Employment Lawyer

It's no secret that a lot of office employees spend a lot of time on non-work websites. But is there a threshold beyond which an employer can fire an employee FOR CAUSE if he's spending too much time online? Even if it's only, say, 5 minutes?

Asked by Dr Chuckenstein almost 13 years ago

There is no such threshhold. Typically employers have Social Media policies nowadays that address the use of Facebook, Twitter, Blogging, etc. If you are not an employee under contract or a collective bargaining agreement, then you are an "at will" employee. This means that you can be fired at any time for any reason or no reason, with or without cause. In nearly every state, policy manuals are not "contracts," and they will always have language that they can be modified at any time. So, if you are an "at will" employee terminated "for cause" for violation of the Social Media Policy, for example, and the employer contested, in virtually every state, you are out of luck. However, there are two particular areas in which "at will" employees can always bring claims for wrongful termination. If you were terminated and told it was because of your use of Facebook five minutes per day, you want to ask yourself whether this was really a bogus reason in your opinion, and that instead, you were fired for discriminatory or retaliatory reasons. Certain groups are protected from discrimination under both federal, state and local laws. For example, let's say you were the only African-American working at the Company and you were terminated for your sparce use of Facebook, if you have reason (and hopefully, evidence) to believe that Facebook was not the true reason, but rather, race was the reason behind your termination, then you could bring a claim with the Equal Employment Opportunity Commission and its state counterpart. Additionally, there are laws that prevent employers from retaliating on claims for "blowing the whistle" on the Company or an employee or officer for alleged or perceived wrongdoing. Again, if you had blown the whistle under a statutory protection, and then, suddenly, you are terminated for five minutes of Facebook use a day, you would want to bring a claim for wrongful or retaliatory termination/discharge. If neither of these two situations exist, then you are generally, in nearly every state, out of luck, even if every other employee does the same thing because as an at-will employee, the employer does not have to give any reason at all. This said, you should always maintain a copy of your handbook because being terminated "for cause" can affect rights to bonuses, stock options, unemployment insurance, etc. Benefit plans often have their own definitions of "cause," and usually gross negligence and the like are required. This would hardly seem to be the case. Moreover, perhaps the Social Media Policy states that you may use the Internet "sparingly." That could also help you contest some of the benefits you would otherwise receive if terminated for no cause. Also, "cause" may be defined in the handbook for purposes of explaining benefits you may lose at termination, such as unused but acccrued vacation. So, other than the two situations discussed above -- discrimination on the basis of a protected class or whistleblowing/retaliation, almost always you can be terminated. But, as stated in the previous few sentences, while you would not receive your job back, you may be able to contest a termination for cause on this basis to receive some benefits which you may otherwise lose. I hope this helps.

Let's say I'm an employer and have two equally qualified candidates for a job opening. However, one is pregnant, and I wind up hiring the other woman. Am I at any legal risk, even if the decision honestly had nothing to do with the other candidate being pregnant?

Asked by headscratch almost 13 years ago

There is always a risk that someone who is in a "protected class" (e.g., someone who is pregnant) could sue even though there is no reason to suspect wrongdoing. That doesn't mean that you have done anything illegal or wrong. As long as you did NOT consider the pregnancy of the applicant AT ALL in your decision making and can show that the other candidate was equally qualified, there is no law requiring you to hire a pregnant candidate over a non-pregnant candidate. However, you can never mention pregnancy let alone consider it in your decision-making. Many employers are afraid to hire pregnant women because they fear that they won't be as committed to their jobs because of caregiving responsibilities. It is unlawful to discriminate against both someone with caregiving responsibilities and one without. That said, this is a society that sues. If the pregnant applicant sued and it was discovered that other pregnant applicants or workers were discriminated against or not hired, you could find yourself in trouble. But, no, you do not have to choose a pregnant candidate over an equally-qualified non-pregnant candidate if the fact of her pregnancy is of no import.

I'm unmarried with no children, but most of my co-workers have families. While I can't prove it, I feel like whenever there's after-hours work that needs to get done, it lands on my plate because with me being single, my time is seen as more expendable. Is there anything I can do about this?

Asked by SweatShopped almost 13 years ago

Several years ago, the Equal Employment Opportunity Commission issued guidance on this very issue. It is equally unlawful to discriminate against someone who is single and has no family by requiring that they work longer hours or be available more than others than it is to discriminate against someone who has "caregiving" responsibilities. See http://www.eeoc.gov/policy/docs/caregiving.html

Can someone be fired for being too fat or ugly?

Asked by seewhathappens almost 13 years ago

You can certainly fire someone because you think they are ugly. Being ugly is not a characteristic protected under the law. However, if someone is obese, the story is likely different. Overweight individuals may be disabled, and may be obese because of biological reasons, illnesses and/or medications that are required to be taken, among other reasons. Moreover, obesity may be hereditary, and genetic disposition is a newly recognized basis for legal protections. One is advised not to terminate an employee based on the weight of an employee unless they are unable to do the essential job duties of their position without a reasonable accommodation.

What's the most prevalent issue in employment law today?

Asked by homerCON almost 13 years ago

Worker misclassification, whether deeming certain individuals consultants (to avoid paying benefits) or labeling employees who do not qualify as exempt (to avoid paying overtime) is a hot topic today, and, for this reason, the government is increasingly cracking down on these practices. Consultants must have control over their work assignment, and some employers today are hiring people as consultants even though they are essentially employees who take direction from the employer. This avoids employer responsibility for paying benefits that employees would otherwise receive. By labeling an employee who is not an administrator, executive or professional as "exempt," an employer can avoid paying overtime to employees. This, too, is an increasing problem. It should be stated that part of this problem is that who is exempt and who is not exempt is not always clear. However, in a majority of cases, the delineation is not ambiguous.

Let's say fictitious company "Blabercrombie" wants to improve its reputation of not featuring enough racial diversity in its print and TV ads. How would they go about advertising for / hiring minority actors if they're not allowed to 'discriminate' based on race?

Asked by Kyle almost 13 years ago

Broadly, the issue of diversity is a very sticky issue right now after a recent decision by the Supreme Court involving minority applicants to a fire department. It is unclear the boundaries and breadth of the decision and what it means for diversity. Future decisions will clarify. That said, Blabercrombie, like other companies that rely on an image of diversity and inclusion for their business needs could make the claim that it is a business necessity to include a diverse group of actors/models because their business image is one of diversity and their business is geared to marketing to people of all races/ethnicities. The fact is that there is currently no clear answer on broad issues of diversity, but because of business necessity -- to portray a diverse group of people who purchase their products -- I would cautiously opine that Blabercrombie could hire minority actors without it being considered a form of racial discrimination.

What do you think about someone being sexually harassed by a Casino Host. As a guest, it was very upsetting and basically nothing was done when I made a formal complaint to the upper management (HR). Want to take legal action against Casino!!!

Asked by JDVegas almost 12 years ago