California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

With the beginning of each new year, we make resolutions that often involve improving ourselves:  lose weight; eat healthier; get organized.  The new year is also a good time for personnel and human resources directors, managers and analysts to resolve to make their agencies an even better place to work and to reduce risk.  Here are five resolutions for public employers to consider adopting.            

1.  Get to Know PEPRA

The California Public Employees’ Pension Reform Act of 2013 went into effect at the beginning of the year.  This new law reforms the retirement systems of most public employers.  While portions of PEPRA apply to current employees, a majority of this new legislation applies to those who are “new members”.  PEPRA sets forth new requirements for “new members” regarding retirement formulas, employee contributions, final compensation, and pensionable compensation.  It also changes the playing field as to air time, post-retirement work restrictions, supplemental benefit plans and health insurance vesting.  If your agency has not taken steps to learn PEPRA yet, resolve to get to know this new law now.

2.  Review and Update Personnel Rules, Policies and Regulations

In the last few years, there have been many changes to federal and state employment laws.  These changes cover a wide variety of areas and include both new laws and amendments to existing ones.  For example, the California Fair Employment and Housing Act was amended in each of the last two years to include genetic information and gender expression as protected classifications.  Also, the California Fair Employment and Housing Commission issued new pregnancy disability regulations that went into effect at the end of 2012.  These are only two of dozens of newly adopted or amended employment laws.  Yet, despite these changes, many public employers have not updated their personnel rules, policies or regulations to reflect them.  Public employers are encouraged to audit their policies to ensure that they reflect current law. 

3.  Conduct an FLSA Audit

Wage and hour litigation continues to thrive in California.  In addition, a search of the U.S. Department of Labor’s (“DOL”) Enforcement Database shows that the agency has investigated thousands of employers in the last five years for potential violations of the Fair Labor Standards Act (“FLSA”) including many California public agencies.  Because of these risks, public employers are encouraged to conduct an FLSA audit.  The audit is the only reliable means an employer has to determine whether it is complying with the FLSA’s many requirements and regulations. It is only through an in-depth investigation into an employer's time keeping and compensation practices, and an analysis of how those particular practices measure up to FLSA requirements, that an employer can be fully assured of its compliance with the FLSA.

4.  Learn About the Affordable Care Act

The federal Patient Protection and Affordable Care Act (“ACA”) is being rolled out over several years.  For instance, the ACA eliminated reimbursement for over-the-counter drugs from health savings accounts in 2011.  The following year, ACA required employers to list certain health cost related information on W-2 forms and to provide employees with a summary of benefits and coverage.  This year the health savings account maximum contribution was lowered to $2,500.  Finally, employers will start to see the implementation of health care exchanges this year.  These exchanges are a key component of the ACA and are required to be operational by January 1, 2014.  Since key portions of the ACA have not taken effect yet, there is still time for employers to understand their obligations under this new law.     

5.  Understand Technology’s Impact on Work

Every year brings new and exciting advances in technology. These advancements have changed the way work is performed.  It has made employees more efficient, allowed them to work outside of the office, and to communicate with one another anywhere and at any time.  However, the use of these tools also has significant employment implications.  Giving non-exempt employees access to emails or remote computer access creates potential problems for employers under the FLSA.  Because the time spent checking emails and/or working could be considered hours worked, employees who engage in these activities outside of their regular work hours could have a claim against their employers for unpaid wages.  In addition, the use of social media by employees to discuss work-related matters can implicate privacy, free speech and disciplinary issues. 

Carrying out these five resolutions will go a long way to strengthen your agency and help reduce the risk of lawsuits.  If your agency needs help with implementing these resolutions, our offices are ready to assist.

Governor Jerry Brown last week signed two new privacy laws that will go into effect January 1, 2013.  AB 1844 and SB 1349 prohibit employers, colleges and universities from requiring or asking prospective and current employees and students to disclose social media usernames and passwords.  It also prohibits requiring or requesting employees and students to log onto social media platforms in the presence of the employer or educational institution.  Governor Brown tweeted: “California pioneered the social media revolution.  These laws protect Californians from unwarranted invasions of their social media accounts.”

AB 1844

Public and private employers are now prohibited from requiring a job applicant or employee to provide usernames and passwords to their personal social media accounts such as Facebook or MySpace.  In addition, employers may not require an applicant or employee to access or log on to personal social media in the presence of the employer.  The law defines social media as including videos, still photographs, blogs, podcasts, instant and text messages, email, online services of accounts or website profiles or locations. 

Under AB 1844, employers can access usernames and passwords under two circumstances.  First, an employer can ask an employee to divulge personal social media if the employer reasonably believes it is relevant to an investigation of employee misconduct.  Second, an employer can ask an employee to disclose a username or  password for purposes of accessing an employer-issued electronic device. 

Finally, an employer may not discharge, discipline, threaten to discharge or discipline, or retaliate against an employee or applicant for refusing to provide their personal social media information. 

SB 1349

SB 1349 prohibits public and private colleges and universities from requiring current or prospective students or student groups to disclose their usernames and passwords for personal social media.  Like AB 1844, postsecondary educational institutions also may not require a student, prospective student or student group to access personal social media in the presence of the institution’s employee or representative.   

The new law does not affect an institution’s existing rights and obligations to protect against and investigate alleged student misconduct or violations of law.  The statute also does not preclude educational institutions from taking adverse action against a student, prospective student or student group for any lawful reason.

Finally, educational institutions may not suspend, expel, discipline, threaten to take any of those actions or penalize a student, prospective student or student group for refusing to comply with a demand to access personal social media or for usernames or passwords.

California employers, colleges and universities are encouraged to adopt or review existing social media policies to make sure they comply with these new privacy laws.  Our Los Angeles, San Francisco, Fresno, and San Diego offices are ready to assist and provide guidance on these issues if needed.

Disciplining employees is a necessary part of employment.  However, employers often struggle with employees who engage in misconduct, especially where the employer believes the employees should be terminated.  Recently, we came across the story of a Florida police officer which highlights the importance of conducting a thorough investigation before imposing discipline.

German Bosque is a Sergeant with the City of Opa-locka’s Police Department.  In the nearly 20 years he had worked with the Department, Bosque had been fired at least six times.  The terminations were based on a wide range of misconduct including use of excessive force, failing to turn in arrest reports, hiding drugs in a police car, stealing from suspects, falsifying police reports, calling in sick in order to take vacation in Mexico, and engaging in unauthorized police chases, one of which resulted in the deaths of four people.  In addition, Bosque himself had been arrested and jailed three times.  

Although this misconduct would seem sufficient to support termination, Bosque managed to be reinstated with full back pay each time.  Bosque reportedly bragged about his ability to work for a law enforcement system that allows bad cops to remain employed, even when facing criminal charges.  Currently, Bosque is at home on paid administrative leave pending another investigation into misconduct charges. 

The press covering Bosque’s story identify a variety of reasons why he has been able to win his job back repeatedly.  These reasons range from the Police Department’s lack of resources to corruption at the City.  However, the City’s failure to investigate Bosque’s misconduct properly provides the most important lesson for public employers.  Press reports indicate that the City either mishandled the investigations into Bosque’s misconduct or failed to investigate at all.  As a result, the disciplinary charges against Bosque were either dropped or overturned due to insufficient evidence. 

A thorough investigation should be conducted when a manager or supervisor reasonably believes that an employee has engaged in misconduct.  If the employee appeals the agency’s disciplinary action, the agency will have the “burden of proof”, meaning that it must prove the truth of the allegations supporting the discipline by a preponderance of the evidence, that they are more likely true than false (or more than 50%).  Therefore, an investigation should be done to determine if the facts supporting discipline are more likely than not true.  A manager’s or supervisor’s reasonable suspicion will not be enough to sustain a disciplinary action. 

Thorough investigations include compiling details about the misconduct, including the names of witnesses, dates, times, and locations.  Thus, when conducting an investigation, any documents and physical evidence should be gathered and reviewed.  This can include letters, emails, witness statements, photographs or videos.  In addition, witnesses should be interviewed to discover the factual details of the alleged misconduct.  Finally, managers and supervisors should always coordinate with the agency’s human resources or personnel department when conducting workplace investigations regardless of whether an outside investigator will be used.  Consulting with human resources/personnel will help determine the scope of the investigation to be conducted and who should conduct the investigation. 

Agencies who have questions about conducting investigations should consult legal counsel.  You are welcome to contact any one of LCW’s offices.  LCW’s workbooks Evaluation and Discipline and Disciplinary and Harassment Investigations also contains tips and guidelines for conducting investigations.

The National Labor Relations Board issued a new report discussing seven social media cases handled by the agency.  This report is the third released by the NLRB regarding social media in the last year, and focuses on the policies of seven companies.  The report provides guidance to employers who have social media policies or are considering adopting them.  Of the seven cases detailed in the report, the NLRB found portions of the employers’ social media policies to be unlawful in all but one of the cases.

Section 7 of the National Relations Act gives both unionized and non-unionized employees the right to discuss the terms and conditions of their employment with co-workers and others.  Therefore, when evaluating an employer’s social media policy, the key question the NLRB will look at is whether the policy chills or restricts employees’ ability to discuss working conditions with one another.  Consequently, in the six cases where the NLRB found the employers’ social media policies to be unlawful, the policies contained ambiguous, overly broad language that could be interpreted as restricting employees’ ability to discuss their working conditions with co-workers or with the public.  The policies also contained no limiting language or provided any context that would clarify to employees that the policies did not restrict such rights.  

The report also discusses the revised Wal-Mart policy the NLRB deemed lawful and includes it as an attachment.  The NLRB found the policy lawful because it is unambiguous and provides examples of prohibited conduct so that, in context, employees would not reasonably read the policy to prohibit Section 7 activity. 

The NLRB’s report with its specific analysis of various employer social media policies offers the following guidelines for employers with existing social media policies or for employers in the process of adopting such policies:

1. Confidentiality provisions should include clarifying and restricting language with examples of clearly illegal or unprotected conduct to preclude the possibility that employees will believe the language to include protected activity.  For example, employees may be precluded from disclosing trade secrets, information subject to financial disclosure laws, and attorney-client privileged communications as they do not have a right to disclose this kind of confidential information.  When drafting language regarding confidentiality, employers should also include examples of what they consider to be trade secrets or financial information.  For example, the term “financial information” could be interpreted to include employee salaries which employees have the right to discuss under Section 7.  However it is illegal for employees to give “inside information” to others for purposes of buying or selling stocks.
2. Language that prohibits employees from posting material that could be viewed as malicious, obscene, threatening or intimidating should also include examples of such conduct.  The NLRB found the portion of Wal-Mart’s policy entitled “Be Respectful” lawful because it gave examples of prohibited conduct.  For example, the policy included language stating “Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”  Similarly, language that prohibits bullying or retaliation would likely be upheld and found not to restrict Section 7 activity.
3. Employers may limit discriminatory remarks, harassment and threats of violence.  Because this type of conduct is also illegal under laws such as Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act, employers may properly limit such conduct on social media provided that such language is not being used to limit Section 7 conduct. 
4. Broad language discouraging employees from “friending” co-workers was found unlawful because it could be interpreted as restricting employees from discussing the terms and conditions of their employment with each other.
5. Employers may not instruct employees to report unusual or inappropriate social media activity.  NLRB cases have held an employer violates the National Labor Relations Act by encouraging employees to report union activities to management. 
6. An employer also has a legitimate need to protect itself from unauthorized postings that could be attributed to it.  Therefore, an employer may include a provision in its social media policy requiring employees to receive preauthorization before posting a message that is either in the employer’s name or that could be reasonably attributed to it.  An employer may also prohibit employees from attributing any opinions or statements to it on social networks.  Finally, the NLRB has also found lawful language requiring employees to explicitly state in their posts that the message reflects their own opinion, and not that of the employer. 
7. Employers may instruct employees to not use social media while on work time or on employer-owned equipment unless such use is work-related and authorized by the employer.  Employers may also prohibit employees from using their work e-mail addresses to register on social networks, blogs or other online tools for personal use. 

Because the NLRB’s report provides specific examples of language in social media policies it found to be lawful or unlawful, employers are encouraged to review the report when preparing their  own social media policy.  We also encourage employers with existing social media policies to review their policies for compliance with the most recent NLRB findings.  Employers may contact one of our attorneys at any of our four offices with any questions.

When was the last time your agency reviewed its policy regarding the use of arrest and conviction records in hiring?  If the answer to this question does not readily come to mind, it may be a good time to audit your hiring policy and job application. 

Earlier this year Pepsi agreed to pay a $3.13 million settlement to resolve a race discrimination charge filed by the U.S. Equal Employment Opportunity Commission (“EEOC”).  According to the EEOC, Pepsi’s criminal background check policy barred applicants from being hired into permanent positions if they had been arrested.  These applicants were screened out even if they had never been prosecuted or convicted of any offense.  The EEOC determined that Pepsi’s policy disproportionately excluded African-American applicants from permanent employment with the company and was, therefore, in violation of Title VII of the Civil Rights Act of 1964.  The EEOC estimated that approximately 300 African-American applicants were adversely affected by Pepsi’s policy.  Consequently, a majority of the settlement was split among the applicants.  The EEOC also worked with Pepsi to adopt a new criminal background check policy.

Under California Law, employers may not ask a job applicant to disclose information concerning an arrest or detention that did not result in a conviction.  California employers are also prohibited from making hiring decisions based on an arrest that did not result in a conviction.  It is permissible for employers to ask employees if they have ever been convicted and, if so, they may ask about the offense.  However, the use of conviction records as an absolute bar to employment is improper because it disproportionately excludes certain racial groups.  According to the EEOC, the reasoning behind this is that “Blacks and Hispanics are convicted in numbers which are disproportionate to Whites and that barring people from employment based on their conviction records will therefore disproportionately exclude those groups.”  Therefore, such records should not be used to immediately screen an applicant out unless there is a business need for it.  

In order to determine if there is a legitimate business reason for screening out an applicant based solely on a criminal conviction, the following three factors should be considered: (1) the nature of the job, (2) the nature and seriousness of the offense, and (3) the length of time since the conviction.  These factors focus on the applicant’s conduct, as opposed to the conviction itself, in determining whether an applicant is fit to perform the job. 

Employers also may not ask a job applicant to disclose marijuana convictions that are over two years told.  Clear language must be included in the job application that notifies the applicant that the employer is not seeking the disclosure of such information.  The language must also be placed in a location that will attract the reader’s attention.

Finally, it is important to note that these rules do not apply to peace officer applicants. 

Please contact our Los Angeles, San Francisco, Fresno, or San Diego office for any assistance in reviewing hiring policies or job applications.  In addition, LCW’s workbook Personnel Issues: Hiring, Reference Checks and Personnel Records and Files also contains hiring guidelines and sample job applications.

Balancing work and family is becoming increasingly difficult.  Workers are not only responsible for caring for their own children but many are now the primary caretakers of aging parents.  It is also not uncommon for grandparents to care for grandchildren or for an aunt or uncle to care for a niece or nephew.  The U.S. Equal Employment Opportunity Commission recently held a public meeting that addressed the problems of workers with caregiving responsibilities.  During this meeting, the EEOC said discrimination against caregivers is an area of vital concern.  In addition, multiple panelists told the Commission about numerous cases of caregiver or “family responsibility” discrimination in the workplace.        

According to a report prepared by the Center for WorkLife Law, approximately four states and 63 local governments have adopted laws that prohibit discrimination against workers with caregiving responsibilities.  However, there is currently no federal or California law prohibiting discrimination or retaliation against caregivers.  Two attempts were made by the California Legislature to add “familial status” as a protected class under the Fair Employment and Housing Act.  Both attempts were unsuccessful.  Had the law passed, it would have protected employees with caregiver responsibilities from discrimination. 

Although being a caregiver is not a protected class under federal or California law, the EEOC has recognized circumstances in which discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964.  For example, stereotypes based on gender may give rise to discrimination claims based on sex.  Such discriminatory conduct can include denying a female employee a promotion because the employer assumes she will want to spend time with her children instead of at work.  Another example of prohibited conduct based on sex is allowing a female employee, but not a male, to leave early twice a week to care for an elderly parent. 

Stereotyping of caregivers may also constitute discrimination under the American with Disabilities Act of 1990.  The ADA prohibits discrimination against an employee who is associated with an individual with a disability such as a child, spouse or parent.  For example, a job applicant may not be denied a position because the employer improperly assumes that the applicant’s caregiving responsibilities for a child with a disability will negatively affect his or her attendance and work performance.  Under this scenario, the applicant would have a strong argument that the employer violated the ADA by refusing to hire someone because of his or her association with an individual with a disability. 

In addition to Title VII and the ADA, employees who believe they have been harassed, discriminated or retaliated against because of their caregiver responsibilities may also have claims under the Equal Pay Act, Pregnancy Discrimination Act, California Family Rights Act and Family Medical Leave Act.  According to the Center for WorkLife Law, discrimination lawsuits relating to caregiving responsibilities have been filed in every state in the country.  Also, a significant increase has been noted in the number of cases relating to workers with elder care responsibilities.

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This guest post was authored by Judith Islas

A recent California Court of Appeal ruling provides employers an important weapon to combat workplace violence.  The Court in Kaiser Foundation Hospitals v. Wilson ruled that courts may consider and rely on hearsay evidence to grant workplace violence restraining orders and injunctions.  This is a significant departure from the usual rule that hearsay cannot be admitted into evidence or relied on to support a Court order.

As with all workplace violence cases, the facts are not pleasant.  After Kaiser terminated his wife, Jeff Wilson became irate, started making violent threats toward  Kaiser employees, including that he was  going to “kill someone” “going to flip his lid” and  “do something he would regret.”  Wilson also reportedly told his therapist he was going to shoot a Kaiser employee.  In response, Kaiser sought and obtained a temporary restraining order and then a permanent injunction, barring Wilson from Kaiser facilities and from any contact or communication with Kaiser employees.

Wilson challenged the Court’s temporary restraining order and permanent injunction,  arguing they were based on hearsay statements that cannot be admitted into evidence or relied on by the Court.  Kaiser acknowledged that most of the evidence was hearsay-- threats Wilson reportedly made to employees who did not testify-- but argued courts may consider and rely on hearsay when granting workplace violence restraining orders and injunctions.

In a somewhat surprising, but welcome ruling, the Court of Appeal agreed with Kaiser, expanding an employer’s ability to obtain workplace violence temporary restraining orders and permanent injunctions.  The Court reasoned that under the hearsay rule (Evidence Code section 1200) hearsay is generally inadmissible, “except as provided by law.”  Since the statute governing workplace violence hearings (Code of Civil Procedure section 527.8) expressly provides: “At the hearing, the judge shall receive any testimony that is relevant”  it is one of the exceptions to the general rule that hearsay is inadmissible.  This exception is logical, the Court explained, because the whole point of the workplace violence statute is to prevent workplace violence and the Court’s ability to consider all relevant testimony strengthens its ability to protect employees from violence.

WHAT THIS MEANS TO EMPLOYERS

The Kaiser case increases employers’ ability to obtain workplace violence restraining orders and injunctions, but also increases their responsibility to seek such orders, because employers can rely on any relevant evidence, not only admissible relevant evidence.  If an employer has relevant evidence of violence or credible threats of violence in the workplace, it should not disregard that evidence or decline to seek a restraining order  simply because the evidence is hearsay.  The failure to seek a workplace violence restraining order and permanent injunction when the employer is on notice of violence or credible threats of workplace violence, can result in liability. 

This guest post was authored by Meredith Karasch

We have all heard about the scandal at Penn State that brought down college football royalty.  We cringe at what happened (or didn’t happen).  We agree there was a moral obligation to report child abuse.  However, moral obligation aside, all public and private entities need to know that, if this situation occurred in California, anyone who failed to report suspected child abuse may not only be out of a job.  They would be prosecuted. 

I know what you are thinking; “This doesn’t apply to us, we are not a school.”   Maybe you are not even a public agency.  Please keep reading.  All public and private entities must know that everyone who works with minors is required to report any suspicion of child abuse when they learn of it “within the scope of his or her employment.”    

The California Penal Code contains provisions detailing who are mandated reporters in the Child Abuse and Neglect Reporting Act.  You may be surprised about the scope of those who are “mandated reporters.”  The list includes far more than teachers and other school district employees.  Here is a partial list:

• An administrator of a public or private day camp;
• An administrator or employee of a public or private youth center, youth recreation program, or youth organization;
• An administrator or employee of a public or private organization whose duties require direct contact and supervision of children;
• Any employee of a county office of education or the State Department of Education, whose duties bring the employee into contact with children on a regular basis;
• A public assistance worker;
• A peace officer or police department employee;
• A non-volunteer firefighter;
• A physician, surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, or optometrist;
• An EMT or paramedic;
• A coroner or medical examiner;
• A commercial film and photographic print processor;
• An animal control officer;
• A clergy member.

In order to trigger the duty to report, a mandated reporter must actually know or have an objectively reasonable suspicion that abuse or neglect has occurred.  A mandated reporter must make a telephone report to a child protective agency immediately and follow up with a written report in 36 hours.  Reporting to a supervisor does not satisfy the reporter’s duty.  People who report suspected abuse generally have immunity from liability.  On the other hand, a mandated reporter who fails to report an incident of suspected child abuse “is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of $1,000 or both.” 

We would like to use this as a teachable moment:  this situation, and the abuse itself, might have been prevented if everyone who was a witness or heard suspicions from a witness knew exactly what to do.  All entities should train their mandated reporters regarding their duties, as well as the procedures they must follow to fulfill those duties.  

There was a collective sigh of relief from employers and school districts alike this week when a California Court of Appeal overturned a personnel commission’s decision to reinstate a middle school administrator after he posted a pornographic and obscene ad on the popular Craigslist website soliciting (free) sex.

Frank Lampedusa was a tenured dean of students in the San Diego Unified School District when he placed an ad on Craigslist stating in obscene, vulgar and albeit misspelled and grammatically incorrect phrases that he wished to engage in sexual relations with another adult.  The ad also contained pictures of Lampedusa’s face and genitalia.  An anonymous parent of a student reported the ad to San Diego police who notified the District. Lampedusa was placed on paid administrative leave and served with notice of intent to dismiss for “evident unfitness for service” and “immoral conduct,” among other charges.

Certificated public educators may appeal their termination to a three-member commission on professional competence.  Such a commission ordered Lampedusa reinstated, reasoning that the District failed to establish a nexus between his conduct and his performance as an educator.  The District sought relief in Superior Court and ultimately the Court of Appeal.

The Court of Appeal held that the commission’s decision must be set aside and that Lampedusa’s conduct did in fact constitute grounds for dismissal, applying the “Morrison factors” which are used to determine whether a nexus exists between misconduct and the impact on performance as an educator.

The Court surprisingly gave weight to the hearsay evidence of the anonymous parent complaint to find that the conduct had an adverse effect on students.  Nonetheless, Lampedusa’s principal also testified that she lost confidence in Lampedusa’s ability to serve as a role model for students, thus establishing an adverse effect on other educators.  The Court also gave weight to the fact that the conduct was not remote in time and that Lampedusa served as an administrator and educator in a middle school.  Lampedusa’s conduct was further aggravated by the fact that he posted graphic, pornographic photos, and obscene written material on a website open to the public, that he admitted to posting similar ads in the past, that he would probably post tamer ads in the future, and that he believed he had not done anything immoral.

The Court also relied on evidence that Lampedusa did not take responsibility for his conduct, but rather stated that he expected parents and students to take care not to look at such ads on Craigslist (reasoning that ads are preceded by an advisory that the content is explicit and that users should be at least 18 years of age).  Lampedusa also claimed to believe that, if a student saw his ad, it would not affect his ability to teach them effectively.

The Court also found that Lampedusa’s conduct was immoral because it evidenced indecency and moral indifference. The Court further noted that disciplining Lampedusa for publicly posting his ad did not infringe on his constitutional rights or the rights of other teachers.  These factors established evident unfitness for service. 

This case is a victory for employers, not to mention students, parents and our schools.  It is worth noting here that this educator was not disciplined for his private sexual conduct and certainly, such conduct between two consenting adults was not the issue.  It is the fact that this educator, in poor judgment, decided to post obscene and pornographic statements and photos publicly that justifiably cost him his job.

This guest post was authored by Liebert Cassidy Whitmore

In two weeks, more than 1,000 California water district professionals will gather at ACWA's 2011 Spring Conference & Exhibition. Liebert Cassidy Whitmore Attorneys, Shelline Bennett and Morin Jacob will be presenting on two areas of our practice: hiring/reference checks and social media.  In addition, we will be live tweeting Morin’s presentation on social media, “Caught in the Net: Tools and Tips for Managing Employee Misconduct and Other Issues Arising in Social Media Sites” on Thursday, May 12 from 2:15 p.m. to 3:45 p.m. Join us on Twitter and use the hashtags #lcwsocialmedia #ACWAConf.

Here is a calendar of the LCW presentations:

Wednesday, May 11 | 2:15 p.m. to 3:45 p.m. | Human Resources Program: "You’re Not the Person I Hired!" Unearthing an Applicant’s Past Before it Buries You | Shelline Bennett

Thursday, May 12 | 2:15 p.m. to 3:45 p.m.  | Caught in the Net: Tools and Tips for Managing Employee Misconduct and Other Issues Arising in Social Media Sites | Morin Jacob

For those attending the ACWA Conference, please stop by the Liebert Cassidy Whitmore booth in the exhibition hall to meet Susan Bonner from our San Francisco Office and learn more about services.

To view other upcoming LCW speaking engagements, please visit our website.  To learn how you can have an LCW presentation at your association meeting, contact info@lcwlegal.com.

It seems that every time you pick up a newspaper or tune into your local news there are stories of students being bullied by their classmates.  Last year, in particular, the news was dominated with headlines of students driven to suicide because of bullying.  For example, Rutgers University student, Tyler Clementi, killed himself after his roommate and another student secretly taped and streamed video of him having sex with another man.  Massachusetts high school student, Phoebe Prince, hanged herself after several older girls harassed for dating a popular football player.  Bullying is even a topic in current television programs such as “Glee.”  These stories caused me to wonder whether bullying was just a schoolyard problem.  Could bullying actually exist in the workplace?

It did not take long for me to discover the story of Kevin Morrissey who was the managing editor of the University of Virgina’s journal the Virginia Quarterly Review.  Morrissey allegedly committed suicide as a result of bullying from his boss.  Although Morrissey’s family admits he suffered from depression, they insist he took his own life after the university ignored several telephone calls from him complaining of bullying. 

The Workplace Bullying Institute, a pro-employee organization, claim bullying is a real and growing problem in the workplace.  The Institute also commissioned the research firm Zogby International to collect data on the topic of workplace bullying.  The results of the survey show that 35% of workers have experienced bullying firsthand, that 62% of bullies are men, and that 58% of their targets are women.  In addition, bullies who are women target other women in 80% of cases. 

Lawmakers have also introduced anti-workplace bullying legislation in numerous States without success.  However, New York became the first State last year to come closest to passing a bill that would allow workers to sue for damages caused by workplace bullying.  The New York Senate passed the Healthy Workplace Bill which establishes a civil cause of action for employees subjected to an abusive work environment.  The bill defined “abusive conduct” as repeated infliction of verbal abuse, verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.  The State Assembly voted to table the bill.  Proponents of the bill vowed to renew their efforts to enact this legislation this year.

The problem of workplace bullying will not be solved by more legislation.  Such laws will only encourage employees to find bullying where none existed.  Ordinary interoffice conflicts and personal disputes would give rise to actionable claims.  These laws may also chill the employer’s ability to deal with legitimate employee performance issues for fear of a lawsuit.  However, because current headlines regarding bullying will continue to fuel efforts to enact anti-bullying legislation, employers may be on the verge of having to deal with specific anti-bullying laws for the workplace.  Consequently, there are steps employers can take to address possible bullying in the workplace.  For example, anti-harassment policies typically protect against harassment based on a protected class such as race or gender.  As a result, employers should consider revising existing policies, codes of conduct or personnel rules to expand their protections against harassment beyond conduct based on protected class status.  Employers should also respond to bullying complaints by promptly investigating and correcting the alleged abusive conduct.  Finally, managers and supervisors, who act as leaders within their agencies, should always be mindful of creating a professional work environment that fosters courteous and respectful communication.