In The News
Our speakers include Employment Law attorneys James Crumlin and Keith Dennen of Bone McAllester Norton, along with Lynn Hutson, the Director of Human Resource Services at XMi. We look forward to educating you on the impact of social media on all aspects of employment law and will leave you with some ideas to protect you and your employees.
The results of the 2011 Fast Food/Full Service Chain Restaurants are out and we are proud to represent quite a few of them!
Congratulations to Five Guys, Chipotle, P.F. Chang's, Bonefish Grill, California Pizza Kitchen, Maggiano's Little Italy, Wei Asian Diner, Buffalo Wild Wings, Outback Steakhouse, Longhorn Steakhouse, Texas Roadhouse, Olive Garden, TGI Friday's, Carrabba's Italian Grill, Romano's Macaroni Grill, Red Lobster, Red Robin, Chili's, and Mimi's Cafe. Keep up the great work!
Social Media Background Checks: A Slippery Slope
By John Borrowman, CPC
Borrowman Baker, LLC, BV Staffing + Consulting
Interviewee: James Crumlin
Bone, McAllester, Norton
Understandably, employers want to get as much information as they can about a candidate. And the Internet makes it easy to use sites like Facebook to do a "social media background check." Taking that approach can be more complicated than it sounds, however.
For a more nuanced view, we turned to James Crumlin, a Partner in the Nashville law firm of Bone, McAllester, Norton. James specializes in the area of employment law.
Borrowman: It almost seems like a no-brainer for an employer to do a social media background check on its candidates. What could be wrong with that?
Crumlin: Well, there's nothing wrong if that process follows the same rules as any other background check. It's in the nature of a social media background check, though, that it can invite employers to look at information that may not be relevant to job performance. For example, your candidate may have posted vacation pictures that may not be very tasteful. But, are those pictures really relevant to whether the person can do the job he's being considered for? Or, is it simply unflattering information?
Borrowman: Is the process of drawing that line any different than drawing the line when it comes to non-work related information gathered in a standard background check?
Crumlin: Not really. You just need to make sure you're not using the social media background check to do something you couldn't do otherwise. In a social media background check, for example, you might find reference to a person's religion, race, marital status, disability or other information that is protected under Federal employment laws. When you're interviewing a candidate, you're not supposed to inquire about any of that information.
As with any other background check, the candidate must consent to the social media background check and be notified of any adverse information that is found. There are companies that do this kind of background check. The FTC has determined that they are compliant with the Fair Credit Reporting Act, which governs other forms of background checking.
Borrowman: Fundamentally then, things that you can't ask in an interview, you can't do research on in a social media background check.
Borrowman: So, why would you go looking at social media sites? Is there likely to be anything there that is truly relevant? Crumlin: It depends. You might not want a candidate who has a history of talking about former employers and bosses in a defamatory way on a social media site. People do weird things with social media. They think they can say anything. If the candidate is bragging about having a few drinks at lunch and then going back to work, that would be information that might be relevant to the hiring decision.
Borrowman: And that's where a social media background check becomes a slippery slope? Crumlin: That's right. It complicates things because you have to wonder whether or not the information that you find is relevant to job performance. If the information is not relevant to job performance and if you use that information, do you violate Federal laws?
I would always recommend that the employer stick to the essentials of the job; that they stick to the job requirements. If the employer learns something that appears contrary to information provided during an interview, there can still be a question about whether the information is job-related.
Borrowman: Can you give an example?
Crumlin: You could be in a situation where the job requires the candidate to do a lot of travel. The candidate says travel is fine. In the interview, you can't ask questions about family. In the social media background check, though, you discover photos of a wife and young kids. If the decision not to hire is based on that information, the employer could be in trouble.
Borrowman: How would an employer handle that new information? You shouldn't ignore it. But, you can't ask about it.
Crumlin: No, you can't use the social media background check to learn information that you can't learn in interviewing or other background checks. You have to look to his qualifications, to see whether he traveled in a previous position. You could ask references whether the candidate ever had problems with the travel requirements of the job. That's about as close as you can get.
Borrowman: Do you have any "bottom-line" recommendations about doing a social media background check?
Crumlin: One thing employers should not do is take a casual approach to using social media background check as a quasi-background check. They should not (and should not allow their employees to) think "I'll just go on Facebook and see what I can find out."
If you're going to use this process, you need to have it as a formal part of the hiring process. You need to treat it just like you would any other background check that the company does. You should notify the candidate that you are doing the background check, have them consent to it, and also inform them of any adverse information you find. If it leads to a decision not to hire, you have to explain that, too. All the while, you have to make sure you're in compliance with Federal employment laws in conducting these background checks.
James Mackler was interviewed by Channel 2 about the possible pension cuts facing the US Military.
NASHVILLE, Tenn. – Almost 10 years ago America, for the first time in modern history, was attacked at home.
Thousands of young men and women decided they couldn't sit at home. They wanted to serve.
Attorney James Mackler was one of them.
"I was in private practice for about seven years in Colorado and after September 11, I decided to join the army and be a part of the fight that was going on," Mackler recalled. "Our country had just been attacked, so I went to my local recruiting station and said, ‘Hey I want to join up.'"
Mackler went to flight school and in 2005 was deployed with the Ft. Campbell 101st Airborne Division as a Black Hawk Pilot. Today he's a Reservist back to practicing law in the private sector.
Click here for the entire story and the video
Jailbirds Don't Tweet: The Smart, Sane, and Legal Approach to Social Media
Social media is changing everyday. Whether you are a pro or novice, there's always something new. Come to the PPAMS MidSouth PromoShow and learn:
- How to avoid liability when making online product endorsements and marketing to children
- The three features of successful content
- What to include in a social media policy for employees
- Real world examples
- Practical ideas to spice up your own social media strategy
- Issues surrounding privacy
- Practical steps to shield against claims of defamation and copyright infringement when using social media
SEMINAR: Jailbirds Don't Tweet: The Smart, Sane, and Legal Approach to Social Media
Sponsored by Bulova
Date/Time: Monday, August 8, 2011 · 12:30am - 2:00pm
Location: Broadlands A
Speaker: Steven Zralek (Bone, McAllester, Norton), Amanda O'Brien (The Harmon Group)
It was another busy year for liquor and beer laws at the Tennessee General Assembly. Although most citizens were watching the wine in grocery stores legislation, a number of important liquor industry bills passed, and many failed.
Tastings Kosher at Package Stores. State law now allows retail liquor stores to offer tastings inside the store. This is a major change from prior law, which limited liquor stores to selling wine and spirits, selling lottery tickets and cashing checks. Liquor stores could also do tastings off-site, but every other business was illegal. The new law simply provides: "a retail licensee may offer complimentary samples of the products it sells for tastings to be held on the premises of the retail licensee. Such tastings shall be for sales, education and promotional purposes." The law prohibits wholesalers from providing any products, funding, labor, support or reimbursement for tastings. Unlike LBD tastings, no notice is required and servers do not have to hold server ABC permits. In fact, the law does not require servers, leaving open the possibility of self-service by customers. There is no limitation on the number or duration of tastings - it may be legal to leave bottles up front for customers to sample as desired. The law raises many questions. Liquor stores cannot sell mixers. Can they provide mixers with spirits? How about ice? Can stores even provide glassware or plastic for serving wine and spirits - they certainly cannot sell it? Can food be served? The ABC plans to adopt regulations for retail tastings and the process is set to begin this week. Long Live the ABC. In prior legislative sessions, there has been discussion about merging the ABC with another agency. The ABC has been plagued by a bad audit that disclosed bad cash management procedures and employee theft auditors thought was not properly handled, among other issues. Last year, the ABC was approved at the eleventh hour of the legislative session. The future of the ABC is a little brighter after this year’s legislature extended the life of the ABC through June 30, 2013, and did so relatively early in the session, without much fan fare.
Mail Order Wine to Dry Counties. The legislature removed a restriction on the direct shipment license that previously limited direct shipment sales to “wet” cities and counties. Now, you can order wine from any licensed winery by mail, anywhere in the State of Tennessee.
Shelby County. This law fixes a problem in unincorporated areas outside Memphis. For years, there has been confusion about Memphis’ city limits. Over the years, a handful of restaurants were issued liquor licenses because they appeared to be in Memphis, but were actually located in dry areas of Shelby County. Liquor by the drink is legal in Memphis and the suburban cities inside Shelby County. Liquor by the drink was not legal in unincorporated areas of Shelby County, where the handful of restaurants were operating with liquor licenses, but not legally authorized to sell liquor. This law legalizes liquor by the drink in unincorporated areas of Shelby County.
Adventure Tourism. This law creates a significant tax credit for creation of “adventure tourism” jobs. The law is complicated, but for qualifying businesses, we read the bill as providing a tax credit of $4,500 for three years for each new adventure tourism job. The state department of tourist development is charged with defining what jobs are adventure tourism. For creative entrepreneurs, this could be an attractive opportunity. $13,500 over three years is a big incentive to create jobs.
Wholesalers Importing. Rumor has it that some wholesalers have been acting as importers of wine and spirits, although the practice was not specifically authorized by Tennessee law. With the proper permit, the practice is now clearly legit.
Lexington. Most folks ask why we are reporting about a Kentucky law, but yes, Virginia, there is a Lexington, Tennessee. The law authorizes Lexington, by ordinance adopted by a two-thirds vote, to levy an occupancy tax on the privilege of staying in any hotel or motel in Lexington. Lexington can set the rate of the privilege tax; but the proceeds must be spent for “tourism development.”
A City United. Goodlettsville, a city long divided by county lines for alcohol, will now be able to conduct a referendum for the sale of alcoholic beverages at retail package stores in the Sumner County portions of the city.
Sunday Sales. The law sets the hours for the sale of beer on Sunday in a county to be the same as the hours set by a municipality that adopts liquor-by-the-drink in a referendum. The law does not apply if the county legislative body by a 2/3 vote has already set the hours for the sale of beer on Sunday in areas outside the municipality.
As usual, a few pet projects in dry areas were designated as Premier Type Tourist Resorts. Here is our best guess at who gets liquor:
- Buffalo River Resort in Perry County, which has 95 acres, three log cabins, 20 RV pads and a 40-seat restaurant.
- East Fork Stables in Jamestown, with space to hold up to 220 horses and a restaurant.
- The nonprofit Franklin Theatre may sell alcoholic beverages for consumption on premises.
- Blue Porch Inn in Rutherford County may sell alcoholic beverages for consumption on premises.
- Woodlake Golf Club in the East Tennessee town of Tazewell may sell alcoholic beverages for on-premises consumption.
- The National Ornamental Metal Museum in Memphis may sell alcoholic beverages..
The special license in dry areas known as “Tennessee River Resort District” now includes a limited service restaurants, which is last year’s new license for places that sell less than 50% food.
Down and Out for 2011
Here are some bills of interest that failed.
Wine in Grocery Stores. The bill was not expected to advance this year, and indeed it did not. Insiders reported that last legislative session, a deal was struck to defer serious consideration of wine until 2012. Read more about our analysis at Will Cheek's Blog.
Pay the Piper. The bill would have required that all ABC fines be paid before renewal of liquor licenses and specifically authorize the ABC to charge costs from setting citations for hearing. The ABC has historically required payment of all outstanding citations at renewal, and this bill would have made it law. In addition, the bill would have required licensees to pay the expenses of setting a citation for hearing, even if the citation settled. This would have been an effective tool for the ABC to clear a backlog of older citations. Currently, some licensees ignore citations because there are no clear consequences. The bill died in the House for no apparent reason.
LBD Audits. The bill would have changed the method to audit taxes paid on alcoholic beverages sold in restaurants. The current system simply taxes restaurants based on a formula derived from the wholesale sales to the restaurant. The bill would have directed the commissioner of revenue to explore the possibility of developing an on-line filing system which would permit the automatic deduction from the collector's business account for the payment of the tax due on sales of mixed drinks and setups.
Selling on Satellite. As introduced, would have allowed TN licensed wineries to conduct business at up to two satellite locations, allowing wineries to locate in urban tourist areas, among other places.
New License Fees. This bill would have required the ABC to implement a new licensing fee structure for restaurants and limited service restaurants based on liability insurance codes. Present fees are based on percentages of food service. Some saw this as a way to assess higher fees for riskier businesses such as nightclubs.
Order Up Red Bull and Vodka. With caffeinated alcohol drinks being banned at the federal level, legislators tried to extend the ban to mixed “energy” drinks at bars. The bid to say goodbye to selling caffeinated mixed drinks this year failed. In all fairness, it is difficult to craft a law that bans Red Bull and Vodka, but allows Jack and Coke.
For Profit Movie Theaters Stay Dry. Bills to allow liquor sales at a Knox County Theatre and two Nashville theaters were rejected. The Davidson County proposal required one auditorium to be restricted to patrons 21 years of age or older. Although a few nonprofit theaters have been approved for liquor, the legislature clearly declined to extend the right to for profit businesses.
*Many thanks to our intern, Eliot Goldfarb, for his research and input to this year's Legislative Recap. Eliot is a recent graduate of USN and is part of our service center team for the summer.
Attorney Stephen Zralek gathered a panel of Nashville's finest business owners and interactive experts to discuss how technology can lead to a new revenue stream for companies for an invitation only breakfast event.
David A. Owens is professor of the practice of management at Vanderbilt’s Graduate School of Management, where he focuses on entrepreneurship. Specializing in innovation and new product development, he is known as a dynamic speaker and is the recipient of numerous teaching awards. He provides consulting services for a wide range of clients around the world, including NASA, The Smithsonian, Nissan LEAF, Gibson Music, TVA, Cisco and LEGO, and his work has been featured in The New York Times, The Wall Street Journal, and NPR’s Marketplace. Prior to his time at Vanderbilt, David was the CEO of Griffin Technology in Nashville.
Nicholas Holland is Founder of centresource, an interactive agency in Nashville, which was recently named the 46th fastest growing inner-city firm in the United States. Centresource's motto is to "build, brand and boost" and they help businesses look at their overall strategy and find new ways to make or save money through interactive media.
Before starting centresource, Nicholas worked as a Risk Analyst, which provided a foundation in business analysis and that has been invaluable to operations and financial management.
Carter Hopkins, a recent college graduate, co-founded CityStreak. Finding his way from Shreveport, Louisiana, Carter occasionally finds his roots with his thick Cajun accent. When he can be understood, he is most likely talking wild ideas about traveling the country or passionately pursuing life. Described by some as a combination of "Groupon" and the "Amazing Race," CityStreak already has an amazing following after launching just a few months ago. Their mission is to connect people with each other to make memories and have a blast in their city. Come hear how two young entrepreneurs turned a dream into a thriving business that's built on a digital platform.
Parker Polidor is the Founder of Cell Journalist, which provides a real-time, hyper local content platform to 150+ local TV stations and newspapers. Prior to Cell Journalist, Parker, an inveterate entrepreneur, started and later sold Mountain Valet, the first parking management company in Vermont serving ski resorts. Mountain Valet grew from three employees and one account to seven locations with over 40 employees across three states. Parker has traveled to 37 countries and participated in humanitarian trips to Asia and Central Africa.
The dinner raised money for the CommunityNashville Building Bridges Program at Oasis Center, which helps youth learn about themselves, to respect others and to understand the root causes of prejudice.
"The annual Human Relations Award Dinner is one of the biggest and most important events in our city recognizing outstanding individuals whose commitment to human rights makes Nashville a better place for all of us," said co-chair Art Rebrovick.