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Lombardi Law Firm

Unemployment Benefits: Facebook, Twitter, YouTube While at Work


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7/15/2015
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Many of the rules governing your workplace have little to do with you working there. Many are designed to be used against you when they either want to get rid of you or have let you go and want to deny you of some monetary benefit. Here is what I mean. Once out the door personnel departments and their cadre of lawyers head off to check your computer and the hard drive to see if you’ve been using social media on company time. If there is a policy against using social media on company time and you’ve done it, then bingo they have at least a reason to argue you should not be eligible for unemployment benefits. While you worked there management probably didn’t enforce the social media policy; they likely concluded some use of social media keeps employees happy and productive. Heck, your supervisor was likely doing what you did and probably encouraged it. But once they want to get rid of you the social media policy is a pretext to keep you from receiving unemployment benefits. I'll even bet the guy or gal who fired you was doing what you got fired for doing.

So what should you do?

  1. Know your company’s personnel policies.
  2. Follow your company’s personnel policies concerning social media.
  3. Don’t blindly follow the crowd and do what everyone else is doing – even if your manager is on Facebook don’t go against the written policy.
  4. Confine your use of social media to breaks and off-duty times.
  5. Turn your phone off when on company time.
  6. Don’t allow anyone else who is not authorized, to use your computer.
  7. If you have a question about the policy, ask your manager for written clarification.
  8. When it comes to social media keep work and play separate.
  9. Do not allow co-employees to fool you about the company's social media policy.
  10. Do not allow your boss to fool you either. Because when they want to get rid of you they will encourage bad behavior to justify getting rid of you.

Take a look at this group formed by ADP and used to keep employers informed of

Employment Law and Social Media - http://www.adp.com/tools-and-resources/newsletters/ui-forum-adp-group.aspx

UI Forum (ADP Unemployment Group)

Third Quarter 2015

Best Practices Tips - Social Media Discharges

There is a growing trend of employees spending a significant amount of their work time using social media such as Facebook, YouTube, and Twitter rather than on their job functions. According to sources such as Forbes.com, there is also a growing trend of employees using social media to make employment-related complaints or statements that may cause their employers embarrassment or damage their employers’ reputations. It is generally known that such actions can result in discharge from employment, but can they also result in a disqualification from unemployment benefits? The answer from state unemployment agencies: sometimes yes – and sometimes no. It depends on the situation. Here are best practice tips for employers seeking to obtain a “yes’ on this question.

Social Media Policy 
Generally, state unemployment agencies require that, for an employee to be disqualified from benefits, a discharged claimant must be aware that his or her actions could result in discharge. A clear and unambiguous policy which sets employer expectations regarding the use of social media, both on and off the job, can meet this notice requirement.

On-the-Job Use of Social Media 
Employees who use social media at work for personal reasons can be disqualified from benefits. However, unless the usage causes significant loss of work time, many unemployment agencies will not disqualify the employee from benefits unless the employer provided a warning prior to discharge.  As well, employers will need to provide proof that the claimant spent his work time on social media. Payroll records can be submitted to prove the claimant was at work at the time of their social media usage. The best evidence of usage includes logs of Internet activity, which proves that the claimant was the person who viewed the websites. Evidence such as personal login information is particularly helpful.

Off-the-Job Use of Social Media 
Employers can encounter difficulty in disqualifying benefits when an employee protests a discharge for off-the-job use of social media. Here are some steps you can take: First, prove that the claimant made damaging statements against the employer. This can be difficult because people frequently use a name or title other than a given name when using these websites. You should be prepared to prove that the claimant is the one who made the comment.

The second step is to prove that the claimant’s actions were “connected with the work.” In other words, prove that the claimant’s actions were harmful or detrimental to your business or damaging to your reputation. Proving harm to the business can also be difficult, but witness statements (at the claims level) and witness testimony (at the hearing) are useful. The witnesses should be prepared to state first-hand that the claimant’s statements caused harm to the business. For example: disruption in the workplace or within the chain of command that caused customers to stop giving you business, or caused unwarranted negative publicity. If you have instituted a social media policy, it may be helpful to provide the following: the policy, the claimant’s acknowledgement of the policy, and proof that the claimant’s actions violated the policy.

Finally, be prepared to address the question of whether the claimant’s actions were intentional. While the act of posting on a website is intentional, the question becomes whether the claimant intended to cause harm by his or her actions. This can be easy to determine when an employee posts an obviously negative comment, but it can be more difficult when the comment or posting itself is not obviously harmful, but still resulted in harm to the business. If a posting is not obviously detrimental, you may want to consider a warning rather than immediate discharge, especially if you plan to protest an unemployment claim.

Attorney Lombardi’s Caveat: You’ve been warned!



Category: General


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