Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.

 

Medical Center to Pay $146K to Settle EEOC Disability Discrimination Suit

New Hanover Regional Medical Center in North Carolina will pay $146,000 to settle a disability discrimination lawsuit brought by the EEOC.  The EEOC had charged that the center violated the Americans with Disabilities Act (ADA) by prohibiting applicants and employees from working if they were taking legally prescribed narcotic medications.

 

According to the EEOC's lawsuit, several applicants and employees were denied hire or placed on leave by the medical center because they were taking prescribed narcotic medications.  The complaint alleged that such action was taken because New Hanover perceived persons taking narcotic medications as being disabled as defined by the ADA.  

 

Such alleged conduct violates the Americans with Disabilities Act (ADA).  The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

 

In addition to the $146,000 in damages to be divided among the claimants, the two-year consent decree settling the suit requires that New Hanover Regional Medical Center revise its alcohol and drug abuse policy, its post-employment offer medical assessment policy and its medical examination policy.  The company must also provide annual training to its managers and supervisors on the ADA and that ADA's prohibition against disability discrimination in the workplace.  New Hanover Regional Medical Center must also post an employee notice concerning the lawsuit and employee rights under federal anti-discrimination laws, as well as provide periodic reports to the EEOC.  

 

NLRB Finds Social Media Policy Related Termination Lawful

The National Labor Relations Board has sanctioned another employer’s social media policy and actions taken against an employee for the policy’s violation. The NLRB recommended the dismissal of unfair labor practice (ULP) charges lodged against Cox Communications on the grounds that neither its social media policy nor the termination of an employee for violating this policy interfered with employees’ Section 7 activities under the National Labor Relations Act (NLRA). 

 

The complaining employee in this case was a customer service representative responsible for responding to customer concerns and complaints about the employer’s services. After a confrontational exchange with an irate customer, the employee used his cellphone to make disparaging remarks about the customer on his Google+ account. Specifically, the employee posted the following comment: “Just because you are having problems with your TV service does not mean you should call me a fa–ot! F–K YOU!” A coworker responded with a comment mocking the employee and the situation.

 

A supervisor read the comments and reported the employee to management. After the company discovered additional critical and inappropriate comments the employee had posted online, it terminated his employment for violating the organization’s social media policy. The employee then filed charges that the employer’s social media policy was overbroad, in violation of the NLRA, and that the employee was unlawfully terminated for engaging in protected, concerted activity. 

 

The company’s social media policy, in relevant part, prohibits employees from: 

… making comments or otherwise communicating about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age, race, religion, sex, sexual orientation, gender identity or expression, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated by the Company. 

 

The company’s social media policy noted specifically that no portion of it “is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment,” and that employees have the affirmative right to engage in, or refrain from, such activities. 

 

The NLRB similarly found that the policy’s provision directing employees to “respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights,” and to “not infringe on Cox logos, brand names, taglines, slogans, or other trademarks” were lawful, as an employer has a  proprietary interest in its name and reputation, and urging (but not commanding) employees to respect the law cannot, in this context, be considered an infringement of an employee’s rights under the NLRA.

 

Finally, the NLRB found that the employee’s termination did not violate the NLRA, as his online comments did not constitute concerted activity for mutual aid and protection. Rather, they found, his Google+ postings were made “solely by and on behalf of the employee himself” and were directed at a customer, not a coworker. The online rant included no call for coworkers to engage in group action in support of his complaint, nor could it be seen as a continuation of an earlier discussion with coworkers about wages or other terms and conditions of employment. The one responding coworker comment was sarcastic in nature, and not a dialogue about working conditions. As such, the employee’s comments were not protected. 

 

When was the last time you reviewed your social media policy?

 

Factoids

Average days of Paid Time Off

• 1 year of service          15
• 5 years                         20
• 10 years                       23
• 20 years                       25

 

EEOC factoids

• 3 out of 5 companies are sued by former employees every year
• Over 450 companies are sued every day
• 50% of companies spend over $50,000 defending their case
• 33% spend over $100,000
• The average jury award exceeds $250,000
• 15% of all jury awards exceed $1 million