Your employees are regularly posting on social media sites. Much of what they post is their own personal business, but what happens when they delve into the third rail of conversation: Politics and Religion? There are other topics too that should be avoided and when those get raised these online discussions can reflect negatively on the company.
Employees may say things that are offensive to others in the workplace. The social media posts may not be directed at these other employees; however, other employees may be online friends with their coworkers and therefore see the posts. If employees take offense to another’s post about race, religion, politics, or other topics, they may view this as creating a hostile work environment. The references may not have been made at work nor directed at anyone at work, but others know that that the coworker holds offensive views and may seek to avoid interacting with him/her as a result.
Recently, an employer was confronted with an employee who posted on her FaceBook page that she thought “Black Lives Matter” to be “racist,” believed the BLM movement “caused segregation,” and asserted that Black citizens were “killing themselves.” The employee’s profile clearly indicated where she worked and her position. The company was faced with the challenge of what needed to be done regarding it as the company perceived these posts to be contrary to its principals.
If you had an employee who posted on FaceBook statements that you found offensive or contrary to your company’s principals what would you do? What can you do? Would you consider the employee posts as potentially creating a hostile work environment or would your employees perceive it that way?
The first thing to determine is always, what is the company’s policy? Does it have a social media policy? What does the social media policy say about engaging with others on controversial topics or posting what can be perceived as offensive material? What does it say regarding reference to the company and making statements that may be attributed to the company?
As a private business, you are not restricted in taking action based upon an employee’s speech. The free speech provisions of the United States and New Jersey constitutions apply to “state actors” not private businesses, like yours. As a result, when you find out about posts that may be offensive to you or others in your company, you can require them to remove the post. You can also terminate the employee for having posted the material. Yes, an employee can be terminated for posting statements that may be part of the current events dialogue, but are nonetheless offensive to others – even if there are some who agree with the statements. This is exactly what happened to the AtlantiCare Medical System employee who posted about BLM.
There are limits, however. You cannot take any adverse action against an employee who posts about compensation or working conditions. This is considered protected speech.
Nonetheless, prior to taking any action, you should ensure your social media policy is up to date. You should review how you are applying the policy. Prior to taking any action, it is recommended that you consult with an attorney, such as those at Trimboli & Prusinowski to ensure that there are not other issues that may arise by taking action against an employee for their social media activities.
The attorneys at Trimboli & Prusinowski are experienced in drafting and applying social media policies as well as engaging with employees who violate the policies. Contact an attorney to assist in ensuring that your company’s policies are up to date and enforceable today. See related article on How Independent Contractors Can Kill Your Business ABC Test – Part A
Business Owners often thinks that if a person works for their company and for another company, that person should be classified as an independent contractor. Unfortunately, this isn’t true. Who is an independent contractor and who is a W2 employee is one of the top two things that Business Owners get wrong. When it comes to classifying independent contractors, as a business owner, you don’t have the money or the time for the privileged of being wrong.
In New Jersey anyone engaged in work for a business is deemed to be an employee unless they meet specific criteria to be classified as an independent contractor. Many businesses classify those who provide them services as independent contractors without having assessed whether the individuals meet the specific criteria, typically referred to as the ABC Test. Failing to be assured that the ABC Test is met can have significant consequences for the company if it misclassifies individuals and the Department of Labor audits the company’s designations.
Audits will typically occur after an individual, classified as an independent contractor submits an unemployment or disability claim. Many independent contractors filed for unemployment during the pandemic because they were eligible for the federal stimulus money, PUA. This provided the DoL a large database of individuals classified as independent contractors that the DoL can use to conduct audits in order to confirm that all of the individuals meet the ABC test. Trimboli & Prusinowski anticipates that independent contractor audits will increase in the coming years as a result of the large number of claims submitted during the pandemic and the DoL’s increased information of who is performing work under an independent contractor designation.
Our firm has represented many businesses during DoL audits on wages and independent contractor designations.
During the audit, the DoL will review payroll records to determine who has been paid and whether state taxes were withheld. Typically, a business will not withhold taxes for those designated as independent contractors. Anyone who has not had wages withheld will likely be subject to the ABC Test.
The ABC Test looks at whether the individual works independently; performs the work of the business or at the location of the business; and whether the work performed is that which is typically performed by an independent contractor. The IRS has a similar 20-part test, which is more detailed and specific on the criteria it looks to for the assessment. Businesses often do not have sufficient information to determine whether the independent contractor meets all of these criteria especially if it utilizes several independent contractors.
The DoL will often reject the independent contractor designation and assess back taxes, as far back as four year, penalties and interest, at a rate of 15%, against the company for the alleged improper designation. Merely because the DoL auditor claims that the designation was incorrect does not mean that the company should pay the back taxes, penalties and interest. Rather, the company may appeal the determination and seek independent review of its categorization.
Our firm has represented businesses during independent contractor designation hearings and prevailed in the Office of Administrative Law rejecting the DoL auditors’ assessment.
If your company utilizes independent contractors, it should engage our attorneys to conduct an internal audit. Our attorneys can guide your business through the process and anticipate what the DoL would conclude if it were to review the designation. They can assist with gathering the necessary documents from the independent contractors so the business has them on file in the event of an audit. This process will empower the business in the event the DoL performs an audit for the prior four years. We especially recommend the internal audit be conducted for any company who had independent contractors who filed for PUA funds during the pandemic. See related article on How Independent Contractors Can Kill Your Business ABC Test – Part A
