It’s All Fun and Games Until That Meme Turns Up as a Deposition Exhibit

By Kathleen J. Jennings (kjj@wimlaw.com)

Everybody loves a good meme (and its animated cousin, the GIF), which is the perfect example of a picture being worth a thousand words. As an attorney who defends employers in litigation, however, one of my nightmare scenarios is seeing a racist/sexist/anti-immigrant/etc. meme posted or shared by a supervisor or manager being identified as an exhibit in that supervisor’s or manager’s deposition.

Just as social media posts can be used against plaintiffs in litigation, the same can be said for supervisors and managers. Supervisors and managers act for the company, so when one of them posts something on social media that can be construed as discriminatory, it reflects badly not just on that individual, but on the company as well. This means that a company needs to train supervisors and managers to understand that their speech at work and outside of work can put the company at risk of liability. And that speech encompasses verbal speech as well as social media posts, tweets, and emails. [Whether a supervisor or manager should be “friends” on social media with subordinate employees is an issue for a separate blog post].

And memes. Some people think nothing of sharing a funny meme that he or she has seen on someone else’s page. Even though the sharer did not write the text, by sharing it, he or she is communicating implicit approval of its content, unless the sharer writes something that shows disapproval. When controversial issues are discussed on social media, it seems like many people like and share memes that resonate with their feelings and beliefs. Some of these memes may say things that the liker or sharer would never dare say out loud. Once shared, however, the meme is out there and associated with the sharer.

Here is an example of how this can be used against a supervisor and the company: Supervisor Z has been accused by a subordinate female employee of sex discrimination. Supervisor Z and the company deny that discrimination has occurred. At some point, Supervisor Z shares a “funny” meme on social media about boobs. When that meme is printed out and shown to the supervisor in a law firm conference room during a deposition in a lawsuit alleging sex discrimination, it is not so funny anymore. It will be even less funny if it is a trial exhibit and there are women on the jury.

Pro tip: Supervisors and managers need to understand that their words and actions can support—or undermine—company policies, such as the company EEO policy. This concept should be regularly reinforced on meetings and training sessions.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Speech and the Workplace, The “Take a Knee” Edition

By Kathleen Jennings (kjj@wimlaw.com)

We have addressed the issue of a private employer’s options in responding to employee speech in previous blogs, and the events of this past weekend make the issue even more salient. Putting politics aside, how easy is it for a private (meaning non-governmental) employer to terminate an employee for speech (or protest) in the workplace? Not that easy, unless the employer does not mind getting involved in litigation or arbitration.

Here is an analysis that a private employer should engage in before terminating any employee for speech or protest in the workplace:

  • Contract of Employment. Does the employee have a written contract of employment? (Virtually all professional sports players do). If so, what does the contract say about termination? What are the financial consequences of terminating the employee in breach of the contract?
  • Collective Bargaining Agreement. Is the employee covered by a collective bargaining agreement (CBA)? (NFL players are). What does CBA say about termination of employees? Most, if not all, CBA’s provide that bargaining unit employees can be terminated “for cause.” It is probable that the question of whether certain speech or protest is considered “cause” for termination ultimately will be decided by an arbitrator.
  • Content of the Speech. Is the employee engaging in speech or conduct that is protected by state or federal law? As we have discussed before, certain employee speech is protected by the National Labor Relations Act or federal anti-retaliation/whistleblower laws. Thus, terminating an employee who engages in protected speech likely will result in a charge and/or lawsuit.
  • Protected Classifications/Discrimination. Is the employee in a protected classification? If yes, have “similarly situated” employees who are not in a protected classification been treated differently? Just figuring out who is “similarly situated” is a complicated process.
  • The “Intangibles.”
    • How many employees are involved in the speech or protest? Is it realistic to terminate all of them?
    • When considering the termination of individual employees–what is the employee’s length of service? Disciplinary history? Performance history? If the matter goes to litigation or arbitration, an employee with a long employment history and little or no discipline and good performance is going to receive much more sympathy.
    • Is the employee a leader who is respected by other employees? If so, terminating this employee may adversely impact employee morale and productivity. Furthermore, employees who perceive that the employer is treating them or their co-workers “unfairly” may reach out to a third party, such as the EEOC or even a union.
    • Will there be publicity? If so, how will that reflect on the company?
    • Is there some other form of discipline, short of termination, that may be more appropriate?

In short, the decision to terminate any employee is not simple or easy, except maybe in those cases where the employee does something so egregious (i.e., theft, hitting another employee, selling drugs at work, sabotaging equipment, to name a few) that termination is warranted and even expected. In all other cases, it is important for an employer to examine a number of factors before making its decision.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Does Your Company Know What to Do If ICE Shows Up at Your Door?

By Kathleen Jennings (kjj@wimlaw.com)

Deporting undocumented workers is a major agenda item for the current administration. In recent months, arrests by the U.S. Immigration and Customs Enforcement (ICE) have increased by about 40%, and the pool of targets considered priorities for deportation has greatly expanded.

So, what is a company to do if ICE agents show up at a facility?

The first question that you need to ask is this: Do you have a warrant? If the answer to that question is yes, then the company’s options are limited.

  • Review the warrant and contact counsel immediately. ICE is a federal law enforcement agency, and a company, like a person, needs to ensure that its 4th amendment (against unreasonable search and seizure) and 5th amendment (against self-incrimination) rights are protected.
  • Does the warrant seek documents or information? It is absolutely the job of the company’s counsel to respond or possibly even move to quash the warrant.

If there is no warrant, then the company has more options in responding.

  • Without a warrant, law enforcement cannot enter a company’s private property without the permission of an agent of the company. The company should designate in advance the person or persons who are authorized to interact with members of law enforcement on behalf of the company.
  • If there is no warrant or court order, the company does not have to provide any documents or information to ICE. The company may voluntarily provide information, such as Motel 6 did in Arizona, when it turned over guest logs to ICE.
  • If the company has a collective bargaining agreement, does the collective bargaining agreement say anything about the level of cooperation the company can provide to ICE? Some unions are seeking inclusion of provisions in collective bargaining agreements that would limit the employer’s ability to cooperate with ICE. Some model provisions restrict an employer from letting ICE agents into the workplace unless they possess a valid judicial warrant. These model provisions also ban the auditing or sharing of workers’ I-9 employment eligibility verification forms or checking status using the voluntary E-Verify program, except where required by law, from. As enforcement efforts become more aggressive, look for more unions to propose this type of contract language.

[Some unions, such as Unite Here!, which represents many hospitality workers, are also providing training to workers in the handling of encounters with ICE.]

  • What are the possible future consequences? Will a lack of cooperation result in more federal law enforcement pressure on the company? Or will cooperating with ICE result the loss of a substantial number of workers or unfavorable publicity?

Pro Tip: However a company chooses to respond to a visit from ICE, it should have a written plan of action in place well before anyone from ICE appears at the door. Review that plan with counsel to ensure that the company’s rights are protected.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She has also handled criminal matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Will E-Verify Be Required Nationally?

By Kathleen J. Jennings (kjj@wimlaw.com)

On September 8, 2017, U.S. Congressman Lamar Smith (R-Texas) – whose 1996 bill created the pilot for the E-Verify system – introduced to Congress “The Legal Workforce Act” (H.R. 3711) which would require all U.S. employers to use E-Verify to check the work eligibility of new hires. Smith was joined in introducing the bill by co-authors Rep. Bob Goodlatte, R-Va., and Rep. Ken Calvert, R-Calif. The Legal Workforce Act would phase in the E-Verify requirement over a two-year period, starting with the largest employers. The agriculture industry would have an additional six months—or 30 months total—to come into compliance.

What is E-Verify? E-Verify is operated by the U.S. Citizenship and Immigration Services (USCIS) and checks the social security numbers of newly hired employees against Social Security Administration (SSA) and Department of Homeland Security (DHS) records to help ensure that they are genuinely eligible to work in the U.S. The program has a record of confirming 99.8 percent of work-eligible employees and has earned high customer satisfaction scores on the agency’s annual surveys, according to USCIS. Over 740,000 employers currently use it.

Currently, seven states in the South (Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Tennessee) and two in the West (Arizona and Utah) already require private employers to use E-Verify. Some employer groups, including the U. S. Chamber of Commerce and SHRM, support a federal E-Verify requirement because it will set a uniform national standard that would preempt differing state standards. Some agricultural groups are not as supportive of the measure.

As the bill makes its way through the legislative process, there are likely to be some changes and compromises. In final form, it may be passed as part of a more comprehensive immigration measure. We will provide further updates as necessary.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Remember That New Overtime Rule That Was Going to Happen? Not Any More.

By Kathleen J. Jennings (kjj@wimlaw.com)

Remember that Obama overtime rule that would have required employers to pay overtime to most salaried workers earning less than $47,476 annually (up from the current salary cutoff for overtime pay of $23,660)? Employers were struggling to find ways to deal with what would have been a significant change in wage and hour law. That struggle is over; the rule is effectively dead.

Last week, a federal judge in Texas struck down the rule. In his decision, Judge Amos Mazzant said the DOL overstepped its authority by focusing too heavily on workers’ pay, rather than their job duties, to determine overtime eligibility. Then, on September 5, the Justice Department announced that it will not appeal the previous decision issued by Judge Mazzant that temporarily blocked the rule. However, it is still possible that the Justice Department could appeal the most recent ruling, perhaps to seek clarity on how and when the DOL can use workers’ salaries for overtime eligibility determinations.

It has been reported that the Labor Department is already reconsidering the rule, and has asked for public comment. Labor Secretary Alexander Acosta has signaled that the DOL may issue a new rule with a more moderate salary threshold bump, potentially in the low $30,000 range. We will continue to monitor all developments.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.