Pay
• Progressive Discipline
• Rest Periods
• Meal Periods
• Overtime Pay, Authorization, and Mandatory Overtime
• Payroll Deductions
• Travel Time Pay
• Bereavement Leave
• COBRA Coverage for Health Insurance
• And 79 more!

Click here for a full Table of Contents.

All of the policies are fully editable and customizable—when you order, you’ll get a link to editable Word versions of all 101 policies.

Plus, we’ve gone through the entire handbook and made all of the updates you need for 2012—you won’t have to worry about being tripped up by an out-of-date policy that’s no longer legally compliant.

All of the policies in the California Employee Handbook Template have been drafted by an experienced California employment lawyer. Plus, we’ve provided practical information for every single policy on:

• Which employers the policy applies to
• Which employees the policy applies to
• Whether the policy is required or optional
• Special considerations

It’s like having a California employment lawyer on call, working on your handbook 24/7, at a fraction of the cost!

Best of all, we’ll send you a brand-new edition each year so that you always have the most up-to-date policies available. Don’t delay—order today and get your handbook up to date once and for all.

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Nearly every company is struggling with how to best handle social media use at, and relating to, the workplace. A recent white paper from national employment law firm Jackson Lewis, LLP points out some of the legal dangers in confronting employees over their use of social media.

When might you want to discipline over social media? There are a myriad of scenarios, Jackson Lewis says. For example, an employee:

• Engages in illegal web-based activity while at work
• Spends the majority of his or her on-duty time surfing
• Criticizes a supervisor or client
• Posts distasteful photos or videos
• Calls in sick and then posts contrary information 

Jackson Lewis’s real-life examples include:

• An Orlando sheriff’s deputy was fired after he posted comments about swimming nude, drinking heavily, female breasts, and other topics on MySpace.
• A California automobile club fired 27 employees who made objectionable comments on MySpace, including remarks about co-workers’ weight and sexual orientation.
• The Philadelphia Eagles fired an employee for posting a critical message about the team on his Facebook page. The employee wrote, “I am f---ing devastated about [Brian] Dawkins signing with Denver … Dam Eagles R Retarded!”

Before deciding to take an adverse employment action against an employee based on his or her social media use, you should consider the following possible legal constraints, says Jackson Lewis:

Could the employee be protected by the National Labor Relations Act?

The federal NLRA affords employees (even those who are not unionized) the right to engage in “concerted activity,” including the right to discuss the terms and conditions of their employment—and even to criticize their employers—with co-workers and outsiders.

Not all concerted activities are protected by the NLRA; only those activities that are engaged in for the purpose of collective bargaining or other mutual aid or protection are covered.

Could the employee be protected under a whistleblower statute?

Federal and state whistleblower laws may protect employees who complain about company conditions affecting public health and safety as well as employees who report potential securities fraud violations.

For example, the Sarbanes-Oxley Act of 2002 prohibits employers from terminating employees for “providing information, causing information to be provided, or otherwise assist[ing] in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of … any rule or regulation of the Securities and Exchange Commission, or any provision of federal law relating to fraud against shareholders.”

Got an updated social media policy that’s California-compliant? We do.

Was the communication related to political activities or affiliations?

Many states, including California, prohibit employers from regulating employee political activities and affiliations or influencing employees’ political activities. Taking action against an employee for objectionable political speech could violate these restrictions.

Was the employee engaging in “legal off-duty activity” protected by state law or illegal activity?

Some states have “lawful conduct” laws that may protect an employee or applicant’s legal off-duty activities.

For example, under California law, an employee is protected from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”

Thus, in some states, an employer may be prohibited from terminating an employee who, for example, posts pictures of himself intoxicated at a party (assuming the employee is over 21 years old). In contrast, the employer may have more leeway where the conduct is illegal (assuming the employee is under 21 in the example provided).

The law is far from clear in this area, and employers should consider each situation independently, Jackson Lewis suggests.

101 must-have employee handbook policies—fully updated for 2012 and specifically written for California employers.

Does the employee have a potential discrimination claim?

When using social media to vet job candidates, an employer may inadvertently become aware of an applicant’s protected characteristics, such as race, age, sexual orientation, marital status, disability, and even genetic information.

If the employer decides not to hire the applicant, the applicant could sue the employer, alleging that the decision was discriminatory. This is the precise reason most employers stopped requiring applicants to submit certain information with their resume or application; searching social networking sites may reveal such information and open the employer to the very risk it tried to avoid.

One practical option is to have someone who is not a decision maker at the company conduct the search to filter out protected information. This person can then provide the “scrubbed” information in document form to a decision maker for review.

In tomorrow’s CED, Jackson Lewis’s recommendations for a social media policy, and an introduction to a one-stop solution for all your policy needs—specifically for California employers.

Download your free copy of 20 Must-Have Employee Handbook Policies today!

Workplace violence can range from threats and verbal abuse to physical assaults and homicide, one of the leading causes of job-related deaths. Fortunately, there are steps you can take to reduce the likelihood of violence in your workplace.

Who Is Vulnerable?

According to the federal Occupational Safety and Health Administration (OSHA), some 2 million American workers are victims of workplace violence each year. Workplace violence can strike anywhere, and no one is immune. Some workers, however, are at increased risk. Among them are workers who:

• Exchange money with the public.
• Guard valuable property or possessions.
• Deliver passengers, goods, or services.
• Work alone or in small groups.
• Have late night or early morning work hours.
• Work in high-crime areas.
• Work in community settings and homes where they have extensive contact with the public. This includes healthcare and social service workers such as visiting nurses, psychiatric evaluators, and probation officers.
• Have jobs out in the community, such as gas and water utility employees, phone and cable TV installers, and letter carriers.
• Have jobs in retail settings.
• Have a mobile workplace such as a taxicab or police cruiser.

What Can You Do to Help Protect These Employees?

The best protection employers can offer, says OSHA, is to establish a zero-tolerance policy toward workplace violence against or by their employees. Typically, such policies also have a zero-tolerance toward threats of violence.

You should establish a workplace violence prevention program or incorporate the information into an existing accident prevention program, employee handbook, or manual of standard operating procedures.

Train all employees about the policy and be sure that they understand that all claims of workplace violence will be investigated and remedied promptly.

Develop an effective workplace violence-prevention plan: Webinar on 2/28!

In addition, you can offer protections such as the following:

• Encourage employees to report and log all incidents and threats of workplace violence
• Provide safety education for employees so they know what conduct is not acceptable, what to do if they witness or are subjected to workplace violence, and how to protect themselves.
• Secure the workplace. Where appropriate to the business, install video surveillance, extra lighting, and alarm systems and minimize access by outsiders through identification badges, electronic keys, and guards.
• Provide drop safes to limit the amount of cash on hand. Keep a minimal amount of cash in registers during evenings and late night hours.
• Equip field staff with cellular phones and handheld alarms or noise devices, and require them to prepare a daily work plan and keep a contact person informed of their location throughout the day. Keep employer-provided vehicles properly maintained.
• Instruct employees not to enter any location where they feel unsafe. Introduce a “buddy system” or provide an escort service or police assistance in potentially dangerous situations or at night.
• Develop policies and procedures covering visits by home healthcare providers. Address the conduct of home visits, the presence of others in the home during visits, and the worker's right to refuse to provide services in a clearly hazardous situation.

How Can Employees Protect Themselves?

Nothing can guarantee that an employee will not become a victim of workplace violence. However, these steps can help reduce the odds:

• Learn how to recognize, avoid, or diffuse potentially violent situations by attending personal safety training programs.
• Alert supervisors to any concerns about safety or security, and report all incidents immediately in writing.
• Avoid traveling alone into unfamiliar locations or situations whenever possible.
• Carry only minimal money and required identification into community settings.

What Should Employers Do Following an Incident of Workplace Violence?

• Provide prompt medical evaluation and treatment after the incident.
• Report violent incidents to the local police promptly.
• Inform victims of their legal right to prosecute perpetrators.
• Discuss the circumstances of the incident with employees. Encourage employees to share information about ways to avoid similar situations in the future.
• Offer stress debriefing sessions and posttraumatic counseling services to help workers recover from a violent incident.
• Investigate all violent incidents and threats, monitor trends in violent incidents by type or circumstance, and institute corrective actions.

Workplace Violence: Prepare an Effective Violence Prevention Plan Using the Plan/Prevent/Protect Model

Workplace violence continues to be a problem in the American workplace, and sadly, California typically has been one of the states with the highest rates of workplace homicides. Consider the following recent events:

• 12/18/11, Irwindale: An employee walks into his company complex armed with a semi-automatic handgun and kills two employees and wounds two others before turning the gun on himself.
• 10/31/11, Seal Beach: A shooting at a hair salon claims the lives of eight victims, with a ninth critically injured.
• 10/5/11, Cupertino: A disgruntled employee accused of killing three co-workers and injuring six others at a Northern California limestone quarry draws SWAT teams in armored vehicles to the normally quiet streets of Silicon Valley.
• 9/26/11, Yuma Sun: An employee is arrested for alleged threats at the Quechan Tribal Office.
• 6/7/11, Irvine: A woman is killed by her estranged husband in the parking lot of the daycare center where she worked.

Cal/OSHA requires you to provide your employees with a safe and healthful workplace. Are you doing everything that’s required of you?

Join us for an important webinar on February 28—specifically for California employers— where you’ll learn:

• Who’s most likely to cause violent acts in the workplace, and why it’s important for your organization to know which types of acts are most likely to occur at work
• How to proactively focus on reducing workplace violence through counseling, respectful termination policies, and pre-employment and infinity screening
• The importance of conducting risk assessments to identify workplace security factors that contribute to the risk of violence in your workplace
• How to make prevention the focus of your workplace violence program by targeting injury prevention
• How to identify the early warning signs and patterns in behavior that may lead to violent incidents so you can intervene before incidents occur
• Tips for training staff to report problematic behavior and training supervisors how to intervene
• What your workplace violence prevention plan should include
• Why you should consider integrating workplace violence prevention into your business continuity program
• How to build a security-conscious work environment that embraces predictive management techniques
• The liability you could face if you ignore warning signs and fail to appropriately respond to threats of violence in your workplace

As an added bonus, register for this webinar and get the National Institute for the Prevention of Workplace Violence’s 2011 Workplace Violence Factsheet!

This webinar is free of charge and available exclusively to our CEA Online subscribers. Not already a CEA Online subscriber? Sign up now for a free trial, 100 percent risk free!

Download your free copy of 7 Steps for Preventing Workplace Violence today!

What are the most common types of FMLA abuse? Do you have employees who might be abusing the FMLA system? In a CER webinar titled "Stop FMLA/CFRA Abuse: 10 Ways Employers Are Combating Chronic Call-Ins and Fraud," Marc L. Jacuzzi, Esq., differentiated between suspected abuse versus fraudulent use of the system, and also outlined some of the most common types of FMLA/CFRA abuse.

FMLA Fraud vs. FMLA Abuse

What happens when an employee commits FMLA fraud? When an employee fraudulently obtains FMLA leave from an employer, that employee is not protected by the FMLA’s job restoration rights or the benefits of the FMLA. In other words, this employee could be terminated. FMLA fraud may include falsifying certification documents, for example.

FMLA abuse, on the other hand, occurs when an employee wrongly, improperly, or excessively uses the system. Someone may be pushing the envelope without actually committing fraud. He or she may still be entitled to leave and reinstatement.

Common Types of FMLA/CFRA Abuse

Jacuzzi outlined some common ways employees may commit FMLA abuse:

• Missing Mondays and Fridays consistently, or taking leave to extend a holiday. In this case, you can request recertification if a pattern emerges. However, you cannot assume that just because someone on leave is somewhere other than home, that they are abusing the system.
• Taking leave (regular or intermittent) at any time without actually having the underlying serious health condition as a reason. (Some employers have hired private investigators to determine what activities an employee is undertaking while on leave).
• Altering a medical certification such that leave would be allowed or extended beyond what the health care provider actually noted, such as a falsification of the diagnosis. (This actually goes beyond abuse and would be fraud, in which case termination of the employee is appropriate.)
• Working at another job with the same duties during FMLA/CFRA leave time (which shows that the employee is able to perform the essential job functions and thus perhaps does not actually qualify for the leave.) Be careful, however, as this alone may not be conclusive evidence that the employee is committing abuse, there could be further details to consider.

How Can You Curb FMLA Abuse?

With such common types of FMLA abuse, what can you do? There are several steps you can take to reduce these types of things from occurring:

1. Request certification or recertification (within your legal boundaries) when an employee takes leave. In California, however, be aware that the law differs. Jacuzzi noted that "the DOL allows you, under FMLA, to get specific information about what the condition is; here in California, the CFRA does not allow that. If you are getting any specific health information, make sure that they sign a compliant medical release form as well."
2. Require forms to be completed in full and on time in order to grant FMLA leave.
3. Require employees to take paid and unpaid leave concurrently.
4. In some cases, the employer can contact the health care provider, but only for clarification and verification, not to obtain further information.
5. Get second or third opinions of a serious health condition.
6. Track intermittent leave and regular leave on a rolling basis to prevent stacking.
7. When an employee requests intermittent leave, Jacuzzi noted, "the employee must advise you of the reasons why the leave schedule is necessary and the schedule of treatment. Under the new federal regulations, the employee must consult with you and make a reasonable effort to schedule the leave so as not to unduly disrupt operations." Take advantage of this and ensure it is part of your policy.
8. Consistently implement policies related to giving rewards to employees who are out on a leave of absence. For example, if you give a bonus or other payment based on achievement of a goal (i.e., hours worked, products sold, or perfect attendance) that the employee fails to achieve due to his/her FMLA absences, unless otherwise paid to employees on equivalent leave status for non-FMLA reasons.
9. For intermittent leave, the employer may transfer the employee temporarily to an available alternate position for which the employee is qualified provided the position has equivalent pay and benefits, and better accommodates recurring periods of leave than the employee’s regular employment position.
10. Employer may require a fitness-for-duty certification upon return.

To register for a future webinar, visit CER webinars.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgijlaw.com). He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.

At its heart, the Penn State University (PSU) football scandal is a criminal matter. But it’s also the ultimate example of sexual harassment being permitted to occur openly, continuously, and notoriously in a workplace, says San Francisco attorney Mark Schickman.

Schickman is a partner at Freeland Cooper & Foreman LLP and a member of the Employers Counsel Network.

The scandal, Schickman says, is a sober reminder of what can happen if any person or group believes it is bigger than the rules—immune from the consequences of violating the law and company policies.

Multiple Alleged Counts of Sexual Assault—and Failure to Report

According to a 23-page grand jury report (from which the following allegations are taken), longtime PSU assistant football coach Jerry Sandusky is charged with multiple counts of sexual assaults on minors; he denies all the charges.

Secondarily, two PSU top officials (Athletic Director Tim Curley and Vice President Gary Schultz, who supervised the campus police) are charged with failing to report evidence of child molestation in 2002 and committing perjury to the grand jury in 2011. 

Pennsylvania law (like that of most states) says that if your job or institution brings you in contact with children, you must report any reasonable suspicion of child abuse to the head of your institution, which is obligated to contact public welfare officials within 48 hours.

In this case, PSU missed multiple opportunities to report the misconduct, thereby enabling many alleged acts of abuse that continued in the years to follow. At its heart, the conduct is a terrible crime. 

Don’t make a guess about the state of the law in California—getting it wrong could cost you big. Get your own copy of the complete 2012 Guide to Employment Law for California Employers—risk free.

Unsportsmanlike Conduct 

According to the grand jury report, since at least 1996, Sandusky engaged in an ongoing pattern of sexual conduct with young boys within the university’s football facilities.

In 1998, the mother of one of the abused children complained to police about Sandusky’s conduct when her child came home with wet hair after showering with the coach.

University and county police both investigated, and Sandusky admitted to showering with the child, but at the university police’s request, the district attorney never filed criminal charges. The next year, at age 55, Sandusky unexpectedly retired as assistant coach but retained “emeritus” status and access to the football facilities.

In 2000, a janitor saw Sandusky having sex with a young boy. He told the other janitors and his supervisor, but nobody reported it.

A few years later, in 2002, graduate assistant Mike McQueary saw Sandusky sexually assaulting a young boy in the locker room and reported it to head coach Joe Paterno.

Paterno reported it to Curley, whose “remedy” was taking away Sandusky’s locker room keys. The police weren’t called until 2009, when another teenage boy told authorities about four years of sexual abuse by Sandusky. The grand jury investigation and report followed.

12 Years Later, House Cleaning at PSU

After the grand jury issued its criminal indictments, Paterno, the winningest coach in college football history with the squeakiest reputation in the profession, immediately announced that he would retire at the end of the season. Later that day, he was told that he and PSU President Graham Spanier were fired effective immediately.

PSU decided to atone for 12 years of inaction by cleaning house of Paterno, Spanier, Schultz, and Curley. McQueary was placed on paid administrative leave for his own safety. But it took a grand jury indictment for the university to act. What went wrong?

Your complete California employment law desk reference—fully updated for 2012! Learn more.

The Untouchables 

PSU has excellent written policies against harassment—and it’s the palest of understatements to say the alleged conduct in this case is at least sexual harassment.

All university staff members are required to report harassment, and retaliation is prohibited. Yet at all levels of the university, nobody would enforce those rules against the football program.

In 1998, the university police caught Sandusky; he got off with a warning. It’s no wonder that, despite the policy, the janitorial staff was afraid to report Sandusky’s sexual assault of a boy in the shower in 2000—proof positive that PSU’s nonretaliation policy wasn’t working.

In 2002, Sandusky’s conduct was reported to the top levels of the school, where it was again whitewashed. For the next eight years, he appeared at team awards dinners and sporting events accompanied by pre-teen boys he met through the youth charity he created, The Second Mile. He had proven that he could brazenly get away with anything.

Nobody Should Be Above the Rules

Sexual harassment cases come in many forms. I thought that the most egregious cases had disappeared over the years as training, prevention, and remedies grew stronger.

But PSU’s scandal shows that outrageous abuse still exists and that HR diligence—especially regarding the highest-ranking, most powerful officials at an organization—remains critically important. It can’t matter that an offender is immensely profitable, protected, or high-profile.

Powerful people and institutions often think they’re above reproach; it’s our job to train them that they aren’t.

Get Up to Speed on California Harassment Laws…

… and wage/hour, family leave, recordkeeping, and more.

Unless you’re a research superstar, you might not know all you should about the nuances of California’s unique laws. Unlike the federal government, which puts all new regulations into the Federal Register, states publicize them in obscure journals that aren’t widely available. Yet officials still expect you to comply.

Fortunately, tools are available to help you keep up with state laws. One is our newly updated 2012 Guide to Employment Law for California Employers. This valuable desk reference has kept employers apprised of state law and its differences from the federal law for years. Here are some reasons they tell us they won’t be without it:

Presents and Compares Federal and State Law on 200 Employment Topics. For each topic, first there’s a plain-English explanation of what you need for federal compliance. Then, right next to the federal, there’s an explanation of what California requires.

Topics Alphabetically Arranged. Pick today’s HR challenge, from “Affirmative Action” to “Workers’ Compensation,” and it’s easily found.

Highlights of the Main Changes to Both California and Federal Law for 2012. Easy-scan checklists provide a quick rundown of the main changes you need to be concerned about—turn to the appropriate section in the Guide for a full explanation.

You’ll have easy access to:

• More than 1,000 pages of reliable, plain-English guidance on key HR issues arranged by topic in an easy-to-use, quick-reference format
• Highlights of the latest legal changes and developments from the past year
• Updates on new legislation and regulatory changes and what they mean for you in 2012
• Coverage of precedent-setting court decisions
• Quality overviews and analysis of both federal and California requirements
• And much, much more!

Best of all, the guide costs less than 77 cents each workday in 2012. Compliance peace of mind for less than your daily cup of coffee—you won’t find a better deal anywhere.

Click here to order your copy today, before we get any further into the new year. If you’re not 100% thrilled with it, just return it and pay nothing—there’s no risk to you.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!