It's that time of year again... No, not the crinkling of dry leaves or heavenly smells of pumpkin spice lattes-it's election time, which means it's time to dust off that social media policy! Elections pose a unique challenge to human resource ...
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Social Media Policies and the November General Election and more...



Social Media Policies and the November General Election

It's that time of year again...

No, not the crinkling of dry leaves or heavenly smells of pumpkin spice lattes-it's election time, which means it's time to dust off that social media policy!

Elections pose a unique challenge to human resource departments and employment attorneys. Although we unequivocally support an employee's right to exercise their civic duty and participate in the electoral process, employers should be mindful of the workplace issues that may arise around elections.

This year is particularly notable because (1) this will likely be a contentious election spanning multiple days (and perhaps weeks), and (2) the election is taking place during a global pandemic-thus prompting employees to shift any discussions from now-empty offices to social media.

The U.S. Constitution protects our rights to engage in free speech and assembly. In the employment context, however, free speech rights have been tailored to balance workers' rights and consider an employer's interest in maintaining safe and productive work environments. Employers may limit and regulate forms of speech in the workplace but must abide by certain considerations in specific instances of employees engaging in speech.

Private Employee Speech

Private employers have immense latitude with which to regulate speech in the workplace. Under the National Labor Relations Act (NLRA), however, private employers cannot limit the right of employees to engage in "protected concerted" activity for "mutual aid and protection" regarding conditions in the workplace.

Like the physical workplace, private employers enjoy many of the same protections to regulate speech online as they do in a physical workplace. The National Labor Relations Board (NLRB), the administrative body that oversees claims arising under the NLRA, states on their website that employees "have a right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media." This right only extends to group actions; thus, individual gripes will not suffice.

Employers that find an employee's speech concerning should review their social media policy and confer with legal counsel about appropriate next steps to address the situation accordingly.

Government Employee Speech

Government employers possess slightly less power to regulate speech in the workplace. Government employers can regulate speech in the workplace unless the speech touches on a matter of public concern. If it does, employers must determine whether the speech was made under the employee-speaker's job duties. An employer can then consider whether there is a governmental interest in regulating such speech to maintain workplace productivity and harmony.

Additional considerations should be made when an employee is engaged in political speech on their social media accounts. Here, government employers should be incredibly careful not to make adverse employment decisions based on an employee's political views. Instead, government employers should look to whether the employee publicly identifies (“holds out”) themselves as an employee of the governmental entity and publishes concerning content; their speech makes false or misleading claims about the entity as a whole, or its employees or subsidiaries; or the employee's actions violate the employer’s established social media policy.

If an employee exhibits any of these behaviors online, an employer should review their current social media policy and confer with legal counsel about appropriate next steps.

Social Media Policies

As the election approaches, employers should review their social media policies to ensure they express the employer’s expectations and address the fundamental issues referenced above.

Please refer to these helpful tips when reviewing and/or updating your social media policy:

  • Ensure that ALL employees were provided a chance to review and acknowledge established policies for social media conduct online.
  • Remind employees to be mindful that content published online-in any medium-is at risk of being distributed throughout the internet.
  • False or misleading claims published by an employee about the entity may be subject to disciplinary action.
  • Employees should be discouraged from posting personal work-related complaints online and instead submit complaints to appropriate persons (union representatives, direct supervisors, etc.) established in the employer's code of conduct.
  • Employees should abide by any confidentiality requirements established by the employer.
  • Applicable rules of social media conduct may apply-not just to an employee's personal social media account-but also instances where the employee "comments" on other content.
  • "Holding out" oneself as an agent of the employer online without express permission and supervision may pose conflicts. Although such action is not usually prohibited, employees should be mindful of listing their employment status on social media when publishing content.
  • Employers should set expectations about protecting the entity’s intellectual property (logos, slogan, etc.).

 

Create and Enforce a Remote Timekeeping Policy


Last month, the U.S. Department of Labor issued guidance about remote timekeeping that employers should take a look at. You can view the guidance by clicking here.

As we have previously discussed, employees who make less than $684 per week and perform white-collar work must be paid for all authorized time they spend performing duties in the scope of their employment. This has always presented a challenge to employers, as what constitutes authorized time can sometimes be unclear. Courts have generally found that it includes all time that the employee spent performing job duties that the employer knew or should have known about.

Tracking authorized time can be more difficult when employees work from home. To deal with this we have encouraged employers to develop remote timekeeping policies to keep track of employee time spent working from home. Ideally, this would include an electronic system that employees can log into at the start of their day and log out of at the end of it and that would have clear rules on work that can be performed outside of this time period.

The DOL guidance underscores the importance of employers being diligent about ensuring that their employees are not performing off-the-clock work. Once an employer learns that an employee is performing off-the-clock work it is the employer’s obligation to stop this.

If an employer knows that an employee is performing work after hours and does nothing to stop the employee from performing that work, the employer will likely be required to pay the employee for this work. Once the employer becomes aware of off-the-clock work, it bears the burden of proving that it told the employee that such work was not permitted. If it cannot meet this burden then it will be responsible for paying the employee for this work.

Without a remote timekeeping policy in place, this becomes much more difficult. Employers need to make it clear when an employee’s day starts and ends and the consequences for working outside of that period.

Feel free to contact us by email at mdicianni@ancelglink.com or by phone at (312) 604-9125 if you have questions about remote timekeeping policies or would like help drafting one.

 

Court Issues Ruling in Lawsuit Challenging Election Day Closures

The following is a re-post of an article from The Municipal Minute, an Ancel Glink local government blog edited by Julie Tappendorf ...


Last week, an Illinois circuit court issued a ruling in the case brought by the Illinois Municipal League (IML) against the State of Illinois to challenge the recent statute making November 3, 2020 (Election Day) a state holiday and requiring local government offices to close. The IML had argued that it was an unfunded mandate to municipalities, and the circuit court agreed in its ruling last week.

We have been asked whether the ruling extends beyond the two municipalities that were named as plaintiffs in the case (Southern View and Bolingbrook) to apply to other local governments. The ruling states that the statutory amendment that requires government offices to close on Election Day (i.e., Section 2B-10) "does not apply to local governments such as municipalities - including those municipalities that are members of IML and specifically, the Villages of Southern View and Bolingbrook." The IML has advised that the ruling provides each of its member municipalities the independent discretion to determine if their offices should or should not be closed on Election Day. The ruling itself seems broader in application, as it refers to "local governments" and not just municipalities. An appellate court ruling (or better yet, a statutory fix) would certainly help to provide some clarity, but given the short time period until Election Day, that may be unlikely. Local governments may want to reach out to their attorneys if they have questions about the ruling and how it applies to them.

You can read the decision on the IML's website here. You can also read the IML's summary of the lawsuit and ruling here.
 

EEOC Updates Its Coronavirus Guidance


Throughout the pandemic, the EEOC has maintained a list of frequently asked questions for employers regarding Coronavirus-related issues. The FAQs are informative, and I suggest that employers take a look at them, which they can do by clicking here.

Last week the EEOC updated some of the FAQs, and I have highlighted a few of those updates below:

Employers Can Require Employees to Take a COVID-19 Test

Employers can require any employee to take a COVID-19 test before entering the workplace. The Americans with Disabilities Act (ADA) requires any mandatory medical test to be “job-related and consistent with business necessity” and in the EEOC’s opinion, COVID-19 tests fall into this category because the virus poses a direct threat to the health of others. If an employee refuses to get tested he or she can be barred from entering the workplace. Employers cannot require teleworking employees to take a COVID test absent special circumstances.

Employers can also ask employees entering the workplace whether they are suffering from symptoms consistent with COVID. They can perform temperature checks too. While employers can single out an employee for testing or questioning, there should be a good reason for doing so (i.e. the employee looks sick, has a family member with COVID, etc.). With that said, employers should not specifically ask an employee whether a family member has COVID, as that would be a violation of the Genetic Information Nondiscrimination Act. They can get around this though by asking whether an employee has been in contact with anyone who has COVID or symptoms consistent with the disease.

Employers Must Keep COVID-19 Information Confidential

The ADA requires employers to keep all medical information about employees confidential and in a separate file, even if that information is not about a disability. If an employee has COVID symptoms, that information must be kept confidential. With that said, this information can be reported to the appropriate people in the company so that they can take measures to keep the workplace safe.

Also, if an employee knows that a co-worker is experiencing COVID symptoms, that employee can report this information to a supervisor.

Employers Can Ask Employees to Identify Accommodations They Need Before Entering the Workplace

Employers can, and probably should ask employees for reasonable accommodations they need before coming back to work. Remember, a reasonable accommodation does not need to be the best accommodation or the accommodation the employee wants—it only needs to allow the employee to be able to perform his or her job.

Also, telework does not have to be granted as a reasonable accommodation. If the employee needs to come into the workplace, and safety precautions can be taken to allow the employee to perform his or her job in the workplace, the employer can require the employee to come in.

Don’t Lay Off or Furlough an Employee Just Because He or She Contracts COVID

Doing this is a violation of the ADA. It also is a violation of the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide employees who contract COVID with ten days of paid sick leave.

 

The Workplace Transparency Act Requires Employers to Report Sexual Harassment by October 31


As we discussed last year, the Workplace Transparency Act requires employers to report adverse judgments and negative rulings related to sexual harassment to the Illinois Department of Human Rights. The first reporting period runs from January 1, 2019, to December 31, 2019, and the report must be filed by October 31, 2020. Next year the reporting deadline will be July 1, as it will be each year after that.

You can download this form (to access, click here) to report any adverse judgments or negative rulings, and either mail it to the Illinois Department of Human Rights or email it (IDHR.Section2-108@Illinois.gov). Here is a list of FAQs for employers published by the Department of Human Rights about this reporting.

The reporting requirement applies to all employers. An adverse judgment or negative ruling related to sexual harassment is a final, non-appealable judgment or administrative ruling entered in favor of the employee and against the employer. The adverse judgment or administrative ruling must have been entered pursuant to an action brought under the Illinois Human Rights Act, Title VII, or any other federal or state law prohibiting sexual harassment.

Feel free to contact me by email: mdicianni@ancelglink.com or phone: (312) 604-9125 if you have questions about this reporting requirement or need help.