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  1. VLSSE 2016 SPRING CONFERENCE WATCH YOUR STEP!: PITFALLS EVERY SUPERVISOR SHOULD AVOID Michael R. Bedsaul, Esq. Sands Anderson, PC (540) 260-9011 May 5, 2016

  2. SOCIAL MEDIA: THE SMILING CROCODILE! • BE CAREFUL with use of social media in the workplace. • Examples: Hiring practices and disciplinary actions. • NEW LAW (effective July 1, 2015): Virginia Code § 40.1-28.7:5 prohibits employers from requiring that current or prospective employees disclose information about their personal social media accounts.

  3. SOCIAL MEDIA: THE SMILING CROCODILE! • APPLIES TO all private employers and specifically applies to any unit of state or local government, such as counties, cities, and towns—THIS MEANS YOU! • A “social media account” is a personal account with an electronic medium to service where uses create, share, or view user-generated content, such as videos, photographs, blogs, podcasts, messages, email, or website profiles or locations.

  4. SOCIAL MEDIA: THE SMILING CROCODILE! • Examples: Facebook, Instagram, Tumblr, and Twitter; • DOES NOT APPLY to accounts: • Opened by employee at request of employer--business Facebook page; • Provided by employer—business email; • Set up by employee for use by the employer;

  5. SOCIAL MEDIA: THE SMILING CROCODILE! • Employers CANNOT: • Require current or prospective employees to disclose usernames or passwords to their social media accounts; • Require that they add the employer to their lists of contacts, such as a “friend” request;

  6. SOCIAL MEDIA: THE SMILING CROCODILE! • Take action against or refuse to hire a prospective employee for exercising their rights under the law, including disciplinary action; • Use information that is inadvertently obtained to access an employee’s social media accounts;

  7. SOCIAL MEDIA: THE SMILING CROCODILE! • Employers MAY: • View information that is publicly available: • No Privacy Settings = Fair Game; • Request access to comply with federal, state, or local laws; • Examples: Virginia Code §§ 63.2-102 and 63.2-104.

  8. SOCIAL MEDIA: THE SMILING CROCODILE! • ALSO, the new law does not affect an employer’s existing rights or obligations to request an employee to disclose username and password to access a social media account if the employee’s account activity is reasonably believed to be relevant to a formal investigation into alleged violations of federal, state, or local laws or the employer’s written policies. • Example: Disclosure of Confidential Info.

  9. SOCIAL MEDIA: THE SMILING CROCODILE! • New law DOES NOT CREATE A NEW CAUSE OF ACTION for the employee to bring against the employer, BUT: • Could be used by the employee as part of a grievance; and, • Could be used by the employee as part of a wrongful termination action.

  10. SOCIAL MEDIA: THE SMILING CROCODILE! • THE FIRST AMENDMENT: Be careful when disciplinary action is based upon what an employee states on social media; • Bland v. Roberts (4th Circuit Court of Appeals, Sept. 18, 2013): “Liking” a Facebook page is “speech” and implicates First Amendment Rights; • What’s protected = CASE BY CASE basis; • “Public Concern” v. Personal Gripes.

  11. SOCIAL MEDIA: THE SMILING CROCODILE! • BE CAREFUL with what you post on social media; • INAPPROPRIATE material on social media can undermine your effectiveness as a supervisor; • You can be “friends” with the people you supervise but maintain boundaries.

  12. CELL PHONES: Was that a pothole I just hit? • The National Safety Council reports that cell phone use while driving leads to 1.6 million crashes each year. Nearly 330,000 injuries occur each year from accidents caused by texting while driving. 1 out of every 4 car accidents in the United States is caused by texting and driving.

  13. CELL PHONES: Was that a pothole I just hit? • Establish written policies for use of cell phones while employees are operating motor vehicles in the course of employment; • RAISES A LIABILITY ISSUE, particularly, for CPS, APS, on-call, and foster care workers who are regularly required to operate motor vehicles while performing work duties;

  14. CELL PHONES: Was that a pothole I just hit? • ALSO, if you are aware that an employee has violatedthe department’s cell phone policy and take no action, it raises a liability issue for you for negligent supervision of the employee if an accident happens after you became aware of the violation.

  15. CELL PHONES: Was that a pothole I just hit? • A supervisor should monitor compliance with the policy: • Chapter 6—Performance Evaluation and Standards of Conduct requires employees to report convictions for moving violations, if they use agency vehicles or transport clients—Ask about during evaluation; • Employees have limited privacy rights while using agency issued equipment—review the cell phone records;

  16. CELL PHONES: Was that a pothole I just hit? • Cell Phone Policies should prohibit use of personal or agency-issued cell phones or other mobile electronic devices for any purpose (calls, texts, email, browsing the net): • While the employee is operating a motor vehicle owned, leased, or rented by the department; • While the employee is operating a personal motor vehicle in the course of their employment duties;

  17. CELL PHONES: Was that a pothole I just hit? • While transporting an agency client or child in the department’s custody in any motor vehicle.

  18. CELL PHONES: Was that a pothole I just hit? • Cell Phone Policies should require that, in the event the employee does need to use a cell phone or mobile electronic device, that they pull off the road to a safe location prior to doing so. • Cell Phone Policies that are adopted and properly monitored protect supervisors from negligence claims, even if the employee fails to comply.

  19. DON’T GET SHOT! • Can I prohibit DSS staff from bringing FIREARMS TO WORK? • Private employers can prohibit the possession of firearms on business premises; • BUT, for most public entities, the ability to prohibit firearms is limited by the Second Amendment to the United States Constitution and state law.

  20. DON’T GET SHOT! • Virginia Code § 15.2-915 provides: • No locality shall adopt or enforce any ordinance, resolution or motion. . .and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components thereof unless expressly authorized by statute.

  21. DON’T GET SHOT! • The provisions of this section applicable to a locality also apply to any authority or to a local governmental entity, including a department or agency. . . ; • In addition to any other relief provided, the court may award reasonable attorneys fees and court costs to any person that prevails in an action challenging (i) an ordinance, resolution, or motion or (ii) an administrative action taken in bad faith as being in conflict with this section.

  22. DON’T GET SHOT! • Nothing in this code section shall prohibit a locality [or local department] from adopting workplace rules relating to terms and conditions of employment for the workforce. However, no locality shall adopt any workplace rule. . .that prevents an employee from storing at the locality’s workplace a lawfully possessed firearm and ammunition in a locked private motor vehicle.

  23. DON’T GET SHOT! • What does this mean? • A local department cannot prohibit the general public from carrying lawfully possessed firearms on its premises! • A local department can prohibit its employees from bringing lawfully possessed firearms to the workplace unless the firearms are locked up in the employee’s private vehicle.

  24. CONFIDENTIALITY: Avoid the knee jerk reaction! • One of the most common questions: When can I disclose department records? • Responding to requests for agency records or information normally falls on the shoulders of the supervisor or director; • KNEE JERK response: I can’t disclose anything because its confidential.

  25. CONFIDENTIALITY: Avoid the knee jerk reaction! • TRUE: Pursuant to Virginia Code § 63.2-104, records and information of local departments concerning “social services” is confidential and it is a Class 1 misdemeanor to violate the statute. • BUT: Local departments may disclose records and information to persons having a legitimate interest under state or federal law or regulations or pursuant to Virginia Code § 63.2-105.

  26. CONFIDENTIALITY: Avoid the knee jerk reaction! • Virginia Code § 63.2-105: the local department may disclose records and information learned during a CPS investigation or during the provision of CPS, without a court order and without the consent of the family, to a person having a legitimate interest when in the judgment of the department disclosure is in the best interest of the child who is the subject of the records.

  27. CONFIDENTIALITY: Avoid the knee jerk reaction! • PROBLEMSand SUSPICIONS grow in silence. • Many misunderstandings can be avoided by sharing information when its appropriate: • Family members who question DSS action; • Community partners who want assurances that DSS has responded; • Legislative representatives who are responding to complaints; • Potential custodians or adoptive parents who need to understand the child’s needs.

  28. CONFIDENTIALITY: Avoid the knee jerk reaction! • NOT SAYING to disclose everything; • Disclosure must be evaluated on a CASE BY CASE BASIS; • DOCUMENT WHY you believe the person making the request has a “legitimate interest” and why it is in the “best interest” of the child to disclose information.

  29. CONFIDENTIALITY: Avoid the knee jerk reaction! • Don’t forget other statutes that may apply: • § 63.2-1503: Mandated reports to Commonwealth Attorney; • § 2.2-3800: Gov’t Data Collection and Dissemination Practices Act—”Data Subjects”; • § 63.2-1526: Admin. Appeals; • § 2.2-3700: FOIA.

  30. DON’T FORGET ABOUT FOIA! • FOIA = The Virginia Freedom of Information Act. • Purpose: To ensure that the public has ready access to public records in the custody of a public body and free entry to meetings of public bodies wherein the business of the people is being conducted. • Law Provides: All public records and meetings shall be presumed open, unless an exemption is properly invoked.

  31. DON’T FORGET ABOUT FOIA! • APPLIES TO DSS—A “Public Body.” • APPLIES to all requestsfor DSS RECORDS. • FOIA defines “records” very broadly to include all writings and recordings in the possession of a public body, including electronic records—OASIS; • OFTEN OVERLOOKED by local departments of social services—the KNEE JERK reaction is “everything is confidential.”

  32. DON’T FORGET ABOUT FOIA! • Virginia Code § 2.2-3704 provides: • A request for records must identify the records with “reasonable specificity”; • A request for records does not have to reference FOIA or be in writing to invoke the requirements of the Act. • A public body MUST RESPOND within 5 WORKING DAYS of receiving the request.

  33. DON’T FORGET ABOUT FOIA! • HOW DO I RESPOND? (1 of 5 ways): • Provide the records; • Provide in part, withhold in part; • Records cannot be found or don’t exist; • Not practically possible to provide records in 5 works days—May request additional 7 days to respond; • Withhold the records entirely.

  34. DON’T FORGET ABOUT FOIA! • IF RECORDS ARE WITHHELD in part or entirely: • Response must identify the volume and subject matter of withheld records with “reasonable particularity”; AND, • State the specific code section that authorizes withholding the records;

  35. DON’T FORGET ABOUT FOIA! • IS THERE AN EXCEPTION under the Act that authorizes DSS to withhold the records? (YES) • Virginia Code § 2.2-3705.5 (14): DSS “may” in its discretion withhold records, information and statistical registries required to be kept confidential pursuant to §§ 63.2-102 and 63.2-104. • Virginia Code § 63.2-1605: APS Records;

  36. DON’T FORGET ABOUT FOIA! • POINT:Even though social services records are confidential and may be withheld, FOIA still requires that DSS RESPOND; • RIGHTS MAY BE ENFORCED: • Petition for mandamus or injunction; • Civil penalties of $500-$5,000 against any employee who “willfully and knowingly” violates the Act.

  37. DON’T FORGET ABOUT FOIA! • RECOMMENDATION: • Establish a departmental protocol for responding to FOIA requests; • Appoint a FOIA compliance officer to receive and respond to FOIA requests; • Train staff to refer all requests for records to the compliance officer.

  38. MORALE: THE SILENT KILLER • TOO EASY TO GET CAUGHT UP in daily work demands and performance measures. • DON’T FORGET TO ASK: • Are our employees happy? • Are our employees motivated? • What is the culture at our office? • How can I foster a healthy workplace?

  39. MORALE: THE SILENT KILLER • BENEFITS of the healthy workplace: • Employees are more productive. • Helps to keep the good employees you have. • Helps to recruit employees you want. • Creates a pleasant workplace where employees want to work. • Happier employees = better jobs = Happier clients.

  40. MORALE: THE SILENT KILLER • HOW do I foster a healthy workplace? • NO CANNED ANSWER—Every workplace is different with different personalities. • HEALTHY HABITS: • Encourage open communication between staff and supervisors; • Encourage open communication between supervisors and the director;

  41. MORALE: THE SILENT KILLER • HEALTHY HABITS: • Offer constructive feedback to employees; • Treat all employees fairly; • Treat all employees equally; • Give recognition to employees when they deserve it;

  42. MORALE: THE SILENT KILLER • HEALTHY HABITS: • Give employees meaningful responsibilities; • Trust employees to do their jobs; • Ask for their opinion; • Explain your own; • Be approachable;

  43. MORALE: THE SILENT KILLER • HEALTHY HABITS: • Support your employees; • Provide mentorship; • Provide training to your employees; • Give timely performance evaluations; • Be straightforward about counseling and discipline.

  44. DON’T STICK YOUR HEAD IN THE SAND • The most UNHEALTHY HABIT for a supervisor or director. • Problems only get worse through SILENCE AND INACTION.

  45. DON’T STICK YOUR HEAD IN THE SAND • DO NOT IGNORE employee complaints: • Wage and hour violations; • Discriminatory actions; • Bullying; • Harassment claims; • Hostile workplace; • Unsafe working conditions; • Illegal activity.

  46. DON’T STICK YOUR HEAD IN THE SAND • DO NOT IGNORE poor work performance: • Take counseling and disciplinary action in a timely manner. • Take disciplinary action that is appropriate for the offense.

  47. DON’T STICK YOUR HEAD IN THE SAND • FAILURE to respond to employee complaints creates a liability issue for the Department and you as director or supervisor. • Example:Condoning hostile workplace conditions or sexual harassment by failing to take steps to stop it.

  48. DON’T STICK YOUR HEAD IN THE SAND • FAILURE to address performance issues in a timely and appropriate manner: • Undermines effectiveness of agency; • Undermines moral; • Inconsistent action creates perception you “play favorites”; • Makes grievances more difficult; • Creates liability issues for negligent supervision.

  49. DON’T STICK YOUR HEAD IN THE SAND • FAILURE to respond to employee complaints and performance issues also constitutes grounds for disciplinary action against you as supervisor or director. • Chapter 6-Performance Evaluation and Standards of Conduct: • Neglect of duties; • Group II Offense.

  50. COMMUNITY PARTNERS • MAINTAIN POSITIVE relationships with community partners: • Court / Clerk; • Court Services Unit; • School System; • Law enforcement; • Service providers; • Other DSS.