Should you be using Facebook for References?

Facebook for screening applicants-- is it a good idea?

Recently you may have read or heard news of employers using Facebook to screen applicants. Using as many tools as possible to find the right employee is generally a good thing, especially the art of finding a person who fits with your organization. However using Facebook or other social media can be problematic. At this time there are no specific legal prohibitions in Oregon on using Facebook to screen employees. This includes asking applicants to log into their account to allow the interviewer an opportunity to look around. While the practice of using social media to screen may be legal there are a variety of pitfalls.

“At-Will” Statement vs. National Labor Relations Act

In the news recently, there has been mention of the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB). The NLRA is a federal act, otherwise known as the Wagner Act.The NLRA was enacted in 1935 “to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.”· The NLRB was established to oversee and monitor the NLRA.

The key principle behind the NLRA is to provide protection to employees, regardless of union membership status, in concerted and protected activities such as organizing, and protecting employees as a “class.” The NLRB oversees these activities for compliance with the NLRA. The function of the NLRB to prosecute violations of the NLRA has been reaching further into employers who do not have unionized employees, specifically in the area of “at-will” employment.


The NLRB has most recently challenged the “at-will” employment relationship disclaimers that many employers have in employment applications, offer letters, policy statements and employee handbooks.· The NLRB challenged that some of the statements typically contained in employment at-will policies (e.g. “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and the Company’s president or executive vice president/COO.”) may be in violation of the NLRA.

At this point, the NLRB has only taken this issue up in the state of Arizona and the final outcome has yet to be decided in the courts.· One alternative an employer may want to consider is simply changing this portion of its at-will statement to “I acknowledge that my at-will employment status can only be changed if noted in a written agreement.”· According to many legal blogs authored by attorneys, it seems that this change would meet the legal challenges that have been put forth to date by the NLRB.

Employers seeking additional assistance regarding the company’s “at-will” employment statements may want to reach out to an HR Professional for guidance.

Summer Dress Codes: Too Hot for Compliance?

According to the May 2012 HR Support Center poll inquiring about spring and summer dress code policies, most businesses do not alter their dress code policies during these months. Out of all the respondents, 63% indicated no change during the spring and summer months from the company's standard dress code, while 9% indicated that employees are not required to wear professional clothing during these months. There are several implications to be aware of in regards to workplace dress code policies in the summer.

• Health concerns (physical and mental stress). During the hot summer months, it is important to consider the health of employees who will be performing work outside or in a facility without air conditioning. The company may need to alter its dress code in order to reduce the physical stress of employees working outdoors, as physical stress can lead to reduced cognitive ability and heat-related injuries and illnesses. In addition, some employees may be protected under the American with Disabilities Act (ADA) which may require reasonable accommodations.
• Productivity levels (includes motivation). The productivity levels within the business may be reduced if employees are dressed in a manner that is distracting to themselves or others. Therefore, it is important to ensure that dress codes allow for maximum productivity. For example, if an employee is wearing a baseball cap during an office meeting, others may find that to be a distraction.
• Safety concerns (injury and accident prevention). There are several safety concerns to consider if dress codes are not properly enforced. Even in extreme temperatures, it is critical that employees wear all recommended and required safety equipment. For example, those in a construction field should not wear sandals; those in the medical field should avoid exposing unprotected skin and wearing loose accessories (such as jewelry) around hazardous chemicals, equipment/machinery (such as wheelchairs), and other things (i.e. syringes).
• Image/Professionalism. Even in the summer months, it is important that the company portray a professional business image. For example, allowing pilots to wear swim trunks could certainty result in decreases in customer confidence levels.

It is encouraged to write comprehensive policies that cover the business dress code. The management team must consider productivity, safety, and regulatory compliance when writing the dress code policy. It is vital to consider whether the dress code could create a charge of discrimination. A workplace dress code for summer months should not discriminate against members of a protected class under civil rights laws such as gender discrimination, religious discrimination and race discrimination. It is important to stay consistent for all exceptions to the policy and to apply consequences for all violators of the policy. Considering these factors will ensure the company's dress code maximizes summer productivity and minimizes the potential for legal exposure.

Unemployment Claims: Fighting and Winning

“You’re fired!” If you have ever said that to an employee (unless you are Donald Trump and filming the reality show “The Apprentice”), you should be prepared to pay for your now former employee’s unemployment claim. If an employee walks out and therefore terminates employment voluntarily, you may still be required to pay for unemployment. Confusing? You bet.

3 Simple Ways to Make People Happy at Work

Learn these strategies to make your employees happy, and extravagantly execute them. You'll create a better business.

Most CEOs know that, if their workers are happy, they're also more productive. But how to make them happy is the challenge. Many take the goal too personally and try to build staff contentment through personal relationships. They get exhausted and find the strategy simply won't scale.

So what can you realistically pull off to make people happy at work?


Professional growth
People want to stretch, to develop their natural talents, feel their life has a narrative and is going somewhere. When they feel that they are growing, they may be exhausted but they're also inspired, energetic, and willing to take on a great deal. (That's one reason why investing in people can deliver a higher return that investing in new technology.) Anyone who reports to you (and anyone who reports to them) should have a professional development plan. That will keep everybody engaged, busy, and--eventually--happy.

Strong community
Everybody wants to be proud of where they work, to feel that they are investing the most precious thing they have--time--in something that matters. For some companies, the mission or the products are enough. If you make things that cure disease, create cleaner air, save carbon emissions, or improve life in any way, your business has an intrinsic sense of purpose which is probably what drew people to it in the first place. If you make ball bearings, knowledge-management software, light switches, or other kinds of widgets, you may find it tougher to demonstrate how you make the world a better place. Superficial social-responsibility projects won't fill this gap for you. You need to create direct links between the success of the business and the community you serve. These need to involve the entire work force and should be active, public, visible, and long lasting. Many companies get their staff to choose the causes or charities they support. The more they're engaged in these commitments, the more meaningful they will be to them--and your company community.

Fair treatment
"Everybody here is somebody." That's how one call-center rep once explained to me why he loved the company where he worked. The job wasn't thrilling, the pay wasn't great, but every single person was treated with love and respect. Just walking through the door, he said, made you glad to come to work. When people got sick, co-workers worried. When someone was due to retire, she most likely came back to work part time, just for the camaraderie. Sooner or later, everyone in a company like this talks about it as being like "family." The CEO knows everyone's name--even the names of everyone's kids and pets.·This kind of fair--and kind--treatment also means startlingly low turnover rates, which also saves money. But it's not really about the money.

The very best companies I've studied and written about honor these principles and enact them lavishly. They don't pay lip service, and they don't do the bare minimum; they go overboard. Their CEOs do so because they know the secret of leadership: Look after the people, and the people look after the business.

Heffernan, Margaret. "Make People Happy At Work Three Simple Strategies." INC.com. 10 July 2012.

Health Care Reform

Supreme Court Upholds Health Care Reform
The United States Supreme Court issued its long-awaited decision on the constitutionality of Health Care Reform and voted 5-4 to uphold Health Care Reform. The Court stated "[o]ur precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it."

The NLRB's Social Media Policy Memorandum

On May 30, 2012, the National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon issued a memorandum regarding social media policies in the workplace. The General Counsel's memorandum is applicable to both unionized and non-unionized work environments.

Section 7 of the National Labor Relations Act (NLRA) allows employees the right to form, join, or assist labor organizations and the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In addition, even in union-free businesses, employee complaints about hours, pay, treatment, working conditions, etc. may not result in disciplinary action or termination under the NLRA. This section of the Act has important implications for employer social media policies, as delineated in the NLRB's recent memo.

The NLRB's memo covered seven social media policies published by various employers to demonstrate specific provisions that may be unlawful. Some of those social media policies are discussed here.


    Policies concerning an employer's attempt to protect confidential information may be unlawful.
        For example, a policy prohibiting employees from online discussions regarding "confidential guests, team members or company information" is unlawful because the policy could be shown as the employer prohibiting employees from disclosing information regarding their own terms and conditions of employment (which is a protected activity).
    Policies that aim to show peaceful relations amongst staff may be unlawful.
        For example, a policy intended to reduce conflicts amongst employees (that may include controversial issues) can be unlawful depending on the topic. If the topic is about working conditions, it can be interpreted as inhibiting Section 7 rights, if employees are prohibited from discussing such matters (either verbally or in an online format).
    Policies about employer image protections may be unlawful.
        For example, if the employer enforces a policy suggesting that employees are prohibited from commenting on legal matters, including pending litigation or disputes, the company may be unlawfully restricting employee communications. In addition, if an employer restricts which employees are permitted to discuss company information with the media, it may be unlawful. The NLRB stated that: "[e]mployees have a protected right to seek help from third parties regarding their working conditions," so employers may not restrict social media comments to non-public forums only.

The social media policy that was approved by the NLRB allows for employees to band together to discuss or improve working conditions. Businesses are encouraged to adopt and/or modify the NLRB's social media guidelines. According to the NLRB, it is still lawful to have a policy that bans harassment, bullying, discrimination, and retaliation using social media platforms. Another lawful provision in the memo stated that, "information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications" is permissible.

Although the NLRB's new social media policy guidelines are somewhat restrictive, it is still important to publish a policy. It is critically important that businesses in certain regulated industries (medical, financial, etc.) adopt social media policies that comply with industry regulations, such as HIPAA. One final suggestion is to include a “saving clause” in the company's social media policy. A “saving clause” is a statement such as, "nothing in this policy is intended to infringe upon Section 7 rights.” Such a clause may partially shield employers from liability.

Based on the number of violations outlined in the memorandum, many employers are not in compliance with the NLRB guidelines for social media policies. It is extremely important to comply in this area, as the NLRB's interpretations seem to be supported by the US court system. It is important to have your social media policy reviewed by your HR Professional or your legal counsel to ensure it does not violate an employee's Section 7 rights. It is also highly recommended for employers to contact a HR Professional or legal counsel before disciplining or terminating an employee due to his or her social media activities.