Articles
- Altering Employee Time Sheets Can Make You Personally Liable
- Annual Audit of Personnel Files
- The Business Use of Social Media
Altering Employee Time Sheets Can Make You Personally Liable
by Linda Hatch, April 2010
Take note - If you are the one responsible for approving time sheets, or signing off on alterations to the hours reported by employees, it is not just your organization that risks a big fine and costly litigation – your personal assets are also at risk. The FLSA (Fair Labor Standards Act) allows employees to sue their bosses, executives and HR professionals for personal liability in altering pay records. For that reason, it is essential to make sure supervisors do not tolerate, or encourage “off the clock” work, or altering of records.
Case Law: A group of “living assistants” (hourly workers) at a home for the disabled worked 48 hour weekend shifts. They had to check on each resident every two hours around the clock. When they turned in their time sheets, managers routinely deducted eight hours because each living assistant supposedly got 2 four hour breaks. The CEO then signed off on their altered time. The problem here is that the employees couldn’t leave the building during “meal breaks.” This means the time was not their “own”, so the court said that the time must be compensated. The court held the CEO personally liable, ordering him and the company to pay more than $500,000 to the employees. (Chao v. Self-Pride, No. 06-1203, 4th Cir.)
Concerned about your “exempt vs. non-exempt” employees? To help you determine which employees are exempt from the FLSA, contact Linda Hatch.
Annual Audit of Personnel Files
by Linda Hatch, January 2011
Are you aware that a multitude of liability issues can result from improper employment record maintenance procedures? A regular review of personnel files and relevant maintenance, retention and destruction practices can reduce lawsuits and penalties regarding violations of laws relevant to medical privacy, nondiscrimination I-9’s, identity theft, record retention and record destruction.
Just medial privacy alone – the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, and the Americans with Disabilities Act protect the privacy of employee’s medical information. If your employees private health information is shared without the employee’s consent, or if your company does not have proper security measures in place, you could be looking at serious privacy violations. Unauthorized access to such data can trigger federal breach notification requirements.
Authorized access is defined by federal laws that require employers to establish specific policies and procedures for maintaining employee medical information. These records should be maintained confidentially and separate from employee personnel files. This means separate from other records to the point that they are not even in the same file cabinet. Access to medical information must be limited to a strict “need-to-know” basis only, thereby reducing opportunities for violations. The only time management should have access to an employee’s personnel file, is when making employment decisions (promotion, demotion, firing, discipline). Therefore, only information relevant to employment decisions should be kept in the personnel files. NO Medical information should be in personnel files (this includes workers comp information and doctors notes, etc.)!
All employers obtain employee personal information, including social security numbers, for payroll and other employment purposes. Security and maintenance of these records is imperative to avoid liability. There are State and Federal record retention laws that every employer must follow. Record retention requirements can be met by maintaining employment records in electronic format as well as hard copies – but electronic systems need continual evaluation to ensure that new technology and viruses do not make them easy targets for unauthorized access. This includes the storing of I-9’s. An unexpected I-9 audit can bring with it a multitude of penalties if I-9 forms are not in compliance. Review, document and correct I-9 form mistakes prior to an outside audit to reduce assessed fees and penalties.
Along with retention, assure that your organization has a policy to govern destruction processes for employment records. Federal regulations require specific methods of destruction of reports received under the Fair Credit Reporting Act. To limit liability, I highly recommend obtaining advice from legal counsel for establishing your purging and destruction of employment records.
To sum it up – I recommend your company take the time to double check personnel filing and retention practices. The best way to keep your company in compliance with employment documentation, and out of the courtroom, is to conduct periodic personnel filing and maintenance procedures audits.
Linda Hatch, PHR SJHRA President Elect
LSH
Consulting
The Business Use of Social Media
by Linda Hatch, July 2010
Have you analyzed how your employees are using social media (texting, email, Facebook, LinkedIn, Twitter, etc…)—both for business and personal reasons. Should you be worrying about Social Media in your business? If so, what should you be worrying about?
Develop Policies
Policies are where employers apply the law to the workplace.
- Have a policy that broadly defines electronic devices and
forms of electronic communications to cover new technologies and
media, and should address social networking
- Whether, and to what extent, access to social networking sites is permitted on company time or using company equipment
- Employees should have no “expectation of privacy” with regard to their own postings
- Employees should be cautioned that company policies about electronic communications, monitoring of computer use, and restrictions on creation, storage or transmittal of material apply to postings
- Policies to address legal concerns
- Company information should not be posted without company consent – caution about insider trading, trade secrets, confidential information of co-workers, or referrals
- Do not claim to speak on behalf of the company when posting, e.g. “an anonymous source within XYZ Corp.”
- Do not violate copyright, trademark and proprietary rights laws
- Policy to avoid harassment and discrimination
- Company harassment and electronic communication policies should ban the use of any electronic device, internet access, website posting or messaging service for the purposes of discriminatory harassment on any protected basis, including sex, race, age, disability, religion, gender preference….
- Company policies should make clear that information obtained by an individual casually through social networking sites is not considered to be notice to the company – but in practice, treat it as if you are “on notice”
- Establish the right to monitor activity.
- Consider whether to have restrictions on access or use during working hours or just a requirement that access not interfere with job duties. (Overtime can occur with non-exempt employees usage of electronic media)
- Establish guidelines for accepted and prohibited uses.
Don't get too complex with your rules—it's better to go after productivity. IBM has a simple reminder: “Don’t Forget Your Day Job.”
Background Checks
According to various surveys, 44% of employers use social networking sites to examine the profiles of job candidates, and 39% have looked up the profile of a current employee. Some say they find negative information such as provocative or revealing photos, while others find good information regarding a candidate’s personality and fit.
- Get the applicant's consent on the application form.
- Establish a written process for checks by category of job, and be sure to use a consistent process for Social Media searches.
- Consider separating recruiting data from the hiring process.
- Consider prohibiting your hiring manager from doing Internet checks on applicants. Let HR staffers do it—they can filter the information and pass on what the manager needs.
- Consider using social media checks post-offer only.
- Do not engage in “pretexting” (lying about your identity to obtain information).
- Identify the criteria used (e.g., criminal behavior, discriminatory animus).
- Retain a record of pages viewed.
- Discuss your findings with the applicant before revoking an offer.
Negligent hiring and retention claims may be made against employers who ignore expressions or a record of violence during their social networking research.
Approval Process
Consider an approval process that gives permission for employees to use social media for business purposes. If the company name is used, require a disclaimer to make it clear that the views expressed are not those of the company unless the business use has been specifically approved.
Require approval to use company logos, trademarks, or other intellectual property.
Confidential and Proprietary Information
The Company should issue a caution about disclosure of confidential and proprietary information. You may discover information during a social media search that could lead to a claim of discrimination. You may find out about protected class status - race, age, national origin, veteran status, gender preference, culture, sexual orientation, legal off-duty activity, political affiliation, disability, or you might see that the person is a participant, as a breast cancer survivor, in the Susan G. Komen Race for the Cure. Once you find out the information, you can't pretend that you never saw it.
References / Recommendations / Testimonial
I attended a “Social Networking and California Employment Law” presentation recently given by Attorney Roberta S. Hayashi, Berliner Cohen, where she strongly advised “against” allowing employees to provide recommendations on LinkedIn and other sites for current and/or former employees, colleagues, and competitors.
Her recommendations –
- Managers and supervisors should not “friend” others in the workplace
- Personal, not business, e-mail addresses should be used for social networking
- Remind employees that before posting (even if you use an “alias”), consider how the posting reflects on the company – and ask “what would your parent /grandparent think of your posting.”
Relationships
Consider restrictions on who can be friended or networked—especially for managers. Are managers "friending" some employees and not others? This could be a big problem. Harassment – discrimination - retaliation.
Content Restrictions
- Respectful, truthful communications regarding the company, co-workers, and competitors
- No offensive or illegal statements or activities
- No offensive screen names
- Corporate reputation (verbal slang through social media conversations)
- Textual harassment
- Sexting
Anything you say or do in Social Media is public information “forever”, and can be discovered over and over again for court proceedings.
Educate, Educate, Educate
Outline the internal and external challenges created by misuse of social media. Clearly communicate your expectations, and identify sanctions. The Facebook use policy says “If you collect information from users, you will: obtain their consent, make it clear that “you” (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.”
E-Discovery Laws
The new California statute follows the existing federal law, BUT includes “electronically stored information” in the definition of documents.
- Electronically stored information:
- Content documents, profiles, e-mails, IM’s, downloaded data)
- Search Records (copy and paste to word document, save links, etc…..)
- Databases (including application software, database platform, data maps, indices, as well as entire content in the database – your hard drive)
- Electronically stored information includes searches of social networking sites in hiring or workplace investigations
Positive uses of social media
- Recruiting
- Brand management
- Competitive intelligence
- Building referral networks
- Improved communication between employees and customers
- Sales and no-cost marketing of the company and employees
- Immediate customer feedback
Social media provides a potential 'treasure trove' of information—for you, your employees, and your competitors, which can show up in court when you least expect it.