Can — or should — HR fire an employee because of a social media post?

"You're going to have to discharge everybody or rethink what kind of conduct is sufficient to enforce adverse employment action," one attorney told HR Dive.

It's Monday morning, and the first email of the day contains a screenshot of a disparaging tweet that an employee wrote about her supervisor over the weekend. Or maybe it's a link to a video on TikTok that shows an employee cursing up a storm while drunk over the weekend. Perhaps it's a Facebook post from a supervisor that is extremely political and very negative. What are the next steps for the HR professional on the receiving end of the email?

Click here to read the full article.....In years past, if an employee ranted about a colleague or supervisor, took part in R-rated off-duty behavior or made controversial statements, only those in the room where it happened would know what went down. But today, in the age of social media, written words, pictures and videos can travel far beyond an individual's personal account, creating career-threatening consequences. But when can — and when can't — HR safely take adverse employment actions for this activity?

Navigate the boundaries of personal social media and professional lives

Back in 2005, 5% of American adults used at least one social media platform, according to findings from Pew Research. As of June 2019, 72% use social media. And with the ubiquitous presence of smartphones, it's never been easier to post anything, at anytime, from anyplace.

That ease of expression can lead to complications, David Berndt, senior client advocate and senior HR advisor, G&A Partners, told HR Dive. Employers, for example, must be careful they don't make discriminatory hiring decisions based on what they may see on a candidates' social media profiles.

But whether it's during the recruiting phase or even after a candidate is hired, companies may be expected to address controversial pre-hire postings made on social media.

These dilemmas become more prevalent now that people who grew up with social media are entering the workforce, with every past tweet potentially exposed, Adam Forman, labor and employment attorney at Epstein Becker Green, told HR Dive. A blanket disqualification of candidates or employees because of past social media behavior could cause recruiting and retention issues, he said: "You're going to have to discharge everybody or rethink what kind of conduct is sufficient to enforce adverse employment action."

Protections of speech exist — with limitations

The National Labor Relations Act (NLRA) protects employees so they can talk about their employer or work situation, Jennifer Betts, shareholder at Ogletree Deakins, told HR Dive in an email. "Employers should proceed with caution as they evaluate potential adverse action tied to social media activity. A variety of laws may be implicated. Most prominently, if an employee's social media activity could be perceived as protected concerted activity, the employer could be violating the National Labor Relations Act if it disciplines the employee for the conduct — regardless of whether the employer is unionized," she said. Protected concerted activity occurs "when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment," according to the National Labor Relations Board.

While employees have protections under the NLRA, not every complaint — or complainant — is covered. For example, one Texas teacher tweeted a request to President Trump to 'remove' undocumented immigrants from her school, thinking she was sending private messages to the president, according to the New York Times. The teacher was fired, as she violated the school board's policies on social media and ethical conduct toward students. Like the teacher, public figures or those who use social media as part of their professions can undergo harsher scrutiny even for the personal postings, said Berndt. Companies are also more likely to become involved if the employee used company property for the activity or conducted that activity on company time, he said. 

But employers, namely those in the public sector, are sometimes limited. In 2013, a federal appeals court ruled against a Virginia sheriff who fired his deputy because the deputy liked the Facebook page of the sheriff's political opponent. And state laws can add an additional layer to consider, Forman noted: "In the state of North Carolina, you cannot discipline an employee for lawfully consuming tobacco. If I'm on social media and smoking a cigarette, and my employer has a healthy workplace and doesn't want employees to smoke cigarettes, that may be problematic to discipline."

Muddling through the murkiness

With so many different circumstances, it can be difficult for an HR manager to discern what direction to take when addressing questionable social media posts. It may help to start with clear cut situations. 

If an employee uses social media to do something illegal, like selling drugs, or expresses thoughts of life-threatening behavior, the company should become involved, Berndt said.

Likewise, if an employee engages in bullying behavior toward other employees, employers may be able to take adverse action, Betts added. "If an employee is using racial profanity to bully and harass a co-worker over social media — and particularly if this is occurring during work hours — and such conduct violates the employer's policies, they will likely be able to issue adverse action," Betts said.

As employers try to quell problems arising from employees' social media posts, some companies try to monitor or filter social media, Forman said. He added that in many states, employers cannot ask for the login name or password for an employee's personal account. Other companies try to address problems on a case-by-case basis, but this can lead to inconsistent decisions or discipline, he said.

Start with a social media policy

Our experts agree: the proactive first step is to develop a specific social media policy that describes what behaviors are acceptable and which ones are not.

Many companies already have these guidelines, Betts said. "Such policies should clearly describe the kinds of employee social media conduct that may be grounds for discipline, including termination. The policies should be carefully reviewed to evaluate whether they align with the corporation's culture and philosophy as some employees may perceive social media restrictions as heavy-handed." The policy should also align with the National Labor Relations Board guidance and case law, which provides some parameters for legally compliant social media policies, she added.

Once the company creates the policy, ensure employees are trained by incorporating the information during onboarding as well as in subsequent workshops, Forman said.

So, to answer the initial question: can — or should you — fire an employee because of a social media post? The answer depends on the situation. Having a well-thought-out social media policy will help, but as new social media forums continue to develop, the area will stay fuzzy, Berndt said.

Although employers can't, and probably shouldn't, try to keep tabs on every post, tweet and chat employees send, companies and HR managers do need to prepare for the ramifications that occur when an employee's personal and professional lives collide on social media.

Click here to read the full article.....

Article written by: Pamela Deloatch
Article published on: Nov 18, 2019 HR Drive
Article spotted by: Louise Burden

What's in store for the future of HR?

While we are bombarded with all things tech, our chat with one HR leader reminds us that not everything in the future will be about robots taking over the world. And coming from someone with a solid background in IT – she knows what she’s talking about.

Comfortably poised for a promising career as head of IT at AstraZeneca Canada (AZC), Gena Restivo made the switch to HR in 2015, when discussions about digital disruption were only building. She is currently the VP of HR & communications at AZC.

“Since I started my career, I have naturally been drawn to roles that impact the guts of what makes an organization run and succeed,” Restivo told HRD. “I’ve been with Astra Zeneca for 17 years and I came across many business roles. Most recently I had headed up [people planner] which I really enjoyed. 

“In my IT role I had the opportunity to hone my skills on how to successfully embed change in an organization at the enterprise level, so I think that is a key [field] for any HR leader.”

Her bold move from IT to HR was motivated by her strong passion surrounding people’s potential and her intrigue of the “magic that happens” when organizations and people are empowered to be their best selves.

“I know this is long [undervalued] but I truly believe that HR leaders have a unique privilege to see across the organization,” she said. “They also have the responsibility to help cultivate the right cultures and practices to ensure the business’ most critical resource, its employees, are set up to thrive.”

Looking forwards: The future of HR

Considering her unique position of having a strong background in IT combined with a genuine passion for HR, we asked Restivo to share three predictions for the future of HR. Expecting a typical answer along the lines of automation and the impact of digital disruption, Restivo’s response reminds us to refocus on what’s most important in our roles.

“I know everybody these days is giving you a lot of responses around technology, but I’d like to focus on three other areas that I feel are equally important,” she said.

Prediction #1: The ability to demonstrate life-long learning will be a key differentiator in HR’s hiring and talent practices
“How quickly we learn versus what we know will be a competitive advantage for employers and employees,” she said.

She explained that as the only constant these days is change, employers will need workforces that can adjust quickly. Employees will thus need to have the desire and ability to adapt to new environments just as fast.

And as people start to have longer careers due to an extended longevity, the ability to continuously learn relevant skills throughout ones’ career will determine whether we remain effective in our roles.

Prediction #2: Meaningful work will be key to attracting best talent
“People will continue to want to be part of something bigger than themselves and work in organizations that respect and support the world around them,” she said.

Rather than just hefty paychecks or how technologically advanced an organisation is, Restivo believes companies that provide people the opportunity to do what matters most to them will attract and retain the best talent.

“Meaningful work will remain meaningful,” she said. “People [will be] seeking more meaning in their work and their life. Everyone will want to learn and grow – and where we do that will continue to matter.”

Prediction #3: ‘Life’ will be even more central in the quest for work-life balance
“This is somewhat already happening but I believe we will continue to see an increasing prominence of how ‘life’ will continue to take centre stage in the work-life balance conversation,” she said.

According to Restivo, to attract and retain the best employees, organisations will have to have a “healthy recognition” of the multiple priorities employees juggle on a 24/7 basis and be creative on ways to support them.

She added that the conversation regarding work-life balance will change in the future, particularly because of how millennials will help veer the topic.

“[Millennials will be] living longer, working longer and looking for quality of life for different reasons because of the different times…they are in,” she said. “I believe [they will teach] our experienced generation a few things about what matters most.

“So I actually believe this ‘life’ conversation is going to happen across all aspects of the organisation and will be important to all workers.”

Reflecting on the past: Career advice
Besides looking forward into her career and how she expects HR to transform, we asked Restivo to look back and share what she would advise her younger self.

“The first thing is I would remind myself that it will all work out,” she said.

She shared with us that although she did make the effort to plan some things through her career, things always had a way of working itself out – especially if you find something you’re passionate about.

“You know when you’re young you’re worrying about how it’s all going to turn out. I would just like to give myself peace of mind and tell myself, ‘don’t worry, it’s all going to work out, just follow your heart and do something you’re passionate about’.”

The second thing she shared was more of a reminder, she said.

“Always operate by being the kind of leader you would want to follow,” Restivo said.

“Take smart risks. Don’t be afraid to follow your heart as well as your mind. Be good to people along the way and give back because many people have helped you along the way.

“And at the end of the day don’t be so hard on yourself because the truth is everybody is just trying to figure it out.”

 Click here to read the full article.....

Article written by: Nurhuda Syed

Article published in: HRD Human Resource Director Nov 23, 2018

Article spotted by: Louise Burden

Former Walmart executive awarded $750,000 in extraordinary damages

Retail giant’s bad faith in removing executive and keeping her in limbo before terminating her warrants large award on top of salary and bonus damages. 

                        Photo credit: Sarah Dobson/ HR Reporter Canadain

In a recent decision that opens the range of extraordinary damages available to dismissed employees, an Ontario executive was awarded $750,000 in moral and punitive damages arising from her employer’s decision to unnecessarily prolong her dismissal, and form her employer’s post-termination conduct — one of the largest such damage awards ever given in Canadian employment law. Employment lawyer Rich Appiah discusses how this decision continues a trend for courts to compensate for the power imbalance between employers and emlpoyees when an employee is treated poorly both before and in the course of termination.

The Ontario Superior Court of Justice has awarded a former Walmart executive $750,000 in moral and punitive damages plus more than $400,000 in wrongful dismissal damages despite narrow contractual severance terms to which she agreed after the retailer marginalized and then fired her.

Gail Galea started working for Walmart Canada in September 2002 as a management trainee. In 2005, she was appointed General Merchandise Manager (GMM), reporting to a senior vice-president. In 2008, she was promoted to Vice-President, General Merchandising. She was repeatedly selected for exclusive executive development programs and expected eventually to be appointed Chief Merchandising Officer. Walmart leadership suggested that she might one day run a country division.

Matters changed dramatically in January 2010 when, due to a “cultural shift,” the president of Walmart Canada, David Cheesewright, relieved Galea of her executive role. At a meeting of hundreds of associates — including Galea’s former direct and indirect reports — he made an announcement confirming that she had been removed from the senior executive team and assigned a supporting role.

Although Cheesewright told Galea that he wanted her to remain with the company, he also indicated that he did not know what to do with her. In the ensuing months, with the company’s ostensible support, Galea actively sought a meaningful position. She travelled frequently, explored roles in overseas divisions, and even began Spanish lessons. However, during a meeting with a Walmart executive, she learned that in a recent performance review Cheesewright ranked her as “not currently promotable” without her knowledge. This was a downgrade from a prior rating. A second related metric of her performance had also been downgraded.

In November 2010, upon her return from an eight-week executive training program, Galea discovered that her belongings had been relocated from her office and her telephone had been disconnected. From her new office, she no longer had access to Cheesewright. Shortly thereafter, Cheesewright gave her the choice of running an e-commerce division on a probationary basis or accepting a severance package. Galea later heard that in the new position, she would report to an executive who did not want her in the organization, and her low performance rating would hinder her advancement.

Though these events seemed to demonstrate that Walmart did not have confidence in her, Cheesewright and others frequently expressed their support. Galea attempted to discuss the matter further with him and the company’s human resources manager. However, on Nov. 19, 2010, Walmart terminated her employment.

Galea’s extensive efforts to find other work at Walmart proved unfruitful. She never received a job description for the e-commerce role, and Walmart provided her with no viable options to remain employed. She concluded that Walmart prolonged her dismissal for nine months to her personal detriment. She commenced an action claiming damages for wrongful dismissal, and moral and punitive damages.

Non-competition agreement

Galea’s wrongful dismissal damages turned on a two-year non-competition agreement (NCA) that she signed when she was promoted to GMM in 2005. In exchange for her acceptance of the NCA, Galea was promised, for a two-year “transition period,” “transition payments” including her base salary, any incentive payable “in accordance with the annual incentive plan (AIP) in effect on the date of termination,” and Walmart’s portion of health and dental premiums.

When Galea signed the NCA, she was participating in one AIP. Walmart management also recommended that she receive stock options under a stock incentive plan. By January 2010, she was participating in four different incentive programs — a discretionary Management Incentive Program (MIP), paid as a percentage of her base salary; a Deferred Profit Sharing Program (DPSP), entitling Galea to four per cent of her annual salary, bonus and vacation pay; an Executive Retirement Plan (ERP), into which Wal-Mart made contributions on her behalf annually; and a Long-Term Incentive Plan/Performance Share Plan (PSP), under which Galea received a one-time award of shares vesting equally in January 2009, 2010 and 2011. One issue at trial concerned Galea’s entitlement to compensation associated with such programs during her transition period. At the time she signed the NCA, they did not exist. Walmart additionally argued that program terms disqualified her entitlement post-termination.

Citing the Ontario Court of Appeal’s decision in Paquette v. TeraGo Networks Inc., the court held that “damages in a wrongful dismissal case ‘should place the employee in the same financial position he or she would have been in had reasonable notice of that employee’s (dismissal) had been given.’” The court found this principle applied to an agreement, such as the NCA, providing for compensation over a prescribed term. Relying upon the appellate court’s decision in Wood v. Fred Deeley Imports Ltd., the court also preferred an interpretation of the NCA favouring Galea where it could reasonably be interpreted in more than one way.

In the court’s view, the term “any incentive,” in the NCA, suggested that more than one incentive might be made available to her upon her dismissal. The court thus read the word “Plans” into the term “Annual Incentive Plan.” On this basis, the court awarded damages of $437,434 for payments owing to Galea during the transition period under the MIP (although MIP terms excluded payments post-termination), DPSP and ESP, among other damages. Despite the award of MIP payments, Galea was not awarded payment in lieu of stock vesting under the PSP because plan terms prohibited vesting subsequent to Galea’s dismissal.....

Click here to read more on the final decision......

Article Written by : Rich Appiah in Canadian Employment Law Today

Article Published: Feb 20, 2018

Article Spotted by: Louise Burden