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Man terminated for nasty tweet about Navy SEAL widow. Does he have a case against his employer?

 

Carryn Owens, whose husband, Navy SEAL Willian Owens, was killed during a raid in Yemen, attended President Trump’s speech to Congress on February 28th. We’ve all seen the very moving photo of her crying as Trump acknowledged her.

According to an article in the Chicago Tribune today, Daniel Grilo, who was a principal at Liberty Advisor Group at the time, was watching the speech and tweeted, “Sorry Owens’ wife, you’re not helping yourself or your husband’s memory by standing there and clapping like an idiot. Trump just used you.”

That tweet went viral and sparked a firestorm of comments on Twitter and other social networks defending Ms. Owens. Within a few minutes Grilo apologized several times and eventually deleted his tweet.

However, despite his apologies, Liberty Advisor Group fired Grilo and deleted his profile from their website. The company also issued a statement on their website stating, “The individual who issued the tweet is no longer affiliated with Liberty. … His comments were inconsistent with the Company’s values and the unyielding respect it has for the members of our Nation’s Armed Forces.”

This situation opens up a lot of serious questions. Was the company right in firing Grilo? Are personal social media posts protected especially when the post is not related to a person’s employer?

Perhaps the biggest question is: Does Grilo have a case against his former employer? Yes, he may, according to Phillip Schreiber, a partner in the law firm Holland & Knight who represents management in employment cases.

According to Schreiber, “Generally speaking, what people say on social media that is not related to their employer usually is not a concern of the employer. But if someone who is newsworthy makes an inflammatory post on social media, it’s not difficult for someone to track that person back to his or her employer,” he added. “That’s when you may have consequences.”

“The question is … if an employee is terminated for what he or she put on Twitter on his or her own time … is terminating someone because of that a violation of Illinois’ Right to Privacy in the Workplace Act,” Schreiber said. “That remains to be determined, because there are not a lot of court decisions interpreting the law in that context.”

Failure to follow local and national laws relating to social media can land a company in court. The National Labor Relations Board (NLRB) generally protects employees and their private social media posts. However, there is plenty of legal information to be had from social media and there is a right way to use it.

We have to wait and see what Grilo’s next move is. If he decides to sue Liberty Advisor Group, it will be an interesting case. We will definitely follow this story and keep you abreast of the decision.

In the meantime, if you would like to learn more about being compliant when using social media searches for employment purposes, contact a Cisive Specialist at 866-557-5984 or click here.

Best Practices in Background Screening in the Ban the Box Era

 

To help ex-felons obtain employment and to reduce recidivism, the District of Columbia and over 150 cities and counties (in 20 states) have passed fair chance (Ban the Box) laws removing questions about criminal convictions from job applications. This change allows employers to base their hiring decisions on qualifications first.

These laws apply to the cities and counties themselves. Many of them also apply to private employers including Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island.

It should be noted that Ban the Box fines are big! Just ask Marshall’s and Big Lots (penalties totaling $195,000.)

The National Employment Law Project (NELP) has put together a list of ten principles for employers to follow to update their hiring policies and procedures:

  1. Avoid stigmatizing language.
  2. A background check may be unnecessary for a job position.
  3. Avoid blanket exclusions and instead include an equal opportunity statement on job applications.
  4. If a background check is necessary, only consider those convictions with a direct relationship to job duties and responsibilities and consider the length of time since the offense.
  5. Remove inquiries into convictions from the job application.
  6. Remove self-reporting questions about conviction history.
  7. If a job applicant is rejected because of a record, inform the applicant.
  8. Provide the applicant the right and sufficient time to submit evidence of mitigation or rehabilitation.
  9. Expand the fair change policy to private employers.
  10. Combine data collections and effective reinforcement.

It is important for employers to keep abreast of the different ban the box laws as each has its own set of nuances. For example, each law restricts when an employer can inquire about a person’s criminal history and how it can be used for employment purposes.

Click here to view Cisive’s Ban the Box chart summarizing the policies.

For more information on how Cisive can keep your hiring process compliant, contact us at 866-557-5984 or sales@cisive.com.

FTC Says When Conducting Background Checks, Don’t Double-Dip!

On February 16th, the FTC published a blog post about the importance of organizations using consumer reports in compliance with the Fair Credit Reporting Act (FCRA). According to the FTC, it is important that organizations only use consumer reports for the purpose for which they originally obtained them and to refrain from using them for secondary reasons.

When conducting a background check on an applicant or employee, you must certify to the consumer reporting agency (background screening vendor) the purpose for which you will use it. You must then use the report only for that purpose. As an example, if you obtain a report for employment purposes, you cannot also use it to make a credit decision.

According to the FTC, the three important principles for users of consumer reports to keep in mind are:

  • If an employer makes a negative decision on a person based on a consumer report, it is important to notify the person with an adverse action notice;
  • The adverse action notice may be provided orally, electronically, or in writing; and
  • Employers must securely dispose of the consumer report when finished.

https://www.ftc.gov/news-events/blogs/business-blog/2017/02/background-checks-dont-double-dip

 

How vulnerable is your company to class action litigation?

Partnering with a reputable background screening company is an investment in your business!

Consider the following facts.

  • Negligent Hiring:
    • $1 million is the average settlement in a negligent hiring lawsuit
    • 13% of workplace fatalities in one year were the result of assaults and violent acts by an employee. (U.S. Department of Labor)
  • Fraud: According to a 2016 report by the Association of Certified Fraud Examiners:
    • 5% of a corporation’s annual revenues is lost to fraud
    • $150,000 is the median loss from a single case of occupational fraud.
    • 23% of occupational fraud cases resulted in a loss of at least $1 million
  • Fines for FCRA non-compliance:
    • $6 Million             Publix Super Markets
    • $5.7 Million         AutoZone
    • $4 Million             Dollar General
    • $3 Million             Home Depot
    • $3 Million             Red Lion

Need help designing your background screening program or do you need to “tune up” your current program? If so, click here.

Learn the differences between County Criminal, State Criminal, Federal Criminal and “National” Criminal checks by speaking with your Cisive representative today at 1-866-557-5984.

CARCO Announces its Designation of NICB Strategic Partner

CARCO, the pre-insurance vehicle inspections division of Cisive, is proud to announce its partnership with the National Insurance Crime Bureau (NICB) as a NICB Strategic Partner.  The partnership program recognizes companies that have a strong interest in working collaboratively to fight vehicle theft and insurance fraud.

CARCO has been providing pre-insurance photo inspections and fighting fraud in the auto industry since 1977. The vehicle inspection process helps prevent insurance fraud while keeping insurance premiums as low as possible for insured consumers. Insurance fraud costs the motoring public millions of dollars each year. CARCO works closely with the NICB and other law enforcement agencies to help recover and prevent tens of millions of dollars in fraudulent claims over the years.

Senior vice president, Will Pagan, stated “We are happy to have obtained this newly-created designation which reflects the many years CARCO has been working closely with the NICB. CARCO’s database is accessed more than ten thousand times per day, helping the NICB and law enforcement in reducing fraud and keeping premiums down for insureds.”

About CARCO:

CARCO, a division of Cisive, is the leading provider of vehicle pre-insurance inspection services in the U.S. Major insurance carriers choose CARCO for its extensive and convenient site network. CARCO’s advanced technology completes the process in the most efficient and effect manner while complying with regulations.

About NICB:

The NICB partners with CARCO, members, insurers and law enforcement agencies to facilitate the identification, detection and prosecution of insurance criminals.

Former Lockheed Martin Engineer Awarded $51 Million for Age Discrimination

A New Jersey jury awarded a former Lockheed Martin employee $51.4 million for age discrimination. Plaintiff’s attorney Console Mattiaci called the award “one of the largest ever obtained by an individual plaintiff in an age discrimination case.”

In 2012, citing a reduction in workforce (RIF), Lockheed Martin fired Robert Braden who was employed by the company, and its predecessors, for over 28 years. Braden sued the company for age discrimination because he was the oldest of six people in his company unit and he was the only one let go. (He was 66 while two others in his unit with the same title were ages 42 and 38.)

Braden also claimed that the company consistently practiced laying off older workers and hiring younger ones, and giving older workers lower ratings and raises because “they had nowhere else to go.” He said in his complaint that five of 110 Lockheed Martin workers in his job classification “were terminated as part of the layoffs. All five were over the age of 50.” Within a year of Braden’s termination, Lockheed Martin hired a new person in his position despite claiming that lack of work was the reason for his termination.

Lockheed Martin defended the claims citing Braden’s record of below average performance and lack of work for his skill set as the reasons for his termination. Although Lockheed Martin cited to the fact that it had a process in place to prevent age discrimination in the RIF, including an adverse impact analysis done by HR in conjunction with the company lawyers and EEO group, a company witness testified that Mr. Braden did not go through the company’s standard RIF process.

After a short four-day trial, the jury awarded Braden almost $50 million in punitive damages based on the jury’s determination that the company acted in reckless disregard for discrimination laws. Braden also received $520,000 for lost wages/benefits, and an additional $520,000 for emotional distress. The jury verdict entitles Braden to file an application seeking to have Lockheed Martin pay his attorneys’ fees.

There’s a lesson here for employers. Every company, no matter its size, must follow the civil rights law. Compliance is key!

Robert Braden v. Lockheed Martin Corporation, Civil Action No. 14-4215-RMB-JS (D.N.J. 2014).