MCR Employment Law Morsels: Arizona Whistleblower Law; References; Solicitation Policies; Who’s a Supervisor?; Accessing Your Employee’s Personal Email; You, Social Media and the National Labor Relations Board
ARIZONA WHISTLE-BLOWER LAW
Arizona provides protection to employees who “blow the whistle” on their employer. The Arizona Employee Protection Act states that employees who, in a “reasonable manner,” disclose to their employer that the employer or an employee of the company has violated, is violating or will violate the Arizona Constitution or any Arizona statute, is protected from retaliation if he/she makes this information known to a company management official or a supervisor in the company whom the employee believes has the power to investigate the claim.
A key point is that the employee must tell a supervisor or management official who has the authority to investigate and to take action to prevent further violations.
We recommend that you have a policy that if an employee comes to any supervisor, that supervisor needs to bring the alleged violation to upper management for investigation. And, under no circumstances should that employee suffer any adverse employment action.
In addition to Arizona whistleblower laws, there are numerous federal whistleblower protections for employees who allege violations of federal laws.
I’m sure you have all been told that you should never give an employee a reference; or if you do, only give dates of employment, salary and last position held. Arizona has a little known statute (A.R.S. § 23-1361) that allows employers to give a prospective employer an honest employee reference concerning a person’s: education, training, experience, qualifications and job performance if the purpose is to lawfully evaluate that person for employment. You will be insulated from liability as long as the communication is in “good faith,” is not “false and defamatory,” or is known by you to be false or if you act in reckless disregard for the truth.
The law states that there is a presumption of “good faith” if you have less than 100 employees and provide only the information authorized by the statute. If you have over 100 employees, “good faith” is presumed if you have a “regular practice in this state” of providing information requested by prospective employers about the reason for termination, or about job performance, professional conduct or evaluation of a current or former employee.
Best practice: Even though you are insulated for an honest and accurate reference, we suggest that before you give a negative reference, i.e.: employee fired for stealing, get a release signed by the employee allowing you to give the reference. Many employment applications allow prospective employers to check references; yet that doesn’t generally apply to the person providing the reference. Since the Arizona law is very specific, if you want to set up a reference check policy, seek legal advice.
SOLICITATION POLICIES AND WHY A BUSINESS SHOULD HAVE ONE
Frequently, employers allow employees to conduct Girl Scout cookie drives, engage in cancer walks, holiday gift or food bank drives, and numerous other fundraising activities. Although well intended, these activities can impact working conditions in many ways.
Employers can absolutely prohibit employees from soliciting for anything during work time and at their work stations. (NOTE: “Work time” is not defined as the hours when the business is open; it is defined as the time the employees are actually supposed to be working.) But they cannot be prohibited from soliciting on their breaks or in the break room–in other words, on their personal time. If you do allow fundraising activities to occur anytime, anywhere and over the office’s network, you also have to allow union solicitation. Therefore, it is a good business practice to restrict all solicitations to non-work time in non-work areas. Employers are permitted to designate one or two charities and prohibit other solicitations. The key to all of this is consistency and strong enforcement.
It is advisable for employers to have an internet/e-mail use policy and enforce it, if you want to prohibit non-business communications. The NLRB has held that you may prohibit non-business related e-mail usage as long as the policy wasn’t set up to discriminate against union activity and you have consistent enforcement. Again, you do need a legally-worded, anti-solicitation policy.
WHO’S A SUPERVISOR?
In July, the U.S. Supreme Court let employers know who is a supervisor for the purposes of employment discrimination and harassment litigation. The definition is: Management level employees who are empowered to take “tangible employment actions.” This means supervisors must be able to hire, fire and/or demote employees. The Court affirmed that if a supervisor is guilty of harassment or discrimination, the company will be liable. Make sure your supervisors are trained in detecting discrimination and that they are not engaging in it!
ACCESSING YOUR EMPLOYEES’ PERSONAL E-MAIL
Do you have the right to access your employees’ personal e-mails if you provide the computer or phone? One Ohio federal judge recently said no, unless your policies clearly let employees know you will access their personal e-mails while they are employed.
A Verizon employee left the company and returned her company issued Blackberry. She thought she had deleted her personal g-mail account, but she had not. Her supervisor is alleged to have accessed about 48,000 personal e-mails from the company Blackberry after she left her employment. It was further alleged that he opened some of these before she did.
The Court held that the federal Stored Communications Act was violated. This law states that it is illegal to access, without authorization, electronically stored wire or electronic communications. In this case, the supervisor accessed the former employee’s current e-mails, not only ones she had while employed. The Court said she had an expectation of privacy, the Act was violated and allowed the case to go forward.
The lessons here are: (1) never access personal information after an employee leaves, and (2) make sure your policies clearly state that anything put on company provided electronic equipment is and will be monitored. Make sure the policy clearly states that employees, while employed and using your equipment, and have no expectation of privacy.
YOU, SOCIAL MEDIA AND THE NATIONAL LABOR RELATIONS BOARD
Many non-union employers don’t understand that they are subject to the National Labor Relations Act (NLRA). That law protects employees that band together (collective activity) to “discuss” with you or complain to you about their “wages, hours and working conditions.”
With the explosion of social media outlets, your employees can, and will, discuss your company, their supervisor and their working conditions online. If a single employee posts something negative about your organization on Facebook as an individual gripe, they are not protected from discipline. However, if they use words like “we,” “us” or “all my fellow employees,” the National Labor Relations Board (NLRB), which handles these cases, has held that those posts are “protected concerted activity.”
It is extremely important that you take no adverse employment action against someone who, on behalf of others (or a group of employees), complains about their wages, hours and working conditions on Facebook, Twitter, etc. “Working conditions” can be as general as poor lighting in the office, or as specific as complaining about an individual supervisor. Because you do have rights under the law, it is imperative that you have a “Social Media” policy for your employees outlining what are and are not acceptable posts on social media.
Many employers are unaware that they may not prohibit their employees from discussing their pay. Some employers have a written policy prohibiting employees from telling each other how much they make. This policy is flatly illegal and should be removed from company policies. Further, employees can legally post their pay or issues they have with pay. If you need further guidance on these policies, give us a call.