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Opinion

By John Garvey

 

Is Facebook really Big Tobacco? The answer is ‘no’ — and there is no reasonable comparison, despite the compelling testimony of the Facebook whistleblower.

A two-sentence trip down memory lane on the subject of the tobacco industry will refresh our collective memories about an industry that was not only supported by government subsidies, but protected by the government. The tobacco industry was, in fact, founded on the back of slavery. So, despite the attention that the ‘Facebook is Big Tobacco’ comparison attracts, it is wildly hyperbolic and does a disservice to any alleged misdeeds of the social-media giant.

Now that we got that out of the way, what is Facebook, then? Really popular. As you know, your mother is on Facebook commenting on your posts that you need to lose weight, and your kids are on Instagram hiding their profiles from you. I hesitate to introduce the fact that they are probably over on TikTok, actually, because that will give you a headache.

Breaking news: the fight between Facebook and the whistleblower/Congress was over before it started. Where’s the evidence, you say? The perceived and actual value of Facebook was debated the day before the whistleblower testified in Washington, when someone at headquarters apparently tripped over and disconnected the network cord to Facebook, Instagram, and Whats App (OK, that’s fake news, but they each did go down on Oct. 4). The world noticed, consumers’ demand was tested and passed, and the stock priced declined.

However, just as the whistleblower started to whistle, Facebook’s stock began to rebound.

Are the charges serious? Yes, but they are societal as well — meaning it’s not just the algorithm that pushes nefarious content in front of us and our children. It is, in fact, us. We have choices, and we can easily unlike, complain, or log off if we are confronted by information from any source that we find offensive. Conveniently, your digital marketers will support your complaints because they — meaning me — do not want you to log off and wish to continue to put information in front of you that you will feel is relevant, compelling, and useful. That is how the algorithm is supposed to work, and there are coders tweaking it every day to make it better.

Here’s where I understand your anger, though. Mark Zuckerberg is absolutely not the right person to be leading or speaking for Facebook at this time. While he may still be popular with the Facebook employees, outside the building, he is barely discernable. This is one guy who fails to emote or show empathy.

I know, this presentation is somewhat simplistic. But if you are on Facebook, Instagram, Twitter, TikTok, Pinterest, or, indeed, LinkedIn (is Snapchat dead yet?), I sincerely hope you are getting some value out of the platforms you frequent. Companies like Facebook need to be more transparent and will be forced to in the future — but more likely by you, the public, rather than Congress. So, keep showing up, but also keep weighing in.

After all, we do not want to wait centuries for improvements, like we had to for government’s regulation of Big Tobacco.

 

John Garvey is president of Garvey Communication Associates Inc.

Law

Breaking Up Is Hard to Do

By Amelia J. Holstrom

On Nov. 3, 2019, news broke that the McDonald’s board of directors voted to terminate CEO Steve Easterbrook for having a consensual relationship with an employee.

Early reports indicate that, after a three-week internal investigation, McDonald’s board found the relationship to be inappropriate and in violation of its policies, including its standards of business conduct, which prohibits employees with “a direct or indirect reporting relationship” from “dating or having a sexual relationship.” McDonald’s makes clear in its policy that “it is not appropriate to show favoritism or make business decisions based on emotions or friendships rather than on the best interests of the company.”

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

McDonald’s is not the first large corporation to find itself in this type of predicament. Companies like Boeing, in 2005, and Best Buy, in 2012, have parted ways with chief executives based on alleged relationships with employees. The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.

You may be asking, can companies do that? Can they fire someone for a consensual relationship? Yes, they can — and so can you.

Love Hurts

It isn’t any secret that people spend most of their waking hours at work. Not surprisingly, office romances sometimes bloom. What better place to meet your soulmate, right?

From the employer’s point of view, dating in the workplace can spell trouble. Office romances create many problems. Because employers cannot prevent their employees from developing emotions, it is important to address workplace romances well in advance of any potential problems.

Workplace dating is a recipe for disaster in more ways than one. In addition to decreasing morale and productivity, when true love goes sour, employees often cannot work with each other anymore, or worse, workplace romances can ultimately lead to sexual harassment and/or discrimination and retaliation claims.

“The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.”

Assume, for example, that a superior and subordinate have been dating for some time. Their romance fizzles, and things end. What if the subordinate now claims to have felt pressured into the relationship? A supervisor’s relationship with a subordinate is most damaging to the company because of the legal consequences.

In Massachusetts, when a supervisor engages in harassment of a subordinate, even if there is no direct reporting relationship, a business is automatically liable for that harassment.

I Would Do Anything for Love, but I Won’t Let Supervisors Date Subordinates

How should you combat workplace romances? Employers can adopt policies on personal relationships in the workplace that specifically prohibit supervisors and managers from engaging in any romantic relationships with employees at the company, including direct and indirect subordinates.

If you choose to adopt such a policy, it should state that such relationships raise ethical and fairness issues and problems with favoritism and morale, and that they will not be tolerated. Employers should also spell out what will happen if such a relationship is discovered.

Some employers confront the couple, indicate that, if they wish to continue the relationship, one must resign, and let the employees decide who will resign. Other employers confront the employees and terminate the employment of one or both of them effective immediately. It depends on the stance your business wants to take.

Love Rules

What if you don’t want to prohibit such relationships at your workplace? Another approach used by some employers is to have employees in a relationship enter into a ‘love contract.’

Such a document essentially memorializes, in writing, the consensual nature of the employees’ relationship. Be careful here, though. Love contracts are not prospective, as they will not limit the company’s liability for future sexual harassment and/or discrimination and retaliation claims. They may only be helpful to demonstrate that there was a consensual relationship between the employees before and at the time the employees signed the contract.

You Oughta Know

All employers can learn a valuable lesson from the situation involving McDonald’s. Each employer should consider how it wants to handle workplace romances before one becomes an issue for its business. Having a plan or policy in place could save you a lot of heartaches … I mean, headaches.

(The author wishes to thank Neil Sedaka, Nazareth, Meat Loaf, Don Henley, and Alanis Morissette for their wise lyrics about love.)

Amelia J. Holstrom is a partner with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation, harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

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