Regulating Social Media in the Workplace

The proliferation of social media creates new and difficult situations for employers. Many employers wonder to what extent they can regulate their employee’s social media activities or legally take an employment action based on an employee’s off-duty conduct.

For better or worse, most of us carry smart phones with the capacity to text, email, comment, and upload photos and videos instantaneously. Platforms like Facebook, Twitter, Instagram and YouTube allow us to easily share our personal, and potentially controversial, opinions publicly. In addition, our viewpoints or activities can easily be disseminated by others. Take, for example, an employee is recorded saying something offensive outside of work and the video is published on someone else’s social media account.

Navigating these situations is not simple. While the First Amendment’s right to free speech generally does not apply to actions taken by private employers, there are other privacy laws in California that do. For example, the California Constitution, at Article I, Section 1, gives every citizen a right to privacy, and California Labor Code Section 980 prohibits employers from asking employees for their social media log-ins and passwords or asking them to access their social media accounts on demand. However, depending on the circumstances, once an employee publishes on social media, the right to privacy may be considered waived.

California law, found at Labor Code Section 96(k), protects employees’ rights to engage in lawful off-duty conduct, and provides remedies when employment is adversely affected in violation of these laws. However, off-duty conduct that harms or potentially harms the employer’s business interests or involves a crime may be a valid basis for an employment decision. Since these are tricky situations, the individual facts must be considered and an employer may want to consult with legal counsel before taking action.

We recommend employers adopt a standard policy to handle these situations. Below are some guidelines to keep in mind when adopting a social media policy.

What Employers Can Regulate
Employers can restrict an employee’s social media behavior in the following ways:

  • Use of personal social media during work time or on the employer’s equipment (company computers, phones)
  • Use of the employer’s name, logos, brand names, slogans or trademarks and appearing to speak on behalf of the employer
  • Communications about confidential or proprietary employer information including non-public information that may be valuable to competitors, such as client lists, product information, and pricing
  • Posts about co-workers, supervisors, or the employer, competitors or suppliers that are vulgar, obscene, threatening, harassing, libelous, or discriminatory based on a protected class (but be careful about regulating negative posts made in the context of discussing terms and conditions of employment protected by the National Labor Relations Act, discussed below)
  • If the employee chooses to identify themselves as an employee of the employer on any social media network, you can require them to state in clear terms that the views expressed on the social media network are theirs alone and that they do not necessarily reflect the views of the company
  • Unlawful conduct, even when it occurs off-duty

What Employers Can’t Regulate
Employers should not prohibit or restrict the following:

  • An employee’s communications about wages, hours, or other terms and conditions of their employment as these may be protected under the National Labor Relations Act
  • Disclosure of facts related to sexual harassment in the workplace, as these may be protected depending on the circumstances
  • An employee’s communications about their political beliefs, political associations or affiliations, engaging or participating in politics, and/or becoming candidates for public office

Before taking any adverse action against an employee based on a social media post or other off-duty conduct, employers should consider the following:

  • Does the activity negatively affect the employer’s business? How?
  • Does the activity violate the employer’s social media policy?
  • Is the employer enforcing the policy uniformly? For example, have other employees posted similar content or about similar topics without being disciplined?
  • Can the employer legally take action, or is the activity in question protected under the law? Consult legal counsel if you have any doubts.
  • How did the employer learn of the posting or conduct? Did they learn in a way that could be considered an invasion of privacy?
  • How will taking action affect employee morale?
  • How will the action be perceived by the employer’s customers, community and the public if it is publicized?

Taking action based on an employee’s off-duty conduct or social media activity can be challenging for employers, and there are many factors to consider. Employers should think about the legal risks involved and adopt a legally compliant policy. As always, we recommend employers work with legal counsel when handling these sensitive issues.

For questions about this or other employment matters contact DP&F’s Employment Team, Jennifer Douglas, Marissa Buck or Sarah Hirschfeld-Sussman.

 

Governor Newsom Signs New Employee Recall Law (SB-93) – Effective Immediately

SB-93 was signed by Governor Newsom on April 16, 2021 and is effective immediately. The new law requires certain employers to recall eligible workers who were laid-off for reasons related to COVID-19 if their prior positions become available. Here are the key parts of the law employers need to know:

  • Covered Employers: SB-93 only applies to employers who operate an “enterprise,” which is defined as a “hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building service to office, retail, or other commercial buildings” regardless of the number of employees.
    • Hotel means a building offering overnight lodging to the public with 50 or more guest rooms, or suites of rooms.
    • Private club means a membership-based business that operates a building with 50 or more guest rooms, or suites of rooms, for overnight lodging for members.
    • Building service means janitorial, building maintenance, or security services for office, retail, or other commercial buildings.
  • Laid-Off Employees: Laid-off employees are eligible to be offered employment if they were: (1) employed for six months or more from January 1, 2019 to January 1, 2020, full-time or part-time; and (2) most recently separated from active service due to a “reason related to the COVID-19 pandemic.” Reasons related to COVID-19 include: a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.
  • Requirements: Covered employers must offer laid-off employees open positions that (1) become available after April 16, 2021, and (2) are the same or similar to the laid-off employee’s position at the time of the employee’s most recent layoff. Employers must make an offer within five business days of establishing the position, and give the employee five business days to accept or decline the offer.
    • The offer must be made in writing and delivered in person or by mail to the employee’s last known address, and by email and text message if the employer has that contact information.
    • If more than one laid-off employee qualifies for a position, the employer must offer the position to the employee with the longest length of service, which is the total of all periods the employee worked for employer since their hire date including time when they were on leave or vacation.
    • If the laid-off employee is not qualified for the open position, the employer must provide written notice within 30 days stating the length of service of the individual who was hired and the reasons for the employer’s decision not to hire the laid-off employee.
  • Record Retention: For each laid-off employee, employers must maintain the following records for three years from the date of the written notice of layoff:
    • The employee’s full legal name
    • The employee’s job classification at the time of separation from employment
    • The employee’s date of hire
    • The employee’s last known residential address
    • The employee’s last known email address
    • The employee’s last known telephone number
    • A copy of written layoff notices provided to the employee, and
    • All records of communications between the employer and the laid-off employee concerning offers of employment made pursuant to SB-93

The law allows laid off employees to file a complaint with the Division of Labor Standards Enforcement (“DLSE”) for violations of SB-93, and employers who violate the provisions of the law may be subject to penalties. The full text of the law can be found here.

If you have any questions about this or any other employment related matters, please contact DP&F’s employment team, Jennifer Douglas, Marissa Buck or Sarah Hirschfeld-Sussman.

Employer Focused Summary of American Rescue Plan Act and California COVID-19 Supplemental Paid Sick Leave Act

The American Rescue Plan passed and signed into law by President Biden on March 11, 2021 extends and resets the FFCRA after its expiration on March 31. The extension and reset goes into effect on April 1 through September 30, 2021.

In addition, Governor Newsom signed a new COVID-19 Supplemental Paid Sick Leave Act (SB-95) into law this past Friday, March 19 which is retroactive to January 1, 2021 and extends through September 30, 2021.

The relevant portions of the two laws are summarized below.

Federal: American Rescue Plan Act (“ARPA”)

  • <500 Employees: The provisions of the ARPA only apply to employers with less than 500 employees.
  • Additional Leave as of April 1: Amount of FFCRA leave available is reset to up to 80 hours (10 days) of emergency paid sick leave (“EPSL”) and up to 12 weeks of emergency FMLA leave (“EFMLA”).
    • Leave taken prior to April 1 will not count toward the reset cap
  • Providing Leave Not Required: Employers are not required to provide paid leave, but if they choose to they will receive payroll tax credits for doing so until September 30, 2021.
  • New Qualifying Reasons for Leave: ARPA expands the qualifying reasons for taking leave under both the EPSL and EFMLA to include:
    • Seeking or awaiting results of COVID-19 test after an exposure or at an employer’s request;
    • Vaccination appointments;
    • Conditions or complications related to receiving the COVID-19 vaccine.
  • Changes to Paid Leave for EFMLA: ARPA expands the amount of paid leave available under the EFMLA as follows:
    • Eliminates the requirement that the first 10 days of EFMLA is unpaid;
    • Increases the total tax credit cap for EFMLA from $10,000 to $12,000 per employee.
  • Additional Qualifying Reasons and Pay for both EPSL and EFMLA: Under the ARPA, both EPSL and EFMLA can be taken for the following qualifying reasons (in addition to the new reasons listed above). Note that this is an expansion of the EFMLA leave, which was previously only allowed for childcare purposes.
  • Additional Qualifying Reasons and Pay for both EPSL and EFMLA: Under the ARPA, both EPSL and EFMLA can be taken for the following qualifying reasons (in addition to the new reasons listed above). Note that this is an expansion of the EFMLA leave, which was previously only allowed for childcare purposes.
    • Qualifying Reasons Related to the Employee’s Own Health:
      • Subject to quarantine or isolation order due to COVID-19;
      • Advised to self-quarantine by heath care provider due to COVID-19;
      • Experiencing symptoms of COVID-19 and seeking medical diagnosis.
      • Under the EPSL this is paid at the employee’s regular rate of pay, up to $511/day (capped at $5,110) total; under the EFMLA it is limited to 2/3 of the employee’s regular rate of pay, up to $200/day (capped at $12,000 total)
    • Qualifying Reasons Related to Employee’s Need to Care for others:
      • Caring for a family member who is subject to quarantine, or has been advised to self-quarantine;
      • Caring for a child whose school or child care is closed due to COVID-19.
      • Under both EPSL and EFMLA this is paid at 2/3 employee’s regular rate of pay, up to $200 per day.
  • New Non-Discrimination Rule: The new law prohibits the tax credit for employers that discriminate in giving FFCRA paid leave by favoring highly compensated employees, full-time employees, or employees on the basis of tenure with the employer. If employers do not make FFCRA paid leave available to all employees without respect to their compensation level, job category or seniority, they could be denied the tax credit.

California: SB-95 – COVID-19 Supplemental Sick Leave

  • 26+ Employees: The law requires employers with 26 or more employees to provide supplemental paid sick leave for COVID-19 reasons. The law does not apply to employers with 25 or fewer employees, however these employers are covered under the federal ARPA discussed above. Employers with 500+ employees will be covered by SB-95 and not by the federal ARPA.
  • Retroactive to January 1 and through September 30: The requirement to provide the paid sick leave will take effect on March 29 (10 days after law enacted), at which point it will be retroactive to January 1, and extend until September 30, 2021. This means that if you did not provide paid sick leave for qualifying reasons as of January 1, but instead provided unpaid leave, you will need to provide pay for that leave retroactively by the next full pay period to comply with this law (note that you may qualify for FFCRA tax credits for doing so).
  • Reasons for Leave: Employers must provide supplemental paid sick leave for employees that are unable to work or telework due to any of the following reasons:
    • Subject to quarantine or isolation order or guidelines due to COVID-19;
    • Advised to self-quarantine by heath care provider;
    • Attending vaccine appointment;
    • Experiencing symptoms of COVID-19 and seeking medical diagnosis;
    • Caring for a family member who is subject to quarantine, or has been advised to self-quarantine;
    • Caring for a child whose school or child care is closed or unavailable due to COVID-19.
  • Amount of Leave: Full-time employees (work at least 40 hours per week on average) are entitled to 80 hours of supplemental paid sick leave. Other employees are entitled to the average amount of hours they normally work over a 14-day period.
  • Amount of Pay: Employees get their regular pay during leave, up to a maximum of $511 per day, and $5,110 total.
  • Separate from Sick Leave on Wage Statement: The COVID-19 Supplemental Paid Sick Leave is a separate entitlement from other paid sick leave provided by the employer, and must be listed separately on the written notice or wage statement provided to employees.
  • Model Notice Forthcoming: The Labor Commissioner shall make a model notice available by the end of this week that employers can send to employees.

If you have questions or need further information please feel free to reach out to DP&F’s Employment Team, Jennifer Douglas, Marissa Buck and Sarah Hirschfeld-Sussman. This post is provided for general informational purposes only and should not be construed as legal advice. The various governmental agencies tasked with enforcing these laws will likely publish FAQs addressing some of the uncertainties that may develop as to how these laws will work in practice. We encourage you to check with those agencies frequently for regulatory guidance.

COVID-19 Employment Update Emails By Date

Sample Notice Throughout the COVID-19 crisis our employment department has kept clients informed.  Below are the emails by date with the newest at the top.  As we send each new update we will update this resource page so that people can review as needed.

Note: These posts are made available for general informational purposes only and none of the information provided should be considered to constitute legal advice.

05.04.2021 – New California Non-Workplace Face Mask Guidance

04.28.2021 – Mask Wearing is Still Required for CA Employees in the Workplace

04.15.2021 – Sample Mandatory COVID-19 Vaccination Policy

04.08.2021 – Employer Obligation to Provide COBRA Subsidy

03.24.2021 – Sick Leave Poster and FAQs

03.22.2021 – Employer Focused Summary of Recent Federal and State COVID Relief Bills

02.23.2021 – COVID Scenarios Chart  

02.05.2021 – COVID Sick Pay for Santa Rosa Employees

01.21.2021 – Cal/Osha Webinar on COVID-19 Regulations for Employers

12.29.2020 – New COVID-19 Relief Bill Highlights

12.17.2020 – COVID Order and Reminders

12.04.2020 – Regional Stay Home Order

12.02.2020 – New Cal/OSHA Emergency Standards for COVID-19 Prevention

11.10.2020 – New Covid-19 Related Laws

10.21.2020 – New Guidelines for Napa County Businesses

09.23.2020 – Three Important New Laws

08.27.2020 – Clarifying CDC Confusion on Testing and Exposure Guidelines

08.21.2020 – Wildfires, Smoke and Power Outages

07.24.2020 – COVID-19 Updates and Reminders

07.13.2020 – New Statewide COVID-19 Restrictions

07.09.2020 – Local Counties on State Watch List

06.19.2020 – Mandatory Face Coverings, SoCo Covid-19 Check App Update and Tips

06.08.2020 – Things Employers Should Keep in Mind with New Orders

06.01.2020 – Status on SoCo COVID-19 Check App

05.29.2020 – Clarification for Sonoma County Dine In Businesses

05.29.2020  – Sonoma County Drama with Practical Takeaways for All

05.27.2020 – COVID-19 Exposure Protocol

05.26.2020 – Checklists for Reopening in Napa and Marin Counties

05.26.2020 – Sonoma County’s Expanded Stage 2 – There’s an app for that

05.18.2020 – PPP Loan Forgiveness Guidance

05.12.2020 – The Map and Other Resources to Help Plan Your Reopening

05.07.2020 – Highlights of Napa County’s Updated Shelter in Place Order Including Cloth Face Covering Requirement for the Workplace

05.05.2020 -Issues for Onsite Employees During Mid-COVID

04.22.2020 – Napa and Marin County Updates to Shelter in Place Orders

04.08.2020 – Finally! Specific Guidance For Potential Workplace COVID Exposure

04.06.2020 – Napa Order, Employee Work Pass and DOL Regulation Updates

04.01.2020 – Stricter Shelter in Place Orders and Required Posting of Social Distancing Protocol

03.31.2020 – IRS FAQs on FFCRA and CARES

03.29.2020 – DOL Answers Key FFCRA Paid Leave Questions

03.27.2020 – Spanish DOL FFRCA Poster

03.27.2020 – Employer Focused CARES Summary

03.25.2020 – FFCRA DOL Poster and Guidance

03.25.2020 – DOL FAQ re Coverage

03.23.2020 – DOL’s Summary of Key FFCRA Components

03.21.2020 – Clarification of Essential Workers

03.19.2020 – Guidance on the Essential Critical Infrastructure

03.19.2020 – Governor Issues Stay at Home Order

03.19.2020 – Families First Coronavirus Response Act Summary

03.17.2020 – A Small Slice of Clarity

03.16.2020 – COVID 19

03.10.2020 – COVID 19 Sample Notice

Employer Obligations for Heat Illness Prevention during Harvest

This weekend, the weather forecasters predict temperatures in Napa County will reach 108 degrees with parts of Sonoma County and Mendocino County topping 112 degrees.  Even in the early hours, agricultural laborers working harvest may be exposed to high heat conditions.  What follows is a quick refresher for those employers with outside work areas on their legal obligations for heat illness prevention. We encourage all employers to “over-deliver” when appropriate on these standards.

The Cal/OSHA regulations require employers to:

1. Provide fresh water.

Employers must provide employees with fresh, pure, and suitably cool water, free of charge. Enough water must be provided for each employee to drink at least one quart, or four 8-ounce glasses, per hour and the water must be located as close as practicable to the work area. Employers are also required to encourage employees to drink water frequently

2. Provide access to shade.

When temperatures exceed 80 degrees, employees must be provided shade at all times in an area that is ventilated, cooled, or open to air and that is as close as practicable to the work area. There must be sufficient space provided in the shade to accommodate all employees taking rest. When temperatures do not exceed 80 degrees, employees must be provided timely access to shade upon request. Employees should be allowed and encouraged to take preventative cool-down rest as needed, for at least 5 minutes per rest needed.

3. Have high heat procedures in place.

High heat procedures are required of agricultural employers when temperatures exceed 95 degrees. The procedures must provide for the maintenance of effective communication with supervisors at all times, observance of employees for symptoms of heat illness, procedures for calling for emergency medical services, reminders for employees to drink water, pre-shift meetings to review heat procedures and the encouragement of employees to drink plenty of water and take preventative cool-down rest as needed.

Agricultural employers must additionally ensure employees take, at a minimum, one 10-minute preventative cool-down rest period every two hours in periods of high heat.

4. Allow for acclimatization.

New employees or those newly assigned to a high heat area must be closely observed for the first 14 days of their assignment. All employees must be observed for signs of heat illness during heat waves. A “heat wave” is any day where the temperature predicted is at least 80 degrees and 10 degrees higher than the average high daily temperature the preceding 5 days.

5. Train all employees regarding heat illness prevention.

Employees must be trained regarding the risk factors of heat illness and the employers’ procedures and obligations for complying with the Cal/OSHA requirements for heat illness prevention. Supervisors must additionally be trained regarding their obligations under the heat illness prevention plan and how to monitor weather reports and how to respond to heat warnings.

6. Have emergency response procedures. 

Employers must have sufficient emergency response procedures to ensure employees exhibiting signs of heat illness are monitored and emergency medical services are called if necessary.

7. Have a Heat Illness Prevention Plan.

Employers must have a written heat illness prevention plan that includes, at a minimum, the procedures for access to shade and water, high heat procedures, emergency response procedures, and acclimatization methods and procedures.

For questions regarding California obligations for heat illness prevention, contact Valerie Perdue at [email protected] or Greg Walsh at [email protected].

2014 Wage and Hour Update

DP&F’s co-managing partner, Greg Walsh, presented on current employment law issues to members of the Napa/Sonoma Chapter of Women for Wine Sense, an organization for wine industry professionals and enthusiasts.

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Cover - Women for Wine Sense