Symposium gives insight about employment law

The Internet and its liabilities were popular topics at the 2008 Labor, Employment and Benefits Symposium, presented Oct. 30 in Springfield by attorneys with Shughart Thomson & Kilroy PC.

The symposium, cosponsored by the Springfield Area Chamber of Commerce, touched on topics ranging from immigration compliance to noncompete and confidentiality agreements to Family and Medical Leave Act issues, including the new military leave amendment.

Shughart, Thomson & Kilroy attorneys also addressed National Labor Relations Board decisions related to union and nonunion employees, strategies for developing self-funded health plans, protecting computer networks and data from employee theft, and the definition of "gross misconduct" and how that affects benefits under the Consolidated Omnibus Budget Reconciliation Act, or COBRA.

What Did You Do Last Night?

Blogs, once the purview of the tech-savvy young, are now everywhere.

Today's blogger is just as likely to be "me, 53, as opposed to someone 22, although hopefully I would have the horse sense not to get on and do anything crazy with my blog," said Attorney Carol C. Barnett, who works in Shughart Thomson & Kilroy's St. Joseph office.

Barnett addressed blogging in her program, "What Did You Do Last Night? Regulating Off-Duty Conduct in the Workplace."

Off-duty behavior is only of concern if it reflects on the employer, but with blogs, that is often the case.

More than 8 million Americans blog, and readership of those blogs is up 58 percent, Barnett said. The ease of starting a blog and the perceived anonymity of the Internet encourage freewheeling expression.

While most blogs are focused on employees' personal interests, Barnett said, the problem for employers occurs when bloggers:

• cross the line by bad-mouthing the company, supervisors or co-workers, or violate existing company policies;

• leak trade secrets or proprietary information through comments or photos;

• blog on company time; or

• include content that is sexually explicit, controversial or in poor taste.

While employers might want to decisively quell an employee blog criticizing the company, such blogs may be protected speech under whistleblower or concerted activity laws, but Barnett said the solution is to have an electronic communication policy in place. Such policies, Barnett noted, should address company confidentiality and trade secrets; defamatory speech and appropriate respect for others; anti-harassment issues; and disclaimers that opinions expressed are those of the employee and not the employers.

Blogging at work, Barnett said, "feeds back into the whole issue of monitoring communications at work, which employers are entitled to do, but it's much better if they have a signed waiver from employees or at a minimum, a very seriously drafted electronic communications policy."

Right now, she said, there's a learning curve. Widely available monitoring software often puts employer practice ahead of policymaking.

"They have the software, but they don't yet have the policy to let employees know they're using the software," Barnett said, adding, "You do need to be explicit about the right to monitor the communications."

Meanwhile, her advice for employers who stumble onto an employee blog that angers them is to "blow off steam with your legal adviser," but "I definitely would not consider blogging about it."

MySpace meets workspace

Another hot-button issue related to the Internet and the workplace is social networking sites, such as Facebook and MySpace, and the risks they represent in hiring.

In "Hiring and Social Networking - What You Need to Know," attorney Karen R. Glickstein noted that while some employers look to the Internet as a way to perform a no-cost background check, the problem lies in checking on an unofficial and inconsistent basis.

Using Google to search for information about a job applicant may unearth information that could not legally be obtained in a job interview, and that could trigger federal issues, such as discrimination based on race, religion or national origin, or discrimination related to disability and benefits.

Because the person whose profile or blog is online can track visitors, an employer could lay the groundwork for legal action just by looking at the applicant's blog or MySpace page. For example, Glickstein said, on Monday, an applicant has what she thinks is a great interview; on Tuesday, the employer visits the applicant's blog, where she talks about being a cancer survivor; on Wednesday, the applicant is rejected. Was the applicant's health a factor in her rejection? Her lawyer might argue that it was.

But that doesn't mean that social networking sites are off limits. Rather, Glickstein, an attorney in Shughart, Thomson & Kilroy's Kansas City office, recommends:

• that the employer have an official written policy in place regarding the use of social networking sites in the hiring process;

• that applicants be informed upfront about the policy and sign off on it;

• that the checking of information on social networking sites be centralized and occur only after a conditional job offer; and

• if questionable content is found, the applicant should be given an opportunity to respond.

A full agenda

The event's keynote speaker was Todd Smith, director of the Missouri Department of Labor and Industrial Relations.

Smith highlighted the department's accomplishments, including modernization of the unemployment insurance system.

Modernization was desperately needed, he said. The Department of Employment Security had been working with a 40-year-old computer system written in assembler - a first-generation computer language that pre-dates Common Business Oriented Language, or COBOL programming.

Employers can now file Missouri unemployment tax reports online through the automated USTAR system, while unemployment folders - until recently actual manila folders that were transported from regional offices to Jefferson City and back - are now electronic. The new Missouri Access debit card for unemployment benefits eliminates paper checks, which is expected to save taxpayers $643,762 per year.

Meanwhile, Smith reported that workers' compensation insurance rates are going down, and though that's good news for employers, it's bad news for the state's Second Injury Fund.

The fund's revenue is tied to work comp premiums, and while Second Injury payouts have risen, work comp premiums - and fund revenues - have declined. Projected fund revenue for 2008 is around $57 million versus projected expenditures of around $73 million. Smith said the state projects the Second Injury Fund will run out of money in March 2009.

Response to the symposium, especially the Internet programs, was positive.

"I thought it was great," said Mindy McCombs, vice president of human resources for Monett-based EFCO Corp.

McCombs, one of 70 symposium participants from the region, said she was particularly interested in "some of the newer items with blogging and electronic communications, the things that you don't think about all the time."

Shughart Thomson & Kilroy holds its Labor, Employment and Benefits Symposium every two years to provide updated information on employment law issues to area businesses.