Warning: The Internet May be Hazardous to Employees!

Claudia Costa’s panel at the 2017 PLUS Conference, titled “Warning: The Internet May be Hazardous to Employees!” will discuss cyber-bullying and threats in the workplace, and how employers can address the issue.

Costa routinely advises companies and works with them in EEOC (Equal Employment Opportunity Commission) compliance training, anti-harassment training and bullying training. She hopes the panel will give attendees a better understanding of how employers should deal with cyber-bullying and threats in the workplace, and any claims that may arise as a result.

“I think we have a fantastic panel, because we have Laura Lapidus from CNA speaking, who’s in risk management, and then we have Lisa Brennan and Jennifer Weinstein. Both of them are senior claims persons who deal on a day-to-day basis with claims from employers,” Costa said.

A study by Northeastern University in 2012 showed that 80% of people had experienced bullying at work. A similar study done in 2014 by Vitalsmarts, and published in a Forbes article showed that number had increased to 96% of people.

Costa said the increase in cyber bullying may be because employees feel safe hiding behind the anonymity of the internet, and don’t think about the repercussions of their actions.

Employers attempting to handle and prevent cyber-bullying may find themselves confused on what, exactly, they should do. There are lots of laws and government regulations regarding keeping the workplace safe, the rights of employees to use social media, and what internet use employers can or cannot regulate, but they can be difficult to understand.

Costa believes the best way for employers to protect themselves is by having clear policies on internet use in the workplace. Without such policies, employers are more vulnerable to legal action. Employers should also be clear about their internet monitoring policy to avoid discrimination claims.

Costa believes a good way to avoid discrimination claims is to have a policy saying that the company will monitor the social media activity of anyone with an open- meaning available for the public to see- social media account.

Costa said the panel will be the most beneficial for underwriters and claims personnel.

“I believe underwriters will benefit a great deal when they’re looking at some companies that they’re going to underwrite to see what it is they are doing to take steps to prevent cyber-bullying or threats…claims personnel will also benefit from this because it explores different areas such as OSHA…the ADA, the NLRA, the Stored Communications Act, and background check laws,” Costa said

Costa said the panel is important to have at the PLUS conference because it’s a widespread issue that can have serious repercussions if not dealt with correctly.  She says the panel will be a good chance for everyone- regardless of what market they’re in- to stop and take notice of how cyber-bullying in the workplace can affect employees.

“I think that it’s timely, and I think as the law grows in this area, and more and more people start bringing claims…employers are going to have to realize that they’re going to have to develop policies and ways to try to keep everyone safe at work,” Costa said.

Claim your seat at the industry event of the year, the 30th PLUS Conference, November 1-3 in Atlanta, Georgia.

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You Snooze You Sometimes Lose: Court Enforces 6 Month Statute of Limitations with Respect to Section 1981 Claim But Not with Respect to Title VII Claim

Did you know that an agreement shortening the time within which to bring an employment law claim may be enforceable?  Indeed, in Order of United Commercial Travelers of Am. v. Wolfe, 331 U.S. 586, 608, 67 S. Ct. 1355, 91 L. Ed. 1687 (1947), the Supreme Court stated with respect to contracts generally that “in the absence of a controlling statute to the contrary, a provision in a contract may validly limit, between the parties, the time for bringing an action … to a period less than that prescribed in the general statute of limitations, [if] the shorter period [is] a reasonable period.”  This principle has been applied and enforced in the employment law context.

For example, recently in Njang v. Whitestone Grp., Inc., 2016 U.S. Dist. LEXIS 65370, 129 Fair Empl. Prac. Cas. (BNA) 362 (D.D.C. May 18, 2016), plaintiff filed an action alleging race discrimination in violation of both Section 1981 and Title VII.  In its motion for summary judgment, the former employer argued that plaintiff’s claims — which were filed more than two years after the termination — were time barred because the employment contract required the employee “to file all claims or lawsuits in any way relating to employment with the Company no more than six months after the date of the employment action that is the subject of the claim or lawsuit.”  Id. at *5.

The court held that the shorter limitation period was enforceable with respect to the Section 1981 claim but not with respect to the Title VII claim.  With respect to the Section 1981 claim, the court relied on precedent in finding that “six months is a reasonable period of time . . . both because nothing within Section 1981 indicates that Congress intended for a longer window to bring such a claim, and also because the statute lacks other features that would make filing a claim within six months impracticable, such as an administrative exhaustion requirement.”  Id. at *15.

By contrast, the court held that Title VII’s time-consuming administrative requirements, including (i) plaintiff’s need to first file a charge with the EEOC within 180 days after the alleged unlawful conduct, (ii) the EEOC’s investigation of the charge, and (iii) the EEOC’s issuance of a right to sue letter, make a 6-month limitation period unreasonable.  Id. at **18-19.  As the court in Njang explained, “merely by complying with the administrative exhaustion requirements of Title VII, plaintiffs are typically precluded from bringing their claims in court within six months of the challenged conduct, which means that a six-month limitations period has the practical effect of waiving employees’ substantive rights under Title VII.”  Id. at *20.

As a practical matter, employers should consider implementing a clause in their employment contracts and employee handbooks reducing the statute of limitations to a shorter, yet still “reasonable” time.  While 6 months might be too short a period – particularly given the administrative requirements of Title VII – a 1-year period might very well pass muster as a reasonable period of time.