VANNOY:

Avoid illegal discipline of employees for conduct outside of work. Joining me today is Brian Shenker, counsel of Long Island New York office, Jackson Lewis pc. Brian’s practice focuses on representing employers in a wide range of workplace matters, as well as preventative advice and counseling. Brian has extensive experience defending class and collective action lawsuits under federal and state wage and hour laws. He has successfully defended wage and audits, wage and hour audits conducted by the US and New York State Departments of Labor. Brian regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment, and retaliation, and a regular guest of the show. Brian, welcome back.

SHENKER:

Thanks for having me, Mike.

VANNOY:

So, Brian, this is, this is I mean, th this is a topic that we never would’ve imagined we had to deal with in, in HR when we were growing up, right? And I’m, I’m, I’m, I’m older than you, so at least when I was growing up, but it, it, it wouldn’t have, wouldn’t have come up. But today, the lines have blurred so much between when are we at work, when are we at home? What’s work time, what’s personal time? Because it’s not defined by the commute in the brick walls that, that we, that we show up to, to work. You know, the personal and work lives are so intertwined, and social media is so pervasive in all the things we do, including using social media for work. So, maybe just if you could kinda paint a picture for us of the, of the, how the landscape here is changing in maybe some of the, some of the laws that are starting to emerge. Certainly, you know, New York, California, it’s where most, most of these things start. How, how, how the law is addressing these blending lines between work and social media.

SHENKER:

Sure, sure. So, it’s, it’s an interesting area because, you know, many employers might be of the, i, you know, of the opinion that, you know, there’s not much regulating them in terms of how they can regulate their their employees outside the workplace, right? If an employee does, does something you don’t like, and you find out about it, you know, outside of work you know, many, many business owners may think, look, I have, you know, the full right to, you know, take any discipline i, I like because it’s at-will employment. But there, like, like you said, there’s actually many states actually over 30 states that prohibit in some way an employer taking action against employees for certain off-duty conduct. You know, these, these laws widely vary. There’s not much at the federal level, so, you know, we’re looking to your local state jurisdictions but, you know, they often prohibit the employer from taking action against employees for lawful off-duty conduct.

So, you know, for instance California you know, they, California is a law that no person can be demoted, suspended discharged or otherwise discriminated against because of any lawful conduct occurring during non-working hours. California actually, you know, does not have exceptions to that. You know, many other states for instance, Colorado have similar rules on the books but they have exceptions. So again, you know, Colorado, similar rule that, you know, employees can’t be terminated for lawful activity o off off the clock. But there are exceptions for you know, conduct that’s you know, conflicts with the employer interests or that conduct that may be reasonably related to employment activities. So, you know, there are limitations both in those laws and look as we’ll discuss the National Labor Relations Act the N L R A which is enforced by the N L R B, the national labor Relations Board. Even in the non-union context they, there are laws that govern what private employers can do with respect to this off-duty conduct. Brian, so there’s, there’s a lot of laws out there and, and not just, you know, one in particular. So we really have to, you know, be careful as we’ll go through.

VANNOY:

So, maybe, maybe before we even start unpacking the, the specific laws and some more specific guidance for, for employers that we’re, we’re not, I open this conversation up talking about social media, right? But we’re not really just talking about social media, right? I mean, this, this is, you know, if, if, if you’re a, a large national employer and you work remotely in a different state and you stumble out of a bar drunk and make a fool outta yourself and get arrested, probably not doing a lot of damage to the brand. But if you are working for the local church or synagogue, and you do that same thing across the street, there might actually be business ramifications, right? Can you speak to, to the conduct outside of work, not just as it ties to, to maybe social media? And, and we start with that because I think it’s obvious social media has just accelerated and created so much transparency, whether it’s desirable or not, in, into all this kind of behavior.

SHENKER:

Yeah. So, so yeah, when we’re talking about conduct outside of the workplace, I think, you know, what I generally guide employers on is that, look, we, we wanna focus on, you know, not the actual conduct. Because as we discussed, you know, based on various laws, the employer might be limited. But we really wanna focus on what’s the impact, what’s the business impact? And like you, you mentioned before, right? Someone who gets arrest, maybe a high profile arrest you know, for, for something, you know, that can have reputational harm for a company there, you know, could be issues with competitors, right? You know, someone starts you know, you know, moonlighting, right? They have a second job, and right. We’re not, you know, we might not govern whether they have a second job, but all of a sudden, you know, they’re working for a competitor and they may be providing, you know, that that may itself be a conflict.

And, you know, they, the employee may also have the ability to give confidential, you know, trade secret information to that company. So, you know, a lot of this comes up in ways where, you know, we don’t necessarily wanna look at the you know, the, the conduct itself, but how it, you know, results in, you know maybe, you know, some poor performance. You know, for instance, you know, one great example of this would be where we are with cannabis in, in the country right now, right? Where in many states you know, it’s either, you know, legal medically or, you know, in, in more and more states it’s becoming you know, recreational use is okay. But at the same time, we don’t have tests that can drug tests, that can identify if someone is impaired at that moment.

 So, you know, one, one of the common things I, I counsel companies on with, with respect to cannabis use is that, look, we’re focusing on the activity of the work, right? I, you know, it doesn’t concern me if, you know, if all we think is that, you know, Jenny’s sitting at her desk, you know, might be high because, you know, her eyes are red are, you know, bloodshot, you know, that’s not necessarily a concern. But is Jenny not performing any work today? Or does, you know, Jenny, you know, use machinery and is she, you know, not operating that correctly? You know? So I, those are the things we wanna look at, you know, how the, how it impacts the business. You know, but speaking of cannabis, yeah. As we’re on that topic, you know, more and more states are passing laws on this that are protecting employees who, who use cannabis California, just pa you know, California is always passing laws.

Yeah. but starting in 2024 California employers will be prohibited from discharging employees or refusing to hire individuals based on their off-duty use of marijuana. Now their law, you know, it differentiates between testing for CBD and thc, THC being the you know, the, the, I guess the, the part of the marijuana plant that gets you, you know, high cbd potentially not so much. So, you know, the laws sometimes differentiate between, you know, those types of you know, chemicals. But we’re, we’re seeing more and more of this. For instance, New York has also you know, made it unlawful to you know, take action against employees because of off-duty cannabis use.

VANNOY:

Brian, I, I wanna, I’m

SHENKER:

Gonna, so again,

VANNOY:

I wanna go on a little tangent on this one. So this is something we talk about a lot. So and the can cannabis is, is, is a good, good, good topic because it, it’s kind of, it can be kind of a polarizing thing. I mean, cl clearly the, the sea change is happening from a legal construct in, in, dare I say, a social acceptance. There’s plenty of people who think, Hey, this is still, I, I’m opposed, this is illegal at the federal level. But one of the things we always talk about in HR is you have to comply with the law, and it’s usually the strictest of all laws that you must comply with. So you, you, you don’t get to, you don’t get to thumb your nose at state or local, say, overtime rates, just because the federal says, you know, you know, 7 35, right? So if your locality, if your state says it’s eight bucks, and your county says it’s 10 bucks, and your city within the county says it’s 15, guess what? It’s 15. So, so can you, can you speak to that specifically on cannabis for, for somebody who might say, Hey, this is federally illegal, I can crack down. I don’t have to, I don’t ha have to allow my employees to do this.

SHENKER:

Yeah. So, right. So at the federal level, right? It you, right? So recreational you know, cannabis weed, it’s not, it’s not legal at the federal level, but, you know, states are legalizing it in many ways. And along with that, you know, what employers need to recognize is that, you know, those states are, you know, issuing laws that will govern how this is treated. So, right? Oftentimes, you know, this off-duty conduct area is, it’s funny, you know, oftentimes, like you said, we’re dealing with, you know, strong federal regulation, like in Title vii, right? Or the FSA that sets the floor here. There’s really an absence of right action at the federal level governing this. So, you know, unfortunately, right? That means if you’re an employer, for instance, in New York who does not think that, you know, individuals should be, you know, using legalized marijuana, you know, that that’s gonna cause some issues for how, how you can actually regulate employees for instance, in New York, right?

Like many, many states that they’re 30 or so states that have similar off-duty conduct laws. But new York’s prohibits employers from discriminating against employees for engaging in lawful activities, including, you know, political activities, recreational activities, and the legal use of consumable products, where that occurs outside of working hours off the employee employer’s premises, and certainly without the employer’s, you know, equipment or property. And yeah. Now there are exceptions to that. And many states do have exceptions. New York, for instance, has an exception where, you know, the lawful activity would create a conflict of interest for the employer’s business. But you know, now, like I said, the, the New York off-duty law covers cannabis use. So I, I mean, look, obviously, if you’re a federal contractor and you have a contract that does not permit, you know, cannabis use, that, that might be, you take you out of this you know, rule.

But again, you know, generally, you know, that means employers can use cannabis off duty. You know, certainly employers in all these states where recreational cannabis is allowed, they can still have a drug-free workplace. So, let’s just be clear, no one’s saying that employees can come into your workplace, you know, with mar with marijuana, with, you know, you know, under the influence, certainly not. And so, you know, look, if, if you catch an employee, you know, in your warehouse you know, smoking a joint, right? That, that would clearly be a violation of a you know, no, no substance use at work and, you know, subject that person to discipline. But where the law becomes tougher in this area is, you know, where you know someone, you know, you don’t catch them using, using the drug, but it’s possible they’re, they’re affected. Brian, so, so, you know, just,

VANNOY:

This is gonna be so easy for us to go down really deep down rabbit holes here, right? Because the, some, some of these topics, and I don’t want it to be a cannabis focused or an adult content focused, we’re gonna explore that too. But just can you paint a picture for employers, just some guiding principles of how, I guess there’s the, there, there’s the discovery of the conduct, but then once it’s discovered, what is, what, what is inbounds for employers to, to, to, to provide disciplinary action, whether it’s write writeups formal performance review, termination, whatever that is. Let’s come back to the discovery part, cuz I think that lends itself more to a social media conversation. But what about the conduct itself, right? If it’s legal and it’s outside the, the, the four walls of the business, so to speak, what rights does an employer have? Should they be able to, to, to exercise?

SHENKER:

Right? So typically, especially, you know, in those states where, you know, lawful out of work conduct is protected there may not be much that an, that an employer can do. What employers should really focus on then is the employee conduct, right? As I mentioned before, you know, you have an employee coming in, you know, acting strange, you know, not, you know, not speaking coherently. You know that that’s the issue. The issue isn’t that, you know, they, they might have, you know, gotten high before work. The issue is, what, what conduct are we seeing? So that, that’s what I always guide employers on, is that, you know, when it, when you write someone up for this, right? It’s not gonna be, you know, John was written up because we think he, you know, he was high. He was you know, eating a bunch of chips and his, you know, his eyes were red shut.

You know, that’s not what we’re focused on. We’re gonna say, you know, John you know, when we spoke to him, he couldn’t speak clearly. He was mumbling when he tried to operate in the machinery, you know, he wasn’t able to, you know, those are what we wanna focus on. So that essentially, you know, in the end, in those scenarios, the issue isn’t whether or not they were high, we’re not, they’re not gonna be disciplined for, you know, being under the influence. They’re gonna be disciplined for the resultant ac, you know, activity, the result in conduct or poor performance. So, you know, that’s, that’s where I think you know, we should really focus and look, obviously talking about on con, you know, during work. I mean, zero tolerance should be, you know, what it is, even if there’s you know, if it’s legalized in your state, you know, I I would recommend having, you know, a zero tolerance policy for, you know, substances just as you wouldn’t tolerate alcohol use.

VANNOY:

I was gonna say, it doesn’t have to be a controversial topic, like like, like marijuana, I mean, alcohol, right? I mean, this isn’t 1966 Mad Men <laugh>, were you drinking scotch in the office, right? I mean that’s right. So what about maybe more nuanced topics? I think about like the inner office relationship, right? I mean, happens all the time, people work closely together, they become their colleagues, they become friends. It advances into a romantic relationship. What, what does, what’s inbounds what’s out of bounds? What, how, how do you guide employers in, in this area?

SHENKER:

Yeah, so that’s a great one. And I, I was actually looking up statistics and I found that you know, roughly 60% of employees have afforded being engaged in a romantic relationship with a colleague. So, you know, for those employers who don’t think this is an issue, it, it, it’s a lot more prevalent than you may think, right? And look, just another one, even though, you know, an employee romance or relationship is, you know, an off duty issue, it is something that employers can and probably should address. You know, many companies, well, let’s talk about the risks first, right? Why would you even want to address, you know, workplace, you know, romances one, obviously the potential for a sexual harassment claim, right? What’s sexual harassment? Unwelcome sexual advances? So, you know, we want to make sure that, you know, when people are having only consensual relationships and we’re not seeing any, anything else.

So that, that’s one potential issue. Yeah. and look, it’s also hard to spot whether a relationship is consensual or not. It’s, it’s not always so clear. And then even if it was something I’m dealing with in, in litigation right now is when a consensual relationship ends there can be pitfalls, right? A, a spurned lover may, you know, act out of emotion and, and not consistent with company policies. They, they might make continued advances or sexual requests or intimidate the, the other, the other individual. All of that could also you know subject the employer to a sexual harassment claim,

VANNOY:

Right?

SHENKER:

So that’s not to deal with these

VANNOY:

Of the 60% of people who said that they were involved at some point in their life. It’s not 60% who end up married and stay married forever. So, but it’s, it’s probably the bigger risk is when those relationships end. What, what, what happens, especially if that relationship isn’t amongst peers, but there’s a subordinate relationship. Then there’s, you just, you’re opening yourself wide up to open to whether it’s real or perceived retaliation claims bullying, simply making someone feel uncomfortable. You know, how, how, how, how do employers navigate all this? Because it’s not a, right, I mean,

SHENKER:

Yeah, so I’m the, I’m the last

VANNOY:

World who, I’m always the last guy in the office who finds out that, you know, two people are together, and like, cuz I’m just blind to it, whatever. So how does the employer right know you can’t prevent it. It’s gonna happen. You can, so what, what are the policies that you set up ahead of time when you do find out, what do you do about it, if anything,

SHENKER:

Right? So, yeah, I, I think your your point that, that’s a great point, right? Just because you don’t know what’s happening, doesn’t, you know what I mean, you should, you know, bury your head in the sand and pretend this isn’t happening, right? That, that’s not, that’s gonna, you know, creative and more risk. So there are really different levels of anti fraternization policies that companies can implement to minimize these risks. You know, at the one extreme, a company could have a complete man on personal romantic relationships and it could discipline those, you know, who violate that. Now, the downside to that is, as you can expect, you know, employee morale would be very low. Many could see it as an invasion of privacy or even an attempt to govern off-duty behavior. So typically, I, I would not recommend trying to, you know, institute a complete van.

 I think that one of two other options are best one at the other extreme is we’re not going to limit, you know, romantic relationships. All we’re going to do is say that if you’re in a romantic relationship with another employee, that you need to promptly report that to the company, right? That gives the company protection in that, you know, if there, for instance, was managerial oversight between one of those in the relationship and the other, the company could remove that, you know that oversight, right? Because that, that can often be a problem if two people romantically involved, one’s the superior, one’s the subordinate. It creates a lot of issues with that power dynamic. So, you know, having people report can, you know, allow the company to remove someone from that reporting structure. The other thing it allows a company to do is, you know, ensure that the, the relationship is consensual, right?

That could be so little as, you know, HR saying, Hey, you know, talking to both people and saying, just wanna make sure, is this consensual? Are you being coarse? All right? You know, some companies may even want someone to sign something saying that it’s consensual because, you know, that’s a bit, that can be a big concern. A more middle ground to go with in an anti fraternization policy would be something that just prohibits certain types of relationships, right? That the company is gonna prohibit romantic relationships between supervisors and subordinates or individuals in this same chain of command. Because again, in reality, you know, that that’s where the issues most often lie when we have that power dynamic. But again, it, it leaves a company, you know, how do you prevent people from dating, right? <Laugh>, you, you, you can’t necessarily do that. So, right. You know, the, the, the one I discussed earlier where it’s just reporting of it, that can often be more effective because we’re not limiting this off-duty conduct. We’re just, you know, we want to be aware and just make sure everything is kosher. But yeah, that is something that certainly should be addressed in a policy and by HR because, you know, just ignoring it, you know, that that could certainly lead to unwanted, you know, sexual harassment

VANNOY:

Claims. So Brandon, what I, I do wanna spend time yet on what’s inbounds out of bounds for discovering these behaviors. It’s gonna be a social media centric conversation, but so drugs, alcohol, use, there’s legal frameworks that kind of back into your policies, relationships it’s tough, it’s nuanced, but I think you gave good guidance there. What about just simply behaviors that don’t align with, say, mission, vision, values of the company, or maybe values of the boss. I think there’s good legal protection, say for political behavior, but probably less, less guidance. Le grayer lines, if you will, around stuff around values whether it’s interests or it’s producing adult content online. What’s the difference in that versus working at the local adult establishment on the weekends? I mean, h h help, help wade us through, and maybe start with the easy stuff there. There is cer there are certain behaviors in conduct that is legally protected, like free speech and of political interest, et cetera, start at the end in the spectrum. And we don’t have to go through the swamp here, but, but we should address other types of behaviors that, that, that, that are more, I’d say, mission, vision, values issues,

SHENKER:

Right? Exactly. So, yeah, starting with political conduct, I mean, you know, that’s kind of been on display, you know, in, in the media for, for a while now. We, we always, you know, hear reports every now and then of someone who attended a, you know, political rally or did something and then, you know, was terminated by their employer. But, you know, really many states protect employees who engage in legitimate peaceful protests. California, Colorado Nevada. I think Seattle has a local law that there are over a dozen of these where employers can retaliate against an employee for engaging in, you know, lawful political activities. There are others like New York, Washington, dc, Illinois that specifically prohibit employers from taking action against employees because of their political party membership election related speech or political activities. So, you know, many have those, and again, as you discussed, is something where you’re gonna need to look towards state law, but typically things like violent protests, you know like that’s not lawful, right? So once we get things, you know, outside of you know, outside of the lawful world, you know, we were talking about a violent protest that’s not gonna be protected political speech and likely can result in your employer taking action. So

VANNOY:

If I see you on tv,

SHENKER:

But I think what, what,

VANNOY:

I see you in the local TV station and you’re part of a rally whether I love it or hate it, not actionable by me, if I see you on TV throwing a Molotov cocktail presumably there are only charges involved. But that is fair game. I mean, pretty two extreme examples, but is that it?

SHENKER:

Right? But I, I think that that illustrates it well, right? I mean, you know, one is just, you know, hey, we, you might be of the opposite political party as your boss. They might be very passionate about it, but you know, just because they see you at a rally or you’re supporting the other candidate, you know, that’s typically, you know, not legitimate grounds for discipline. But right. On the other hand, you know, going outside the bounds of law with political activities can certainly lead to to discipline under, under most laws. And, you know, I, I think what, what employers generally wanna look at is, you know, how the employee’s conduct, you know, may reflect on the company and, you know, whether there’s an issue, whether that creates an issue. You know, there, there might be some circumstances where you know, I’ve seen this before where a company sees conduct that’s, you know, that an employee’s ga engaging in that, you know, might be lawful, but it’s, you know, not something that reflects they think, well, on the business.

And look, sometimes businesses make those determinations that, you know, you’re, you have a tough situation, right? This conduct is probably lawful. I can’t take action against them, but at the same time, this conduct is, looks really bad for my company. You know, sometimes, you know, I, I’m not here telling any anyone to violate the law, but there may be times when a company has to consider which, you know, which has the worst repercussions, you know, the reputational, the reputational damage if I allow this to go on, or, you know, the damage if I you know, take action and I have a legal claim. So, you know, I think those are, those are things to consider. I think, you know, before, look a a another interesting area that’s come up, and I’ve seen some you know, reporting on this is, you know, only fans, right?

 And this this whole new you know, market and whether, you know, if an employee, you know, is on only fans and, you know, obviously, you know, for, for those not familiar with that, you know, it, it’s a place where individuals can go and post, you know videos or content of varying sexual nature and get paid for it. And so, you know, that might be something that, you know, a boss doesn’t necessarily agree with, but in many states, that’s lawful activity and, you know, may not be something the, the company can take action on. So, you know, there’s actually a real interesting go ahead.

VANNOY:

Yeah, I was gonna say, what, so what about, so there’s a

SHENKER:

Real interesting scenario.

VANNOY:

Yeah, you go ahead. You got it.

SHENKER:

Right. So I, I was saying there’s a scenario where an individual who’s on only fans her, her colleagues found out about it, and they actually, her colleagues spent work time logging into, you know, only fans to view her conduct. And the employer, you know, subsequently terminated the individual who was on only fans, you know, finding it a distraction to her colleagues. Yeah. now, you know, in that scenario, taking out the legalities of everything, you know, what you have there is someone who engaged in lawful off-duty conduct, and then you have a group of employees who were probably violating a number of company policies by not performing work, by accessing only fans on a company computer, and then, you know, not performing work as they got distracted by it. So, you know, in, in that case, you know, I would actually have gone the other way and said, it’s these other employees who are being a distraction and should get disciplined. But, but yeah, I think, you know, only fans falls in that category typically, of, you know, it’s gonna be lawful conduct and not necessarily actionable. You know, look, if you have a company that has particular interest in you know, portraying wholesome values, and you have a high profile employee who’s on only fans, and that presents a conflict for the business you know, that might lead to the company taking action. But generally, you know, that type of off-duty conduct is, is protected in many

VANNOY:

States. So that’s a super nuanced topic, but can you kind of paint a picture? Yeah. Can I say, Hey, our, our business is built on wholesome values, and that doesn’t align wi with us, so he or she can’t work here. I is that I’m assuming it’s if, if you’re talking to a judge, it’s gonna be a higher threshold than that,

SHENKER:

Right? I I think it’s gonna be higher than that. I’m thinking more like, you know, you work for a church and it goes against the values o of the church, right? Because I think, well, like you said, you know, any company could say, yeah, we support wholesome values, right? And we don’t think that’s wholesome. So I think it’s gonna be more that it presents an actual conflict for you know, the business than the actual values that they’re just saying, these are our values. It’s more about, you know, the actual business.

VANNOY:

So this, this topic of mission, vision, values, Brian would, would the employer, literally, and I, I, I think I’m giving the correct answer here in my question, but I would, would the employer literally have to prove out why their mission, vision values are an integral part of the brand? And therefore mat th this kind of behavior, if people would know about it, would materially impact the performance of the company?

SHENKER:

Exactly. E exactly how you put it, right? They’re, they’re gonna have to show, make that show you know, to take it outside of the, just, you know, it has no impact on the business. You’re gonna have to show exactly why that, you know, is, you know you know, the opposite of the values and, and the way that the business runs and you know, what the business interests are. So,

VANNOY:

Okay, so talk

SHENKER:

Kinda, and look, you know,

VANNOY:

Go ahead,

SHENKER:

Go on, go ahead.

VANNOY:

So we’ve talked about a, a, a spectrum here, right? So you’ve got cannabis use, you’ve got political speech, you’ve got relationships you have a adult content. It seems that there’s, there’s a common thread here in that as an employer, what we should be focusing is on the work behaviors, right? So there may or may not be specific laws that protect some of these some of these things that make it actually illegal for you to act upon. But it seems this, this little red thread that kind of stitches through all these topics is work behavior, right? It, it, it seems to be a, from a legal framework, carves out personal life from personal, from, from professional work life, that hey, what they do in their own time, as long as it’s legal is kind of out of bounds. Unless you have a really specific use case that we as employers need to be focusing on the actual behaviors, not, Hey, I, because I you smoke weed on the weekends, I think you’re lazy during the week. Well, I gotta prove to you what does good work look like and what, how do your behaviors line up against that? My definition of good work, and have I communicated that properly through job descriptions, employee handbooks per performance reviews, et cetera. Am I, am I saying it right?

SHENKER:

Yeah, yeah. No, I, I think that’s right. And I, I think maybe a good example of that could be even, you know, in social media, right? Where, you know, someone’s own private social media account is theirs, you know, they can on it as they, like, as people these, these days, you know, certainly do. You know, but you know, if I start, I won’t say myself. If someone starts posting, you know, racist and inflammatory posts you know, that could, that could lead to, to discipline, right? For instance, it, you know, if I start, if someone starts attacking, you know, their coworkers and, you know, saying, you know, racist things about coworkers online, well, that’s something the company, if it finds out about it, should potentially take action because you know, there, while there may be prohibitions against taking adverse employment actions for lawful conduct you know, those laws typically you know, exempt from that ban, you know, off, off-duty conduct that is that may be offensive or unlawful, right?

So online speech that attacks, you know, immutable characteristics protected by law, like age, race, sex, you know, religion, disability, or that, you know, could not constitute, you know, workplace harassment, you know, would not be protected. You know, so an employer could find itself having to deal with, you know, social media posts between employees that a, address these issues. And even though it’s off duty conduct, you know, that may, that, you know, because it’s talking about, you know, a coworker’s race, you know, then that brings it into the context where the employer should deal with it because that could be part of a, you know, discrimination or harassment claim. But at the same time, you can imagine, you know, an employer can’t be in a position and, you know, typically are not in a position to police everything, right? They can’t police every complaint that comes up, or every social media posting, right? Right. You know, so like we said, it’s, you know, ones that create reputational harm, those are certain, can certainly be concerns for an employer those that can create a discrimination claim, right? That that’s another, you know, type of off-duty, you know, social media posts or other type of conduct, you know, that that can be concerning.

VANNOY:

Right. Brian,

SHENKER:

Again, think of this, right?

VANNOY:

I’m curious around social media, what, what is inbounds to discover in the first place? So sure. I, if I’m interviewing a candidate, I, while I’m on the phone with them in, in an interview, I’m looking at their resume. I’ve got LinkedIn, their LinkedIn profile, and another tab, and I’ve Google searched them and I’m just looking at Google images, seeing where they show up, I’m looking at Facebook, and if they show up there I think I’m, and solid ground, if it is publicly available for me to try to get a picture of who this person is. Now, I can’t discriminate based on, you know, any of the protected class, whether it’s age or gender, religion et cetera race, et cetera. But that is all, all fair gain for me, isn’t it?

SHENKER:

Absolutely. So, yeah, you know, sometimes employers do get tripped up in, you know, social media during the hiring process, which, you know, as you mentioned, can be a valuable tool because you learn more about this person than what’s just on their resume. And so, you know, many companies will, will vet, you know candidates through social media but you know, there are potential pitfalls, right? The, the most obvious one being, right, like you said, you know, I see that someone is, you know, a certain race or disabled or of a certain religion based on their social media posts, and then I don’t hire them, right? That’s clearly discriminatory, you know? And the E E O C you know, has taken the position on that, that, you know, anytime you use an applicant’s or employees, you know, social media as background that you know, the company should, you know, not be using any protected characteristics as the basis for decisions.

So that, that’s the easy one. But then, you know, talking of LinkedIn, you know, there was an Illinois federal court case that involved a company that a claim by the employee that they engaged in age discrimination against an applicant. And the applicant alleged that the company looked at his LinkedIn, found out that he was, you know, in his fifties, and based on, you know, based on that you know, didn’t hire him. And the company said, well, we, we don’t know what his birthday is. But the court said, well, looking at his LinkedIn, you clearly could have seen what his graduation date from college was and determined that he was over 40. So, you know, there are things you also don’t wanna find out on social media. Cause

VANNOY:

They, can we pause on that one? Brian, pause on that one. Cause I mean, God, god forbid, I mean we’re advocating for employers here, right? And, and, and maybe that’s the wrong way of saying it, but I’m trying to provide the best information we can for employers. How the heck do you protect yourself if you, I mean, I might interview someone in, they’re, they’re a bozo, they’re a terrible candidate, but if they fell into a protected class, how, how do I protect myself from not getting sued? Like, in, in, in the use case you just gave, like it wasn’t because this guy was old that I discriminated against him. It’s because he was a terrible candidate. But yet he can sue me for that. So how do I best protect myself?

SHENKER:

Yeah. So, so a couple piece of advice for that. So I think one is that the decision maker should typically not be the one looking at the social media content, right? That’s, you know, any, and there might be more than one decision maker. So let’s take those decision makers, and they shouldn’t be the ones scouring, you know, Facebook, Instagram, LinkedIn, for information on the candidate. We should have someone else. It can either be someone within the company or potentially even a third party that, that would look into social media. And that way, you know, we are using internal procedures, you know, to limit the information that the decision makers get. So therefore, you know, someone might claim, well, the company accessed my Facebook, they knew this, and we can say, look, here are our controls that never made it its way to the decision maker.

And you know, this way only relevant information from social media, right? Which would be information not related to protected categories would be conveyed, right? I mean, look, if we have someone, you know, going out to parties and they, they’re drinking in every single picture, right? That, you know, that might be, you know, they’re partying, they’re, you know, that might be something, you know, but then, you know, we’re not gonna show them the, you know, photos with, you know, in the same sex relationship or something like that where, you know, it might give you know, ma a hiring manager you know, pause or, or some concern obviously not legitimately, but you know, some people have, you know, either, you know, explicit or internal biases. So I think that that’s one way, you know, don’t let the decision makers see that information.

 And, you know, I think another one is, is just having clear policies about what, what’s being done and being consistent. Because, you know, what we don’t want is, you know, a hiring manager looking up one person’s social media account, but not the others. Well, wh why that person, right? So we need to decide as an organization, are we doing this? Are we looking into Facebook? Are we looking into their social media, or are we not? And, you know, it should be consistent so that all people within the same, you know, classification are, are being treated the same. So I, I think that, you know, that’s, that’s very important to make sure that, you know, managers aren’t just, you know, going off the rails and, you know, searching people for some, you know, maybe you know illegitimate reasons on social media. You know what, you know, and then look,

VANNOY:

People are gonna get sick of us saying this, but it’s just, it’s just so relevant. Good hr, good leadership requires documentation and communication, and it looks an awful lot like an employee handbook and a job description, right? Those are, it’s so easy to dismiss those really simple things. But if you have a job description, and in that job description, you talk about the competencies required to perform the job, and then you have an interview at a a a go further upstream than interviewing, you have an application process that, that as the actual job application in the posting itself, and then an interviewing process where you can have documented questions and documentation of the answers they provided, how you’re mining for those behaviors and those competencies, then you can get sued for any reason, whether it’s discrimination or, you know, what, what, whatever, what winning a case is a very different thing than, than, than than just simply being sued, right?

But while we can’t prevent anybody from ever getting sued, you can protect yourself and at least lower the cost of defend, cuz as, as soon as the other, the other if they don’t have somebody with Brian Shenkers prowess on the other side of the table, the defending as soon as you provide the documentation, say, Hey, here’s the job description, here’s the interview process, here’s the questions that were asked, here’s their answers. And therefore, it, it wasn’t to match, especially when compared to this other candidate that we did hire. I mean, judge might throw it out, you might still have a little cost to defend, but the more you can document the better. Right?

SHENKER:

Yeah. No e exactly. And, and that’s why a, a lot of this comes down to, you know, what effect is this off-duty conduct having on this individual’s performance of their position? And, you know, oftentimes, you know, if a company honestly looks at it, the, the answer is none. And so, you know, sometimes just because as an employer, as a person you disagree with, you know, what they may be doing with their own free time. You know, that’s not typically, you know, regardless of what your state law says, that that may not be a very good reason to take any action against someone because, you know, we’re, we’re, you know, employers are in the business of what, whatever their business is and driving their business, right? It we’re, we’re not trying to have, you know, all employees act the same way. It’s, you know, if you’re a productive employee and you’re you know, performing the right work, then you’re valuable to the company regardless of, you know, whether you, you know, engage in political rallies you know, on the weekends or something like that.

 But, you know, I, I do, you know, coming back to social media and the, the pitfalls there, I think there, there’s one other area I I I’d like to spotlight where, you know, employers typically don’t understand, especially non-union employers don’t understand that, you know, the, the National Labor Relations Act can impact them. And so we’re, we’re not gonna do a huge dive in, into this and, you know, explain all about the national labor Relations Act. But I’m just gonna discuss one section real quickly, and that’s section seven, which guarantees the, the right to self-organization and to engage in concerted activities for the purpose of mutual aid or protection. So, you know, what’s concerted activity, because this is how the this applies to private employers concerted activity is basically when more than one employee get together and they discuss wages, hours, working conditions, or, you know, they try to, you know, get the employee, you know, complain about those things, get the employer to change things.

So, you know, any discussion essentially about working conditions among employees can be concerted activity, and that is protected legally at the federal level, and you cannot discipline or terminate someone for that. So how does this relate to social media? Okay, so the, the best way to, this is an example, right? So you know, the NLRB actually gives a, a good example here. You know, so an employee, you know, after, you know, complaining to management about, you know a large workload went onto Facebook and commented on his Facebook you know, something like, you know, a bad manager can take a good staff and destroy it, causing the best employees to lose motivation and leave. And then two other coworkers commented on it, one liked it, and one commented, and the NLRB found that yes, this would be concerted activity because that act of discussing conditions is protected.

And so you can think of examples where an employer might try to take action against employer employees for this, right? Other Facebook postings, right? This simply liking a Facebook post by a coworker has been found to be concerted activities. So yeah, if someone’s complaining about working conditions on Facebook and another employee comments or likes it, that’s conservative activity. We, we can’t terminate that employee or discipline them for doing that. You know, so that’s something where, you know, if an employer is gonna start looking into social media accounts and the activity on social media of its employees, you need to be careful that you are, you know, if you’re going to take action, number one, it’s compliant with your state law, you know, including any restrictions on off-duty conduct, but that it’s the conduct that you’re basing the discipline on is not related to concerted activity, meaning multiple employees discussing working conditions. So that’s something where the, the nlra, it’s, it’s something we all think just applies to union shops, but this is really the the National Labor Relations Board, you know, tentacle into the into private employers. Yeah. so, so we certainly, to be aware,

VANNOY:

You and I have discussed this many times as talked about with other guests, it’s just clear the, the, there’s, there’s a sea change going on from a legal structure that the power is shifting to the employee, right? Both for, I’d say both from a legal perspective and just the laws of su supply and demand. Who, who gets the power in the negotiation with unemployment rate and the 3.5% range? Th there’s a worker shortage, there is a labor shortage. This is no longer just a big company war for talent intellectual, interesting TED talk. This is real small. Businesses are struggling to, to find good qualified employees, and the legal framework is tilting more and more towards protecting employees. To me, the punchline is, you gotta have great hr, you gotta treat your people well. Otherwise it blows up in your face, right? It, it’s not, there’s no legal tricks. I shouldn’t say there aren’t legal tricks there. There’s good sound, legal advice and counsel we can give employers, right? And we’ve talked about that. It’s employee handbooks, it’s job descriptions, it’s documentation, it’s notes it’s, it’s solid communication, all good legal and HR advice. At the end of the day, if you’re not treating your people really, really well, guess what happens? They do things like talk about you in social media in a public way, and there’s not a damn thing you can do about it, right?

SHENKER:

Yeah. I, I, I can tell you how many times I’ve gotten inquiries from employers how, how do I get a bad review down from one of these you know, job posting boards. And, and really there, there’s not much, if anything a company can do. You know, and again, it, it’s treating employees with, with respect, and that’s generally, you know, giving them clear guidelines, treating them with respect, you know, that that’s the way to avoid most issues and, and treating them consistently so they know what to expect. So, you know, again, along those lines, right? You know, talking about, you know, how we treat people and giving them expectations you know, a handbook, an employee handbook, you know, should contain an off-duty conduct policy. But I will tell you this, that that policy won’t, you know, it’s not gonna be so robust to address all these things we discussed today, because the, the main thing and the main thrust of what a lot of what we’ve said is, is that there’s no issue for the employer until the employee’s conduct starts impacting their performance or creating other issues, right?

So oftentimes if you’re disciplining an employee based on off-duty conduct, it’s probably gonna be governed by something other than your off-duty conduct policy, right? Like you have a, you know, someone on Facebook is posting comments to another employee and harassing them, right? That’s off duty, but that’s gonna likely come under the company’s you know, anti-harassment and anti-discrimination policy. You know, so lots of these, you know, or you know, someone’s moonlighting on it with a second job, and that’s work, then they’re working for a competitor, <laugh>, that’s obviously not something that, that we’re, you know, a company is going to want. So that would probably be covered by a conflict of interest or non-solicitation, you know, provision in, in the handbook. But what an off-duty policy, you know, should say, especially in these states, the 30 or so states where there are laws protecting off-duty conduct is that, you know, it, it will be consistent with that state law stating that the company won’t take adverse action, you know, based on lawful conduct outside of the workplace.

 And, you know, any restrictions should really focus on the effect of the off-duty conduct on the employee’s job performance. Typically, you know, we’ll have, you know, we’ll have some other provisions. I always say add a national Labor Relations Act saving clause that basically will just say that nothing in this provision is intended to limit the rights of employees under that law or protected concerted activity. You know, that’s always a good one to include. But, but again, you know, having something that addresses this, having clear policies besides the off-duty policy will, will really set the stage and, you know, let employees understand, you know, how they’re expected to, to behave, you know, and, and how the, the company will treat behavior that impacts the company’s business reputation or, you know, the employee’s job performance.

VANNOY:

Brian, I, I know we’re, we’re, we’re about at time. I wanna recap two big key points, and I think maybe just ask you to comment on a third. So number one is employers, there’s a lot of gray area. There’s gonna be a lots of opinions of what is appropriate, not appropriate. Should I see that? Should I not see that? You can’t, you can’t unsee what’s already been seen whether it’s been coming from social media or something you saw just in you know, you know, in, in your, in your day-today life, however you come become aware of certain behaviors. The key here is focus on work behavior and, and, and, and not out of, out of work, out of office behavior. If, if if the behaviors, whether you like them or hate them, or if they’re legal and they’re not interfering with the job performance, lean towards job performance, what are the behaviors of successful work and, and coach and performance manage based on that, not on what happens outside of work that does not mean that you shouldn’t.

Now point number two, have really good documentation and employee handbook, job descriptions open communication with employees. Let me ask you about the a third topic here. In a, in a social media world and bosses who are pretty busy and they’re probably not spending a bunch of time on Facebook trying to dig up, see what their employees are doing in their private lives, I’m sure that happens. I can’t imagine having, having the luxury of that kind of time, but a lot of times I think these things spin up internally where, Hey, did you hear he was doing such and such? Did you know that she’s doing this? And it’s, it’s the internal distraction amongst employees. What’s your, what’s your HR and legal guidance for an employer to deal with those situations?

SHENKER:

Right? No, look, and and you make a great point, because typically, unless we’re talking about the hiring, you know, area where, you know, employee companies are looking towards social media, you’re right, most scenarios arise during the employment context when coworkers, you know, are aware of what’s going on somewhat, you know, what someone’s posting and report it to the employer, right? Right. So, you know, I, I think in those, in those scenarios you know, a company should, should take seriously, you know, complaints of you know, of other employees, social media and determine, right? But the company should take the complaint, but then determine, is this something that we should deal with, right? If it’s you know, a social media post that, you know, someone’s posting a lot of political things and someone just doesn’t like that, hey, you know, sorry, that’s not something we govern.

 But if, you know, someone is posting, you know, let’s say, look, perhaps, you know, they’re posting violent footage of themself, right? Where the individuals doing violent things that, you know, who knows? I can think of a lot of options, you know, things that could come up, you know, hurting animals, things like that. It might be enough that, you know, that’s reported to the employer, and now the company knows that this person may have some violent tendencies. Now, do you have a potential negligent retention claim or negligent hiring claim If you’re going to keep that person employed and just, you know, ignore that you know, th those are some hard decisions where I think, you know, employer would be best advised to seek you know, HR or legal advice because you know, there, there are, there is some gray area here as to, you know, certain conduct that could be reported.

And, you know, the employer needs to decide whether this is something we’re getting involved in. This is, you know, this is something that touches on our other policies. Maybe it touches on harassment or discrimination, so we will address it. Or it has nothing to do with us and doesn’t affect, you know, us reputationally or business isn’t impacting this person’s performance, but it’s just something that might be offensive to other employees. Well, you know, that’s not necessarily the employer’s place to, you know, get into off-duty conduct that is, you know, offensive to some employees. So, you know, employers will really have to draw lines as to, you know, where they’re, they’re willing to go and how far they’re, they’re willing to you know, take you know, complaints, especially social media ones. You know, and I just think a lot, you know, of, you know, political because, you know, that’s something that we’ve seen in the past few years, people can get very heated about. And, and that, so, you know, I, I think employers, you know, need to understand, you know, what you know, and have guidelines as to what they’re going to actually address with the individuals and what they’re not. And I think the best dividing line there is, you know, what affects the employee’s performance and the business and what doesn’t. Cause you know, employers aren’t there to address everything that individuals do at, at any time. That’s just, you know, no employer’s capable of that, nor they want to do that, even if they were,

VANNOY:

I, I have a a, a friend she owns a small business and I, I, I think, I like the way she handles this because there, when you’re dealing with social media and others in the workplace who are more likely to be, you know, Facebook friends with a colleague than the bosses, and therefore see things that the boss never would and then stir, stir up some issue. She makes it really clear in the interview process that gossip is cancerous to organizations and culture, and she won’t tolerate it. And if she sees or hears, or finds out that you’re gossiping, talking about other people, about non-work related topics, zero, zero tolerance, you’re gone. Yeah. and she, she maintains this culture successfully, but it’s part of the interview process. It’s part of the job description, it’s part of the employee handbook where it’s explicitly, it’s, it’s explicitly put out there. So I I to, to me, I keep hate, keep parting this, this drum beat, but it comes back to communication, documentation, handbooks, job descriptions extemporaneous notes clearly communicating what what your policies, procedures, mission, vision, values are. Brian, maybe let me give you, you know, 20 seconds, how is it that your firm helps organizations in this way?

SHENKER:

Yes, absolutely. So, look, we help companies from, you know, the, the drafting of policies along these lines. All, you know, through, you know, we have a whole labor team that handles all these, you know, N L R B matters. And then look, you know, if it comes to you know, you know, oftentimes it’s more a, a need for guidance on these issues where, you know, it’s a tricky, thorny issue. And admittedly, some of these are where, you know, no either decision, whatever decision the company makes, they’re gonna be employees who are unhappy with it. And so oftentimes it’s, you know, thinking through these, coming up with a strategy and, you know, that’s what we help them employees do. All the while, you know, letting them know what the legal framework is and operating within those bounds. So very good.

VANNOY:

Appreciate

SHENKER:

Has come up a

VANNOY:

Lot. And, and at Asure our, our part of what we do is provide outsourced fractional human resources services. So the day in, day out job descriptions employee handbook, making sure all these things are compliant, making sure you have good hiring and documentation and communication practices. Hopefully our job is to keep you compliant in a position that you never need someone like Brian. But inevitably, most business owners eventually are gonna need someone like Brian. So we have great partnership and if there’s any way we can help anybody watching today and listening to this broadcast to help you get, be proactive and stay compliant in a way with a fractional HR resource that costs pennies on the dollars to hiring an internal SHRM certified HR team, we’d love to talk. So, Brian, always enjoy talking to you. Thanks for your time today.