Use Caution When Posting Online About Employers

If you have not heard about this, a Best Buy employee recently got into trouble for creating and posting a video poking fun at the iPhone and Apple in general.

Although the video was more of a parody based on observations about iPhones and those who buy them, Best Buy understandably did not take kindly to an employee publicly criticizing one of its major customers (and also those who shop at Best Buy).

The employee was suspended during the investigation and it seemed to be just a matter of time before he was terminated, but Best Buy quickly withered under the harsh public backlash from the “geek” community and the company back-pedaled, citing their desire to promote a “supportive environment” for its employees as motivating their decision.

Best Buy publicly offered the employee his job back via a press-release, but he actually released a statement of his own essentially telling them he did not want his job back after being treated the way he was by Best Buy.

I am going to take the rare step of siding with the employer on this one.  The video the employee created (which I admit as an Android user I found uproariously funny) was watched by millions and at least briefly affected some of the public’s views on Apple, the iPhone and Best Buy.  I have to assume that Best Buy is one of the largest distributors of iPhones besides Apple directly and AT&T, so this employee’s actions caused the company at the very least a great deal of embarrassment.

After reading some of the informal commentary on the internet about this story (e.g. “He should sue them!”), I will offer up the following advice on the implications of California Employment law:  contrary to popular belief, the First Amendment has nothing to do with this case and only protects citizens from government action.  Except in limited circumstances that do not seem to apply to this situation, employers are free to terminate an employee for anything they post on the internet that is critical of them or their affiliates.

In sum, if you would not say it to your boss’s face, don’t post it on the internet where he can see it because he is free to respond as if you had.

Tennessee Passes Mean-Spirited "English Only" Law

Yesterday I came across an article about an “English-only” law Tennessee passed just last week.  My first reaction was similar to when I first heard of the Arizona immigration law, which is that it clearly violates federal law, will be struck down by the courts in short order, and is really nothing more than a political ploy to seem tough on immigration policy.

Most past legislation along these lines has tried to either require English-only in places of employment or allowed employers to require their employees to speak English.  Conservative California legislators made a half-hearted attempt at passing such a law a few years ago without gaining much traction.

As we have pointed out in the past, such laws are invalid because they violate Title VII of the 1964 Civil Rights Act, which specifically prohibits such policies unless there is an actual “business necessity” for them.  For example, a nurse could be required to speak only English to a doctor during surgery.  However, upon further examination I discovered that the Tennessee bill does not even try to defy federal law.

The Tennessee bill is an example of the worst kind of law:  one that has no valid purpose except to pick on a minority group.  All the law does is restate the Title VII language that allows such a policy only where there is a “business or safe workplace necessity” for it.

The law waters down its language even further by stating that an employer cannot require English-only when an employee is on a break or talking to co-workers.  Essentially, the law can be re-stated as follows:  “Employers can require an employee to speak English, but only if it is necessary for them to do so”.

In short, all the Tennessee law does is restate federal law, but in a deceptive way.  Instead of saying that English-only policies are illegal except where justified by business necessity, it purports to give employers permission (or even encourage them) to create such policies if necessary, which likely is not a problem to begin with and employers are already free to do under federal law.

All states in this country are in the middle of a fiscal crisis that is putting their legislatures’ budgetary skills to the test.  There are not enough hours in the day for most of them to come up with solutions to their states’ most pressing problems.  However, Tennessee’s legislature apparently decided that writing and passing a law that has no legal affect on anyone whatsoever, but instead tries to ostracize those who either do not speak English or have difficulty doing so.  That is just mean.

Employers Use Unfair Tactics to Fight Unemployment Claims

We often attend unemployment appeal hearings on behalf of clients because they are also pursuing wrongful termination claims against their former employers.  This is both as a precautionary measure and a chance to obtain vital information at the outset of a case. These hearings are conducted in front of an administrative law judge and under oath, so anything either side says could potentially be used against them in later litigation.  If you think that your termination was illegal and that you might pursue claims against the company, I urge you to contact an attorney as soon as possible before you attend an unemployment hearing. If you testify at an unemployment appeal hearing without being prepared you could cause severe damage to your claims without even knowing it.  On the other hand, giving your attorney a chance to question the people who terminated your employment under oath without their having an attorney there to advise them is a tremendous opportunity. In the last five years or so I started noticing non-attorney representatives from third-party companies who specialize in contesting unemployment claims on behalf of employers and they have been becoming more common.  The New York Times recently published an article about the increased use of companies that specialize in contesting unemployment claims for employers. The most disturbing aspect of these companies' involvement is that they seem to contest every single claim filed against an employer, knowing that some employees simply will not appeal a denial of their claim or will not show up at the hearing to fight for their unemployment benefits.  Whenever I see a case where an employer contests an unemployment claim without any reasonable basis for doing so, there is almost always one of these companies on the other side pulling the strings. However, one interesting thing I have noticed is that these companies almost never attend the appeals hearing if they find out the claimant has a lawyer.  To me this suggests that they do not even look at the merits of an unemployment claim unless they absolutely have to, which is a  terrible thing to do to a former employee. In some California counties, these appeals do not go to a hearing until months after the paperwork is filed.   Forcing an employee to go through a meritless appeal of their unemployment is a serious disruption to their life.  Instead of focusing on finding a new job, they have to worry about whether they will not only lose their future benefits, but also have to pay back the unemployment pay they have already received. Many states have passed laws that curtail some of the abuses these companies engage in, but California has yet to take action.  Until then, employees should be vigilant in fighting for their unemployment benefits and should not be intimidated if their employer tries to contest their claim.

Proposed California Law Restricts Credit Checks for Job Applicants

The Los Angeles Times recently reported on a new bill headed to Governor Schwarzenegger for possible signature (though I believe it is likely to be vetoed) generally prohibiting California employers from requiring applicants to allow them to examine their credit report as part of the application process.

The new California employment law would allow employers to do checks on employees who handle large amounts of money or other sensitive positions.  While I recognize that in these situations there may be some correlation between a history of poor financial choices and the ability to do certain jobs, in today’s economy the usefulness of this information is, in my opinion, declining at the same time employers’ use of it as a hiring tool seems to be increasing.

I talk to potential clients every day with tragic stories of loss about being unemployed for months while desperately searching for new employment.  Many of these people are about to lose their homes, have had their automobiles repossessed and even have experienced the demoralizing reality of sending their children off to college this fall without being able to give them any assistance with their tuition or living expenses.

When I hear from these people that their recent poor credit history, which itself is usually a direct result of either unemployment or serious illness, is now the reason they cannot find a job, it makes me angry.  The problem is that many of these employers now receive dozens, if not hundreds of applications for a handful of positions, so the applicant never gets a chance to explain their situation before they are eliminated early in the process based solely on their credit report.

Studies have shown in the past that the average employee’s credit scores has no correlation with their job performance, but as a matter of public policy I think that when unemployment is in the double-digits throughout much of California this is an issue that needs to be dealt with sooner rather than later.

Laid Off? You Still Have Rights! Part 3: Get Your Vacation Pay

In most layoff situations, especially these days, the layoff is legitimate and a necessary evil in cutting costs.  However, just because an employee has not been wrongfully terminated in a layoff does not mean they have no California employment law rights.  One common example is receiving all unpaid vacation pay.

Vacation Pay

Under California employment laws, once employees have accrued vacation time, they must either be allowed to use it to take time off or have it paid out at termination.  This is commonly referred to as California's "no use-it-or-lose-it" rule.

Employees should also be aware that even if an employer calls it "Paid Time Off (PTO)" or a "personal day" instead of "vacation" it most likely must still be paid out.  Under California law, vacation pay is defined as any hours an employer provides an employee to take off for any reason.

One example of something which might not qualify as vacation pay is sick pay, which most employers only allow use of when an employee is sick.  Otherwise, most forms of PTO is the same thing as vacation pay.

Payment Must Be Made on Exact Termination Date

Whether you are owed accrued vacation pay, hourly wages, salary, commissions, or some other form of wages, an employer who terminates an employee MUST pay ALL money out on the last day of employment-no exceptions.

If this is not done, then an employee is entitled to "waiting time" penalties equal to one day of wages for each day the wages remain unpaid, including weekends and holidays, up to a maximum of thirty days.  These issues come into play even where the employer does not dispute that the employee is owed money.  For example, if the employer puts the check in the mail or does not pay all of the wages until the next payday, the employee is automatically entitled to penalties from their last day until they actually receive the check.

For example, if your employer does not pay out all of your vacation pay and you make $60,000 per year, after thirty days you would be entitled to approximately $7,000 in penalties even if the vacation is eventually paid out to you.

These are tough times for many laid-off employees.  They should make sure they receive all of the wages they are owed, since every dollar counts in making it through their unemployment.

Table of Contents for This Series

  1. Laid Off? You Still Have Rights! Part 1: Is Something Fishy?
  2. Laid Off? You Still Have Rights! Part 2: Are You a Statistic?
  3. Laid Off? You Still Have Rights! Part 3: Get Your Vacation Pay
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