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Employee Blogging
EMPLOYEE BLOGS: If you’re going to “dooce,” do it properly.
In 2002, Heather Armstrong was terminated for "blogging" about her employment experiences on her personal, anonymous blog, dooce.com. Since then, the term "dooced" has become synonymous with being terminated for blogging activities. The legalities of these types of terminations are anything but established, but as blogging, including anonymous blogging, becomes more common, employers must consider the impacts of employee blogs and address blogging issues in their workplace policies.
Both state and federal laws are implicated by an employer's response to employee blogging. Within Oklahoma, the doctrine of at-will employment will help protect employers from liability for doocing an employee. However, dooced employees around the country are increasingly filing suits against their former employers alleging that their blogging activities fall under one of many exceptions to the at-will doctrine. For instance, employees may argue that policies set forth in an employee handbook or policy manual limit the employer's right to terminate for blogging. This is particularly true in the event that the employer's policy contains a progressive discipline policy, or applies only to on-the-job activities. Similarly, employees may attempt to invoke the public policy exception to the doctrine of at-will employment. Commentators generally agree that this exception would be available to a dooced employee in limited circumstances, including whistleblowing activity or refusal to commit an illegal act. However, the "in flux" status of the public policy exception in Oklahoma makes it particularly risky for Oklahoma employers to simply terminate, without adhering to established policies or without creating new policies to combat blogging activities.
A variety of federal laws are implicated when deciding to dooce an employee, including the National Labor Relations Act (which applies to employers regardless of whether a union is involved), which protects an employee's right to engage in "concerted activity" designed to provide "mutual aid or protection" for employees. Employers should be particularly vigilant when addressing blogs that include commentary regarding general working conditions or other issues that generally affect the employer's entire workforce.
Federal anti-discrimination laws, including Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act may be implicated by employee blogs in two ways. First, if the blog contains information regarding the author-employee's protected characteristics, the dooced employee may attempt to argue that the employee was discriminated against on the basis of those protected characteristics. Second, if the employer acts inconsistently in enforcing its blogging policies, the dooced employee may argue that the policies have been applied in a discriminatory way.
Dooced employees may also attempt to claim First Amendment protection for their activities, and, as a general rule, anonymous speech is entitled to First Amendment protection. These constitutional protections are likely limited to public employees. Federal privacy laws may prevent an employer from monitoring its employees’ on-the-job online activities, including blogging activities. Employers are advised to create and implement policies allowing for the monitoring of employer-provided computers, networks, etc.
Finally, employers may face liability for tort claims such as defamation or interference with business relations based upon the blogging activities of its managers, for example. Employers must remain mindful of their employment policies, particularly those policies under which the employer undertakes the duty to prevent, investigate and discipline employee harassment.
In sum, employers are urged to implement blogging policies. When drafting such policies, employers are advised to consider the following: (1) types of conduct prohibited, i.e., personal blogging, contributions to online chat rooms, etc.; (2) restrictions on specific identification of the employer, its competitors, clients and employees; and (3) prohibitions on engaging in blogging activities during working hours or on employer-provided equipment. Without a properly drafted blogging policy, it is entirely possible that the employer will find itself duped by a dooced employee.
By Courtney Bru, cbru@dsda.com.
Wage and Hour
A FEW TIDBITS FROM OUR FRIENDS IN THE GOVERNMENT
Our friends at the Wage and Hour Division of the Department of Labor have been busy. On March 6, they released 40 opinion letters, all of which had been written during the Bush Administration. Then, they immediately withdrew 20 of the opinions. Those opinions that were not withdrawn provide some good guidance for employers.
- Don’t forget an exemption requires the employee be paid on a salary basis. When these hard times lead you to reduce the hours of your employees, you may jeopardize the exempt status of employees if you make a corresponding reduction in salary. The “salary basis” of exempt employee compensation is not met when there are day-to-day or week-to-week fluctuations in pay. Employers can use voluntary time off, where the employee does not get paid the usual salary, but continues to accrue leave benefits. An employer can also require an employee to use paid time off to ensure that an exempt employee receives full salary. Use of paid time off can also be required during a temporary business shutdown. But when the employee runs out of paid time off, the employer must continue the regular salary.
- Are you considering 9 work days in a two-week period? A compressed 9 day work period where an employee works 8 hours on only one of the two Fridays in the pay period will not violate overtime requirements provided the employer changes its designation of the “work week.” And the designation does not have to be the same for all employees. Do the math. For example, if the work week starts at 11:30 a.m. on Friday and ends at 11:30 a.m. the following Friday, and the employee starts work at 7:30 a.m. on the chosen Friday, he won’t work more than 40 hours in a work week.
- Don’t forget bonuses when calculating overtime. An employer’s plan to reward employees with a bonus for job safety will result in a higher overtime rate. A nondiscretionary bonus must be included in the “regular rate of pay” calculation. No way around it.
Not to be outdone by the Department of Labor, a federal court in Connecticut ruled that the outside sale exemption does not apply to pharmaceutical sales representatives. According to the court, their real job was schmoozing doctors and educating them about their employer’s drugs – not making sales. Because drug reps do not close the deal, they get overtime . . . at least in Connecticut.
Wage and hour issues continue to plague employers. The Employer’s Legal Resource will continue to bring you updates to help ensure that you are complying with the latest rules and pronouncements.
By Rebecca M. Fowler, rfowler@dsda.com.
Drug and Alcohol Testing Records
DRUG AND ALCOHOL TESTING RECORDS: WHERE TO KEEP THEM AND FOR HOW LONG
Author’s Note: We would like to thank one of the attendees at our recent Employer’s Legal Resource Workshop for this article. After our session on drug and alcohol testing under Oklahoma law, she raised some issues about OSHA compliance. That led us to look into the matter a bit further. We hope this sheds some light for other readers as well.
So, you have made the decision to test your employees for drugs and alcohol; you have developed an air-tight policy and “delivered” it to your employees according to Oklahoma state law. Now you need to know what to do with the records of those tests. Are they “medical records”? How should they be handled? How long do you have to keep them?
This article addresses the maintenance of drug and alcohol testing records for testing performed pursuant to Oklahoma law. If your business performs testing under the Department of Transportation regulations, the rules may differ, so please contact an attorney to discuss any issues or concerns you may have.
The basic rule of thumb is that drug and alcohol testing records are not “medical records” and thus, need to be kept separate from both personnel files and medical records. So, yes, three different sets of records for an employee.
Why should I keep the drug and alcohol testing results separate?
Three different laws may impact the maintenance and retention of drug testing records. First, Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act requires that “Employers…maintain all drug and alcohol testing results and related information…as confidential records, separate from other personnel records.” So, under Oklahoma law, your drug and alcohol testing records may not be kept with your personnel records. However, the law does not address whether they can be combined with your medical records file.
The second law that comes into play is the Americans with Disabilities Act (ADA). The ADA requires medical records to be kept confidential and separate from other personnel files. The question is whether drug and alcohol testing records are “medical records”. The general answer is “no,” especially if your files contain only information about whether the drug or alcohol test yielded a positive or negative result. But, if the information contained in your files is more expansive, those files could be considered medical records.
Let’s break it down. First, we will address drug testing results. The ADA clearly exempts drug testing results, done properly, from its “medical record” provisions. If done properly, drug testing results will not contain any additional health information whatsoever—just a positive or a negative for the drug. As long as that is the case, those records should be kept as drug testing records, separate from both medical and personnel files. If, however, the reports come back with additional medical information, they may well fall within the medical record provisions of the ADA and should be maintained with other medical records. [Note to self: ask the medical review officer to send only a form with the results, nothing else.]
Alcohol testing results pose a little more difficulty under the ADA, but ultimately come out the same as drug testing. The ADA defines “alcoholism” as a disability. Therefore, there is an argument that the results of alcohol testing are medical records. On the other hand, just because someone tests positive for alcohol in their system does not mean they have the disease of “alcoholism.” The regulations do not provide much assistance on this issue. However, the ADA is clear that employers may apply the same conduct rules to alcoholics as other employees; meaning, your clearly defined drug and alcohol testing program explains your expectations and requirements and allows you to test and discipline accordingly. Therefore, it follows that the alcohol testing records should also be kept like drug testing results—separate from personnel and medical records. Again, the law is not as clear on this issue, but assuming the employee has not told you he is an alcoholic and the testing record does not make such assertion, you should maintain the record just as you do the drug testing results.
So, if both testing records and medical records have to be kept confidential and separate from personnel records, why can’t you just keep those two things together? The answer is simple—the people that may have access to one set of records may be totally inappropriate people to have access to the other set of records. Keeping the records separate helps ensure that the wrong set of eyes don’t see the information.
How long do I have to keep the drug and alcohol testing records?
Finally, how long do you have to keep the records? Generally, three years is probably sufficient. Under Oklahoma state law, most employment-related lawsuits are to be filed within two or three years of the alleged wrongful act. Under most of the federal Equal Employment Opportunity laws, an employee must file a charge with the EEOC or state agency within 300 days of the alleged wrongdoing. The employer should receive notice thereafter, though there is no set time frame for that notice to be given. In other words, you should have notice within three years of an employee’s termination if he intends to sue you.
However, depending on your business, yet a third law, the Occupational Safety and Health Act (OSHA), may be implicated and require you to keep the testing records even longer—30 years. OSHA requires the maintenance of certain medical records where an employee is subject to toxic substances or harmful physical agents as part of their employment. The law requires that those records be maintained for inspection for 30 years. According to guidance from the Department of Labor, the access and record maintenance provision only applies where the employee may be exposed to “toxic substances or harmful physical agents” as a part of their occupation. Only if your business is included in that definition do those drug and alcohol testing results need to be retained for the 30 years.
Just remember the purpose behind these various laws. The effort is to maintain a balance between the employer’s need and right to maintain a productive and safe workplace, the employee’s right to privacy, and the public’s interest in preventing discrimination and encouraging help for substance abuse. So, if you choose to test for drugs or alcohol, keep the testing records separate from other records so that only those who have a need to know stuff, know stuff.
By Sharolyn C. Whiting-Ralston, swhiting@dsda.com and Kristen L. Brightmire, kbrightmire@dsda.com
Dating
A QUICK TIP WHICH BENEFITS EVERYONE
No, this blurb is not going to provide romantic dating tips or discuss intra-office relationships. I am afraid I lured you here under false pretenses. Here is the tip:
Date your documents.
Hopefully, you never get sued. If you do, rest assured, that your ability to prove what was communicated, to whom, by whom, and when will be invaluable. This is true of documents such as employee handbooks (date every page) where a particular policy may be key to your defense. Knowing when that policy was issued may be critical.
This is also true of performance appraisals, counseling documents to employees, or simply your notes to the file. Memories fade. You will be grateful one day that your documents are dated and signed.
By Kristen L. Brightmire, kbrightmire@dsda.com
Red Flag Rules
ALL CREDITORS MUST ADDRESS RED FLAG RULES BY 5/1/09: ARE YOU A CREDITOR?
Attention all employers and financial institutions: Do you bill customers after services have been rendered? Do you allow for customers to pay for goods or services over time or in multiple installments? Do you request and use consumer credit reports? If the answer to any of those questions is YES, you are considered a “creditor” under the Red Flag Rules and must develop and implement an Identity Theft Prevention Program by May 1, 2009.
There are four elements to a successful and compliant Identity Theft Prevention Program. Creditors must first devise reasonable policies and procedures to identify relevant Red Flags, which are patterns, practices, or specific activities that indicate the possible existence of identity theft. Second, creditors must design a program to detect Red Flags. Third, the creditor must develop and implement policies and procedures that provide for appropriate responses to detected Red Flags. Lastly, creditors should create policies and procedures to reassess and update the Program periodically. It is also important to note that an effective Program must feature proper administration and oversight, including, but not limited to, creation of a board or committee, training of staff, and oversight of service provider arrangements.
Creditors who violate the Rules will be subject to penalties in the form of monetary penalties for violations. Each single instance of noncompliance may be penalized up to $2,500 per violation. Information security must be a priority for all businesses. The Federal Trade Commission reports that in 2007 alone, more than 8.3 million Americans were victims of identity theft.
The Red Flag Rules offer an ideal opportunity to revisit and revamp customer accounts and identity security efforts. If you need help in the formation, implementation, and administration of Identity Theft Prevention Programs, we can help.
By James R. Bullard, jbullard@dsda.com.
What's New
ANNOUNCEMENTS
DOERNER SAUNDERS ATTORNEY CREATES “TULSA LAWYER FOR THE ARTS”
Representatives from the Tulsa County Bar Association, Tulsa Metro Chamber and the City of Tulsa will introduce Tulsa Lawyer for the Arts, a new organization serviced by Tulsa attorneys and developed by our own Chad Burris to provide legal assistance and educational programming to artists and arts organizations in Oklahoma at little to no cost.
DOERNER SAUNDERS’ ATTORNEYS CONTRIBUTE TO OBA’S ENVIRONMENTAL LAW HANDBOOK
Mike Wofford wrote a chapter on environmental auditing for the Oklahoma Bar Association's Environmental Law Handbook. In addition, Linda Martin and Alicia Edwards co-authored a chapter on the regulations for conducting environmental site inspections prior to acquiring potentially contaminated real estate. For more information, please contact mwofford@dsda.com or aedwards@dsda.com.
NEW RULE REQUIRING FEDERAL CONTRACTORS TO USE E-VERIFY DELAYED UNTIL JUNE 30, 2009
The new rule is a result of an Executive Order President George W. Bush amended to require employers who contract with the federal government agree to use E-Verify to confirm the employment eligibility of their employees. The new rule will require federal contractors to use E-Verify by adding the requirement to federal contracts. On April 17, 2009, the government agreed to delay the applicability date of the new rule “in order to permit the new Administration an adequate opportunity to review this rule.” Accordingly, employers who contract with the federal government are not required to use E-Verify until the new rule becomes effective and the applicable contract language is changed.
We will keep you updated on any further changes.
Please contact hvelandia@dsda.com if you have any questions.
DOERNER SAUNDERS ENVIRONMENTAL ATTORNEY RECOGNIZED
Linda C. Martin was selected for inclusion in 2008 Oklahoma Super Lawyers in her primary area of practice, environmental litigation. She is one of only four in Oklahoma to be selected in this category.
Congratulations Linda.
Dates to Remember
CALENDAR OF NOTABLE EVENTS
May 6, 2009
Courtney Bru will be presenting as a speaker for Tulsa Equal Employment Opportunity Coordinators Association at 7th and Houston at the Interurban Restaurant from 11:30 a.m. to 1:00 p.m. She will be speaking on Personnel Files and Record Retention. The presentation will focus on what types of materials should be kept in employee records and how long each type of material should be kept, with specific attention to requirements imposed by major state and federal employment laws as well as confidentiality considerations. For more information, contact Courtney at cbru@dsda.com or visit TEEOCA’s website here.
May 7, 2009
Courtney Bru will speak at the Tulsa Metro Chamber of Commerce on the new FMLA and ADA amendments at the first HR Forum of the 2009 series. The presentation will be held at the Embassy Suites Hotel from 8:30 – 10:00 a.m. For more information, contact Courtney Bru at cbru@dsda.com.
May 18-19, 2009
Elise Dunitz Brennan will speak at the Oklahoma Association of Health Care Providers and Oklahoma Assisted Living Association 2009 Spring Convention & Trade Show being held at the Cox Business Services Center in downtown Oklahoma City. Ms. Brennan’s topic will be Assisted Living Regulations. For more information on the convention, please contact Elise Dunitz Brennan at ebrennan@dsda.com or Crystal Mappes at cmappes@oahcp.org.
May 19, 2009
McLaine DeWitt Herndon is a guest speaker for the Oklahoma Society of CPAs at the 2009 Spring Industry Conference. This conference will be held at the Doubletree Hotel Tulsa Downtown. The myriad of employment laws that govern Oklahoma employers will be examined. Attendees will then discuss practical pointers on getting through the day as a supervisor, including a set of best practices for evaluating, disciplining and discharging employees. For more information on the conference email McLaine DeWitt Herndon at mherndon@dsda.com or click here.
May 20, 2009
Jon E. Brightmire will speak at the Advanced Collection Strategies seminar in Tulsa. Mr. Brightmire will address illegal collection practices, including practices prohibited under the federal Fair Debt Collection Practices Act. For more information contact jbrightmire@dsda.com.
May 27- 28, 2009
Steven K. Metcalf and William H. Spitler of the Firm's Construction Law Group are speakers at the upcoming Seminar entitled The 2007 Edition of the AIA and ConsensusDocs General Conditions: Knowing the Differences and Navigating the "Killer Clauses". They will be introducing the "new" AIA A201-2007 General Conditions, the ConsensusDocs-A200 (2007), the material differences between them, and explaining how contractors and subcontractors might navigate the "Killer Clauses" contained in each. The seminar will be presented twice during and in conjunction with the Construction Expo in Oklahoma City; once on May 27th and once on May 28th, 2009. For more information, or to register, visit constructionexpo.com or call 877-219-3976.
May 30, 2009
Kick-off for Tulsa Lawyer for the Arts, a new organization serviced by Tulsa attorneys and developed by Chad Burris of Doerner Saunders to provide legal assistance and educational programming to artists and arts organizations in Oklahoma at little to no cost.
Speakers: Tulsa Mayor Kathy Taylor
Mike Neal, president and CEO, Tulsa Metro Chamber
Chad Burris, Doerner, Saunders, Daniel & Anderson
Karisha Arnett, 2009 chair, Tulsa’s Young Professionals
Duane Fernandez, local artist
This event will begin at 3:00 p.m. and is open to the public. It will be held at the Williams Center Tower II, Two West Second Street. For more information please call 918.560.0258 or click here.
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