Attorney keeps clients up-to-date on new employment legislation

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by Cynthia Price
Legal News

If an employer asks an employee the question, “Why can’t we be Friends?” the answer in Michigan is, because there is a law against it.

Mary Tabin, who is chair of Rhoades McKee’s Labor and Employment Practice Group, takes seriously the need to get the word out to her clients about new legislation. And among the newest employment-related laws in Michigan is one on social media, called the Internet Privacy Protection Act (IPPA).

The act prohibits two activities, both on the part of the employer. The first prohibited action is requiring applicants or already-hired employees to allow access to their Facebook, Twitter, or Gmail accounts, or any other personal internet account. The second is disciplining or failing to hire someone for not supplying that access.

Tabin points out that the kind of private information the law is attempting to prevent employers from obtaining has  long been off-limits for making hiring or employment decisions. “In some respects this is just keeping up with the technological times,” she says. “An employer never could go into your house, or stop you and look through your purse, so it’s pretty much the same thing here.”

She adds, “And it’s especially relevant because not everything on the internet is true.” As an example, she points to a situation where someone might use a slang drug term, leading an employer to believe they were steeped in the drug culture and likely to use drugs at work, when in reality it was just something the employee picked up in his or her reading. Or, more tellingly, people might pretend on Facebook to have more sophistication than they actually do.

The bill was one of the dozens which came out of the lame duck session of the Michigan legislature last year. Michigan joins a handful of states which have such laws.

“It’s been percolating in the legislature for a while,” Tabin says. “Social media isn’t going to go away. It’s interesting to watch – for me, it’s fun to see that some of these employment laws are catching up with what’s happening  electronically.”

A key provision of the IPPA is that supervisors and managers are considered to be the agents and representatives of the employer.

The law also covers college applications, where it has sometimes been a practice to ask about a prospective student’s social media presence.

Does IPPA preclude a supervisor accepting the Friend request of one of his or her employees? Strictly speaking, no, but Tabin says she counsels her clients against Facebook Friendships between supervisors and the people they supervise.

“That puts the employer at more heightened risk for several reasons. One, I don’t think it’s a far stretch to think that an employee who gets fired or disciplined can claim it wasn’t really voluntary, that there was pressure because everybody else was doing it; and two, even if it is truly voluntary, once the supervisor has that protected information, it’s imputed to the employer and the employee can claim that was the reason for the adverse employment action.”

In fact, Tabin urges caution on everything internet for her clients. She says, “I always tell them to resist the temptation to Google applicants, even though so many people are doing it.” She believes that third party background checks give employers all the information necessary.

Although Tabin occasionally acts as a litigator, it is just this kind of counseling that is her passion.

“My main goal is to assist employers in having successful relationships with their employees. I really enjoy the counseling part. In litigation there’s a big loser and a big winner, but it feels right to me to establish consistent relationships. I really like giving HR directors tools so they can have the knowledge and the confidence to act correctly and independently of me.”

Tabin was born and raised in nearby Fruitport, attending Fruitport High School. Tabin says that, because her father is deceased and her mother lives in Grand Rapids, and due to the constraints of her own family, she rarely goes back. “We lived in the country,” she says about visiting recently, “and it’s just so interesting to go back to your childhood home and see how different things look.”

She graduated magna cum laude from both Hope College, where she got her B.A. degree, and Valparaiso School of Law, from which she received her Juris Doctor.

Tabin has been at Rhoades McKee for 15 years. She has been the chair of the Labor and Employment Practice Group since mid-2012.

Tabin is also a past president of the Alliance of Women Entrepreneurs, with which she is still involved, and the current board chair of the Zeeland Lumber Company, a fourth-generation family-owned business.

She has special expertise in HR management within the health care field; she is also a member of the firm’s Health Care practice group.

She advises clients to put a lot of thought into their handbooks and employee manuals. “Handbooks not only tell your employees about policies you need for compliance, they also help create the culture that you want for your particular company. They provide guidance and tell employees, OK, this is what it takes to succeed in this company,” Tabin says.

“It isn’t one size fits all,” she continues. “For example, probably four or five years ago I could easily have drafted a computer policy that says ‘thou shalt not use the company computer.’ Now I think that’s unrealistic, and you run a risk where if employees are clearly violating that and you’re not doing anything about it, when you do choose to  discipline an employee they can say you haven’t enforced it evenly.” She emphasizes that helping a company draft an employee handbook entails a lot of back-and-forth communication.

Tabin’s practice includes both public and private employers, and she is comfortable in the alphabet soup of FMLA, ADA, OSHA, FLSA, NLRB, and EEOC. Part of what she enjoys most is the changing nature of employment law. “I do enjoy these new employment laws because you can’t ever stay static,” she says.

Media outlets, especially online and radio, use Tabin as a source, particularly on the newer laws. She sends out a Legal Update newsletter when new legislation becomes law.

In the January 10 edition, entitled Michigan Employers Just Got “Unfriended,” Tabin notes,

“The IPPA is the most recent development in a trend of laws limiting employers’ ability to obtain information about current and prospective employees’ activities outside the workplace...
The IPPA intends to ensure that employees and applicants are judged on their merits and their qualifications, not their private activities. Employers should carefully reevaluate their Human Resources policies and practices in light of this new law.”