Censoring your Social Media Page for Employment

Companies are using social media websites as an information gateway in hiring and monitoring employee behavior.  Sites like Facebook and Twitter are influential in the hiring process for employers, and can also result in termination if they see information that is not “appropriate employee behavior.”  Employers monitor social networking sites for provocative or inappropriate photos, drinking and drug use, bad-mouthing coworkers and much more.  They even measure your communication and creativity skills from monitoring your social networking sites.
While we all use our social networking sites to display information regarding our private life for friends and family, employers fear that proprietary information will be revealed over the web and they will be negatively represented in the online world.  If you are looking for a job or currently employed, follow this list of Do’s and Don’ts to clean up your page and remain in the safety zone of social media.

  1. DO delete or hide anything on your profile that employers may view negatively.  Remove pictures of spring break, vulgar comments or posts, rude language, and any commentary you may have posted about previous employers.  Remember there is no sense of “free speech” that is regulated in social media.  We’ve all heard the recent stories of New York teachers being fired for their online commentary of unruly classrooms and scandalous private lives.  It can happen to anyone, so keep your private thoughts and comments about your job to yourself.
  2. DON’T use social networking sites to vent about your job.  While you may need to talk about an overpowering boss or an arrogant coworker, never do it online.  While you may think your page is private, a coworker that you forgot you “friended” could take the page directly to your employer.  What you say online is permanent and is valid evidence that can be used against you in court and certainly by your employer or prospective employer.
  3. DO promote yourself socially and professionally online.  Update your pages to show your creativity and work ethic.  Write about accomplishments that you have made inside and outside of work.  Include your interests and passions and your goals.
  4. DON’T post anything that could be incompatible with your work persona.  For example, if you claim a disability or injury that alters your job responsibilities, refrain from posting pictures of you partaking in physical exercise.  If you are claiming worker’s compensation, investigators will often look at your social media sites to ensure that they are consistent with your claims.  An employer cannot discriminate against you because of disabilities, but you can be terminated if they unveil inconsistencies within your social media pages.

The Dangers of Signing Severance Agreements at Termination

Although America’s economy is slowly recovering, Americans are still in fear of mass layoffs or company downsizing.  Some companies provide their employees the safety net of severance pay when they are laid off, but there are no U.S. laws that require companies to provide compensation as an unemployment benefit.  Most severance agreements must be signed by the employee and require that the employee give up their right to take any legal action against their employer for any wrongdoing that may have occurred during their employment.
If presented with a severance agreement, your employer should give you ample time to seek legal advice.  Given that most severance agreements will require you to waive  your legal rights,  you should always consult an attorney if you have doubts about giving up your rights.  These agreements can be complex or impose other legal restrictions on you such as Non-Competition clauses, so speaking to an attorney is advisable.
Although the Fair Labor Standards Act (FLSA) does not regulate severance pay, there are laws that can function as severance pay laws. The Worker Adjustment and Retraining Notification Act (WARN) requires certain employers to provide 60 days notice of layoffs, and stipulates that employees must be paid for the 60 days regardless if they were required to work or not.  The Employee Retirement Income Security Act of 1974 (ERISA) monitors companies that maintain severance pay policies and ensures that plans are executed fairly and honestly.
Discrimination laws may also stand-in as severance pay laws.  If the employee feels that he or she was denied severance pay on account of a discriminatory factor such as age, race, disability or gender, the employee may have grounds for an employment discrimination claim.
Written contracts that provide for  severance pay  may provide a legal basis for a claim if  severance pay is promised and then reneged upon.    Similarly,  if an employer historically offers severance pay to its terminated employees and denies you severance pay upon termination without good cause, you may have a breach of implied contract claim, even if severance pay is not provided for in a written contract.
It is always important to consult an attorney when proposed with a severance pay agreement.  Seeking legal advice can prevent you from losing your rights as an American worker.

Performance Reviews: How to Respond to Discrepancies

At least once every year, employers and employees at certain firms fine-tune their working skills in preparation for the employee review.  Raises and bonuses sometimes result from a positive employee review, but other times the reviews might lead to demotions or termination.  Sometimes, performance reviews may produce no end result other than providing the employee with feedback and areas for improvement.  When you receive a review you might not agree with, it is important to take the proper steps to solve what is considered to be the problem. Because many courtroom decisions rely on employee reviews to determine if termination is legal, employees should fully understand their review and discuss any discrepancies with their employer.
It is important to keep in mind that a good review doesn’t guarantee a raise or promotion, nor does a bad review always warrant termination.  The most important step is to understand your review fully in order to comprehend the level of performance your employer expects from you and how that may reflect in your performance review, and to document any discrepancies you may have.

  1. Always read your review carefully and objectively. A review aims to summarize areas that you are adept at, as well as point out areas for improvement.  It is important to remember that all workers are encouraged to progress and advance in the field, and the review is your employer’s form of communicating their expected improvements.
  2. Provide thorough and logical reasoning as to why you disagree, but understand this may not change the result of the review. It is important to show how valuable an employee you are by providing evidence that attests to your successes.  However, it is important to accept comments about areas where you may need improvement, because acknowledging this will prove to your employer that you are attempting to better your work ethic to support the team.
  3. Maintain a calm and constructive attitude. Reviews are intended to be used as constructive criticism.  Your attitude about advice implies a lot about your work ethic and dedication.  If you believe there are flaws within your review, you should request to speak with your employer in a professional manner, and document all attempts you make at approaching the topic.  If you feel you have been wrongly assessed because of discrimination, you should avoid contacting your employer and file a complaint directly to HR.
  4. Sign under protest, and document your complaint with HR. If you strongly disagree with a review or feel that your report was falsified with a discriminatory intent, sign your employee review “under protest”.  Declaring that you object to your performance review should bring the necessary attention to the situation in order to fix the problem.  Document your complaint in a formal letter to HR, and specify any discriminatory actions or instances that affect your work environment.  However, refusing to sign an acknowledgment in and of itself can be deemed insubordination and be considered grounds for termination, so do not refuse to sign it.  Rather, indicate that you are signing that you have seen it but do not agree with it, or are doing so “under protest.”

Job Applications: What are your rights and how to handle a discriminatory question.

Preparing for a new job and the application process is often nerve-wracking and stressful.  Do you ever wonder what the employer will ask you, or what qualifications you should emphasize,  to show that you are capable of performing the tasks of the job?  Preparing to answer questions such as “What can you do for our team?” or “What’s your greatest weakness?” is crucial.  But imagine your potential employer asking you “How old are you?” or, “Are you planning on having kids soon?” The interview process has changed quickly from innocent to illegal.  Before going to your next job interview, brush up on your rights as an applicant.
There are many things an employer cannot ask you on your application.  These are certain questions that violate your civil rights, such as:

  • Age/Date of birth. The Age Discrimination in Employment Act protects applicants from disclosing their age during the hiring process to prevent age discrimination.  If the applicant is less than 18 years of age, asking for the date of birth is permissible because of children’s labor laws.  After being hired, the company may ask for birth certificates or licenses to verify date of birth for pension purposes, but they may not ask for these before hiring you.
  • Race, Religion, National Origin. Title VII of the Civil Rights Act requires that covered employers consider people of all nationalities and color.  Each application should state that the company is an Equal Opportunity Employer, and at no point should you answer a question like “Where were you born”, “What is your ancestry”, or “What religious beliefs do you follow?”  There are I-9 forms that can be used to determine the status of citizenship of an applicant.  These questions do not belong on an application.
  • Physical traits, disabilities. Unless height and weight are directly related to job performance, these questions should not be on the application. The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions. The employer may ask if you are capable of fulfilling the requirements of the job, but they may not ask you if you have disabilities or health problems.

There are many other restrictions on the application and interview process, which should be explored by everyone looking for employment.  While most employers do not have discriminatory intentions and are attempting to find the right “fit for the job,” you may find yourself in a situation where you are asked a question that is unlawful.

What should you do when this problem arises?  First, consider the intent of the question and how it was phrased.  It is important that you understand the employer’s reason for asking the question and their method of assessment, rather than assuming they have discriminatory intentions.
There are many ways to creatively answer questions without disclosing unlawful information.  For example, if you are asked “How old are you?” the best answer is to refer the question back to the job you are applying for.  “I am of legal working age” is a fit answer.  If you are asked “What religion are you?” it is okay to answer with “My religious practices will not hinder my potential to successfully perform the tasks of this position.”  Keep in mind that your application becomes a permanent part of your file.  If you choose to be untruthful on your application, that only provides the employer a potentially valid reason to terminate you down the road.
There are times, however, that witty answers may not be enough for the prying interviewer.  If this is the case, you may follow these steps:

  1. Inform the employer that the question is illegal.  While most people wouldn’t dare correct an interviewer, it can be tactfully stated in a non-accusing way.
  2. Answer the question.  Now that you have informed them of the question being illegal, the employer would be in violation of your civil rights if the information is used against you.
  3. If you are offended, you can file a claim with the Equal Employment Opportunity Office.

Be aware that taking this stance for your civil rights is courageous and may cost you the opportunity for employment.  However, if an employer is left in the dark ages and has no qualms about violating your rights, it might be best to seek employment elsewhere.

Stuckey v. Yellow-Roadway Corporation

This action was instituted by various hourly employees to address nationwide discrimination by the Yellow-Roadway Corporation and their Unions. Instances of discrimination include the creation of a hostile work environment and open bigotry by employees who felt empowered by their union and supervisors who joined in on treating Black employees as less than White employees. The complaint also alleges that the Union discriminated against its Black members by failing to advocate for their rights in a manner equal to those of their White counterparts.
Downloads:

  1. YRC Race Discrimination Complaint

Johnson v. Nassau County Social Services

This action was instituted to address the County of Nassau’s policy of not paying employees with less than ten years of tenure for their overtime hours which were banked over the course of their employment. These hours were banked for overtime worked, vacation days or sick days which were not used. Essentially, these workers were required to work overtime without compensation at all.
Downloads:

  1. Nassau County Social Services Overtime Complaint
  2. Court Order Conditionally Certifying Overtime Class

Gambino v. Harvard Protection (Security Guards)

This action was instituted to address Harvard Protection’s failure to pay security guards proper overtime when they worked in excess of 40 hours per work week. Rather, guards received a single paycheck denoting the first forty hours as straight time and were compensated at two thirds their regular rate for the second forty hours, essentially compensating them with straight time for all hours worked.
Downloads:

  1. Court Approved Notice of Lawsuit and Consent to Sue to all Harvard Security Guards and Fire Safety Directors employed from February 8, 2007 to the present.
  2. Gambino Amended Complaint
  3. Court Order Granting Conditional Certification of Harvard Protection Security Guard and-or Fire Safety Director Collective Class