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Paid Voting Leave

October 26th, 2021 by admin

Posted in Ask A Worker's Rights Attorney!, Workplace Rights |

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Need To Take Time Off From Work To Vote on November 2, 2021? 

On Tuesday, November 2, 2021, polls in New York will be open from 6:00 am to 9:00 pm.

Employees in New York are eligible for up to two hours of paid time off to vote in certain circumstances. 

Specifically, if you don’t have “sufficient time to vote” during your workday, NYS Election law gives you up to two hours paid time off to vote. Election Law §3-110. By contrast, you are deemed to have “sufficient time to vote” if you have four consecutive hours to vote either from the opening of the polls to the beginning of your shift, or four consecutive hours between the end of your shift and the closing of the polls. Id. 

Here’s an example.  If you must work from 9:00 am to 5:00 pm on Tuesday, November 2, 2021, the election law deems you as having “sufficient time to vote” and therefore not eligible to paid voting leave.  This is because the polls are open until 9:00 pm – which is four consecutive hours after the end of your shift at 5:00 pm.  If, however, you work from 9:00 am to 6:00 pm on Tuesday, November 2, 2021, you can get paid voting leave because the polls are open for only three consecutive hours after the end of your shift. The total amount of paid time off you are entitled to depends on several factors, including travel time from your workplace to your polling place, waiting time at your polling place, traffic, among other things. The maximum paid time off to vote is capped at two hours. 

Please note the following: 

  • You are required to give your employer at least two working days prior notice of your intention to take paid time off to vote, but not more than ten working days’ notice. The term “working days” is defined as any day that your employer is open for business. 
  • Your employer cannot require you to use personal time off or any other form of earned leave time to vote. 
  • Regardless of your vaccination status, masks are required for all individuals entering polling locations. 

If, you believe your employer is impermissibly denying you paid time off for voting, contact a workers’ rights attorney or the New York State Department of Labor.  

UPDATE:  The COVID-19 Vaccination and Your Workplace.  Know Your Rights!

October 12th, 2021 by Sarah Ruhlen

Posted in COVID-19 In The New York Workplace, Workplace Rights |

Tags: , , , , , , , , , , , , , , , , , , , ,

This article is an update of our January 27, 2021 blog post. 

As more and more employers implement mandatory vaccination policies for employees, it’s important for employees to understand why the requirement is legal, and what their options are.

Legal challenges to vaccine mandates have not, so far, been successful.  Applications for injunctive relief have been denied, and a federal court in Texas has rejected wrongful termination and public policy arguments.  New York City Municipal Labor Committee, et al. v. City of New York, et. al, Index No. 158368/2021 (New York Co. September 22, 2021); Bridges, et al v. Houston Methodist Hospital, et al., H-21-1774 (SD Tex. June 12, 2021).

This said, employees who are afflicted with disabilities that make it dangerous for them to be vaccinated, as well as employees with sincerely-held religious beliefs, may be able to seek a reasonable accommodation. Each employer has its own process for requesting those accommodations, and determining whether there is a reasonable accommodation available involves an interactive process that requires the cooperation of both employer and employee. Below, we recap several FAQs from our previous vaccination article.

Can my employer demand that I receive the COVID-19 vaccine as a condition of employment?

Yes. Requiring the vaccine is not a medical exam, nor does it seek information about your current health status or impairments. A vaccine mandate does not in itself violate discrimination laws if the mandate allows a case-by-case assessment of whether there a reasonable accommodation could be provided for those who need it.

What if I do not want to be vaccinated because of my disability or because of my sincerely-held religious beliefs?

If your disability or religious beliefs prevent you from being vaccinated, you may request an accommodation from your employer.  When you request an accommodation, your employer needs to determine if you, as an unvaccinated employee, pose a “direct threat” to the health and safety of yourself or others, and whether the threat can be eliminated or reduced by a reasonable accommodation.

If the  assessment results in a finding of direct threat, your employer will try to determine if there is a reasonable accommodation that would allow you to continue to work. This interactive process includes getting information from you and your doctor or religious leader. It is important for employees to cooperate in the interactive process; failure to do so can result in termination. Keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, you may be terminated.

Can my employer ask for proof that I have received the COVID-19 vaccine?

Yes. Simply requesting proof of a COVID-19 vaccine is not likely to elicit information about a disability and, as such, is not a disability-related inquiry that would trigger ADA or other health information privacy protections. However, if you have not been vaccinated due to a medical condition, you’ll need to be prepared to request an accommodation, which will require you to provide  medical information to allow the employer to determine what kind of accommodation can be provided.

Do I have ADA protection if my employer administers the COVID-19 vaccine ? 

Yes. The pre-vaccination medical screening questions are likely to elicit information about your health. When these questions are asked by your employer (this might happen in the healthcare context), they meet the ADA definition of a “disability-related” inquiry, and, as a result, you are entitled to ADA protection. The ADA requires that the disability-related screening questions be “job related and consistent with business necessity.” If you are concerned that your employer’s mandatory vaccination program does not meet this threshold, contact an attorney for advice.

Five Things You Need To Know About Marital Status Discrimination In New York

May 5th, 2021 by Sarah Ruhlen

Posted in Workplace Rights |

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Discrimination on the basis of an employee’s marital status is prohibited under Section 296 of the New York State Human Rights Law and under Section 8-107(a) of the New York City Administrative Code. However, “marital status discrimination” might not be what you think it is – and the definition is different depending on whether you are looking at the State statute or the New York City statute.

  1. Under New York State Law, Marital Status Discrimination Is Not…

The decision to be aware of here is Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y. 2d 506 (1980), which went like this: Notwithstanding an employer’s anti-nepotism rule, an employee had worked under the supervision of her husband for approximately four years. When a new manager took over, he terminated the wife’s employment pursuant to the anti-nepotism rule. The New York State Court of Appeals concluded that the employer’s action was not marital status discrimination. How is this possible? Because, reasoned the Court, marital status is a question of whether the employee is married, single, widowed, separated, or divorced. Marital status has nothing to do with whom the employee is married to. The employee in Manhattan Pizza Hut was not fired because she was married, but because she was married to her supervisor.

The Manhattan Pizza Hut logic has carried into situations where a company refused to hire an applicant because her husband was already employed there (Matter of Campbell Plastics v. New York State Human Rights Appeal Board, 81 A.D. 2d 1991 (3rd Dept. 1981)) and to a denial of health insurance to an employee who has comparable coverage under a spouse’s insurance benefit (Police Ass’n v. NYS PERB, 126 A.D. 2d 824 (3rd Dept. 1987)). A corrections officer who married an inmate was discharged, not because of her status as “married,” but because she broke a rule against having a relationship with an inmate. Vega v. Dept. of Correctional Services, 186 A.D. 2d 340 (3rd Dept. 1992). In Cramer v. Newburgh Molded Products, 228 A.D. 2d 541 (2d Dept. 1996) an allegation that a plaintiff was terminated “because she was married to Joseph Cramer” did not survive a motion to dismiss because the termination was based on her being married “to Joseph Cramer” rather than simply on her being married. In McGrath v. Nassau Health Care Corp. , 217 F. Supp. 2d 319 (EDNY 2002), an employee who was sexually harassed did not additionally have a marital status discrimination claim even though her harasser made comments to the effect that she would be “stupid” to marry her fiancé, refused to give her time off to plan her wedding, told her she should not be sleeping with her husband, and tried to dissuade her from going through with the marriage during the wedding.

  1. Marital Status Discrimination Might Be…

In Kipper v. Doron Precision Systems, 194 A.D. 2d 855 (3rd Dept. 1993), an employee’s marital discrimination suit survived dismissal[1] because there was evidence his supervisor told him he was chosen for layoff because he would not experience financial hardships as severe as his married co-workers. The Kipper plaintiff was not laid off because of his involvement or non-involvement with anyone in particular, but because the employer considered him less vulnerable to financial hardship because he was single.[2]

  1. Meanwhile, in New York City…

Contrary to State Law, New York City’s marital status discrimination prohibition is given a “broader meaning than simply married or not married.” Morse v. Fidessa Corp., 165 A.D. 3d 61 (1st Dept. 2018). In direct contrast to the State Court of Appeals’ analysis of State Human Rights Law, the First Department has concluded that the “plain meaning” of marital status includes who the person is married to. In Fidessa, the First Department rejected the Manhattan Pizza Hut definition of “marital status” and specifically found that, under New York City Code, it also encompasses who is married (or not married) to whom.

Likewise, very recently, where a University rescinded its invitation to be part of a new institute following a professor’s divorce from another professor, the NYC marital discrimination suit survived summary judgment.[3] Karayiorgou v. Trustees of Columbia University, 2021 N.Y.  Slip. Op. 31044(U) (NY Co. January 14, 2021). Although factual issues of Karayiorgou remain to be determined, the Court noted strong evidence that the professor had been invited on the strength of her significant contributions to the scientific community, and that un-inviting her based on her ending her relationship with another professor not only constituted marital discrimination, but also smacked of gender bias in that the University’s arguments tried to downplay the plaintiff’s credentials and accomplishments.

  1. What About Other States?

Unfortunately, for the vast majority of employees,[4] federal discrimination law does not specifically prohibit discrimination on the basis of marital status. A survey of the 50 states’ laws on marital discrimination is beyond the scope of this article, so as always we strongly encourage you to consult with a qualified employment attorney in your jurisdiction.

  1. Wait, am I protected or not?

Short answer: Employees in New York City have relatively strong protections against marital status discrimination. Employees in New York State have protections that have been significantly limited by decisional law. Protections in other states depend on state and local laws and regulations. Bottom line, if you believe you have been discriminated against due to your marital status, the first thing you should do is contact an employment lawyer in your jurisdiction to see what kind of protections you might have, and what if anything can be done to protect your rights.

[1] Surviving a motion to dismiss just means that the case isn’t thrown out of court. It doesn’t mean he won.

[2] Notice anything about the breakdown between plaintiffs’ genders in Item #1 versus Item #2? Don’t try to hang your legal hat on it, but it may say something about what these decisions are trying to accomplish.

[3] Like a motion to dismiss, surviving summary judgment just means that the case isn’t thrown out of court. It doesn’t mean she won.

[4] Employees in the Federal Civil Service do have some protections under the Civil Service Reform Act of 1978, which includes marital status as a protected status.

Yes, Your Employer Has To Pay For Vaccination Time

April 29th, 2021 by Sarah Ruhlen

Posted in Workplace Rights |

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On March 12 New York passed a law [link here] entitling New York workers to up to four hours of paid leave for COVID-19 vaccinations.  That is four hours per injection, which means if you get the Moderna or Pfizer injection, you get a total of two four-hour chunks of leave to get the shots.

Employers have to provide this leave in addition to other leave, which means they can’t make you use sick leave or New York State Paid Leave to cover your vaccine leave.

The leave must be paid at your regular rate.  Retaliation against employees who take vaccination leave is illegal.

The law amends New York Civil Service Law to add Section 159-c, which applies to public employees, and New York Labor Law to add 196-c, which applies to pretty much everyone else.

The law expires on December 31, 2022.

Get out there and get your “Fauci Ouchi!”

Talking About Your Case?  Let’s Talk About That.

April 14th, 2021 by Sarah Ruhlen

Posted in Uncategorized |

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Of course you want to take your story to the press. You feel you owe it to other employees to expose what has happened to you. It could be the trial of the century. Whether you want to explain it to TikTok, get hugs from Facebook, or rant on Twitter, the world needs to know what these people are doing to you, right?

 

Hold up!!!

 

Getting your story out may feel very satisfying in the short-term, but you may end up regretting the legal consequences later.

 

First, if you are pursuing legal action, or considering pursuing legal action, every word you say to the press or on social media could end up as evidence admissible in court – evidence you don’t want admitted. Plus, if your complaint uses the word “bluegreen” and your Facebook post says “turquoise,” the other side’s attorney is going to have a heyday with the perceived inconsistency. Even totally innocent statements can be twisted to contradict a key element of your claim, and your lawyer may not be able to untangle the mess.

 

Second, if you’re making allegations you can’t prove, the other side may be able to turn around and sue you for defamation. While in some states, statements made “in the course of litigation” may be privileged, the other side is going to have a mighty strong argument that allegations made on Twitter or in an email to a reporter aren’t made “in the course of litigation.”

 

Third, any time you speak you risk divulging confidential information. So if the employer thinks there is a confidentiality breach, you might find yourself getting sued for that breach.

 

Fourth, the employer might be willing to make a settlement offer – in return for a nondisclosure agreement. But an employer who is already paying lots of money to a PR firm to clean up the bad press you’ve created might not see a reason to pay you, too.

 

Fifth, you’ve heard of internet trolls. Internet backlash is real, vicious, and devastating, No matter how angelically you have behaved, some stranger out there may take devilish glee in throwing mud—or worse—at you.

 

What if the press contacted me?

 

All of the above applies, times 100. If the press contacted you then the last thing you want is to feed the fire at the same time you destroy your own case.

 

But the other side is saying terrible things about me!

 

Two points here:  First, if the other side is an employer, they can afford a lot more PR firm time than you can. Second, see above about all the ways a public statement can backfire. That said, if you have had a long talk with your attorney and your attorney has given you the go-ahead, preferably with a very careful set of rules about what you will and will not say, then it’s ok to respond to media attacks – but stick to the script. If you go off-message, you’re going to pay for a lot of legal hours while your lawyer cleans up the mess.

 

So mum’s the word?

 

Well, no. Your attorney may have some reasons for wanting to release measured statements. For example, if your matter involves a large group of people who may have experienced the same workplace violation, your lawyer may want to enlist the press in finding other victims. The same method can help locate witnesses. In some circumstances, the lawyer may even consider it useful to for you to give a statement.

 

Bottom line:  Whatever you do, if you want to win your suit, never speak to the press without consulting legal counsel first.

Seven Things LGBTQ Workers Need To Know About Protecting Title VII Rights

March 3rd, 2021 by Sarah Ruhlen

Posted in Workplace Rights |

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On June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, GA that Title VII protects LGBTQ employees from workplace discrimination.  Even in the midst of the pandemic shutdown and the murder of George Floyd, workers and workers’ rights activists took to the (virtual) streets in celebration. Social media was covered in rainbow flags and memes involving unicorns and RBG.  Bostock was a desperately-needed ray of sunshine that week.

 

It still is.

 

If you’re feeling like the magic is gone, it may be because Title VII rights are tough to assert—for workers in any protected class.  Here are some lessons from the trenches:

 

  1. Get a lawyer. A workers’ rights attorney can advise whether there’s something legally wrong in the workplace, what options you have for combatting it, and how much it will cost to combat.  While it’s possible you have the case of the century, more often an attorney is going to be helping you decide when to fight, when to walk away, and when to run… (cue Kenny Rogers…)

 

  1. Document like mad. Is your employer needlessly complicating a name change process?  Do your coworkers constantly misgender and dead-name?  Is health insurance paying for cancer-related mastectomies but not those for TGNC patients?  Are you being asked non-job related health questions?  Is someone obsessed with which bathroom you use?  Specific, real-time documentation is your talisman.  Write down dates, times, locations, witnesses, what happened, what was said, and the effect the incident had on you (e.g., high blood pressure, PTSD, shaky hands all afternoon, felt humiliated, etc.)  The more exactly you can remember the wording of any comments, the better.  Send this information to yourself on your personal email account (NOT your work account, please).  Your attorney will be grateful for this real-time documentation.

 

  1. Use the complaint process – with caution. This is where the advice of an attorney is indispensable.  Making an internal complaint is sometimes like painting a target on your own back.  But if you’re already wearing a target, making a complaint puts the employer on notice that it may be looking at some pretty gritty legal liability.  For some employers, that fear will spur them to make some positive changes.

 

  1. Use the complaint process – with precision. Get an attorney to review your complaint. (Don’t rely on a verbal complaint.  Just don’t.)  The words “My boss is acting inappropriately” do not have the same effect as “On September 1, 2020 at 11:45 am, Henry Frick followed me to the restroom and asked whether I was leaving the seat up or not. Joe Hill and Hattie Canty witnessed this incident. I felt sick to my stomach the rest of the afternoon. I consider this to be gender-based harassment.”  The words you use will have an enormous effect on the strength of your legal position.

 

  1. Don’t let other employees turn you into “Queer Google.” You are there to do a job.  Your coworkers’ non-work related curiosity, even if it is well-intentioned, will interfere with your productivity and get you into trouble.  It is not your job to educate your cis colleagues.  If they are asking invasive or impertinent questions, it’s worth a conversation with your attorney to decide how to handle it in a way that ensures your Title VII rights are protected.

 

  1. Don’t quit – unless your attorney, doctor, spouse, or career coach says to. If you quit, you may cut off your ability to recover monetary losses. Courts don’t like speculative damages in the first place, and it’s hard to argue you had any expectation of continued earnings if you were the one who cut off your own earnings by quitting. But if the job is affecting your health, relationships, or career – or if your attorney says you can’t fix the problem—you may need to consider your big picture priorities.

 

  1. Don’t rely on lists you read on the internet. Speak with an attorney.  You deserve the peace of mind that comes with understanding your new legal rights at work.

 

 

Ask A Worker’s Rights Attorney!

February 19th, 2021 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Workplace Rights |

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Law Books

The Satter Ruhlen Law Firm presents:

 

Ask A Worker’s Rights Attorney!

A webinar for workers.

Thursday, March 11, 2021 at 6:00 pm

 

Do you work in New York?  Do you have a question about your workplace rights?  This is your chance to ask an attorney about it.  One lawyer, six participants, eight minutes per participant (we’ll have a timer!)  Quick answers to your questions about wage and hour violations, discrimination, harassment, whistleblowing, unionizing, non-compete clauses, and other questions like “can they really do that to me?”

CLICK HERE TO REGISTER

Space is limited, so sign up soon!*

Participants will receive a 10% discount on a one-hour consultation with the Satter Ruhlen Law Firm.

Please note that this webinar is for informational purposes and is not to be considered legal advice. Participation in the webinar does not create or imply an attorney-client relationship. If you would like a dedicated one-hour consultation with us, please contact the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

*Registrations will be screened for employees’ protection.

 

Update: Biden Reinstates Job Protections for Federal Civil Servants

November 3rd, 2020 by admin

Posted in Uncategorized |

Tags: ,

By Diane Williamson

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights. 

In November this blog spread the word that President Trump signed an executive order that made it easier to terminate civil servants working for the federal government. There is good news for those of you impacted by this Trump policy shift.

On January 22, 2021, President Biden reversed the Trump administration’s executive order that targeted civil service workers by creating “Schedule F” employees, a new class of civil servants who could be hired or fired without regard to civil service rules. Biden’s executive order protects an employment merit system so that civil servants cannot be appointed and terminated for political purposes.

According to the Business of Federal Technology Journal, the Office of Management and Budget made moves to reclassify almost 90% of its workforce as Schedule F in the last days of President Trump’s administration. While the reclassifications had not yet taken place, their imminence suggests that the institutions of democratic government are weaker than we may have realized. These dueling executive orders remind us that we cannot take for granted our system in which government employees enforce the laws and not the power of elected officials. The government, like any workplace, functions best when its employees are evaluated on performance not on their allegiance to certain leaders.

The new executive order also reinstates union rights that were eliminated by the Trump administration executive orders, signed on March 28, 2018, which restricted collective bargaining and were the subject of several lawsuits and labor practice challenges.

The new executive order directs the Office of Personnel Management to instruct the President on recommendations for moving toward a $15 minimum wage for federal employees.

As stated in President Biden’s executive order: “It is also the policy of the United States to encourage union organizing and collective bargaining. The Federal Government should serve as a model employer.” These changes are a step in the right direction for workers.

Getting Fired in Turbulent Times

June 6th, 2020 by Sarah Ruhlen

Posted in Workplace Rights |

Tags: , , , , ,

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It happens.  When the public is already highly-charged with emotion, employees get fired.  They get fired for good reasons, like getting caught being racist on camera or refusing to wear face masks.  They get fired for bad reasons, like reporting discrimination.  And they get fired for scary reasons, like getting arrested while engaging in peaceful protests. 

This post isn’t about how to not get arrested at a protest.[1]  If you are engaging in civil disobedience against state-sanctioned murder of people of color today, in all likelihood you have already weighed the pros and cons of making your voice heard versus being arrested for blocking traffic or disturbing the peace.  These are the choices every person has to make for themselves. 

This post is about what to do if your employer calls you on the carpet on Monday because they saw you protesting. Or because you got arrested.  Or because they saw your facebook page.

First, unless your employer is a Government agency, remember that you do not have first amendment rights in the workplace.[2]  In most cases, your employer can fire you for any reason or no reason at all. 

That said, pay attention to what the Employer says and does.  Is everyone who got arrested getting fired? Or just a subset, for instance, people of color or people from a particular nation?  Are some people getting lesser penalties, such as suspensions?  How about people who got arrested for counter-protesting? 

If penalties for similar conduct split along racial lines, then start writing.  Take copious notes.  Note what the employer says to you and what the employer’s security guards say while they’re escorting you out.  Write it all down.  It might or might not be evidence of discriminatory intent (let the lawyer sort that out). When you get home, write up your observations in an email and send them to yourself. 

Do’s…

  • Do call your Union Rep.  If you’re in a Union, the “for cause” provision in your CBA is the strongest protection you have against politically-motivated terminations.
  • Do apply for unemployment benefits immediately. 
  • Do call your criminal defense attorney and let them know that you may be asking them to communicate with your employment law attorney.  (Your employment law attorney will probably need information such as whether you should be asserting the Fifth Amendment during any investigations by the State Division of Human Rights).
  • Do ask your defense attorney whether the conduct for which you were arrested was actually illegal or not.  In the State of New York, you are not supposed to be fired for engaging in legal off-duty conduct.[3]  So if you were actually not obstructing traffic or disturbing the peace, the employment law attorney needs to know that.
  • Do call an employment law attorney.
  • Do bring the employment law attorney your notes and any paperwork provided to you by the Employer.
  • Do tell the employment law attorney about any prior disciplinary actions taken against you during the course of your employment.  The employment law attorney may be able to neutralize the effect of those disciplines, but can’t do it without all the facts. 
  • Do bring the employment law attorney your notes about any previous discriminatory conduct or conduct that went negative after you reported discrimination.  The attorney needs names, dates, and witnesses for each incident, and will ask you very specific questions about what precisely was said at what point.

…and Don’ts 

  • Don’t take anything from the employer’s premises other than your own belongings.  It is tempting to download all your emails and the files you were working on in an attempt to defend yourself.  Don’t do it.  That is the employer’s property and a vindictive employer will come after you for “stealing” it. 
  • Don’t send emails from your work account to your personal account.  Even if you’re not emailing yourself documents, it still “looks” like stealing, and it may give the employer an excuse to subpoena your personal devices.
  • Don’t sign anything.  If someone is trying to pressure you into signing a severance agreement immediately, it may mean that they sense they are subject to liability.
  • Don’t give the employer a reason to fire you.  Don’t talk back, use profanity, or engage in hostile or aggressive conduct.  Stay calm and observe everything around you. 
  • Don’t assume that the employer’s conduct is actionable.  Don’t assume it’s not actionable.  The employment law attorney is the expert.  Let that person figure out the legalities of what the employer did. 
  • Don’t let getting fired stand in the way of your continued activism.  You are doing the hard work that citizens have to do in a democracy.  And the other activists around you may know about jobs that don’t interfere with your work.

If you’re protesting today, your day job should be the last thing on your mind. Your primary concerns should be making your voice heard and staying safe.  But if work gets crazy on Monday morning, the above steps may help you protect your workplace rights.

[1] If you’re out there today protesting, please make sure you know how to identify protest monitors and legal observers, and have a safety plan.

[2] If your employer is a Government agency, you have limited First Amendment rights in the workplace, and only in very limited  circumstances will they protect you from being fired. 

[3] Note the words “supposed to.”  The reality of this prohibition is extremely messy and difficult to prove. 

COVID-19 In The New York Workplace – Part IX: Working From Home and Social Media

April 20th, 2020 by Sarah Ruhlen

Posted in COVID-19 In The New York Workplace |

Tags: , , ,

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471–0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It’s a familiar feeling. You’re on work time. You’ve been at it diligently all morning. You just reached a stopping point and need a break, but you don’t want to step away from the computer. So you hop on to Facebook, and there you see a post that you just have to reply to.

Regardless of whether you’re working from home or in the office (remember the office?) your social media activity is being monitored by your employer. Some employers install software on your work accounts so they can see when you stop working. Others just watch your Twitter account. You know all those coworkers you friended and followed?  They’re going to tell the boss what you said. If they don’t, their friends will tell.

So what gets you into trouble?

First, if your employer has a social media policy, follow it. For example, if the employer says “No Social Media During Work Hours,” that means no social media during work hours. Violating the social media policy can and will get you fired. Other policies allow you to use social media, but require you to refrain from discussing an employer or the employer’s products. Some of these policies are legal, and some are not. The problem is, to find out if a policy is legal, you might have to get fired first and then sue. That’s a mighty expensive way to get information. So unless you are working closely with an attorney (either your own or the Union’s) on the specifics of your case, it’s not a good idea to violate the employer’s social media policies.

Second, don’t publish confidential information. You know those cute pictures of your home office that you posted at the beginning of the shutdown?  Make sure you didn’t accidentally post a picture of your computer screen or confidential documents. Don’t publish pictures, names, or birthdates of patients or long term care facility residents. Don’t publish client info. Don’t publish financials, customer lists, social security numbers, passwords, code, or research results. Don’t publish the employer’s secret recipe for life-changing chocolate chip cookies if the employer is in the business of selling life-changing chocolate chip cookies. If it’s anything that the employer has any arguable interest in protecting, don’t publish it. You’ll get fired, and you might get sued.[1] 

Third, racism and sexism are quick and easy ways to get fired, whether or not they happen on social media. The distinguishing feature of social media is, once you’ve posted it, it’s out there forever. You can delete the post, but any clever 12-year-old can resuscitate it, take a screenshot, and will inevitably share it with the boss. Or the media will get hold of it, and the employer will know the next day. Bottom line: if you want to keep your job, don’t be racist or sexist at all, and that includes social media.

Wait, what about my First Amendment rights?

The First Amendment to the United States Constitution prohibits the government from interfering with your freedom of speech in certain circumstances. It does not prohibit private actors from taking actions against you because of what you said. So if you work for a private or not-for-profit entity, you don’t have first amendment rights in the workplace.

If you work for the government (including a state agency or subdivision), the question gets complicated. Theoretically a public employer can’t retaliate against you for posting about a matter of public concern. But if your post has to do with a matter of personal interest to you as an employee (for instance, because you don’t agree with how you are instructed to perform your job), then the post is not protected, even if it has some connection to a matter of public interest. Moreover, if the post presents a potential conflict of interest or interferes with the public employer’s ability to discharge its official duties, the protection is lost.

The difference between matters of public concern and matters of personal interest has spawned endless litigation, so for practical purposes the only way to know whether what you are posting is protected from a first amendment perspective is to lose your job and then litigate. As above, it’s an awfully expensive way to make a determination.

Isn’t there anything I can talk about online?

Yes. If you are complying with your employer’s social media policies, you’re probably ok posting pictures of your cat, your kids, tasteful funnies, and other non-offensive, non-work related matters. (But please use your common sense and don’t post anything that could endanger you or your loved ones.) 

You can also use social media to speak out about terms and conditions of employment if they affect other employees as well as you. That means that you probably won’t get away with complaining because the boss disciplined you for wearing the wrong polo shirt, but if the boss continually shorts your whole shift on overtime payments, you may be able to get away with commenting about that on social media. Don’t use vulgarity or threats when you’re doing it, or you can lose the protection.

New York State Labor Law protects lawful off-duty conduct, including off-duty political activities, among other legal off-duty activities. But there are serious limits to the law. Off-duty political activities are not protected if you’re using the employer’s equipment or accounts. This means if you are working from home on an employer-provided computer, your political activity on that computer is not protected, even if you engage in it after hours. Also, as discussed above, if you work for the government, don’t count on this law to protect your political activities even if you engage in them on your own equipment after your shift is over. Moreover, employers get a big break on New York’s lawful off-duty conduct rule:  If they have a good faith belief that they are acting in accordance with law, enforcing a workplace policy, or that the employee’s conduct is illegal, then there is no violation even if they are wrong.

Please remember that just because you’re not supposed to get fired doesn’t mean you won’t get fired. Some employers will terminate you anyway, forcing you to spend a lot of money on a lawsuit to get your job back or to recover your pay. This isn’t any different from what employers could do in the days before social media – it’s just that it can be easier to see what you’re doing because of social media.

Social media is a wonderful tool for keeping us together during the pandemic. Being wise about using this tool when working from home may save your job. 

[1] Many employers require employees to sign some kind of confidentiality agreement. You may have signed one when you started to work, or it may have been in a stack of documents you got one day. If you violate a confidentiality agreement, even inadvertently, it can mean enormous legal trouble. Try to keep track of what you’ve signed.

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