An interesting case out of Massachusetts raised some questions about what an employee subject to a non-solicitation agreement can do. The employee announced her new position on her LinkedIn profile, and her former employer sued because among her followers were some of her now-former clients. The employer argued that this posting solicited her clients to come do business with her.
The court in this case was able to make a ruling based on other issues, and did not have to get into the LinkedIn issue. However, it put both employers and employees on notice – announcements on social media (be it LinkedIn, Facebook, or Twitter) can violate agreements and should be carefully considered. For employees, whenever you leave a job to start a new one, you should review any restrictive covenants that you signed (non-compete agreements, non-disclosure agreements, and non-solicitation agreements) to see what you are able to do. If there are limits on your ability to make public announcements, or if you have followers who are in a restricted group (either now-former co-workers or clients of the previous company), you may want to restrict the announcement to ensure that only people who can see your new job are able to. It will take you more time to set up, but it will be time spent saving yourself from a lawsuit.
Chanukah is in full-swing, and some companies and organizations are hosting their holiday parties already. The rules that govern liability don’t take an afternoon off, and hosts of these parties expose themselves to any number of problems if they aren’t careful. Employers who plan to hold holiday parties for the company should be mindful of the following tips.
- If you are going to serve alcohol, you must be willing to cut employees off. Having a limited drink selection is also smart. Employees who get drunk may make bad decisions, and the company may find itself liable if no one in management stopped the employee from drinking.
- Have a car service ready. One of those bad decisions that an employee might make is to drive drunk. The potential liability for the company here can be incredibly high. The risk is simply not worth it.
- Make sure that there is an enforced code of conduct. Sexual harassment laws do not stop because there is a party and employee holiday parties are ripe ground for unwanted advances that can lead to complaints. Make sure that your employees understand what is and is not permitted.
- Skip the mistletoe decorations. Sierra Mist is running a radio ad where a male employee solicits kisses using a can of their new soda. It makes me cringe every time I hear it because that employee’s conduct is going to cost the company money. Keep the decorations neutral and you can avoid complaints which cost time, and lawsuits, which cost money.
- Management must be willing to be “party poopers.” Nobody wants to ruin a good time, and it can be hard to enforce the rules when there’s music playing, dancing, and a buffet. However, the company’s management is still management, and if they aren’t taking an active role in solving problems, then they are part of the cause. It is important that managers understand what they need to do, and how to proactively address potential issues.
It’s a party and I’m not suggesting that the top-level officers patrol the dance floor to make sure that everyone is standing at least eight inches from each other and that no one has had more than two drinks. But what I am suggesting is that parties take a little more planning now than they have in the past. It’s worth taking that little bit of extra time to protect your company later.
As a new feature, each week, we will share legal articles and updates from around the country that may have an impact on our clients.
Conde Nast Ends Its Internship Program - As more of the larger companies are being sued for not paying their interns, more of these companies will decide that the risks are no longer worth the benefit. If you have unpaid interns in your office, this may be something to think about.
EBay Settles Class Action - If you were selling on eBay, you may be able to take part in the settlement.
A Canadian auto mechanic was fired after he tweeted in search of a delivery of marijuana. This raises an interesting question for both employers and employees – how far does that promise of free speech go?
In the workplace, probably not very far. Most employees are hired as “at-will employees” meaning that they can quit at any time, and for any or no reason, and the employer can fire them at any time, for any or no reason. The only exception here is that an employer cannot fire for an illegal reason (generally because of race, sex, nationality, sexual orientation etc.). In essence, as long as the employer isn’t discriminating, no employee is guaranteed a job tomorrow.
That means that an employer who learns of drug use by his employees through social media, even if that drug use is after hours, may choose to fire the employee. An employer who reads almost anything on social media that he disagrees with may use that as a reason to fire or demote any employee (with one caveat below).
The First Amendment – in particular, the clause about freedom of speech – does not apply because an employer, unless it is the government, is not covered by that rule. Employees have no right to speech without repercussions. As such, an errant tweet complaining about your boss, or insulting a customer, or one asking for a delivery of illegal drugs, can get you fired.
Be careful before you hit send – especially if your boss may be watching.
PS: The caveat – if the boss sees a post that gives information about you, such as your religion, or sexual orientation, then that information most likely cannot be used to fire you.