Investigating Employees Through Their Social Media Accounts
Social media can provide a lot of information about people’s lives. Why would an employer want to know what an employee is doing through social media?
An employer may suspect that an employee is doing other things during work that do not relate to his or her job, such as posting on Facebook, watching Youtube videos, etc. An employer may also wonder if the employee is speaking badly about the company or discussing private company information.
Any number of reasons could motivate an employer to pressure an employee for social media account information or to access the employee’s site without permission.
What laws protect the privacy rights of employees?
The American Bar Association warns employers about not violating the Stored Communication Act (SCA). The SCA includes social networking sites when it states that individuals are subject to criminal and civil actions when the individual:
“Intentionally accesses without authorization a facility through which an electronic communication service is provided”
“Intentionally exceeds an authorization to access that facility”
(By intentionally accessing) “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system”
Keep in mind that a government institution may obtain a subpoena for an investigation and through court approval access social networks for information. However, a private company conducting an internal investigation does not have this right.
Employers who obtain access to social media under false pretenses or through duress can be held liable and courts typically do not view favorably attempts to access an employee’s account information or the private account of a “friend.”
However, in some instances where employers obtain the information without asking or pressuring an employee to provide it, the courts have allowed it.
Get Legal Help with Your Questions about Employment Law
It is often wise to seek legal advice when you have questions about accessing an employee’s social media information. Stephen Hans & Associates offers seasoned legal guidance and representation to assist business owners with employment issues.
The New York Compassionate Care Act (NYCCA) protects patients who are certified to use medical marijuana from being subject to criminal or civil marijuana charges. We live in an age where some states view marijuana as a legitimate medicine for individuals with certain types of diseases while they are being treated under a doctor’s care. Individuals with such diseases are also viewed as disabled, and employers are prohibited from discriminating against them because of their disability based on the ADA (Americans with Disabilities Act).
What Employers Should Know About the New York Compassionate Care Act (NYCCA)
The New York legislature passed the NYCCA in July of 2014 and it went into effect in January 2016. The act will sunset in seven years.
Under the law, there can be no more than five manufacturers that provide medical marijuana in New York with a maximum of 20 locations.
Patients must have their physician provide them with written certification for using medical marijuana and their documentation must state the limitations of its use. They also must register with the health department. Patients may not consume medical marijuana in a public place. Other restrictions imposed by the law are that patients cannot smoke medical cannabis but have to take it in a different form.
Diseases that qualify a patient for certification include cancer, HIV/AIDS, Parkinson’s disease, multiple sclerosis, spinal cord damage causing spasticity, epilepsy, inflammatory bowel disease, neuropathies, or Huntington’s disease. Other diseases may also result in prescribing medical marijuana.
New York State Human Rights Law
The Society for Resource Management (SHRM) points out that the New York State Human Rights Law (NYSHRL) views a certified medical marijuana patient as disabled, which also protects them from employment discrimination.
Employers can still do drug testing if that is part of their work policy and can prohibit employees who are impaired by drug use from working on the job if it poses a danger or interferes with their work. They can prohibit workers from taking medical marijuana while in the workplace. However, they cannot discriminate against employees because they are certified to use medical marijuana.
Do You Have Questions about the NYCCA and Your Rights as an Employer?
Because disabled employees who are certified for marijuana use can bring discrimination lawsuits against employers, it is vital for employers to know their legal boundaries.
Our attorneys at Stephen Hans & Associates are glad to answer your questions and provide legal guidance or representation in disputed employment issues.
Author: Stephen D. Hans
Frequently Asked Questions About Job Termination
Deciding to fire or layoff an employee is often a tough decision. Sometimes employees have adverse reactions and retaliate if they believe the termination was unjust.
Does New York State have “employment-at-will”?
What is your responsibility for giving terminated employees their last paycheck?
When you decide to lay off employees, must you give notice of termination?
Employers in the private sector who have 50 or more employees (part-time employees excluded) must provide at least 90 days notice before closing their business. This refers to shutting down a single site of employment that results in laying off 25 or more full-time employees during any 30-day period. Employers must send a WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners. Read More
If employers are doing a mass layoff (excluding part-time employees) but not closing down the business, they must still provide at least a 90 days notice about the layoff when the layoff affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. Employers must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners. Read More
Author: Stephen D. Hans & Associates
FAQ for Restaurant Owners
For restaurant owners, who are busy running their day-to-day business, New York Labor laws can seem like an added burden. Having access to a NY employment defense lawyer is often vital to navigate the laws and make your business successful.
According to the NY State Department of Labor, here are some frequently asked questions employers often ask:
Can you require employees to wear uniforms?
Yes, you can. What is considered a uniform? Black slacks and white shirts are not uniforms. A shirt with the company insignia or custom-made slacks and shirts would be considered uniforms. If your worker’s pay is minimum wage, then the cost of buying the uniform and taking care of it cannot bring the employee below the minimum wage rate. Employers must either clean and take care of the uniforms or pay their employees to care for them.
Are you limited by the number of hours an employee can work in a day?
Except for children under 18, there are no limitations on how many hours in a day an employee can work. There also are no limitations on how early or late an employer can ask an employee to work. However, in the restaurant industry, an employee must have 24 hours of rest one day in a calendar week. This does not apply to small, rural restaurants.
What are the rules for giving workers meal breaks?
For work shifts of more than six hours that begin before 11:00 a.m. and continue until 2:00 p.m., the workers must be provided with an uninterrupted lunch period of at least half an hour between 11:00 a.m. and 2:00 p.m.
Employers do not have to pay for meal periods, and they do not have to provide other breaks for workers. However, if an employer permits a break of up to 20 minutes, then the employer must count it as work time and pay the employee.
Do You Have Other Questions about NY Labor Laws that Apply to Your Business?
Our attorneys at Stephen Hans & Associates are glad to explain the laws, offer legal guidance, and provide representation for employment dispute issues.
Author: Stephen D. Hans
Matt Lauer: One Sexual Harassment Complaint Led to More
As more women are coming forward to claim sexual harassment, other women are also gaining the courage to come forward. This is the current trend in a variety of sexual harassment cases that are hitting the media. Such appears to be the case in the recent reports about Matt Lauer, long time anchor and host of the “Today” show.
Details About the Matt Lauer Sexual Harassment and His Job Termination
According to Fox News , NBC met with Lauer, an alleged victim and her lawyer to confront Lauer about his inappropriate sexual behavior. Since the news broke, it became apparent there was more than one isolated incident. NBC quickly fired Matt Lauer and stated it was the first time they had heard about the sexual harassment allegations.
People magazine reports that eight women have now come forward regarding inappropriate sexual behavior on Matt Lauer’s part.
Lauer has issued a public apology for his actions and for the people he has harmed, and said that although not all aspects of the allegations were true and some he felt were mischaracterized, there was enough truth in them for him to apologize and feel regret and shame. He said his full time job is now to do what he can to repair the damage he has done.
Actions that Make Lauer’s Instance Stand Apart from Other Recent Claims
NBC News acted quickly on the allegations after discovering them. Matt Lauer did not deny that he engaged in sexual misconduct, but instead expressed his regret and indicated he would take action to repair the damage.
As a business, what is the best approach to take when allegations of sexual harassment arise? If you face sexual harassment issues, seek legal counsel as soon as possible and discuss your concerns so you can weigh your options.
Experienced Legal Counsel When Your Business Faces Sexual Harassment Allegations
At Stephen D. Hans & Associates, P.C., we have decades of experiences assisting business owners with sexual harassment and other employment related issues. Call our Long Island City office at (718) 275-6700 to arrange a confidential consultation.
When accusations of discrimination or harassment emerge, employers should consult with an employment law defense lawyer as soon as possible. Aside from seeking counsel, what actions can you take right away and what mistakes can you avoid?
The American Bar Association suggests avoiding the following mistakes.
- Failing to investigate immediately. Waiting for an employee to submit a formal statement about harassment or discrimination or waiting for witnesses to submit written statements is the most common mistake made by employers. Any investigation delay can make it appear like you’re ignoring the situation or not taking it seriously.
- Inserting cross-examination into the process. Conducting an investigation without bias is important for avoiding claims of unfair investigation against your company, even when you suspect a complainant, witness or the accused individual is lying. A better approach is to ask in a respectful manner that the person explain contradictory statements or ask for evidence that refutes the statements.
- Not maintaining confidentiality. You must keep the investigation confidential along with the information obtained during the investigation. If witnesses suffer backlash from the investigation because their identity is made known or for any other reason, as the employer, you may become subject to claims of retaliation.
- Not interviewing all witnesses with knowledge of the alleged events. The investigator should interview all the witnesses because it will help determine whether information is consistent.
- Failing to make known the company’s policy against retaliation. Retaliation is a common problem, according to the EEOC and comprises about one third of the cases the EEOC handles. It is important to reinforce the company policy by reminding all parties that retaliation will not be tolerated against complainants who make good faith claims. This focus also helps protect you as the employer.
- Failing to conduct a thorough investigation. Overlooking records, such as telephone or cell phone records when they are crucial to an investigation is a common mistake.
- Failing to end the investigation with a conclusive finding. When investigations end with disputed evidence by both sides and nothing is concluded, the investigation is tantamount to no investigation. Some conclusion must be reached based on a preponderance of the evidence. In other words, the investigator must reach a conclusion that it most likely that the harassment did or did not occur.
Put an Experienced Employment Defense Lawyer on Your Side
Employers dealing with harassment or discrimination issues should seek legal advice as soon as possible. Stephen Hans & Associates brings decades of experience to the table in every case we handle.