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Thursday
Mar272014

Stupid Employee Tricks 2

 

Evidently you don’t even have to be an employee yet to commit a stupid employee trick. A client works with a temp company to provide workers. Those that meet the client’s expectations after some period of time are hired and put on the client’s payroll. This is a common “temp-to-hire” arrangement. The problems they had with two temp workers were definitely a “stupid employee trick.”

Two temporary workers were fighting with each other. They took their battle to Facebook, posting negative things about each other. At one point, one of the two got upset at work and starting throwing the client’s inventory around. He was terminated. The other temp then posted on Facebook, bragging about how he got his fellow temp worker fired.

The remaining temp did not stop there. He also posted defamatory comments about the client and the supervisor that managed the department where the temp was working. A number of people from the community became upset by what the remaining temp posted and called the client to complain about the temp.

The client called the temp agency to tell them to get the remaining temp off of their premises in the next 10 minutes. They also told the temp agency that the adverse Facebook post must be removed within an hour or they would contact me for advice on a defamation claim. The client advised the temp agency that the defamed supervisor and the terminated temp worker may also have claims.

Both temp workers are now gone and the offending Facebook posts have been removed.

These temp workers were 23 and 33 years old. Both were posting adverse comments about the other on Facebook. It was the 23 year old that was the last to go and that posted the most offensive messages. It is reported that the 23 year old attempted to defend his actions by stating “I don’t have any friends and this is the only way I can express myself.” Based upon his workplace conduct, it’s easy to understand why he doesn’t have any friends.

There are a number of lessons for employers to take away from this stupid employee trick.

1.  Workplace Disruption. There are many things that can disrupt a workplace. For the last few years now, more and more employers are adding social media posts to their lists.

 

2.  Red Flag. The ability to get along with others should be an essential function of almost every job position. Employers should be screening job applicants to determine if they will be able to get along with co-workers, supervisors, customers, vendors or whomever they may come in contact on the employer's behalf.

If someone does not have any friends, that is a red flag, A HUGE red flag.

 

3.  Social Media Discipline. It is possible to discipline employees for social media posts, but you must do so carefully. The National Labor Relations Board (NLRB) has taken the position that all employers, even non-union employers, must allow employees to comment on social media about the terms and conditions of their employment.

Here, the temporary workers were not employed by my client. Instead, they were employed by the temp agency. In an employment analysis, temp workers are probably joint employees of both the temp agency and the contracting organization. We do not need to get into that here. Instead, it was a simple matter for the client to tell the temp company to remove the employees and get rid of the Facebook posts.

Even if the temp workers had been employees, employers can prohibit defamatory, offensive and harassing posts about other employees, supervisors, clients, vendors or the employer. Such posts go beyond the discussion of terms and conditions of employment that the NLRB seeks to protect. But do so carefully.

 

4.  Social Media Policy. In 2014, every employer needs a social media policy. Over the last several years, we have spent sufficient time and effort drafting, improving, refining and updating the social media policy template we include as part of the employee handbooks we prepare for clients. This has been an area of almost continual change, each and every year.

Fortunately, this client uses our social media policy. Had these temporary workers been employees, the same result would have been achieved and the client would have been covered.

 

5.  Evaluate New Employees. Temp-to-hire can be a good employment strategy. Usually, if employers pay attention, they can tell after 30, 60 or 90 days whether a new hire is going to work out. From a legal standpoint, it is less risky to fire an employee you know that will not work out early in the employment relationship than doing so years or many years later.

Unfortunately, many employers fill a position and then forget about it. They move on to other challenges in their business. In the back of their mind, they may know that there are problems with the person selected but they do not take action until many years later. Then, there can be significant employer liability risks. We can discuss those risks in another article.

With the temp-to-hire model, employers must make an “up or out” decision at the end of the temp period. There are three options. 1) Hire. 2) Terminate the engagement. 3) Extend the temporary status for an additional period of time. If every employer made similar decisions for each and every position they fill, they could improve their workforce and greatly reduce their risks of employer liability claims.

 

What do you think of the temporary workers’ actions?

Have you had similar problems in your workplace? If so, how did you handle them? What was the result?

Similarly, what do you think of the way this client handled their situation?

Finally, do you have a stupid employee trick to report?

 

Stupid Employee Tricks

NLRB Wants to Read Your Email

This Changes Everything . . . Not Good

Choose Your "Friends" Wisely

 

LegalBriefs are published as an educational service for business people by Oregon business attorney Alan Thayer. He welcomes your questions and comments.

This article and all LegalBriefs articles are offered for general information and educational purposes only. They are not offered as legal advice and do not constitute legal advice or opinion. We do not promise or guarantee that the information is correct, complete or up-to-date. You should not act or rely upon the information in this or any other LegalBriefs article without seeking the advice of an attorney.

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