Category: Legal

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When Is a Settlement not a Settlement? When FLSA Is Involved

Jon Hyman The Practical Employer

When you settle a lawsuit with an employee, you are bargaining for finality. You are paying that employee to resolve all disputes between you, whether asserted or unasserted. You want to be done with that individual forever.

Except that is not always the case.

An employer cannot release or otherwise waive one’s FLSA rights by contract without a court-approved stipulation or settlement, or a DOL-supervised settlement. Which is why, in Nasrallah v. Lakefront Lines, an Ohio federal court recently permitted a plaintiff to continue with her FLSA lawsuit for unpaid overtime despite her signing a general release and waiver in a prior discrimination case.

When Tamara Nasrallah settled her discrimination claim, she and Lakefront Lines signed a settlement agreement, under which Lakefront paid her $40,000, and for which she agreed to a general release “of and from any claims … and expenses (including attorneys’ fees and costs) of any nature whatsoever, whether known or unknown, against [Lakefront] which Nasrallah ever had, now has or asserts or which she … shall or may have or may assert, for any reason whatsoever from the beginning of the world to the date hereof.” The release is “unrestricted in any way by the nature of the claim including, … all matters which were asserted or could have been asserted in the Charge, including, but not limited to, matters arising out of Nasrallah’s employment with the company, and any other state or federal statutory … claims, including, … all statutory claims under federal [and] state laws regulating employment, including …the Fair Labor Standards Act [and] any and all Ohio Wage and Hour Laws.”

Separately in the agreement, Nasrallah waived “any claims for additional compensation and acknowledges that she has been appropriately compensated for all hours worked,” that Lakefront has “paid all sums owed to [her] as a result of her employment with the Company (including all wages),” and that “she is not entitled to anything separate from this Agreement.”
Her justification for her after-the-settlement FLSA lawsuit?

I signed the Settlement Agreement based on my understanding it was unlawful to compromise my overtime claims without Department of Labor or court approval in any manner and that any attempt to do so—including by any “representations” made therein—was legally null and void. Thus, when I entered the Settlement Agreement and made the “representations” therein, I believed my representations about being paid in full and being owed no wages were ONLY representation for purposes of my non-overtime claims (e.g., contract claims for claims for discriminatory pay).

The court agreed:

According to Lakefront, a private settlement agreement can preclude a future FLSA claim as long as the underlying dispute did not involve a FLSA dispute. In other words, the only time an employee can waive a FLSA claim is when there is no bona fide dispute over hours worked, and therefore, likely no discussion or negotiation over compensation due. This is precisely the opposite of what the case law holds. … [S]uch a situation clearly implicates Congress’s concerns about unequal bargaining power between an employer and employee and undermines FLSA’s goals. Rather, … even the most liberal interpretation of the ability to privately compromise FLSA claims only allows such compromises when they are reached due to a bona fide FLSA dispute over hours worked or compensation owed. … [T]he prior dispute between the parties did not involve the FLSA and there is no evidence that the parties ever discussed overtime compensation or the FLSA in their settlement negotiations. Thus, while the Settlement Agreement contains a general statement that Nasrallah was paid for all hours worked, there was no factual development of the number of unpaid overtime hours nor of compensation due for unpaid overtime.

So what is an employer to do?
If you are engaged in litigation, the answer is simple. Ask the court to approve the FLSA portion of the settlement agreement.
If, however, there is not active litigation (e.g., severance or pre-lawsuit negotiations), the issue is much thornier.
I do not recommend that you contact the DOL for its supervision of the settlement. That is a radar that you do not want to be on. The supervised settlement may (will?) beget a full-blown wage and hour audit, which leads to an OSHA on-site, which leads to an ERISA audit…. You get the picture. There is no need to throw yourself in front of this regulatory steamroller.

You could file a lawsuit that simply asks the court to approve the settlement, but that seems likes overkill in almost all situations (even though it is the safest court of action under the strictest interpretation of the FLSA’s requirements for waivers).

A reasonable middle ground? Develop a bargaining history with the employee’s attorney that the employee may have an FLSA claim for unpaid wages, and that you are specifically bargaining for the release and waiver of that claim.
If you can develop a record that overtime pay was specifically negotiated, you will be in a much better position to assure a court in later FLSA litigation that the plaintiff has been compensated for the overtime wages later claimed to be owed. In other words, you almost need to create a claim that does not exist to then bargain that claim away. While this route seems highly inefficient, it may be the only way to protect yourself from a later FLSA claim.
Otherwise, you have zero certainty that the certainty for which you think you have bargained and paid actually exists.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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Class-action Waivers Remains a Huge Issue for Employers

Jon Hyman The Practical Employer
There has been much judicial and administrative ink spilled over the past few years over whether the National Labor Relations Act permits employers to require employees to give up their rights to litigate or arbitrate class or collective actions.
This is one of the most important issues facing employers, which have looked to class-action and collective-action waivers as an important weapon to fight to scourge of wage and hour litigation.
Last week, in NLRB v. Alternative Entertainment [pdf], the 6th Circuit Court joined the battle.
At issue in this case is the following arbitration provision.

By signing this policy, you and AEI also agree that a claim may not be arbitrated as a class action, also called “representative” or “collective” actions, and that a claim may not otherwise be consolidated or joined with the claims of others.

This 6th Circuit concluded that this provision violates Section 7 of the the NLRA, which guarantees to employees the right to engage in protected concerted activity.

The NLRA prohibits mandatory arbitration provisions barring collective or class action suits because they interfere with employees’ right to engage in concerted activity, not because they mandate arbitration. These are grounds that would apply to any contract. …

Ultimately, we conclude that the NLRA is unambiguous and that the statute itself makes clear that the right to concerted activity is a substantive right.

Checking the scorecards, let’s see where we stand on this issue.
Upholding the legality of class-action waivers:
Concluding that the NLRA invalidates class-action waivers:
While the “no’s” have it, in reality, this issue is deadlocked, as the SCOTUS has already agreed to decide this dispute and (hopefully) resolve this issue once and for all. This case will be very interesting to watch, as the Court has already upheld class-action waivers in consumer agreements. It remains to be seen whether layering the NLRA on top of this issue will make a difference to SCOTUS, although I have my doubts.
For now, follow the law of your Circuit, and stay tuned, as we should have some much needed clarity on this issue within the year.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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When Equal Pay is not ‘Equal’ Pay

Jon Hyman The Practical Employer

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work.

The jobs need not be identical, but they must be substantially equal, and substantial equality is measured by job content, not job titles. This act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including when the pay differential was “based on any other factor other than sex.” So, what happens if two comparable employees, one male and one female, come to you with different salary histories. Does the Equal Pay Act require that you gross up a lower earning female to match the salary of a higher paid male, or do the mere disparate prior salaries justify the pay disparity under the Equal Pay Act?

According to Rizo v. Yovino (9th Cir. 4/27/17), “prior salary history” alone can constitute a “factor other than sex” to justify a pay disparity under the Equal Pay Act.
Fresno County uses a salary schedule to determine the starting salaries of management-level employees. It classifies math consultants as a management-level position. It starts all math consultants at Level 1 of the salary schedule. Level 1, in turn, is broken down into 10 steps. To determine at which step within Level 1 to start a newly hired math consultant, it takes the employee’s most recent prior salary plus 5 percent.
Rizo, a newly hired math consultant, earned less than the Level 1, Step 1, salary at her prior job, even when adding in the 5 percent kicker. Accordingly, the county started her at its lowest starting salary for that position (Level 1, Step 1). Rizo sued under the Equal Pay Act when she learned that a recently hired male math consultant was hired with a starting salary of Level 1, Step 9.
The 9th Circuit concluded that these facts did not support Rizo’s Equal Pay Act claim.

The plaintiff and the EEOC … argue that prior salary alone cannot be a factor other than sex because when an employer sets pay by considering only its employees’ prior salaries, it perpetuates existing pay disparities and thus undermines the purpose of the Equal Pay Act. …

[W]e do not see how the employer’s consideration of other factors would prevent the perpetuation of existing pay disparities if … prior salary is the only factor that causes the current disparity. For example, assume that a male and a female employee have the same education and number of years’ experience as each other, but the male employee was paid a higher prior salary than the female employee. The current employer sets salary by considering the employee’s education, years of experience, and prior salary. Using these factors, the employer gives both employees the same salary credit for their identical education and experience, but the employer pays the male employee a higher salary than the female employee because of his higher prior salary. In this example, it is prior salary alone that accounts for the pay differential, even though the employer also considered other factors when setting pay. If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the EEOC and the plaintiff have identified.

Before everyone rejoices, note that Rizo is contradictory to the law of the 6th Circuit (which covers Ohio employers)—Balmer v. HCA, Inc. (“Consideration of a new employee’s prior salary is allowed as long as the employer does not rely solely on prior salary to justify a pay disparity. If prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated”). Rizo is also contradictory to other circuits, such as the 10th and 11th. In fact, Rizo very much appears to be the minority view on this issue.

So what is an employer to do? Follow the law of your jurisdiction. In Ohio, that means that you cannot rely solely on an employee’s prior salary history to justify a pay disparity between similar male and female employees (although you can rely on prior salary plus other factors such as experience, skill, or training). It also means that we wait for the appeal of Rizo to the Supreme Court, and see if SCOTUS decides to take this case and provide some national clarity on this issue.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Wage Theft is a Misnamed, Overused Phrase

Jon Hyman The Practical Employer

Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year.

According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.

This is as good a time as any to revisit a topic I haven’t addressed in a few years — ”wage theft” (or, as I call it, a term coined by the plaintiffs’ bar and the media recast employers as the arch nemesis of the American wage earner).

Here is what I wrote on this issue three-plus years ago:

I have a huge problem with the term “wage theft.” It suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not.

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better.

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win.

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft statutes that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation.

In my most recent book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law, I summarized this issue best:

“Congress enacted the FLSA during the great depression to combat the sweatshops that had taken over our manufacturing sector. In the 70 plus years that have passed, it has evolved via a complex web of regulations and interpretations into an anachronistic maze of rules with which even the best-intentioned employer cannot hope to comply. I would bet any employer in this country a free wage-and-hour audit that i could find an FLSA violation in its pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive….

“I am all in favor of employees receiving a full day’s pay for a full day’s work. What employers and employees need, though, is a streamlined and modernized system to ensure that workers are paid a fair wage.”

Do we need to draw attention to the problems posed the FLSA? Absolutely. It misleads, however, to suggest that evil, thieving employers created this mess. Instead, let’s fix the cause of the problem — a baffling maze of regulations called the FLSA.

As for my day? I’m off to draft an answer in an FLSA lawsuit filed against one of my clients.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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The National Labor Relations Act Protects the Rights of Non-employees Under Other Statutes‽

Jon Hyman The Practical Employer

In MEI-GSR Holdings, LLC (5/16/17) [pdf], a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act.

Let me pause for a second to let this sink in.

The board held that the NLRA protects former employees who assert rights under a law that the board has no jurisdiction to enforce.

Wow.

But, hold on. Chairman Miscimarra is here to save the day. In another of his scorching dissents, he asserts exactly why this decision is incorrectly decided:

Under my colleagues’ position in this case, it constitutes a per se violation of the NLRA whenever any former employee pursuing a non-NLRA employment claim with one or more other employees is denied access to the employer’s private property if other former employees are granted access, even though (i) the former employee has no other right to be on the premises, (ii) the former employee does not seek to engage in NLRA-protected activities on the premises, and (iii) the former employee is not seeking access to the premises for any purpose that relates to the non-NLRA claim. I do not believe that Congress, when enacting the NLRA, intended to guarantee that every former employee would have a right of access to the private property of his or her former employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer.

It could be that GSR’s action here constituted retaliation for Sargent’s pursuit of the FLSA claim. However, even such a retaliatory motive does not empower the NLRB to defend the interest that Sargent or others may have in pursuing their rights under a different statute. … [T]he FLSA has its own anti-retaliation provision, and we are not permitted to take it upon ourselves to assist in the enforcement of other statutes. The Board was not intended to be a forum in which to rectify all the injustices of the workplace.

Bingo. And while this is only a dissenting opinion, given that President Trump still has two appointments to make to fill the NLRB to capacity (reported to be Marvin Kaplan and William Emanuel, two management-side labor attorneys), it is safe to assume that Mr. Miscimarra’s minority view will soon become the board’s majority view. Thus, while the logic of this decision is certainly troubling, one can rest reasonably comfortably knowing that at some point this year, a majority of the NLRB will no longer wax sympathetically with this viewpoint.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Is Your Non-compete Agreement Killing a Fly With a Sledgehammer?

Jon Hyman The Practical Employer

At least half of my legal practice is serving as outside labor-and-employment counsel for small to midsize businesses. And, increasingly, much of that practice is consumed with drafting post-employment covenants, sending cease-and-desist letters to employees who are in violation of said covenants, or filing lawsuits to enforce said covenants; or, conversely, advising a business whether it can hire an employee with a non-compete agreement, responding to cease-and-desist letters, or defending a lawsuit seeking to enforce said covenants.

When a client calls me to draft a restrictive covenant agreement, I must work with that client to determine how wide of a net they need to cast (or how big of a hammer they have to swing). Knowing that most courts only enforce such agreements as necessary to protect an employer’s legitimate interest, I need to determine the scope of the legitimate interest the employer is trying to protect, and is entitled to protect.

  • Are they worried about a theft or disclosure of confidential information? In that case, maybe a non-disclosure agreement is all they need.
  • Are they worried about the employee poaching customers, employees, or vendors? Then a non-solicit is in order (plus the non-disclosure).
  • Or, is what the employee provides so unique in nature that the business genuinely will be irreparably harmed by the employee jumping to a competitor. Then, and only then, is a broad non-competition agreement called for (plus the non-disclosure and non-solicit).

I raise this issue after reading Your Non-Competes Aren’t Saving Your Business, They are Destroying Lives, written by my friend Suzanne Lucas (aka Evil HR Lady). Suzanne argues that “non-compete agreements should be limited to people who could damage your business by going elsewhere. … A non-compete for any other person should be extremely narrowly tailored and probably non-existent.”

Suzanne is 100 percent correct. Employers, use some discretion and common sense. Narrowly tailor your restrictive-covenant agreements to the specific interest(s) you are trying to protect. And, if you don’t have such an interest, forego the agreement altogether for that employee or group of employees. Otherwise, you will spend gaggles of money attempting to enforce an unenforceable agreement. While that strategy is great for me, it’s terrible for your business, which should be in the business of making money, not throwing it away chasing a fool’s errand.

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The 9th Nominee for the ‘Worst Employer of 2017’ Is … the Harassment Ignorer

I was going to blog this morning about President Trump’s firing of FBI Director James Comey, and how, if you’re a CEO, and your company is investigating you for some misconduct (or even worse, potential illegal activity) related to your job, it’s bigly not good to fire the person leading the investigation, no matter the excuse you trump up.

Instead, however, today’s nominees are Target Corporation and MarketSource, (which operates mobile-phone kiosks in Target stores). Why do they make my list? Take a look at Abdel-Ghani v. Target Corp. (8th Cir. 5/5/17) [pdf].

Abdel-Ghani, a Palestinian immigrant, worked for MarketSource at a Target Mobile kiosk selling mobile phones. During the two months of his employment, he was subjected to repeated harassment about his ethnicity:

Abdel-Ghani alleged that some of the Target employees called him names like camel jockey, Muslim, Arab, terrorist, and sand nigger, often from behind shelves in the employee backroom. He claims he heard such comments at least ten times during his two months working at the Bloomington Target. He also claimed to have overheard another employee say “[y]ou should be rounded up in one place and nuke[d].”

Abdel-Ghani alleges that he reported the harassment to management of both companies. Instead of investigating the harassment or implementing any corrective action, however, Abdel-Ghani was suspended and fired based on complaints about his interactions with co-workers and customers.

The appellate court affirmed the dismissal of his harassment complaint because the none of “morally repulsive” comments to which he had been subjected were accompanied by threats of violence.

Here, Abdel-Ghani has not alleged facts which show he was subjected to a hostile work environment by Target or MarketSource. Some of the approximately ten comments Abdel-Ghani heard in Target’s backroom may have been “morally repulsive,” but they were not physically threatening. The one physically threatening comment he overheard (referencing being nuked) was not said directly to him. Furthermore, Abdel-Ghani has not shown that any of these comments interfered with his work performance. We conclude that the record does not show he was subjected to a hostile work environment.

Since when does Title VII require that a hostile work environment be accompanied by threats of violence? (Hint: it doesn’t). The standard for a hostile work environment is that the offensive conduct must be so severe or pervasive so as to alter the employee’s terms or conditions of employment.

This employee was subjected to approximately ten hateful and disgusting comments about his ethnicity during the lone two months of his employment. To my management-side sensitives, that meets the pervasiveness standard. Indeed, I could make a good argument that even one “sand nigger” could meet the severity standard. Indeed, as one federal appellate court observed, “Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Regardless, however, you can’t ignore the harassment and do nothing (other than fire the victim).

Congratulations Target and MarketSource for your nomination. If you condone the use of ethnic (or, for that matter, racial, sexual or otherwise) epithets, no matter how many are uttered, you might be the worst employer of 2017.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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10 Key Elements of Any Data Security Policy to Safeguard Your Company

Jon Hyman The Practical Employer

I recently told you that small businesses (less than 250 employees) suffered 31 percent of last year’s cyberattacks. What can you do to best protect your business (of any size) to repel an attack? Let me introduce you to the data security policy, an essential component of any employee handbook now, and likely forever.

What should an effective data security policy contain? Consider 1) consulting with a knowledgeable cybersecurity attorney; and 2) including these 10 components (c/o me, Travelers, and the U.S. Small Business Association):

  1. Safeguard Data Privacy: Employees must understand that your privacy policy is a pledge to your customers/vendors/etc. that you and they will protect their information. Employees should only use data in ways that will keep customer identity and the confidentiality of information secure.
  2. Establish Password Management: A policy mandating complex passwords, changed regularly, is required for any workers who will access corporate resources.
  3. Consider Two-Factor Authentication: Consider requiring multi-factor authentication that requires additional information (i.e., an additional pass-code delivered to a designated secondary device) beyond a password to gain entry.
  4. Govern Internet Usage: Each organization must decide how employees can and should access the internet, which balances employee productivity against corporate security concerns.
  5. Manage Email Usage: Many data breaches result from employee misuse of email, which results in the loss/theft of data or the accidental downloading of viruses, malware, or ransomware. You need standards on the use of emails, message content, encryption, and file retention. Moreover, do not forget to train your employees on how to detect and deflect phishing attempts.
  6. Govern and Manage Company-Owned Mobile Devices: Organizations that provide mobile devices for employee use need a formal process to help ensure that any use is secure. A good starting point? Requiring the same password protection as non-mobile devices, and a mobile device management infrastructure that lets you remote wipe a device if it’s lost or stolen.
  7. Establish an Approval Process for Employee-Owned Mobile Devices: Ownership of smartphones has reached a critical mass.  A “Bring Your Own Device” program is no longer an option, but should be required. If employees are going to bring personal devices into the workplace, and use them to connect to your network, you need to deploy reasonable policies to govern their use and protect your network and security, instead of ignoring the issue or instituting prohibitions that employees will ignore anyway.
  8. Govern Social Media: All users of social media need to be aware of the risks associated with social media. Social media presents a real risk of corporate breaches of confidentiality. It is easy to tell your employees, “Think before you click.” Yet, 76 percent of the Inc. 500 lack a social media policy for their employees, and 73 percent of all employers conduct no social media training. If you aren’t educating your employees about the risks and benefits of social media, both in and out of the workplace, you are not only missing a golden opportunity, but you also leaving yourself exposed to breaches of confidentiality and other snafus.
  9. Oversee Software Copyright and Licensing: Software usage agreements oblige organizations to adhere to their terms, and you should make employees aware of any software use restrictions. Also, employees should not download and use software that has not been reviewed and approved by the company (some of which could expose the company to viruses, malware, or ransomware).
  10. Report Security Incidents: Finally, all of the above goes out the window if your employees do not know and understand when and how to report a security breach, and how and when to report malicious viruses, malware, or ransomware in the event it is inadvertently imported. All employees must know how to report security incidents and what to do to mitigate any damage.

As is the case with any policy, a data security policy will not be worth the paper on which it’s written if you don’t train your employees on what it means and how it operates in practice. Data breaches are not an if issue, but a when issue. You will be breached; the only question is when it will occur. While you cannot prevent a data breach from occurring, you can and should train your employees to sure up any knowledge gaps that further opens the risk they inadvertently pose.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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If You Think Your Small Business Isn’t at Risk for Cybercrime, Think Again

Jon Hyman The Practical Employer

If you’ve ever spoken or thought the words, “We’re too small to worry about a cyberattack,” you’d better think again.

According to a recent study, 31 percent of all cyberattacks in 2016 were directed at companies with less than 250 employees.

Do I now have your attention?
If you’re still on the fence, consider these other stats, courtesy of Dark Reading:
  • 98 percent of all companies suffered a cyberattack in 2016.
  • The average company suffers a minimum of 11 cyberattacks per day, with some facing as many as 50 daily.
  • 27 percent of all cyber incidents are caused by insiders due to malicious or accidental actions.
  • Individuals open 30 percent of phishing messages directed to them, with another 12 percent clicking the malicious attachment or link, enabling the attack to succeed.
  • 40 percent of companies have no cyber incident response plan in place
  • 70 percent of companies lack cyber insurance.
  • Over the lifespan of a mobile device, 22 percent of all such devices will disappear, with over 50 percent of those never to be recovered. With more and more internet traffic flowing via mobile over desktop, these missing devices (along with other security holes such as open and unsecured wifi) pose a huge risk to your data security.
I’ll soon discuss your first and best defense against a cyberattack, a data security policy, and the key elements that it must have to best shield your company.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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A Legal Firing for Fire Chief’s Fiery Posts

Jon Hyman The Practical Employer

When I’m not lawyering, I’m speaking in public. And one of the topics on which I’ve been focusing of late is the balance between an employee’s privacy and an employer’s right to know. 

One of the themes of this talk is that social media has irreparably blurred the line between one’s personal persona and one’s professional persona, and that employees best be careful with what they say online, because employers are watching and holding them accountable.

Case in point? Buker v. Howard County, which concerns a fire department battalion chief, Kevin Buker, fired because of a series of posts (his spelling and punctuation, not mine) to his personal Facebook page.

“My aide had an outstanding idea … lets all kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal …its almost poetic …”

And …

“To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any 8 of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.”

And …

“Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Governement recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.”

Additionally, Buker “liked” a photo, posted by a co-worker, of an elderly woman with her middle finger raised, captioned: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE F**K I WANT[.]”

Finally, he “liked” a racist comment by a co-worker to his “beating a liberal to death” post, which suggested that Buker “pick a black one.”

Based on the totality of these posts, the department fired Buker.

The court had little problem affirming the lower court’s decision dismissing Buker’s claims.

“For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy. First, Plaintiff’s Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department. … Second, Plaintiff’s Facebook activity significantly conflicted with Plaintiff’s responsibilities as a battalion chief. … Third, Plaintiff’s speech frustrated the Department’s public safety mission and threatened ‘community trust’ in the Department, which is ‘vitally important’ to its function. … Fourth, Plaintiff’s speech — particularly his ‘like’ of the image depicting a woman raising her middle finger — ‘expressly disrespect[ed] [his] superiors.’ Lastly, we observe that the record is rife with observations of how Plaintiff’s Facebook activity … disregarded and upset the chain of command upon which the Department relies. In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiff’s Facebook activity.”

Let me put it another, more practical, way. Many employees have not yet realized that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination.

Until people fully understand that social media has erased the line between the personal and the professional, these issues will continue to arise. It is our job as employers to educate our employees about living in this new online world, because it is clear that not all employees have yet learned this lesson.

And, until they do, employees will keep getting fired for what they post on social media (even on their personal profiles during non-working time).

And I will keep speaking and writing about it.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.