Question: What should employers say about employees who are fired?

Answer:

Typically, the reasons for separation are kept confidential. Both internally and externally, employers tend to provide innocuous explanations, such as “Joe has left the Company to pursue other career opportunities.  We thank him for his service and wish him well.” With the #MeToo movement, we have seen a shift in the way information about terminations is shared. For example, when NBC fired Matt Lauer, not only did NBC open the Today show with an announcement about the decision, but also they included some details around what is normally sensitive personnel information.  NBC explained that it had fired Lauer for “inappropriate sexual behavior,” that NBC had received a detailed complaint from a colleague just two nights before the firing and that the complaint represented “a clear violation” of the Company’s standards. NBC further explained that while it was the first complaint about Lauer in more than 20 years at NBC, the Company was “presented with reason to believe this may not have been an isolated incident.”

Given the current sexual harassment climate, NBC had its reasons for trying to get in front of this situation, reasons that may not apply to the average or lower profile employer.  Generally, employers do not explain why an employee is no longer employed.  Employers need to be mindful of violating the departing employee’s privacy and dignity, as well as opening the Company up to a potential defamation claim. Employers also do not want remaining employees to feel that their own personnel situations may be shared, should they have performance issues down the road.

However, in certain circumstances, employers may feel a need to make an example of an employee.  If an employee is a known harasser and an employer’s investigation reveals that this misconduct is rampant and well-known, this may factor into the post-employment communications.  Practically speaking, in this type of situation, the remaining workforce already knows why the harasser suddenly is no longer with the Company.  If the employer follows the termination with some reminders of how seriously the Company takes rule violations and a refresher course on anti-harassment, the employer can more subtly set an example of this employee without ever directly commenting on the reason for termination.

Often it is best for companies to remain neutral or silent on the circumstances of a termination.  When an employer feels strongly that it should comment on a termination, for example, to show commitment to a safe and comfortable workplace, the amount of detail revealed and the words used should be carefully chosen.  Any communications or messaging regarding terminations should be prepared in consultation with the Company’s human resources, legal and public relations teams, as applicable.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: Does using Facebook to recruit job applicants violate discrimination laws?

Answer:

Possibly, if your recruiting strategy is limiting your job postings to particular age groups (or perhaps other protected classes), to the exclusion of others.  Facebook allows advertisers to choose their audience.  In turn, Facebook uses the extensive data it collects about its members to ensure the ads reach the intended audience.  This “microtargeting” permits employers who are advertising to reach their preferred applicant pool, including people they believe are the most viable hires.

A recent class action filed against Amazon, Cox and T-Mobile US by the Communication Workers of America and three workers alleges that ads targeted users by age on Facebook in violation of the Age Discrimination in Employment Act (“ADEA”).   ADEA prohibits discrimination against applicants or employees age 40 and over.   This case, and apparently the many others likely to follow, focus on employers alleged conscious decision to exclude older workers by electing to have their ads for jobs only visible to younger members of Facebook.  In posting ads on Facebook, employers are now able to reach Facebook users in certain age groups, such as ages “22 to 40” or “20 to 45,” apparently to the exclusion of other (insert “older”) potential applicants.

The ability to recruit on Facebook in this targeted fashion may help direct ads to the desired applicant pool and allow advertising dollars to be spent wisely.  However, companies that do so should be careful in executing their recruiting strategy.   Employers who target certain applicants or employees should do so based on bona fide occupational qualifications (BFOQs).  For example, an employer may not be able to hire minors for certain jobs.  However, from an age perspective, this BFOQ defense is pretty limited.  Given that this seems to be the latest iteration of employment class actions, employers should carefully assess their recruiting strategies and make adjustments as needed to avoid joining the ranks of those companies already sued.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.