Tips for Using Social-Networking Sites to Screen Applicants

Molly DiBianca recently wrote a helpful 3-part series on The Delaware Employment Law Blog regarding tips for employers to follow when using Facebook or other social-networking sites to screen applicants.  Here are a few of her key suggestions:

  • Do not try to gain access to an applicant’s profile directly through tactics such as asking a friend of the applicant to show you the applicant’s profile.
  • Develop a written checklist of key things to search for.  The list should include (a) key things about an applicant that would give you concern about the applicant, such as the the use of hate language or promoting the use of illegal drugs, and (b) key things that you would like about an applicant, such as authoring a well-written blog.
  • Have someone not involved in the hiring decision perform the actual search for items on the list.  This insulates the decision maker from learning things about the applicant’s protected status such as his or her race.  It makes it much easier to defend against a claim that a decision not to hire was because of an applicant’s protected status when the decision maker was unaware of that status!

Molly’s tips regarding having a checklist and having a non-decision maker perform the search apply equally to employers performing general internet searches about applicants.

New Washington Law Permits Preferences for Veterans

Governor Gregoire just signed into law the Veterans Preference in Employment Act.  Under the new law, private employers are now permitted to establish a preference for veterans.  The preference applies to:

. . . honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon has been awarded, and their widows or widowers, may be preferred for employment. Spouses of honorably discharged veterans who have a service connected permanent and total disability . . .  .

The law does not require employers to establish a preference, but simply permits it without the preference being a violation of any local or state equal employment opportunity law.

Any employer who is going to establish a preference for veterans should consider revising their equal employment policy if it provides, as many do, that the employer does not discriminate on the basis of veteran status.   Depending on how a particular policy is worded, one simple way around this is to add the word “unlawfully” to the sentence so that instead of saying “do not discriminate” because of . . . veterans status,” the sentence says “do not unlawfully discriminate . . . .

 The new law, which can be found here, goes into effect 90 days after the legislature adjourns.

The new law, which can be found here, goes into effect 90 days after adjournment of the legislature.

Independent Contractor Issues Continue to Plague “Employers”

The ABA Journal published an article this month by Susan A. Berson concerning increased scrutiny by the IRS and DOL regarding classification of workers as independent contractors.

I strongly agree with the recommendations in the article regarding business auditing use of independent contractors:

We recommend businesses conduct a comprehensive audit of the written independent contractor agreements in place,” Idalski says. “Provisions covering the day-to-day operations, who does what, who’s in charge, equipment, policies and procedures should be included.

To that suggestion I would add that Washington employers must also look to the different tests under state law for whether someone is an independent contractor as well as what obligations the business has to toward an independent contractor.

For example, the Washington legislature defined a “worker” for purposes of industrial insurance to include independent contractors when the essence of the contract is for personal labor.  As a result, under some circumstances, Washington businesses are required to make industrial insurance contributions on behalf of workers even though they are independent contractors.

This is a complex area of the law, but the consequences of misclassifying employees as independent contractors or failing to make required contributions for covered workers can be extremely costly.

New Pattern Jury Instructions

The entire chapter on pattern jury instructions for state employment cases was just updated.  Pattern instructions are templates used by lawyers and judges to draft instructions to be read to the jury.  The instructions tell the jury what an employee has to prove for each type of employment claim and, where applicable, employer defenses to such claims.

The instructions also include a short description, which is not read to the jury, about the statutes and relevant case law involved in each type of employment claim.

In addition to their use at trial, the instructions can be used by managers, supervisors, and HR professionals as a concise summary of the different types of employment claims employees can bring, the elements employees have to prove to win, employer defenses, and relevant case law.

The instructions can also provide employers involved in litigation an outline of what their attorneys are trying to prove or disprove to improve better communication about litigation strategy.  The instructions can be found at Part XVI, Chapter 330 here.

Photo by ElvertBarnes from Flickr.

National Labor Relations Board Expands Definition of Concerted Activity

A company recently implemented a new casual dress rule requiring that shirts be tucked in.  While waiting for a sales meeting to begin, one salesman asked the Vice President of Sales about the new policy.  Another salesman then made several statements to the VP including “It [the rule] is pretty restrictive.  You know, I might not want to tuck in my shirt;” “I didn’t sign up for this crap”; and “I don’t need the money.”  The VP asked the salesman to discuss the rule with him later, but the salesman persisted  By the end of the discussion, seven or eight sales reps were watching.  The second salesman was later given a written warning for arguing with the VP.

In Wyndham Resort Development Corp., the NLRB concluded that the warning was unlawful because the salesman was disciplined for engaging in protected concerted activity.   Historically, “concerted activity” has required proof that the employee was not acting solely on his or her own behalf, but “with or on the authority of other employees.”

As described by dissenting Member Hayes, what is new about this case is that the Board is  “conflating the concepts of group setting and group complaints.”   Now, the Board apparently extends the cloak of protected concerted activity to cover any complaint about working conditions merely because the complaint is voiced within earshot of fellow employees.

This protection of concerted activity applies to both union and non-union workplaces.