Page 18 - alacarte_Summer12_FlipBook

16 www.ohiorestaurant.org Summer 2012 Issue

have a right to communicate with these individuals outside of the watchful eye of their employer.

So is the practice of employers seeking private social media information really increasing? According to Facebook Chief Privacy Offcer Erin Egan, the site has experienced “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profles or private information.” In addition, she also added that this type of behavior exposes employers to “unanticipated legal liability.” In the end, Egan decried the practice because it was not the “right thing to do.”

The Risks of Online Searching

While seeking private usernames and passwords may not be widespread, what is common, however, is the practice of searching for employees on the Internet. In many ways, searching for applicants and employees online makes sense, and some individuals may even expect this is happening. A company should know if an employee has held something out to the public that would refect poorly on its business. For example, could this employee pose as a danger to other employees? The failure to perform an online search could (theoretically) constitute negligent hiring and put the company at risk.

But use of online searches to vet or monitor employees is also risky. The biggest issue is that you could become aware of an employee’s protected characteristic, subjecting the company to liability under Title VII or state employment

discrimination statutes. It is illegal to ask candidates about their nationality, religion, age, race, sex, or disability during an interview. To the extent an employer is unaware of a protected characteristic; it cannot discriminate based on it. But as soon as the company runs an online search and discovers that an employee practices a certain religion or has a disability, it has opened itself to charges of discrimination. The practice of online monitoring could suggest a company knew of a protected trait even where it didn’t.

Looking at the Restaurant Industry

This issue is particularly critical in the restaurant and hospitality industry, which perhaps more than any other industry, relies on social media to advertise and promote its business, often through the Facebook and Twitter accounts of its employees. While the provision in S.B. 351 expressly allowing the employer to monitor public social media information may seem to provide some comfort, those in the restaurant industry, and employers generally, must be extremely careful how they use the acquired information or when enacting work rules designed to prevent “inappropriate” comments or “disrespectful” conduct.

The General Counsel of the National Labor Relations Board (NLRB) in an advisory report earlier this year addressing the NLRB’s recent, aggressive stance on social media issues, specifcally highlighted the case of a chain restaurant that fred one of its bartenders after learning of Facebook posts accusing another bartender of “screwing over” the customers and later predicting the “death” of the business,

which in her view, “looked the other way” with a “dishonest” employee. The fred bartender was Facebook “friends” with both coworkers and customers. She was successful in her appeal to the NLRB, which found that the restaurant’s policy of prohibiting “inappropriate” communication and “disrespectful” conduct was illegal because it encroached on the employee’s right to engage in concerted activity, including complaining of working conditions which complaints were shared with other employees.

Best Practices

In light of these issues, newly-improved privacy options on social media sites are actually benefcial for employers. It is likely that your best course is to maintain a policy against online monitoring and hire a third-party frm to run background checks (in compliance with state laws) to avoid negligent hiring claims. If you decide to monitor candidates or employees online, it’s advisable to limit such searches to information readily available to the public at large. Finally, any policies addressing social media must be carefully drafted to avoid the NLRB’s recent crackdown on employers who discipline employees for violation of the company’s social media policies. Social media is here to stay; so it is important that you act now in crafting your policies and effectively communicating them to your employees.

by Bill Blackie Counsel, Fisher & Phillips

Invest in Employment

Practices Liability Insurance

Don’t wait for an expensive claim be fled without protecting your business

Currently, business is booming at the Equal Employment Opportunity Commission (EEOC) where most restaurant worker actions are fled against employers. In fact, in 2010 alone, the EEOC witnessed a record high number of flings – 99,922 – averaging almost 2,000 per state with awards totaling $412 million. Restaurants are a leading industry for

claims. What’s the future trend? According to EEOC Chair Jacqueline Berrien, discrimination continues to be a substantial problem for too many job seekers and workers, and the EEOC must continue to build its capacity to enforce the laws that ensure that workplaces are free from unlawful bias.

One way to protect yourself is through Employment Practices Liability Insurance (EPLI), which used to be an option

but is now a necessary protection. Yet, according to Brad Toft, a restaurant insurance specialist at Kinker-Eveleigh Insurance Agency, the majority of restaurants with which he interacts do not have this coverage. He shared a story with the Ohio Restaurant Association (ORA) about a client he has who operates a multi-location franchise. The client encountered the diffculties of not having EPLI protection after it was too late.