About 11 months ago I suggested four low-cost, proactive steps employers should take to minimize employee-related liability. This is a good time to review how you have done with the 2013 list. The good news is that even if you have done nothing at all with respect to these measures, it is still prudent and productive to take steps to address these issues. To serve both as a checklist for those who have acted, and a more detailed explanation for those who have not, for each of the four items identified I have enumerated a series of questions most employers should be able to answer in the affirmative.
1. Figure out what your employees are doing on social media that might affect the company, and deal with it.
- • Have you done an “inventory” of how your employees are using social media (a) using company equipment and/or accounts and (b) where their communications might otherwise be identified as associated with the company?
- • Have you trained employees on how to use social media so as not to jeopardize the company?
- • Do you have a social media policy or, alternatively, ensured that other applicable policies – harassment and technology use, for example – properly address social media issues?
- • Do the people in your company who are charged with enforcing social media related policies understand what employee communications the National Labor Relations Board would consider to be protected statements about the terms and conditions of employment, even for non-union employers?
- • Have you determined what (if any) monitoring of employee social media use is necessary to protect the company’s interests?
2. Manage company information that is on employee-owned devices.
- • Have you done an inventory of what business activities employees may be conducting on devices they own, including smart phones, tablets and home personal computers? (If you say they are not, with all due respect, my money is that you are wrong.)
- • Do you have a policy that sets forth what work-related activities are permitted (or not) on employee owned electronic devices?
- • If employees are permitted to use personally owned devices for business purposes, have you ensured that the company has access to information that might be uniquely stored on those devices so that it cannot be used against you in litigation, or is not subject to undue risk of loss, damage or theft?
3. Spend time training your managers.
- • Have you put the company in a position to show in litigation that managers are trained to avoid conduct that could be considered harassment, and to know what to do if they witness potential harassment or it is reported to them?
- • Have you put the company in a position to show in litigation that all employees are aware that the company has a harassment policy and know that they have multiple avenues for reporting harassment if they are subject to it or believe they have observed it?
- • Have you trained employees on the proper use of email, social media and other technology resources?
- • Have you put the company in a position to show in litigation that employees are trained with respect to any workplace tools or conditions that present potential safety hazards?
- • Can you identify who in your organization has primary responsibility for employee training?
4. Figure out who your employees really are.
- • Do you have written contacts with everybody you consider to be an independent contractor?
- • Have you reviewed with your employment lawyer the individuals you consider to be independent contractors?
- • Have you identified any workers who are not employees but are working on producing or providing the goods and services that are the core of your business? (Those are likely to be at the highest risk of misclassification as independent contractors.)
As I noted in last December’s column, these are four areas where many entrepreneurial companies, and other companies as well, tend not to have adopted best practices, even though each area can be at least partially addressed by relatively simple steps. While your company’s practices will be unique to your particular business and needs, if you cannot answer “yes” to all of the above questions, that is at least an indication of a topic to discuss with employment counsel. There is plenty of 2013 left to have these conversations and, if you don’t, all of these topics will continue to present opportunities for liability avoidance as we head into a new year.