A new era dawns—my first post at Fistful of Talent

Today’s post is a little different. It's the first I’ve ever written that is not being debuted on my own blog. Today is my first endeavor as a guest poster on Fistful of Talent. FOT is the preeminent, collaborative human resources blog, featuring a who’s who of HR bloggers. A few weeks ago, it’s proprietor, Kris Dunn [The HR Capitalist / @kris_dunn] reached out to me looking to fill FOT’s employment law void. So, we’re trying each other out.

Today’s post marks what I hope is the beginning of a long relationship between this blog and FOT. Please help get us off on the right foot by clicking over to FOT to read my thoughts on what you can do about employees who cheat your time keeping system.

WIRTW #201 (the “Mickey Mouse” edition)

The news has been pretty somber this week, with the sexual abuse of children dominating the headlines. So, I thought we needed a light-hearted theme for this week’s WIRTW.

On this day in 1928, Walt Disney released the first Mickey Mouse cartoon, Steamboat Willie:

Steamboat Willie’s success launched an empire that has touched every aspect of pop culture in the last 83 years. Thanks Walt.

Here’s the rest of what I read this week:

Discrimination

• 5 signs that you’ll lose your sexual harassment case – from Robin Shea’s Employment and Labor Insider
• Bad Christmas Card Idea – from Phil Miles’s Lawffice Space
• Speech criticizing lawsuit = “retaliation” – from Walter Olson’s Overlawyered
• EEOC to consider disparate impact and reasonable factors other than age at meeting – from John Holmquist’s Michigan Employment Law Connection
• Settling a Discrimination or Harassment Lawsuit – from Delaware Employment Law Blog
• When Is a Test a Medical Examination? – from Labor & Employment Law Perspectives

Social Media & Workplace Technology

• 6 things you must know about social media & your workforce – from Eric Meyer’s The Employer Handbook Blog
• Just The Facts About Workplace Social Media – from Blogging4jobs
• HIPAA Dangers Lurk on Facebook; Ongoing Policy Revisions Are Advised – from Health Business Daily
• Recommendations for Preventing and Responding to Workplace Violence – from Jason Shinn’s Michigan Employment Law Advisor
• The Thorny Combination of Old Laws and New Tech – from The Atlantic
• Social Media for Small Biz: Your HR Survival Guide Source – from Evil HR Lady, Suzanne Lucas
• Social Media: Don’t Get Off Track With the Law in Monitoring Employees – from SmartHR

HR & Employee Relations

• Honoring Veterans Day: USERRA and Employment Law Resources – from Dan Schwartz’s Connecticut Employment Law Blog
• Here is The Reason You Want to Be in Compliance! – from Mike Haberman’s Omega HR Solutions
• Penn State Disgrace: If Only… – from Nick Fishman’s employeescreenIQ Blog

Wage & Hour / Benefits

• Calculating FMLA Leave for Holidays, Breaks and Plant Shut Downs – from Jeff Nowak’s FMLA Insights
• Circuits Split as to Whether Public Officials Can be Sued Individually Under the FMLA – from Fitzpatrick on Employment Law
• You’ve been WARN-ed – from HR idiot
• 73% of Wage/Hour Investigations Result in Findings – from HR Daily Advisor
• Supreme Court To Decide Constitutionality of Obamacare from Above the Law

Labor Relations

• Apple Prepares to Crush Apple Store Unions – from Gawker
• NLRB Acting General Counsel Warns Companies about Social Media and Handbook Rules – from EFCA & Labor Law Reform Blog
• Senate Bill 5 Repeal—What is Next? – from Employer Law Report
• NBA Talks Collapse; Union Disbands – from Workplace Prof Blog
• Senator Johnny Isakson (R-GA) Introduces Bill to Reverse NLRB's “Micro-Union” Decision – from Seth Borden’s Labor Relations Today

I’m begging you … have a social media policy

Last week, SHRM released the results of its 3rd survey on Social Media in the Workplace [pdf]. SHRM polled 532 randomly selected HR professionals from its membership. According to the survey, 68% of companies use social media to communicate with external audiences (current customers, potential customers, or potential employees). Yet, only 27% provide their employees using social media any kind of training on its proper use.

This disconnect is disturbing. It’s bad enough that employees are using social media to communicate with each other absent any guidance or training. It’s astounding that nearly three-quarters of companies allow their employees to communicate with the public at-large in this manner.

Without a policy establishing expectations for the proper use of social media internally and externally, this is what you are asking for in your business:

Please, for the love of god, do not allow anyone in your organization to use social media for any purpose without putting a policy in place and training your employees on that policy. Anything less is a recipe for a human resources or public relations disaster.

[Hat tip: Social Media Employment Law Blog]

Who owns social media accounts? (part 2)

Last Monday, I asked the following question: “What happens to an employee’s social media account when the employee leaves a company?” The very next day, a California federal court began to sketch the outline of an answer.

PhoneDog v. Kravitz (N.D. Calif. 11/8/11) [pdf] concerns the ownership of a corporate Twitter account. Noah Kravitz worked for PhoneDog as a product reviewer and video blogger. In that role, PhoneDog provided him use of a Twitter account—@PhoneDog_Noah—to disseminate information and promote PhoneDog’s services on its behalf. When Kravitz resigned his employment, PhoneDog requested that he relinquish use of the Twitter Account. Instead, Kravitz changed the account’s name to @noahkravitz, continuing to use it. PhoneDog filed suit, claiming, among other things, that by refusing to relinquish control of the Twitter account, Kravitz stole its trade secrets and other proprietary and confidential information.

In seeking dismissal of the lawsuit, Kravitz argued that PhoneDog cannot establish any damages because it cannot establish ownership over the Twitter account. According to Kravitz: “To date, the industry precedent has been that absent an agreement prohibiting any employee from doing so, after an employee leaves an employer, they are free to change their Twitter handle.” (emphasis added). The court disagreed, and is permitting the claims alleging misappropriation of trade secrets and conversion of property to proceed to discovery.

Despite the employer’s (at least temporary) victory, why take a risk that an employee can challenge ownership rights to a social media account? If you have employees using corporate-branded or other official social media accounts, require them to sign an agreement as a condition of their employment that says the following:

1. The company, and not the employee, owns the social media account.
2. All social media accounts, including login information and passwords, must be relinquished at the end of employment.

Anything else places these issues in the uncertain hands of a judge or a jury.

Don’t ignore common sense when conducting workplace investigations

Light night, I tuned in with curiosity for Bob Costas’s interview with Jerry Sandusky. That curiosity turned to stunned outrage when Sandusky made the following admission (among others): “I shouldn't have showered with those kids.” Of course, I have outrage as a parent and as a human being. That outrage has existed since this story broke. After last night’s public relations debacle, I also now have outrage as an attorney.

There are many teachable lessons for employers from last night’s primetime drubbing. For example, Sandusky’s lawyers, PR people, and other handlers deserve to be fired for letting their client appear so unprepared and so guilty. I’m also curious about whether Sandusky waived any 5th Amendment rights by making public statements about the crimes with which he has been charged (but I’ll leave that issue for my criminal brethren).

Here’s the employment law takeaway: when you are assessing credibility—for example, during a harassment or other workplace investigation—you do not check your common sense at the door. In fact, common sense serves as your best friend. If you eat meat you are not a vegetarian, and if you shower naked with little boys, you are a pedophile—case closed. To argue any differently borders on the ludicrous. Anyone who watched last night’s interview can only reach the conclusion that Sandusky is guilty of the charges levied against him.

Do not ignore your common sense. “I did not inhale” = I smoked pot. “I have horsed around with kids I have showered after workouts” = I am a pedophile. Keep these examples in the front of your mind during your next workplace investigation.

Tell them to their face: firing employees (a lesson from State College, PA)

Frank Roche, writing at his KnowHR blog, made the following observation the morning after Penn State announced that it had fired Joe Paterno: “Penn State did the right thing.” It’s hard to argue that every university employee whose hands touched the Jerry Sandusky scandal needed to be fired. While I cannot question the decision to fire Joe Paterno, I have a huge problem with how the school communicated the termination to him.

As I watched the PSU board of trustees’s press conference last Wednesday night, I was struck by how John Surma dodged any questions about how the board communicated its decision to Paterno. As he avoided answering those questions, I could only conclude that the board did not tell Paterno to his face that he had been fired. ESPN’s Joe Schad (reporting on Twitter) confirmed my hunch:

Paterno received at his home an envelope from a messenger with a # to call 15 minutes b/f BOT announcement.

When Paterno called he was told "you are relieved of your duties."

Don't get me wrong. I believe Joe Paterno deserved to be fired. What I take issue with was how he was fired. Every employee (let alone one with 62 years of tenure) deserves to learn of a job-loss via a face-to-face conversation. It is never acceptable to fire someone by a phone call, letter, email, text message, Facebook message, tweet, or a this-termination-note-will-self-destruct-in-10-seconds note left at the front door.

There is nothing easy about the communication of a firing. I’ve had to fire people. It’s the worst part of my job. It’s also part of what you sign up for when you assume a management role. But, as uncomfortable as it is to tell someone they are losing a job, it is exponentially more difficult to be on the receiving end of that news. Do the right thing by your employees and provide them the courtesy of delivering the news in person, no matter the circumstances.

WIRTW #200 (the “bicentennial” edition)

This week offered a lot of potential themes from which I could pick for today’s “WIRTW”: Joe Paterno (come back Monday for my thoughts on the handling of his termination), Herman Cain, Veteran’s Day, the anomaly of today’s date (11/11/11—see below). Milestones, however, are important, and today’s is significant—the 200th publication of my weekly roundup. Thanks for reading.

Here’s the rest of what I read this week:

Discrimination

• Yes, Conservatives, There Is Sexual Harassment – from Donna Ballman’s Screw You Guys, I’m Going Home
• Why Panera should settle lawsuit regarding racism – from Evil HR Lady, Suzanne Lucas
• When People Get Angry: Power Outages & Khan – from Dan Schwartz’s Connecticut Employment Law Blog
• Gender discrimination at a “Big Four” accounting firm – from Employment Law Bits
• Women Who Work in Positions with Greater Likelihood of Sexual Harassment Paid More – from Wisconsin Employment & Labor Law Blog
• The impact of the Penn State controversy: filling a gap in an employer’s harassment policy – from Michigan Employment Law Connection
• Employer lessons from Penn State (Hint: ignorance is not bliss) – from Eric Meyer’s The Employer Handbook Blog
• “A closed mouth gathers no feet”: What Herman Cain teaches employers about sexual harassment – from Robin Shea’s Employment and Labor Insider
• Make War No More–Weapons Manufacturer Must Accommodate Employee Who Objects to Weaponry, EEOC Says – from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Social Media in the Workplace: Common Sense Goes a Long Way – from Lindsay Walker at i-Sight Investigation Software Blog
• Using Social Media to Screen Job Applicants - A Few Recommendations for Employers – from Michigan Employment Law Advisor
• Facebook Spoliation Costs Widower and His Attorney $700K in Sanctions – from Above the Law
• Nielsen: Soon-to-be seniors adopting smartphones faster than any other age group – from Engadget Mobile

HR & Employee Relations

• Is it Settlement or Severance? – from Phil Miles’s Lawffice Space
• The Importance of Employee Documentation – from CPEhr
• Penn State Disgrace: If Only… – from Nick Fishman’s EmployeeScreenIQ Blog
• EDDIE MURPHY: On Taking the Job That Offers No Balance and Almost Kills You… – from The HR Capitalist, Kris Dunn
• Trade Secrets and Confidentiality – from Texas Employer Handbook

Wage & Hour

• The War on Wage Theft and WHD – from Stephanie Thomas’s The Proactive Employer Blog
• Even Best Practices Can't Always Ensure Quick Dismissal of Wage & Hour Claims – from Wage & Hour Insights

Labor Relations

• NLRB lawyer: “We screwed up the U.S. economy” – from The Washington Examiner
• Is it Protected Concerted Activity to “Occupy” Your City? – from Kara Mignanelli at Social Axcess
• The state of the NLRB (a self-appraisal) – from Michael VanDervort’s The Human Race Horses

Until next week, remember, today goes to 11.

Regulating workplace photography? Think again, says one federal court

This time next week, I’ll be in San Diego presenting on workplace social media issues at the 2011 Human Resources & Employer Compliance Summit. If past presentations are any predictor, I’ll be spending a lot of time answering questions about the NLRB’s intrusions into this area. NLRB v. White Oak Manor (4th Cir. 9/22/11)—while not a social media case per se—is a great example of how workplace technology and social media issues can arise under the guise of protected concerted activity.

White Oak Manor, a long-term care facility, maintained a policy against taking pictures inside its facility without prior written approval. Nicole Wright-Gore, a supply clerk, filed a grievance over discipline she received for wearing a hat in the workplace. To document her belief that she had been unfairly disciplined for a dress code violation, she took pictures of her fellow employees, also wearing hats but un-disciplined. When the employer learned of the photographs, it terminated her.

In reviewing Wright-Gore’s unfair labor practice charge, the NLRB concluded that she engaged in protected concerted activity for which she was discharged: “a joint discussion of the unfairness of the dress code, … seeking a change in the enforcement of the dress code.” On appeal, the 4th Circuit agreed:

Wright-Gore’s complaints about White Oak's disparate enforcement of its dress code are protected under the NLRA…. Wright-Gore's documenting of the problem through photography is similarly protected conduct…. Because Wright-Gore’s conversations were initiated to induce group action—she explained that she spoke with other employees "[t]o get their support so I could go to management…,”—they constitute concerted activity.

The NLRB continues to use social media to expand the definition of protected concerted activity. As the agency (and now courts) become more involved in these issues, the rules governing what you can and cannot regulate regarding employees’ use of social media and other technologies in the workplace will continue to evolve. For now, the best course of action may be to err on the side of caution in all but the most obvious of cases, and to consult with labor counsel well-versed in social media issues in everything else. 

[Hat tip: Social Media Employment Law Blog]

Progressive discipline might not be mandatory, but it makes sense

In Fulton v. ODJFS (11/3/11) [pdf], the employee argued that he was entitled to recover unemployment compensation because his employer failed to follow its own progressive discipline policy when terminating him. The court disagreed, noting that the employer’s policy granted discretion to impose any level of disciplinary action—ranging from verbal warning, written warning,
suspension, or immediate termination of employment—depending on the seriousness of the offense.

Reading this, one might conclude that because progressive discipline policies are unnecessary they should be avoided. In fact, the contrary is true. Progressive discipline (with sufficient discretion built in) provides an early warning system to employees. While I have no empirical data to back me up, I would bet that employers who use progressive discipline systems face fewer lawsuits from terminated employees. Those that perceive fair treatment should be less likely to sue than those who perceive that they had the rug pulled out from under them.

Employers cannot “ostrich” harassment allegations

By now, you’ve likely read or heard about the disturbing sexual abuse scandal involving Jerry Sandusky, Penn State’s former defensive coordinator, and the decades-long cover-up perpetrated by the university to protect its storied football program. Of all of the allegations, however, the following, culled from a report in the New York Times, resonated with me as the teachable lesson for employers:

The chronology of events laid out by the state attorney general’s office includes multiple episodes that seem to suggest a failure by a variety of Penn State officials or employees to act emphatically— whether out of fear, incompetence or, perhaps, self-interest….

“The failure of top university officials to act on reports of Sandusky’s alleged sexual misconduct, even after it was reported to them in graphic detail by an eyewitness, allowed a predator to walk free for years—continuing to target new victims,” Linda Kelly, the state attorney general, said in a statement over the weekend. “Equally disturbing is the lack of action and apparent lack of concern among those same officials, and others who received information about this case, who either avoided asking difficult questions or chose to look the other way.”

If you take nothing else away from this horrible story, let it be this point: under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and indefensible?) harassment lawsuit.

Who owns social media accounts—the employer or employee?

What happens to an employee’s social media account when the employee leaves a company? One British court has answered this question by ordering a former employee of a recruiting firm to turn over his LinkedIn contacts to his former employer.

The answer to this question is not nearly as cut and dry as this one case may make it seem. Ownership of social media usernames, pages, and relationships depends on the nature of the employment, the nature of relationship, and the ownership of the account. Thus, for example, an employee hired to manage a business’s social media will have much less of claim over these relations than will an employee who uses social media to foster personal relationships with co-workers, customers, and vendors. Salespeople—who might use LinkedIn to manage business contacts, or Facebook and Twitter to promote their companies and products—present a much grayer issue.

Because shades of gray lead to unpredictability, you should plan for these uncertainties by reaching agreements with your employees—up front and in a social media policy—on how social media ownership will be handled at the end of employment.

[Hat tip: Forbes]

WIRTW #199 (the “Occupy” edition)

I spent the first half of last week in Denver. I took the opportunity of a free Monday morning to walk the city. In front of the Colorado State Capitol Building, I came across what, at the time, was the modest Occupy Denver rally:

What effect could these “Occupy” rallies have on your workplace? Here’s some thoughts:

• “Occupy Wall Street” Protests May Lead to Workplace Issues – from SHRM
• Occupy [Insert City] Is Coming—Are You Ready If Your Employees Get Involved? – from TLNT
• Can You Fire Someone for Participating in an “Occupy” Rally? from Mike Haberman’s Omega HR Solutions

Here’s the rest of what I read this week (and last week):

Discrimination

• Great moments in age discrimination law – from Walter Olson’s Overlawyered
• Are Gender Quotas The Key To Breaking the Glass Ceiling? – from Stephanie Thomas’s The Proactive Employer Blog
• Court Finds, in Pre-ADAA Case, that Employee with Diabetes Not Disabled – from Russell Cawyer’s Texas Employment Law Update
• Disability harassment and peanuts: Can't we all get along? – from John Holmquist’s Michigan Employment Law Connection
• What Is Color Discrimination And How Do I Prove It? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Sexual claims common in pressure-cooker restaurant world – from Eve Tahmincioglu at MSNBC.com
• Presidential Politics and Sex - A Reminder for Employers on Preventing Sexual Harassment – from Jason Shinn’s Michigan Employment Law Advisor
• Herman Cain, sexual harassment, and 10 lessons for employers – from Eric Meyer’s The Employer Handbook Blog
• The Allegations Against Herman Cain–What Would the EEOC Say? – from Joe’s HR and Benefits Blog
• Sexual Harassment 20 Years Later: Anniversary of Clarence Thomas Hearings Marks Time for Reflection – from Employment Lawyer Blog

Social Media & Workplace Technology

• Why Your Four-Month-Old Social Media Policy Is Obsolete – from Mark Herrmann at Above the Law
• 10 Scariest Enterprise Social Networking Mistakes – from InformationWeek
• How Much Facebook Policing is Too Much? – from Christopher McKinney’s Texas Employment Law Blog
• Half Of Young Professionals Value Facebook Access, Smartphone Options Over Salary: Report – from Fast Company
• Social Media Sites For Corporate Spying (Beyond The Obvious Ones) – from Kashmir Hill’s The Not-So Private Parts
• Apple Employee Kicked to the Curb for Facebook Post – from Lindsay Walker at i-Sight Investigation Software Blog
• Employees Use Social Media To Quit Their Jobs – from Minnesota Labor & Employment Law Blog
• When Plaintiffs Post About Their Case on Facebook – from Molly DiBianca’s Delaware Employment Law Blog
• My boss fired me over email, then refused to let me collect my personal belongings – from Ask a Manager

HR & Employee Relations

• Why do we hate us? Women prefer working for men, study says – from Robin Shea’s Employment and Labor Insider
• Hot Topic: Workplace Tebowing – from Philip Miles’s Lawffice Space
• Daylight Savings Time Change Means Tired Employees – from Workplace Diva
• TSA Is Firing The “Get Your Freak On, Girl” Baggage Screener – from The Not-So Private Parts
• What is the #1 way HR managers can keep employers out of trouble? Think like a lawyer! – from Heather Travar
• Trade Secret and Noncompete Survey – National Case Graph – from Fair Competition Law
• Breastfeeding At Work – from Evil HR Lady, Suzanne Lucas

Wage & Hour

• Starting Computers and Reading Email May Be Compensable Work – from Wage & Hour Insights
• Assistant Manager Exemption Case Goes For The Employer: A New Day Dawns! – from Wage & Hour - Development & Highlights
• No Room for FLSA Abuses at Hilton – from SmartHR
• Target Store Manager Fired for Working Off the Clock – from Texas Employer Handbook
• Supervisor’s Inadvisable Email Creates Basis for FMLA Claim – from FMLA Insights

Labor Relations

• RARE: The Capitalist Says This Union Member Deserves Better Treatment From Management… – from The HR Capitalist, Kris Dunn
• Two Economists Explain the NBA Lockout – from Grantland
• Call Reversed: Bryzgalov Media Ban Deemed Un-CBA’able – from The700Level.com
• Breakfast with the NLRB Region 34 Director – What’s New? – from Dan Schwartz’s Connecticut Employment Law Blog
• Social Media Spotlight – from Labor Relations Institute
• Social Media and the NLRA – from The L•E•Jer
• Arguments Begin In Legal Challenges to NLRB Posting Rule – from Employer Law Report
• Legal Challenge to NLRB’s Notice-Posting Rule Heats Up – from Labor Relations Today
• Bad teachers are impossible to fire – from LaborPains.org

Unsubstantiated allegations cannot create protected activity (at least according to one Ohio court)

In Veal v. Upreach LLC (10/20/11), an employee claimed that her employer terminated her in retaliation for her contacting the EEOC. The court of appeals, however, did not believe that the employee had presented any evidence in support of her claim that she had engaged in protected activity:

Appellant did not specifically allege or present evidence establishing that she was engaged in a protected activity…. Her complaint and memorandum opposing summary judgment merely alleged that she was terminated after Pitts [her direct supervisor] saw her reading a book on employee rights and overheard her placing a call to the Equal Employment Opportunity Commission during work hours. However, appellant offered nothing to substantiate these claims, nor did she explain how her allegations amounted to conduct protected….

It is refreshing to read an opinion in which a court refused to take a plaintiff merely at her word by requiring some corroboration before sending the case to a jury. Having said that, however, this case—at least in Ohio state courts—is very much the exception, not the rule.

Do you know what an employment lawsuit costs?

My manifesto—the Employer’s Bill of Rights—continues to generate links (thanks Kris Dunn and Walter Olson) and comments. One commenter asked the following:

Most employment cases would take less than a week to try? If Defendants simply tried all these frivolous cases instead of spending 18 mos. paying lawyers to do discovery only to settle later wouldn’t these cases dry up?

The reason why businesses fear terminating employees is because wrongful termination lawsuits are so expensive to litigate. According to a recent article at CIO.com (h/t: i-Sight Blog), a company should expect to spend between $50,000 and $250,000 dollars defending a lawsuit brought by an ex-employee. In my experience, that number is pretty accurate.

I believe that every lawsuit should settle. The two key considerations are when and for how much.

The only way to survive as an employer, though, is to draw a reasonable line in the sand on settlement value for a case and stick to it. If you are dead in the water, then you are better off settling early and not spending hundreds of thousands of dollars paying your lawyers to fight a lost cause. At the other extreme, though, if the employee’s case is meritless (or frivolous, depending on your viewpoint), then why do want to spend a dime towards settlement? Settling those cases will only paint your business as an easy mark, spurring copycat claims by other employees. For this latter category of claims, this only settlement is a voluntary dismissal, or, at most, a nuisance value.

The responsibility to fairly value cases, though, falls on both sides of the table. If the employee will not come to your line, then you must litigate, all the way through trial if necessary. Otherwise, you will lose all credibility and your corporate coffers will become an ATM machine for every terminated employee.

NLRB says a “f**ktard” is different than a “d*ck” under Section 7

A employee responded to a supervisor’s LinkedIn request with the following joke: “f**ktard.” More than a year later, the company discovered the “f**ktard” post while establishing its own corporate LinkedIn site. After the company fired the employee for a violation of its Electronic Communications Policy, the employee filed an unfair labor practice charge with the NLRB. He claimed that his employer did not fire him because of the LinkedIn post, but instead because of a discussion he had with some co-workers two months earlier about the company’s overtime practices.

In Schulte, Roth & Zabel (10/13/11) [pdf], the NLRB Office of General Counsel opined that the termination was lawful, and recommended the dismissal of the charge:

Moreover, the LinkedIn posting was not a pretextua1 reason for discharging the Charging Party; the Employer has demonstrated that it only discovered the posting in its April review of prior employee posts as part of its assessment of problems with its new LinkedIn page. Finally, no one contends that the Charging Party's posting in violation of the electronic usage policy—the stated reason for his discharge—was protected by Section 7.

Almost a year ago, the NLRB made a huge splash in the world of social media by issuing a complaint against a Connecticut ambulance company in an eerily similar case—the company fired an employee who called her boss a “d*ck” on her Facebook wall. At the time, many believed that the sky was falling, and that employers would be unable to regulate their employees’ use of social media inside and outside the workplace.

Is it possible, however, that the NLRB has been running a well-staged long con? Could the NLRB have enough marketing savvy to latch on to the hot issue invading the workplace, take an extreme position to raise awareness among non-unionized employees that they have rights under the National Labor Relations Act, and then slowly and quietly backtrack into a more reasonable position on a case-by-case basis?

If you compare where we were a year ago to where we are now, this appears to be the case. In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities? Well played, NLRB.

Equal opportunity harassment is not unlawful sexual harassment

For harassment to qualify as sexual harassment it must be because of sex. That means that the complained-of misconduct is of a sexual nature, or it singles out women differently than men. Non-sex-based conduct that targets women and men the same, no matter how harsh, is not sexual harassment. Case in point? Miceli v. Lakeland Automotive Corp. (N.J. App. Div. 10/19/11) [pdf].

During her tenure at Lakeland Automotive, Diana Miceli was its only female salesperson. Generally, she alleged that her manager abused, belittled, and harassed her. She admitted, however, that the manager treated the other salespeople (all male) the same way. Because the manager was an equal-opportunity abuser, the court upheld summary judgment:

The sales manager’s abrasiveness was not limited to Miceli. In Miceli’s deposition testimony she stated that “[e]veryone complained about [the sales manager].” Miceli admitted that the sales manager treated another male co-worker “extremely abusive[ly]” and “very condescending[ly].” …

[T]here is no evidence to suggest that the … conduct, although rude and obnoxious, was motivated by gender. “Personality conflicts, albeit severe, do not equate to” hostile work environment claims simply because the conflict is between a male and female employee.

There is no law against being an ass, just against being an ass based on some protected characteristic.

Are you checking in on your “sick” employees? Maybe you should be (or not)

According to a recent survey by careerbuilder.com, 29% of employees admit to playing hooky from work, taking “sick” days when they were really running errands or having fun with friends or family.

Despite this number, only 28% of businesses report that they  check on “ill” employees. Of that 28%:

• 69% require a doctor’s note
• 52% call the employee
• 19% had another employee call the employee
• 16% drove by the employee’s home

Let me suggest a radical alternative to going Inspector Clouseau on your employees. Get rid of sick days (and vacation days, and any other days off) and replace them with paid time off.

PTO is a flexible arrangement that provides the employee a set number of days off per year to be used for any reason (sick time, personal days, vacations, or anything else). Employees like PTO because of its flexibility. Employers like PTO because there is no time spent verifying the legitimacy of sick days and other time off. PTO, however, is not without its downside. For example, it encourages sick employees to come to work because they do not want to burn a paid day off they can use for a vacation later. Employers also lose control over how, why, and even when employees are off.

Depending on your employees’ work ethics and absentee records, and your management’s level of comfort with a more flexible leave policy, you might want to consider whether shifting to PTO makes sense for your business.

Substances abusers continue to confound employers

The EEOC announced that it has filed a lawsuit on behalf of a job applicant who lost his position after a pre-employment drug screen revealed methadone in his system:

According to the EEOC’s complaint, Craig Burns is a recovering drug addict who has been enrolled in a methadone treatment program since 2004. In January 2010, United Insurance offered Burns a position as an insurance agent in its Raleigh office, conditioned upon Burns’ passing a drug test. After Burns’ drug test showed the presence of methadone in his system, Burns submitted a letter to United Insurance from his treatment provider explaining that he was participating in supervised methadone treatment program and taking legally prescribed medication as part of the treatment. Upon receiving this information, United Insurance notified Burns that he was not eligible for hire and withdrew its offer of employment.

When dealing with addicts, the ADA requires employer to balance a fine line between not wanting substance abusers in the workplace and the need to accommodate addiction as a disability. This balance comes from the ADA’s lack of protection for current drug and alcohol abuse, but its ongoing protection of addiction as a disability. From the EEOC:

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA does not protect an individual who currently engages in the illegal use of drugs, but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability,” and who is “qualified.”

Even without these legal complications, dealing with employees who have a substance problem is never easy. Because of the layer of complexity added by the ADA, you should not tread in these waters without guidance from employment counsel.

The NLRB does not troll for cases, but…

During my NPR appearance from a couple of weeks ago, NLRB General Counsel Lafe Solomon made an interesting comment about his agency: “We don’t solicit business. We only deal with charges that are filed in our regional offices around the country.”

Here’s the whole clip [1:13], which includes my response:

I take issue with Lafe’s statement that the agency doesn’t “solicit business.” Yes, the agency doesn’t do things like set up tables in public spaces looking for individuals to file charges (it leaves that tactic to the EEOC). There are, however, lots of types of solicitation. Under Lafe’s reign as its general counsel, the NLRB has aggressively issued press releases announcing myriad cases dealing with social media. He published an entire report on the issue. He’s been quoted in the New York Times and has been doing the media circuit (like our NPR appearance). All of that publicity sends a very strong message to employees that the NLRB is their recourse if they are fired for something they write on a social media website. If that isn’t “soliciting” business, I don’t know what is.

New movie asks this question about workplace social media: “Have I Shared Too Much?”

If you are asking questions in job interviews about candidates social media activities, I bet it’s not like what happened in a short movie that debuted recently online, Have I Shared Too Much?

In the 12-minute movie, an interviewee trying to land his dream job is forced to defend why no one has recommended him on LinkedIn, why he only has 6 Twitter followers, why follows Kim and Courtney but not Chloe, and why he’s a fan of Justin Bieber. He also suffers through the uncomfortable squabbling among the three interviewers debating their own social media issues with each other. For anyone interested in social media in the workplace, this movie is a must match.

All Twitter talked to the writer and director, Sameer Acharya, who said the following about his project:

I started writing the film last summer after reading several articles, and watching news reports about the paranoia of social media. Prospective job applicants were becoming increasingly weary that their online posts could potentially cost them career opportunities….

Yes, these are all amazing tools that have significant personal and community benefits. However, there is also a downside. In addition to maintaining a life balance, hopefully audiences will see that social networking has blurred the lines separating our personal and private lives, and with that comes significant consequences.

Pop some corn, turn down the lights, and enjoy.

WIRTW #198 (the “James Madison” edition)

My post about a proposed Employer’s Bill of Rights has gotten a lot of people talking. It is the most commented post in the history of the blog. It is also well on its way to becoming the most read post, an honor which (for now) belongs to the post from earlier this year on Charlie Sheen’s workplace rants as protected, concerted activity. I’ve also had offers to publish my thoughts as an 11x17 workplace poster (an idea I might run with) and to run for president of South Africa (Nelson Mandela’s legacy is safe).

Other bloggers have also picked up the torch on this issue:

• Employee vs Employer Bill of Rights – from Suzanne Lucas, the Evil HR Lady, writing at BNET
• An Employer Bill of Rights? Well, Not Exactly, But… – from Dan Schwartz’s Connecticut Employment Law Blog
• A Great Read for the End of the Week – from Mike Haberman’s HR Observations Blog
• The Employment Law Blog Carnival is here! – from The full 360 … People, Organizations & Technology

WIRTW is taking much needed Friday off next week, but I will have original posts the rest of the week.

Here’s the rest of what I read this week:

Discrimination

• “Anita Hill Defends Her Legacy: Two decades after her seismic testimony, she doesn't shy away from talking about it” – from Howard Bashman’s How Appealing
• Sexual Harassment 20 Years Later: Anniversary of Clarence Thomas Hearings Marks Time for Reflection – from Employment Lawyer Blog
• Adverse Impact Tool From Thomas Econometrics – from Stephanie Thomas’s The Proactive Employer Blog
• Federal Court in CT Rules Pregnancy Discrimination Act Protects More Than the Pregnant – from Wisconsin Employment & Labor Law Blog
• Age Before Beauty … The Pervasive Problem of Age Discrimination – from Texas Employer Handbook
• “Actress sues Amazon over her age on its IMDb site” – from Walter Olson’s Overlawyered
• Knowing When to Hold ‘Em: Considerations for Getting the Preservation Obligation Right in Employment Discrimination Claims – from Michigan Employment Law Advisor
• More Discrimination is Needed – from Compensation Cafe

Social Media & Workplace Technology

• Why Employers Should Include Limiting Language in Social Media Policies – from Minnesota Employer
• Politics and Social Media: Is Your Company Prepared for 2012? – from Social Media Today
• Double Fisting and Crazy Bitch Bingo – from Phil Miles’s Lawffice Space

HR & Employee Relations

• 5 reasons for employers to “hold their fire” on dismissal of employment suits – from Robin Shea’s Employment and Labor Insider
• Negligent Supervision & Hiring – from Rob Radcliff’s Smooth Transitions
• Gallup Data on Obese Workers: Time to Dust Off “Lighter” Workplace Tips – from SmartHR
• My Employer Defamed Me! – from Donna Ballman’s Screw You Guys, I’m Going Home
• Workplace Bullying: Make It Stop – from i-Sight Blog

Wage & Hour

• An honest belief is all it takes to fire a suspected FMLA abuser – from Eric Meyer’s The Employer Handbook Blog
• 7th Circuit Reverses Summary Judgment in FMLA Retaliation Case – from ZR Workplace Law
• Retaliation Claims Under the Fair Labor Standards Act: Applicants Need not Apply – from Employment Essentials
• Violations Of Overtime Laws On The Rise – from Overtime Lawyer Blog

Using arrest and conviction records for hiring. What Does the EEOC Say?

The Peace Corps asked the EEOC for an opinion on the legality of its use of conviction and arrest records to screen potential volunteers. In response, the EEOC published an informal opinion letter, which offers guidance for employers who are considering using conviction or arrest as part of their screening processes.

Conviction Records

• According to the EEOC, conviction records have the potential to have a disparate impact on African Americans and Hispanics. Therefore, employers should only use them when “job related and consistent with business necessity.”
• To ensure that applicants’ criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that employers limit criminal history inquiries to convictions that are related to the specific positions in question, and that have taken place in the past seven years.

Arrest Records

• Arrest records are different than conviction records because of their inherent unreliability. For example, they are not persuasive evidence that the person engaged in the alleged conduct, and may also be poorly reported or updated.
• If employers decided that arrest records serve a useful purpose in screening applicants, their use should be limited to offenses related to the specific position.
• To account for the potential unreliability of arrest records, employers should also provide applicants a reasonable opportunity to dispute their validity.

Hustling for a lawsuit

Larry Flynt is no stranger to the courtroom. Now, it appears his brother, Jimmy Flynt, isn’t either. Jimmy has filed suit in federal court in Cincinnati, claiming that the family business wrongfully terminated his employment. Flynt v. Flynt Management Group, LLC [pdf] is the latest salvo fired by Jimmy against his brother and former business partner. Earlier this year he lost a different lawsuit that sought to take control of the business. According to the Cincinnati Enquirer, this fight started “several years ago when the brothers had a falling out after Larry fired Jimmy’s two sons.”

Lawsuits come from all angles. As this story illustrates, and as is often the case, the stronger the relationship, the nastier the fall-out.

[Hat tip: MattAustinLegal]

Winning the battle but losing the war in FMLA cases

The FMLA allows for two different theories of recovery—interference and retaliation. Interference is when an employer denies an FMLA benefit to which an employee is entitled and of which the employee provided notice. Retaliation is when an employee’s use of a protected FMLA right causes an employer’s adverse action. These claims are mutually exclusive, and a terminated employee can succeed on one and fail on the other.

Consider, for example, Platt v. Lamrite West, Inc. (N.D. Ohio 8/17/11). Platt involved an employee terminated for violating an employer’s call-off policy after making a request for FMLA leave. The court denied the employer’s motion for summary judgment on the employee’s interference claim, but granted summary judgment and dismissed the employee’s retaliation claim.

On the interference claim, the court concluded that there was a genuine issue of fact as to whether the employer’s FMLA paperwork modified the call-in procedure. At the same time, however, the court concluded that there was no issue of fact on the employee’s retaliation claim:

He … would have been terminated for violating this policy even if he had not requested FMLA leave…. Between 2007 and 2010, 56 warehouse employees were terminated by Defendant for failing to comply with Defendant’s attendance policies. Like Plaintiff, these former employees were terminated for failing to report to work or notify Defendant for three consecutive work days. Unlike Plaintiff, these former employees did not seek FMLA leave, further supporting Defendant’s proffered non-retaliatory grounds for termination.

As the court pointed out, holding the employee to the call-off policy “may create an interference claim, [but] it does not give rise to a retaliation claim.” Thus, you can terminate an employee for exercising an FMLA right without retaliating against him or her, so long as you do not treat the employee any differently than any other employee. However, that termination still might give rise to a claim under FMLA for interfering with the exercise of FMLA rights. In other words, you might win the retaliation battle against a terminated employee, but ultimately lose the FMLA war.

Some social media stats to get you thinking this week

This time next week, I’ll be in Denver to speak about workplace social media issues at the annual Meritas Litigation and Labor & Employment Conference. In preparing for my session, I came across the following statistics (taken from a recent survey conducted by DLA Piper):

Of employees who use social media sites for personal use:

• 39% have befriended a colleague or business contact on Facebook or LinkedIn
• 14% have posted a status update or tweeted about their work
• 22% have posted a status update or tweeted about a work colleague
• 28% have posted photos of colleagues or business activities
• 1% have posted confidential business information

Of employers:

• 21% have taken disciplinary action because of information an employee has posted about a co-worker
• 25% have taken disciplinary action because of information an employee has posted about their activities at work
• 31% have taken disciplinary action because of information an employee has posted about the organization
• 30% have taken disciplinary action because of the level of an employee’s social media use at work

Despite these results, only 14% of employers reported having a social media policy that regulated the use of social media outside the workplace. In other words, there is still a huge divide between employees’ use of social media and employers’ regulation of that use.

Employers, you may think it is common sense that your employees not Tweet or Facebook about the goings-on in your workplace. These numbers say otherwise. Doesn’t it make sense to have a formal, written policy to guide the discussion, set expectations, and bridge this gap?

WIRTW #197 (the “NSFW” edition)

The following video has been making the rounds this week. It’s called Popsicle, and cleverly asked this question at the end: “Is this sexual harassment?” The video is probably NSFW, so watch with caution.

This ad is not the first to use this kind of imagery. Remember this Burger King ad from a couple of years ago?

Here’s the rest of what I read this week:

Discrimination

• EEOC’s Reduced Budget Likely To Impact Employees and Employers – from The Proactive Employer Blog
• Employers, don't try to dismiss that lawsuit before its time – from Robin Shea’s Employment and Labor Insider
• The EEOC: Now Marketing Lawsuits against a Company Near You – from Kris Dunn, The HR Capitalist
• Can An Employer Ask a Job Applicant …The Nuts & Bolts of Legal Preemployment Inquiries – from Michigan Employment Law Advisor
• Maternity leave, the Pregnancy Discrimination Act and summary judgment – from Work Matters
• Giving Aid to the Enemy: The Healthy Workplace Act Explained – from Michael Fox’s Jottings By An Employer’s Lawyer
• 4th Circuit Holds Religious Organizations Exempt from Title VII In “Modest Garb” Case – from Laconic Law Blog
• Court Case Gives Employers Clarity on Disciplining Disabled Workers for Misconduct – from Workplace Insights

Social Media & Workplace Technology

• Whoops. Google Engineer Accidentally Makes His “Plus Sucks” Rant Public – from Kashmir Hill’s The Not-So Private Parts
• Legal Issues Surrounding Social Media Background Checks – from Labor Employment Law Blog
• NLRB Social Media Memo Part IV - Overly Broad Policies – from Phil Miles’s Lawffice Space
• Labor negotiations now a social process – from The Human Race Horses
• Rhyme or Reason? Trying to Make Sense of the NLRB’s Social Media Cases – from Labor Relations Update

HR & Employee Relations

• We Recommend Against the Asparagus – from Lawyerist
• What Are My Favorite “Work” Songs On My iPod? Steve Jobs Knows – from Dan Schwartz’s Connecticut Employment Law Blog
• Millennials Turn Corporate Culture on its Head – from i-Sight Investigation Software Blog
• The Importance of a Release – from Rob Radcliff’s Smooth Transitions
• What To Do When An Employee Doesn't Celebrate Halloween – from Workplace Diva
• Is Employment a Civil Right? – from Compensation Cafe
• Abortion at Work – from The Cynical Girl
• Should Companies Use Credit Checks to Screen Job Applicants? – from Time

Wage & Hour

• Doggone-it. Must employers give leave to employees with hurt pets? – from Eric Meyer’s The Employer Handbook Blog
• The Dark, Ugly Side of Using Unpaid Interns (under the FLSA) – from SmartHR
• President And CEO Personally Liable For Wage And Hour Violations In Torres v. Gristede’s Operating Corp. – from Overtime Lawyer Blog
• Judge Rules Ohio-based Cascom Employees Misclassified as Independent Contractors – from Fair Labor Standards Act Law
• Court: Cable Installers Employees, Not Independent Contractors – from Wage & Hour Insights

Labor Relations

• A Public Menage A Trois - Joining The NLRB’s Public Posting Party – from Social Media Employment Law Blog
• Ladies’ Local 321 – from Main Street Gazette
• Union Free You Tube Video: Organizer Ties OWS to SEIU – from Labor Relations Institute

Social media and privacy cannot coexist

During my appearance on The Sound of Ideas to discuss social media in the workplace, NLRB General Counsel Lafe Solomon made an interesting point about the accessibility of employees’ social media by employers. The question arose as to whether employees can short-circuit workplace problems by locking employers out via available privacy settings on sites such as Facebook. Lafe observed that in every social media case brought to the NLRB, the employer learned of the offending social media posts not by its own online discovery, but by a co-worker who narced. Privacy settings on Facebook can keep non-friends from accessing information, but they cannot prevent someone to whom you have granted access from turning that information over.

Here’s the snippet of my back and forth with Lafe Solomon discussing this issue during yesterday’s show:

Employees need to disavow themselves of the notion that there is such a thing as “privacy” in social media. After all, the word “social” is half of the equation. These are not conversations we are having with ourselves. People keep diaries for those matters they really want to keep private; they should not be broadcasting those private thoughts for the world to see. Once you put information out there, you have to assume that your employer will discover it.

Using social media is as much an exercise in reputational management as it is in the sharing of information. Until employees fully understand and embrace the implications of the sociability of these tools, the NLRB will remain busy deciding the merits of terminations that result from social media’s irresponsible use by those seeking the NLRB’s protection.

They always said I had a face for radio

This morning’s appearance on WCPN—discussing social media and the workplace—could not have gone better. It was an engaging hour, capped off with a rare opportunity to challenge NLRB General Counsel Lafe Solomon on some of his agency’s positions on social media. All told, I thought Mr. Solomon came across (more or less) reasonably, even if I think the positions of his agency and him on the issue of social media as protected concerted activity are (more or less) unreasonable.

For those who missed my appearance, or cannot wait to relive the hour, here are the links:

• www.ideastream.org/soi/entry/42863: to stream from WCPN’s website
• itunes.apple.com/us/podcast/social-media-and-the-workplace/id210936081?i=100923395: to download as a podcast for your iDevice
• www.OhioChannel.org/MediaLibrary/Media.aspx?fileId=132970: for the video stream

Or, you can simply watch right here:

I’ll be on NPR tomorrow morning talking about social media

Tomorrow morning, from 9 – 10 a.m., I’ll be a guest on WCPN’s The Sound of Ideas (the “best radio show” in Ohio, according to The Cleveland Press Club). I’ll be discussing workplace social media and labor/employment law. One of the other guests will be Lafe Solomon, General Counsel of the National Labor Relations Board, so it should be an interesting and spirited conversation.

You can listen/watch live at www.ideastream.org/soi. Following the live show, a recording will be available at iTunes and from The Ohio Channel.

The phone numbers, should you want to call with a question or comment during the show, are 216-578-0903 or 866-578-0903.

The Employer Bill of Rights

---

The Employer Bill of Rights is now available as a book. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations.

You can purchase your copy in a variety of formats:

• Amazon – paperback
• Amazon – Kindle
• Barnes & Noble – paperback
• eBook

---

According to Liz Ryan, writing at Businessweek.com. “Actual employee rights in the U.S. are fairly limited.” She posits that because “it’s legal to make hiring and termination decisions for random (nondiscriminatory) reasons” (such as an employee’s favorite sports team), employees need a “Bill of Rights” to protect themselves.

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees:

• Title VII: race, color, religion, sex, and national origin
• PDA: pregnancy
• ADEA: age
• ADA and ADAAA: disability
• GINA: genetic information
• USERRA: returning veterans
• FMLA: family leave
• FLSA: minimum wage, overtime, and child labor
• ERISA: benefits
• COBRA: continuing health coverage
• OSHA: safety
• NLRA: labor
• FCRA: background checks
• WARN: plant closings

The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer Bill of Rights:

1. The Right to Hire on Qualifications: We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire.
2. The Right to Fire on Performance: We also want the right to fire without the fear of an expensive lawsuit when you fail to perform. Every performance review is not an attempt to push you out the door. Believe it or not, every employee we hire represents an investment by us. We want that investment to bear a substantial return. Criticism is meant be a constructive attempt to help you improve, not a destructive set-up for you to fail.
3. The Right to Control Operations: We know how many people we need to employ, how many shifts we need to run, and how many facilities we need to operate. Most importantly, we know what can afford to remain profitable. If we have to shutter or relocate a plant, lay people off, or furlough hours, it’s not because we are discriminating against you; it’s because it’s necessary for us to remain open and able to employ anyone at all.
4. The Right for You to Follow Our Work Rules: We do not distribute handbooks and other policies because we like destroying trees. We do so because we think every relationship needs to be guided by a set of expectations under which each side is supposed to operate. All we ask is that you live up to your end of the bargain and accept the consequences if you don’t.
5. The Right to Be Told When There Is a Problem: We cannot fix workplace problems if the first we hear about them is when a lawsuit is served. Help us help you by letting us know if you think you’re being discriminated against, retaliated against, paid incorrectly, or otherwise being treated unfairly. If you’re right, we’ll fix it. Right or wrong, we won’t hold it against you.
6. The Right to Receive an Honest Day’s Work: When you are at work, we ask that you reasonably dedicate yourself to the tasks at hand. It’s only fair; after all, we are paying you for your services.
7. The Right to Have Our Say Before You Form a Union: We recognize your right as employees to form a union if that’s the collective choice of your majority. Just hear us out and let us have our say on why it’s not all it’s cracked up to be and may not be in your best interest.
8. The Right to Reasonable Notice: We understand that certain laws (the ADA and the FMLA, for example) provide employees rights to certain accommodations, which we follow. In return, we merely ask that when possible, you not wait until the last minute to request an accommodation or a leave of absence. It wreaks havoc with our scheduling and operations.
9. The Right to Be Treated With Respect: Businesses need respect too. We expect that you will demonstrate that respect to us and your fellow employees by showing up on time, not passing off to others that which you can (and should) do yourself, not waiting until the last minute to schedule your vacation, and generally treating others as you would want to be treated.
10. The Right to Confidentiality: We expect you will not share internal workplace issues with the outside world, whether they are our trade secrets or other proprietary information, or the day-to-day goings-on inside our company.

Stereotypes

On last Sunday’s episode of HBO’s Boardwalk Empire, Chalky White, a jailed African-American bootlegger, comforted his wife with the following information about his attorney: “He a Hebrew gentleman.” Lest you think that such observations were left in the 1920s, I once had a client I was defending in a race harassment case refer to me as his “Jew lawyer.”

I relay these tales (both real and fictional) because of a story on Businessweek.com about a national origin discrimination case recently filed by the EEOC against a Colorado hotel. The lawsuit claims that hotel ownership directed management “to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder.” The lawsuit further claims that management told one of the fired employees that ownership did not want to employee American or Caucasian workers “because it was their impression that such workers are lazy.”

There is no hiding that stereotypes—both positive and negative— exist. To some degree we all harbor them (and anyone who tells you differently is full of it). The better job you do of insulating your personnel decisions from these stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

WIRTW #196 (the “atonement” edition)

As I’ve mentioned in this space before, my family is of mixed religion. I’m Jewish and my wife is Catholic. I offer this information because tonight at sundown begins Yom Kippur, the Jewish day of atonement. Unlike Catholics, who confess their sins every week, we Jews ask for God’s forgiveness in a lump sum, once per year on Yom Kippur.

While this comparison is an over-simplification, it nevertheless serves as a jumping-off point to offer my apologies for any posts I’ve written over the past year that might have offended. I do not offer this apology for my viewpoints and opinions—for which I would never apologize or shy away from. Instead, I apologize if language and word choice caught some of my readers off-guard. Employment law can be dirty and offensive. For me, it’s part of what makes it interesting. It is not, however, everyone’s cup of tea.

Here’s the rest of what I read this week:

Discrimination

• Employers, don’t be overzealous with your wellness. Beware of the ADA and everything else – from Robin Shea’s Employment and Labor Insider
• Criminal Background Checks and Avoiding Discriminatory Hiring Practices – from i-Sight Investigation Software Blog
• What Does “Similarly Situated” Really Mean? – from Stephanie Thomas’s The Proactive Employer Blog
• Employee drug testing and bashful bladders; it’s a wicked pissah! – from Eric Meyer’s The Employer Handbook Blog
• Attorneys Dancing Around Impact of Gender Identity Discrimination Law – from Dan Schwartz’s Connecticut Employment Law Blog
• Disparate Impact and the Non-Traditional Plaintiff – from Michael Fox’s Jottings By An Employer’s Lawyer
• Supreme Court Weighs Rights Of Parochial-School Teachers – from NPR
• EEOC vs. the ministerial exception – from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• What Prospective Employers Hope To See In Your Facebook Account: Creativity, Well-Roundedness, & “Chastity” – from Kashmir Hill’s The Not-So Private Parts
• A Canadian Perspective on Social Media and Concerted Activity – from Fitzpatrick on Employment Law
• Attorneys’ Duties Regarding Employee Emails – from Phil Miles’s Lawffice Space
• Privacy and company email use—what can employees expect? – from Employment Law Bits
• Employee Privacy 3—Social Media – from Heather Bussing at HR Examiner
• You Are Your Company’s Biggest Security Risk – from Above the Law
• Employer did not violate employee’s privacy by accessing personal laptop – from Internet Cases

HR & Employee Relations

• On WWE and Organized Labor – from Grantland
• Reasons to Terminate: More Is Not Merrier – from Molly DiBianca’s Delaware Employment Law Blog
• The DNA of HR Decisions: Why Documentation is Important – from Michael Haberman’s Omega HR Solutions
• Scratching My Head – from KnowHR Blog
• The “exit parade” as a worker termination protocol – from David Yamada’s Minding the Workplace
• Keep Your Employees off the Playground: Preventing and Dealing with Workplace Bullying – from Workplace Insights
• Do You Regularly “Fit Test” Your Employees? – from Ann Bares’s Compensation Force

Wage & Hour

• Ohio Minimum Wage Increase for 1/1/12 – from THRD’s Blog
• DOL/IRS Collaboration Memo Makes For Interesting Reading – from Wage and Hour Laws Blog
• In “Salary Misclassification” Case, Unpaid OT Calculated at Time and a Half Rate, Not FWW – from Overtime Law Blog
• Do Employers Have to Pay for Travel Time? – from Wage & Hour Insights