WIRTW #213 (the “Hello Cleveland!” edition)

Above the Law (c/o the Chicago Sun-Times) reports that Justice Scalia offered the following words of wisdom while speaking to a group of students at the University of Chicago School of Law:

Try to find a practice that enables you to maintain a human existence … time for your family, your church or synagogue, community … boy scouts, little league…. You should look for a place like that. I’m sure they’re still out there. Maybe you have to go to Cleveland.

Readers, introducing the next spokesperson for Positively Cleveland, United States Supreme Court Justice Antonin Scalia.

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

Discrimination

• Age Discrimination Suits Jump, But Wins Are Elusive — from NPR’s Morning Edition
• Employee is Not “Substantially Limited” Under the ADA When He is Able to Work a 40-Hour Week But No Overtime — from Employment Matters Blog
• All You Need Is … A Sexual Harassment Complaint — from Dawn Lomer at i-Sight Investigation Software Blog
• A Valentine's Day bouquet of sexual harassment cases — from Robin Shea’s Employment and Labor Insider
• Lawsuit Alleges Sexual Harassment at Breastaurant. Again. — from Tim Eavenson’s Current Employment
• Plaintiff’s Repeated “I Don't Know” in Depositions Are Claim Killers — from Russell Cawyer’s Texas Employment Law Update
• Hoops, Race and Workplace Stereotypes: Why I’m Ordering a Jeremy Lin T-Shirt Today… — from The HR Capitalist, Kris Dunn
• New Approaches to Understand Why Women Earn Less — from Stephanie Thomas’s Proactive Employer Blog

Social Media & Workplace Technology

• Are Your Employees Committing Thought Crimes? — from Frank Roche’s KnowHR Blog
• Tracking Employees By GPS: Better Have a Good Policy — from Mike Haberman’s Omega HR Solutions
• I’m unPinterested — from Tim Sackett at Fistful of Talent
• Protecting Trade Secrets and Confidential Information In The Social Media Generation — from Trading Secrets
• Teacher “Hates” Students on Facebook, Lies, Jokes About Child's Death - Reinstated! — from Phil Miles’s Lawffice Space
• What The Internet Knows About You And How To Protect Yourself — from Forbes

HR & Employee Relations

• 26 Years on the Job and Not One Sick Day — from the Wall Street Journal
• Hi boss — I’m too bored … er, sick … to come in fr— from om Today Money
• Rogue Employee of the Week – The case of the lunchtime drunk — from damnedif
• Nepotism Is Not Illegal — from Donna Ballman’s Screw You Guys, I’m Going Home
• Suck it, Cupid. You don’t work here! — from Michael VanDervort’s The Human Race Horses
• No-Hire Tobacco Policies: Why They Are a Communication and Cultural Challenge — from TLNT
• The Four Questions to Ask Before Changing to PTO — from HR Daily Advisor
• Would you get a divorce in order to telecommute? — from Evil HR Lady, Suzanne Lucas
• Working from Home More Important than Showering & Spouses — from Jessica Miller-Merrell’s Blogging4Jobs
• 10 Things Bosses Never Tell Employees — from Inc.com

Wage & Hour

• Annals of wage and hour law — from Walter Olson’s Overlawyered
• DOL Proposes Significant Changes to the Home Health Care Industry — from BLEG Blog
• Federal Judge Enjoins Alleged Retaliatory Group Termination of Warehouse Workers — from Wage and Hour Law Update
• “Linsanity” for Employers to Fail to Post Required Notices — from Dan Schwartz’s Connecticut Employment Law Blog
• New FMLA Certification Forms Available from DOL — from Smart HR Manager
• The wrong way and the right way to request FMLA certification — from Eric Meyer’s The Employer Handbook Blog

Until next week:

Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data

ZDNet’s Friending Facebook blog reports on a survey [pdf] conducted by marketing agency Russell Herder, which concluded that 21% of employees are Facebook friends with the boss. I’ve written before about some of the risks, and some of the benefits, that germinate from taking workplace relationships online into the social sphere. Those issues haven’t changed.

There’s a lot of interesting data in the report. At 9 pages, it’s definitely worth your reading time. The data that I found to be the most interesting deals with the impact of an employee’s age on the opinion of online relationships between managers and employees:

Only 28% of employees ages 18-34 believe it is inappropriate to friend their supervisor on Facebook. The number rises to nearly 50% for those ages 45 and up.

These numbers confirm what I’ve long believed—that generational differences in attitudes about the role of technology in our daily lives exponentially complicates employers’ ability to regulate the use of social media in the workplace. To effectively implement a social media policy in your organization, you will have to account for (and solve) this generational divide.

What is an employee’s word for the need for FMLA leave worth? Not much

How often does this scenario play out in your organization? An employee tells a supervisor that he’s sick and needs to take FMLA leave. The supervisor refers the issue to HR or management. Paralyzed out of fear that they will screw up an FMLA process that they really doesn’t understand, they approve the FMLA leave with no other questions asked.

Because of a fundamental misunderstanding of when employees qualify for FMLA leave, lots of employers over-compensate when dealing with employee medical issues and the FMLA. They over-compensate by mistakenly assuming that any employee with any illness or medical condition is FMLA-eligible. In reality, only an employee with a “serious medical condition” qualifies for FMLA-leave.

In reality, you do not have to take an employee at his or her word that he or she needs FMLA leave. Case in point? Huberty v.Time Warner Entertainment Co. (N.D. Ohio 2/8/12).

Huberty claimed that Time Warner interfered with his rights under the FMLA when it fired him after he asked his supervisor for time off to deal with “stress in his life.” Before Huberty found a doctor to certify his medical condition, he began taking time off. Time Warner terminated Huberty for violating its no-call/no-show policy for three consecutive days.

The court dismissed Huberty’s FMLA claim, concluding that neither his own subjective assessment of his health did not satisfy his burden to establish a “serious health condition.”

There is an abundance of case law that makes it clear that Huberty’s own subjective assessment of his health cannot be used to demonstrate a serious health condition. A colleague on this Court has noted as follows with respect to this burden:

It does not mean that, in the employee’s own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a “health care provider” has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness. If it were otherwise, a note from a spouse, parent, or even one’s own claim that one cannot work because of illness would suffice. Given the legislative history surrounding its enactment, the FMLA cannot be understood to establish such liberal standards for its application.

What does this mean for your management of your employees’ FMLA leave? Don’t just take your employees at their word that they need FMLA leave. You have an absolute right to request and receive a timely medical certification before certifying a leave of absence as FMLA-qualifying. Do not short-circuit your rights by rubber-stamping every employee medical request as “FMLA.”

Nothing can go wrong when employees date each other, right?

In honor of Valentine’s Day, I bring you a story of love, romance … and sexual harassment (what else?).

Sanders v. DaimlerChrysler Corp. starts out like any great love story. Girl meets boy on the assembly line of the local automobile plant. They date for two years. Then, she tells him she doesn’t want to continue their relationship. How does boy respond? Like any alleged harasser, he says, “I can do something to your job.” And, she takes him at his word (he’s a union steward after all). When she has job-related issues returning from a medical leave, she sues the company for, among other things, sexual harassment. Ultimately, this story ended well for the employer; it won the case at trial. But, it cost the company seven years of litigation, more than a dozen depositions, countless motion practice, a costly trial, and a trip to the court of appeals.

I’m not here to tell you that you should forbid your employees from dating. Far from it. The heart is going to go where the heart wants to go. In other words, if your employees want to date, they will — with or without a policy forbidding their relationships and dalliances. Instead, look at workplace romances as an opportunity to educate your employees about the ins and outs of your harassment policy. Train your employees about what is and is not appropriate workplace conduct between the sexes. Focusing on conduct (and misconduct) instead of the relationships will provide your employees the necessary tools to avoid the types of problems that arose in Sanders, which, in turn, will help your organization avoid the litigation expenses those problems often cause.

Happy Valentine’s Day

[Link]

Let’s try not to over-react to the breastfeeding discrimination case

Last month, I wrote that employers denying lactation rights to employees was not problem that needed remedial legislation. Wouldn’t you know it, news broke last week of a federal judge in Houston who dismissed a sex discrimination case—EEOC v. Houston Funding [pdf]—in which the employee alleged that she was fired because she asked to pump breast milk at work.

Here’s the court’s entire analysis dismissing the lawsuit:

The commission says that the company fired her because she wanted to pump breast milk. Discrimination because of pregnancy, childbirth, or a related medical condition is illegal….

Even if the company’s claim that she was fired for abandonment is meant to hide the real reason — she wanted to pump breast milk — lactation is not pregnancy, childbirth, or a related medical condition.

She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination.

Before I put on my employer-advocate hat, let me go on record and say that the last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination.

This decision has people angry. As of this morning, the case’s online docket reflects that 12 private non-parties have emailed the judge calling her ruling “shameful” and “absurd” (among other similar pejoratives).

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that 1) Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate; and 2) we do not need any additional legislation (on top of the Patient Protection and Affordable Care Act) to further to protect this right (EEOC v. Houston Funding notwithstanding).

For additional analysis of this case, I suggest checking out the thoughts of some of my fellow bloggers from last week:

• Does Federal Law Prohibit Lactation Retaliation? — from the Delaware Employment Law Blog
• Lactation and Nursing Is a Civil Rights Issue — from Outten & Golden Employment Law Blog
• Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge — from Screw You Guys, I'm Going Home
• Lactation not Related to Pregnancy, Says Federal Judge — from San Antonio Employment Law Blog
• Expressing Milk Under Title VII and the PPACA — from LaborRelated
• Lactation is Not a Condition Related to Pregnancy Says S.D. Tex. — from Workplace Prof Blog

WIRTW #212 (the “something for nothing” edition)

One of the benefits of hitting the road to speak as much as I do is all of the great people I meet. One of those people is Jessica Miller-Merrell, who authors the fabulous HR blog, Blogging4Jobs. On February 21 I, along with Mike VanDervort (author of The Human Race Horses) will guest on a free webinar Jessica is presenting, Understanding Unions, NLRB, & Corporate Social Media:

This session provides a broad overview for senior business leaders (and not just HR) regarding the recent legislation surrounding social media, the NLRB, and strategies for how company leaders can maneuver and monitor employee activity on social networking sites. Learn best practices how to manage and discipline your employees, create policies, and awareness throughout your organization.  

I’ll be addressing the NLRB’s latest attempts to regulate employer restrictions on employees’ use of social media, in and out of the workplace. The webinar will run from 12:00 to 1:30 pm on February 21, and registration is free.

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

Discrimination

• Refusal to Rescind Resignation is Not an Adverse Employment Action — from Phil Miles’s Lawffice Space
• Attractiveness A (Dis)Advantage In The Workplace? — from The Proactive Employer Blog
• 10th Circuit Holds Migraines Not a Disability Under the ADA — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Disparate Impact – Why Mobile Matters — from Heather Bussing at HR Examiner
• The changing definition of a covered disability — from Work Matters
• An Employer’s Playbook for Responding to an Allegation of Sexual Harassment — from Jason Shinn’s Michigan Employment Law Advisor
• Retaliation Redux: Two cases that should scare employers a lot — from Robin Shea’s Employment and Labor Insider
• The first question the EEOC asks — from Warren & Associates Blog

Social Media & Workplace Technology

• Facebook addiction explained: study shows psychophysiological arousal from social media — from Boy Genius Report
• GSMI’s Social Media White Paper Now Available — from Social Axcess
• The so-called “privacy” of employee emails — from Eric Meyer’s The Employer Handbook Blog
• BYOD in the Modern Workplace — from i-Sight Investigation Software Blog
• Privacy Advice Potpourri: Don’t Lose Your iPhone, Don’t Consider Anything On Your Work Computer Private, and Do Wonder About Mysterious ‘Dings’ On Your Conference Call — from Kashmir Hill’s The Not-So Private Parts
• Pinterest accused of replacing external affiliate links with its own — from The Verge

HR & Employee Relations

• Workplace Investigation Pitfall: Failure to Take the Complaint Seriously — from Strategic HR Lawyer
• Home Alone, Telecommuting, and Man’s Best Friend — from Fitzpatrick on Employment Law
• Should I rat out my boss? — from Evil HR Lady, Suzanne Lucas
• Keeping Everyone Safe in the Workplace — from Robin Schooling’s HR Schoolhouse
• Do You Love Love Contracts? — from Mark Toth’s Manpower Employment Blawg
• Nepotism Is Not Illegal — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• (FMLA) Form Over Function — from Delaware Employment Law Blog
• 4th Circuit: FLSA Prohibits Retaliation For Internal Complaints — from Wage & Hour Insights
• When Is An “Intern” An Employee Under The FLSA? — from Wage & Hour - Development & Highlights
• Overtime for Nannies — from Jim Brennan at Compensation Cafe
• The Danger of Unpaid Interns — from Overtime Advisor

Labor Relations

• The Fallout from the Latest NLRB Salvo on Social Media — from Dan Schwartz’s Connecticut Employment Law Blog
• U.S. Chamber of Commerce and National Labor Relations Board File Competing Summary Judgment Motions in “Quickie” Election Rule Case — from Seth Borden’s Labor Relations Today
• New “Right-to-Work” Law- A Test for Union Clout? — from Mike Haberman’s Omega HR Solutions

What isn’t a “complaint” under the FLSA? An Ohio federal court weights in

In Kasten v. Saint-Gobain Performance Plastics, the United States Supreme Court concluded that the anti-retaliation provision of the Fair Labor Standards Act covers oral complaints — but only if they are “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The issue of what qualifies as a “clear and detailed … assertion of rights” was front and center in Riffle v. Wal-Mart Stores, Inc. (N.D. Ohio 1/24/12).

In Riffle, the only complaints the plaintiff made to her Wal-Mart supervisors were complaints about receiving telephone calls she received at home from co-workers who needed assistance in the cash office. The court concluded that the complaints did not satisfy the threshold established in Kasten.

Plaintiff’s complaints … are insufficient because they are not framed in terms of an FLSA violation as required by Kasten. The complaints plaintiff testified she made to her supervisors could not have reasonably been perceived by defendants as a complaint that plaintiff was not being paid in accordance with the requirements of the FLSA or that defendants otherwise violated the FLSA.

Following Riffle, employers have some guidance as to the types of communications that do not qualify for protection under the FLSA’s anti-retaliation provision. Figuring out what does qualify will prove trickier, and will take years of cases and judicial opinions to sort out.

In the meantime, try not to do the following to your employees who engage in some protected activity:

[Link to YouTube video for those reading in an email]

Another consideration in the high cost of wage and hour litigation: e-discovery

I’ve written before about the high risks companies face from wage and hour class/collective lawsuits (here’s one example). Here’s another factor to consider: the exorbitant costs imposed by e-discovery and employers’ obligations to preserve electronic records.

Workplace Prof Blog brings us the story of Pippins v. KPMG, a wage and hour collective action alleging that the accounting firm deprived its Audit Associates of overtime wages. Before the class was even certified, the court imposed upon KPGM the obligation to preserve the potential class members’ more-than 2,500 laptop hard drives. Following certification, KPMG argued that instead of preserving all of the hard drives—at an astounding cost of more than $1.5 million—it should only be required to keep a representative sample comprised of the named plaintiffs.

The court disagreed:

Based on Plaintiff’s recollections regarding their former hard drives, I agree with [Magistrate] Judge Cott that the hard drives are likely to contain relevant information. The information on the hard drives will likely demonstrate when the Audit Associates were working (hours) and what they did while at work (duties). This information is obviously relevant in a case asserting violations of the FLSA … since Plaintiffs need to establish what type of work they performed in order to prevail on the merits, and how many hours a week they worked in order to collect damages….

I gather that KPMG takes the position that the only Audit Associates who are presently “parties” are the named plaintiffs, and so only the named plaintiffs’ hard drives really need to be preserved. But that is nonsense…. [T]he duty to preserve all relevant information for “key players” is triggered when a party “reasonably anticipates litigation.” At the present moment, KPMG should “reasonably anticipate” that every Audit Associate who will be receiving opt-in notice is a potential plaintiff in this action.

What are the lessons for employers?

1. When considering the goofy costs (and risks) of wage and hour non-compliance, you not only have to factor in unpaid wages, liquidated damages, your legal fees, and the employees’ legal fees, but also the costs of preserving all of the electronic information the plaintiffs will seek in discovery. Like most employment cases, there exists a palpable disparity in the ownership of information. Employers possess most of the relevant information, and therefore carry most of the costs in the retention and production of documents. 
2. To guard against these goofy costs, audit your wage and hour practices. ’Tis better to spend a few thousand dollars up front to gain knowledge of which of the myriad wage and hour laws your company might be violating, than to spend a few hundred thousand (or a few million!) dollars later to defend against, or pay out on, a wage and hour class action. (Not that employers can't win these cases).

The digital divide and disparate impact

According to statistics recently published by Mashable, the digital divide—those who are connected to the Internet versus those who are not—is partially racial. 72% of white homes are connected to the Internet, as compared to only 57% of Hispanic homes and 55% of African American homes.

These numbers mean that if you are using access to technology as a qualifying factor for employment, your hiring practices might have a disparate impact on Hispanics and African Americans. For example, do you only accept job application over the Internet? Or, do you only recruit via Monster.com or LinkedIn? Or do you only consider candidates whom you can vet via Facebook or some other digital footprint? If so, you might want to consider casting a wider net, unless remote technology access is truly job related and consistent with business necessity.

A pisser of an HR policy

I’m a firm believer in good, sound, and comprehensive HR policies. They are necessary evil to establish the baseline expectations between a company and its employees. For example, they help avoid any confusion about the appropriate uses of email and the Internet. They also tell employees how many days-off they are allowed. And, in some cases, such as harassment and the FMLA, the law just flat-out requires them.

But, like all good things, HR policies can go too far. An example, you ask? How’s this one, courtesy of Above the Law. A San Francisco law firm issued an “Office Restroom Etiquette” policy, which included discussions on how much time to spend taking care of business, how to clean up, and what to do about certain natural odors and noises. It also offered some pointers for its male employees on what to do at urinals:

In urinals, keep your eyes up and ahead and avoid looking around as a mistaken glance in the wrong direction may be embarrassing and might even result in a confrontation. Also, keep as much distance between yourself and others in public restrooms. Always choose the urinal farthest away from other people if possible; this goes for stalls too.

Here’s another true story. I know someone who worked for a company at which the boss monitored employees’ every move via hidden cameras, including how often, and for how long, they visited the restroom. If your management has so much time on their hands that they need to involve themselves in employees’ bathroom habits, you might want to consider downgrading them to part-time status. They obviously do not have enough to fill their plates on a full-time basis.

WIRTW #211 (the “Vegas, baby!” edition)

Are you attending next week’s Social Media Strategies Summit in Las Vegas (presented by GSMI)? Social Media Today recently rated it as one of the 10 best social media conferences to attend in 2012. Guess who’ll be speaking, at 10 am, on February 9? If you guessed me, you’re the big winner. I’m presenting, Lawyers, Booze and Money: Social Media Compliance for Regulated Industries. If you’re at the conference, please stop by and say hello. I’ll also be around Wednesday afternoon, so look for me around The Mirage. I won’t be the guy at the high roller tables.

Here’s what I read this week:

Discrimination

• Employers, you might (or might not) be liable for retaliation if… — from Robin Shea’s Employment and Labor Insider
• EEOC’s Shifting Focus: Systemic Discrimination — from Stephanie Thomas’s The Proactive Employer Blog
• USERRA protections expanded to include hostile work environment — from Sindy Warren’s Warren & Hays Employment Law Blog
• Obesity: The New Discrimination under the ADA — from Restaurant Law Blog
• The Top 5 Most Intriguing Decisions In EEOC Cases Of 2011 — from Workplace Class Action Litigation
• EEOC Sues Employer for Not Allowing Employee to Attend Religious Convention — from Joe’s HR and Benefits Blog
• Catholic Teacher Fired for Having a Baby — from Legal As She Is Spoke
• Should Pregnancy Be Treated as a Disability? — from The Juggle (Wall Street Journal)

Social Media & Workplace Technology

• Monitoring and Accessing Employee Private Email Results in Lawsuit — from Jason Shinn’s Michigan Employment Law Advisor
• Could You Go Three Months Without A Mobile Phone, Email, Facebook, LinkedIn and Twitter? — from Kashmir Hill’s The Not-So Private Parts
• Your Gen Y employees love mixing business with pleasure online — from Eric Meyer’s The Employer Handbook Blog
• Posited “right to be forgotten online” — from Walter Olson’s Overlawyered
• Dark side of social media: age discrimination — from CBS News
• Just Friends? What To Consider Before Befriending Your Boss — from Huffington Post
• Study: 91% of Gen-Ys Use Their Phones in the Bathroom — from ReadWriteWeb
• Tell employees of monitoring plans — from Judy Greenwald at Business Insurance
• Privacy on social media – do we even care? — from Soshable

HR & Employee Relations

• Does your Startup Need an Employee Handbook? — from JumpStart Blog
• Courtroom Lessons for the Business Owner/Employer — from Rob Radcliff’s Smooth Transitions
• Welcome to the Company, Oh By the Way You Will Be Fired in Four Years — from Mike Haberman’s Omega HR Solutions
• An Employment Brand Is A Relationship — from HR Examiner with John Sumser
• A Lighthearted Take on Deposition Preparation — from Russell Cawyer’s Texas Employment Law Update
• The Background Check Results Are In … Who Won’t HR Hire — from Nick Fishman’s employeescreenIQ Blog
• Building Rapport with Non-Western Interview Subjects — from Dawn Lomer’s i-Sight Investigation Software Blog
• Giants Or Patriots - Do Employers Care? — from Social Media Employment Law Blog
• Super Bowl Hangover? Yes, Employees May Be Less Productive on Monday — from TLNT
• Most Outrageous Employee Excuses — from Philip Miles’s Lawffice Space

Wage & Hour

• When “letting off steam” becomes protected activity under the FLSA — from Fair Labor Standards Act Law
• “Right to Know” Rule Not Likely in 2012 — from Wage & Hour Insights
• 3d Cir. Finds Individual Supervisor Liable Under FMLA — from Molly DiBianca’s Delaware Employment Law Blog
• Five 2011 FMLA Cases That Give Guidance To Employers In 2012 — from Hunton Employment & Labor Law Perspectives™
• DOL Proposes FMLA Regulatory Changes Regarding Military Family Leave, Flight Crew Eligibility and How Employers Calculate FMLA Leave — from Jeff Nowak’s FMLA Insights

Labor Relations

• An Overview of “Right to Work” — from Dan Schwartz’s Connecticut Employment Law Blog
• NLRB Chairman Says He Will Push For Additional Election Rule Changes — from Labor Relations Counsel

What does Groundhog Day teach us about federal courts?

In the movie Groundhog Day, Bill Murray repeats February 2—over, and over, and over again—until he gets it right. In Sollitt v. Keycorp (6th Cir. 2/1/12) [pdf], Kevin Sollitt and his former employer are doomed to repeat his wrong discharge lawsuit, because the bank took an aggressive position in removing his case to federal court.

(For the uninitiated who want to read all about the removal of lawsuits from state court to federal court, click here, read, and then come back.)

In sum, the appellate court concluded that the Edge Act—which permits claims involving international or foreign banking to be filed in federal court—did not provide a basis for removal of Sollitt’s state law wrongful discharge claim. The Court was reluctant to subscribe “an inherently limitless view” to the Edge Act’s grant of federal jurisdiction:

Suppose, for example, that Sollitt had tripped and fallen over a stack of carelessly placed printouts of foreign-currency transactions. This meager association—ridiculous as it is—between the potential negligence claim and the foreign banking transaction that generated the printouts, would appear to suffice for Edge Act jurisdiction under so limitless a view. That cannot be correct….

Sollitt accused a co-worker of misconduct, KeyCorp fired Sollitt, and Sollitt sued in federal court for wrongful termination. KeyCorp’s firing of Sollitt was not an aspect of “banking” and, therefore, Sollitt’s claim of wrongful termination did not “arise out of” a banking transaction, even though the entire episode arguably can be traced back to the PHC foreign currency transaction.

As a result, the case will be remanded back to state court, where it was originally filed. In the interim, the parties litigated the case, and the employer won summary judgment. Now, the parties are going back to state court, (maybe) to do it all over again. The plaintiff will certainly want the chance to re-present the factual issues raised in opposition to the summary judgment motion, or present new issues he may have discovered.

The lesson? Be very careful when you remove cases. A federal court’s subject matter jurisdiction is always in play, at each stage of litigation. An appellate court can bounce a case back to state court even if the district court never even entertained the jurisdictional issue. When that happens, you will have a Bill Murray moment.

Happy Groundhog Day.

10 thoughts for your mobile device policy

According to a recent survey, there are 324.3M mobile devices in the United States. Let that number sink in. It equates to 1.025 mobile devices per American. And, according to another recent survey, 46% of all American those mobile devices are smartphones. This number does not even account for the number of iPads and other tablets.

In other words, your employees are connected all the time, both at, and away from work. It also means you need to have a policy to account for this penetration of mobile devices.

Here are 10 questions for you to think about in drafting (or revising) your mobile device policy:

1. Do you allow for your employees to connect personal devices to your network? Or do you limit network connectivity to employer-provided devices? And, where is the data stored, on the device itself, or remotely? The answer to these questions will not only impact the security of your network, but also dictate which mobile devices and OSs will your company support.
2. Do you permit employees to use mobile devices in the workplace? It’s difficult to require employees to check their devices at the door. But, if you have safety-sensitive positions, you should consider protecting these employees from the distractions mobile devices cause.
3. Who pays for the device, not just at its inception, but also if it is lost or broken and needs to be replaced? If you require your employees to reimburse for lost phones, state wage payment laws may limit your ability to recoup via a paycheck deduction.
4. And, do employees have an expectation of privacy as to data transmitted by or stored on the device? Do you tell employees that their expectation of privacy is limited or non-existent? Are you tracking employees via GPS, and, if so, are you telling them? In light of last week’s ruling in U.S. v. Jones, limiting employees’ expectation of privacy is more important than ever.
5. For non-exempt employees, do you permit mobile devices to be used for business purposes, and if so, do you prohibit their use during non-working hours? Otherwise, you might be opening your organization up to a costly wage and hour claim.
6. Do employees know what to do if a device is lost or stolen? Do you have the ability to remote-wipe a lost or stolen device? Even if you have the ability to remote-wipe a device (and if you don't, you should), your employees will prevent a remote wipe if their first call upon losing a device is to Verizon (which will deactivate the phone) instead of your IT department.
7. Do you prohibit employees from jailbreaking their iPhones or rooting their Androids? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Android Market. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.
8. Are devices required to be password-protected? It will provide an extra layer of protection if the device is lost or stolen. Also, your industry might dictate an added layer of protection. Do you employ lawyers or medical professionals, for example? If so, ethical rules or HIPAA might mandate password locks.
9. Do you forbid employees from using their mobile devices while driving? 35 states (but not yet Ohio) have a laws that bans some type of mobile device use while driving. It is safe to assume that the other 15 states will soon join in. Even if your state is not included, do the right thing by suggesting your employees be safe while operating their vehicles.
10. How does your policy interact with other policies already in existence? Your mobile device policy should cross-reference your harassment, confidentiality, and trade secrets policies, all of which are implicated by the use of mobile technology.

Social media background checks : off-duty conduct laws :: oil : water

One report suggests that as many as 91% of employers use social networking sites to screen potential employees, with as many as 69% of employers rejecting a candidate because of information discovered on a social site. I’ve written before about some of the risks employers face when conducting background checks on employees via Facebook or other social media sites. Here’s one more risk for you to consider: off-duty conduct laws.

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities:

• 17 states have “smokers’ rights” statutes, which prohibit discrimination against tobacco users. (Connecticut, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming)
• 8 states have statutes that protect the use of any lawful product (e.g., tobacco or alcohol) outside of the workplace. (Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin)
• 4 states have statues that protect employees who engage in any lawful activity outside of work. (California, Colorado, New York, and North Dakota)

What do these laws mean for employers’ online background searches? Businesses need to understand that reviewing Google or Facebook before making a hiring or firing decision is a risky proposition, which could reveal myriad lawful off-duty activities that could implicate one of these statutes (in addition to all sorts of protected EEO data).

My suggestion for a best practice? Either to hire a third party to do your searches for you, or to train an employee, insulated from the hiring process, to do them. In either case, the screener should scrub all protected information before providing any report to the the person responsible for making the hiring (or firing) decision.

Notice that Ohio is missing from the list of states with off-duty conduct laws. However, if you have operations in one of the 29 states that have do have these laws, you will want to pay close attention to this issue.

Trying to make sense of the NLRB’s lastest social media missive? Good luck!

I’ve now had a few days to digest the NLRB’s latest foray into regulating social media in the workplace. I can sum up the NLRB’s report in three words: What a mess.

In a mere 35 pages, the NLRB appears to have ripped the guts out of the ability of employers to regulate any kind of online communications between employees. The NLRB found the following facially neutral, boilerplate policies to be unlawful restraints of employees’ rights to engage in protected concerted activities:

• A provision in a social media policy which provided that employees should generally avoid identifying themselves as the Employer’s employees unless discussing terms and conditions of employment in an appropriate manner.
• Work rules that simply prohibited “disrespectful conduct” and “inappropriate conversations.”
• A social media policy that prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with its mission or unprofessional/inappropriate communication regarding members of its community.
• A communications systems policy that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.
• A communications systems policy that prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department.
• A communications systems policy which required that social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments.
• A communications systems policy which required that employees state as part of posts on social media sites that their opinions are their own and not their employer’s.
• A social media policy that prohibited discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites. 

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

What policy did the NLRB conclude was lawful? A policy that limited its reach to social media posts that were “vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

What are the four takeaways for employers from this fiasco?

1. I’m not sure anyone at the NLRB actually uses social media. If they had any real-world knowledge about the topic on which they are opining, the report would read a whole lot differently.
2. If these boilerplate, facially neutral, communications policies cannot withstand scrutiny, I would venture to bet that 99% of all employers in this country have policies that the NLRB would strike down if challenged. 
3. If communications that would otherwise violate Title VII are the only types of workplace communications that employees can lawfully regulate, businesses might have to concede that they are very limited in their ability to regulate employees’ online conversations (at least until federal courts begin to weigh in on these issues and rein in the NLRB).
4. Businesses that try to implement a workplace social media policy, or discipline employees for their online activities, without first consulting with counsel are asking for trouble with the NLRB.

WIRTW #210 (the “organizing my life” edition)

I live in a constant search for the perfect task organizer/to-do list. For the past several months, I’ve been using Toodledo, which is robust, but overly complex for my needs. But, I’ve stuck with it because I can use it across all of my platforms (the PC in my office, my Mac at home, my Android phone, and my iPad—this is what life has become in 2012). Toodledo, however, is about to get kicked to the curb. Welcome to my life, Any.do. Where Toodledo is complex, Any.do is elegant in its simplicity, allowing you to add tasks to complete today, tomorrow, this week, or next week, drag and drop tasks between days, set priorities, reminders, folders, notes, and automatically sync to your contact list for emails and phone calls. Right now, it’s only available on Android, but the developer promises an iPhone app is on the horizon, as is a web app. Once the web app is released, I will say toodles to Toodledo.

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

Discrimination

• Fired for Wearing a Fake Penis? — from Phil Miles’s Lawffice Space
• “Religious employers must cover pill, Feds say” — from Walter Olson’s Overlawyered
• Company's “100% healed” policy does not create per se disability discrimination — from Employment Law Matters
• Employee Suffering from IBS Allowed to Proceed with Retaliation Claim — from SmartHR
• Discrimination Claims At EEOC Hit Record Level — from Laconic Law Blog
• Can you be fired if your dad had cancer? — from CareerDiva, Eve Tahmincioglu

Social Media & Workplace Technology

• #McDStories: When A Hashtag Becomes A Bashtag — from Kashmir Hill’s The Not-So Private Parts
• Is It Legal for an Employer to Secretly Track an Employee’s Personal Vehicle 24/7 for One Month? Perhaps! — from Workplace Privacy Counsel
• What Employers Should Know about the Supreme Court’s Decision Concerning GPS Privacy Rights — from Minnesota Employer
• The Small Business Social Media Cheat Sheet — from Flowtown
• Married to Your Business Twitter or Facebook Account? Think Before You Say, “I sue” — from Social Media Today
• Teachers warned over befriending pupils on Facebook — from The Guardian

HR & Employee Relations

• That Comment Bubble Could Get You In Trouble — from Stephanie Thomas at Compensation Cafe
• Super Bowl Office Pools in Connecticut – What Box Are You In? — from Dan Schwartz’s Connecticut Employment Law Blog
• Why HR Professionals Should Never Rely on “the Law” as the Source of Their Power — from Strategic HR Lawyer
• Can you be fired for skipping lunch? — from Evil HR Lady, Suzanne Lucas
• Real World, Real Life: Why Your Kids Need a Good Work Ethic — from TLNT
• “No-poach” emails between Apple, Adobe, and Pixar revealed in court documents — from The Verge
• Don’t Send Me Your Kid and Expect Me to Fix The Big Problems… — from The HR Capitalist, Kris Dunn

Wage & Hour

• OFF-CLOCK WORK: “Flintstone” laws in a “Buck Rogers” world — from Robin Shea’s Employment and Labor Insider
• Three Times Employees Must be Paid Not to Work — from Reuters
• Certification of Call Center Class Given the Boot — from The Wage and Hour Litigation Blog
• Never Ever Retaliate — from Manpower Employment Blawg
• Taking Note of How Family and Medical Leave Act Interference Claims to be Decided — from Jason Shinn’s Michigan Employment Law Advisor
• Fact or Fiction: If you don't say “FMLA”, you can’t take FMLA leave? — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• Can a Neutrality Agreement be an “Improper Payment” to a Union? — from Labor Relations Update
• IKEA Workers In Maryland Vote To Unionize — from The Huffington Post
• More Lockouts as Companies Battle Unions — from Steven Greenhouse at the New York Times

The word of the day is “systemic”

The EEOC has published its draft strategic plan for fiscal years 2012 – 2016. A quick Ctrl-F for the word “systemic” reveals 16 different hits in this relatively short document.

“Systemic” cases, according to the EEOC, are those that “address a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” The identification, investigation, and litigation of this category of cases remains a “top priority” of the agency. When the EEOC publishes the final version of its strategic plan, expect to see a target percentage of systemic cases in the agency’s litigation pipeline.

What does this mean for employers? It means that company-wide policies that have the potential affect certain groups more than others very much remain on the EEOC’s enforcement radar. What are some of these issues for employers to heed:

• Arrest and conviction records
• Work-life balance and the plight of working moms
• Religious accommodations and “look” policies
• Leave of absence policies
• Credit histories
• Employment status 
• Age 

Keep an eye on these issues, because you can bet the EEOC will be (at least for the foreseeable future).

BREAKING: NLRB issues 2nd report on social media as protected concerted activity

I just received the following news release, via email, from the NLRB:

To help provide further guidance to practitioners and human resource professionals, NLRB Acting General Counsel Lafe Solomon has released a second report describing social media cases reviewed by his office.

The Operations Management Memo covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

The report underscores two main points made in an earlier compilation of cases:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Given the new and evolving nature of social media cases, the Acting General Counsel has asked all regional offices to send cases which the Regions believe to be meritorious to the agency’s Division of Advice in Washington D.C., in the interest of tracking them and devising a consistent approach. About 75 cases have been forwarded to the office to date. The report, which does not name the parties to the cases or their locations, illustrates that these cases are extremely fact-specific.

This report underscores that employees’ use of social media to discuss the workplace and work-related issues, and the impact of business’s social media policies on those discussions, remains at or near the top of the NLRB’s priorities. Because the NLRB is taking such an interest in this area, employers act at their peril if they discipline or discharge an employee for social media activities, or roll out a social media policy, without the advice and input of counsel well-versed on these issues.

You can download a complete copy of the Operations Management Memo [pdf] here.

When office pranks attack

Read these facts, from Slasinski v. Confirma, Inc. (6th Cir. 1/24/12) [pdf], and I’ll be back to discuss:

In July 2007, members of Confirma’s sales team, including Mr. Slasinski, attended a week-long seminar in Bellevue, Washington.  On the evening of July 25, 2007, Mr. Slasinski and others … attended a dinner cruise….

Near the end of the cruise, but before the boat docked, Mr. Slasinski proceeded toward the ship’s lavatory on the aft end of the boat. Before he reached his destination, Mr. Slasinski observed a colleague named Kris Daw enter the lavatory. Several other Confirma employees were standing nearby, and Mr. Slasinski observed Bickford engage an external lock on the lavatory door, thereby locking Daw inside. A few moments later, Bickford unlocked the door and released Daw to the laughter of those standing nearby.

Mr. Slasinski then entered the lavatory and shortly thereafter discovered that he also had been locked inside … approximately 20 to 25 minutes. During that time, the boat docked and the other Confirma employees disembarked. After some time had passed, Mr. Slasinski began making phone calls to colleagues on his cell phone to request assistance…. Mr. Slasinski then resorted to kicking the door in an attempt to free himself, at which point the boat’s crew discovered and released him.

Like any embarrassed employee, what did Slasinski do? He sued, for false imprisonment. After a four-day trial, the jury returned a verdict in favor of Confirma, which the appellate court upheld:

If the jury accepted Confirma’s version of the facts, and drew all inferences in Confirma’s favor, it could easily have found that Mr. Slasinski entered the lavatory knowing he would be locked inside as part of the prank, and thus initially consented to the confinement. Moreover, for at least part of the duration of his confinement, Mr. Slasinski did not knock, call out to, or otherwise beseech any of the Confirma employees standing nearby to release him. A reasonable jury could conclude, therefore, that any confinement Mr. Slasinski experienced began with his consent, and only after the passage of time became against his will. A jury could further conclude, based on the evidence, that the period of unconsented-to confinement was of such brief duration as to be only momentary or fleeting.

What does this case mean? I could draw a great lesson about or the risks of lawsuits coming from anyone at any time, or the importance of workplace training to avoid similar problems, or the synergy between employee morale and having a good laugh, but instead, watch this:

See you tomorrow.

If employees had common sense, I’d be out of a job

Last Thursday, I participated in the Social Workplace Twitter Chat (#SWchat), which covered social media policies. In response to a question on whether employers need social media policies, or if they can leave employees to their own devices, I responded as follows:  

If SM was common sense for employees, we wouldn't be having this #SWchat

– and –

That's why book is called "Think Before You Click" (something few Ees regularly do) see.sc/Ja8cav #SWchat #sorryfortheselfpromo

In other words, if employees had common sense, I (and every other employment lawyer) would be out of a job.

Case in point: long-time Philadelphia TV weatherman (and notorious playa) John Bolaris, who lost his job last week because of an interview he gave to Playboy magazine discussing a debaucherous night in Miami that resulted in the Russian mob (of all things) drugging him and scamming him out of $43,712.25. Here’s my favorite quote from the Playboy interview (courtesy of Gawker):

He saw two women on a swing. Very elegant, beautiful, classy, with jet-black hair and blue eyes… They were smoking cigarettes in that exotic European manner… “I’m a guy,” Bolaris says. “There was the thought that I might get laid.” It never dawned on him to be suspicious about two gorgeous, elegant women all over him like a wet suit, he says, because “I was used to girls in Philly coming on to me aggressively once they found out I was John Bolaris, the TV weatherman.”

Needless to say, his employer was less than pleased by his very public discussions of his escapades.

As long as employees continue to engage in public discussions about what should be private matters, the role of employers in monitoring and regulating their employees’ online activities will continue to be a very active part of the discussion. And, as long as employees lack the common sense to keep these matters private, yes, you need a social media policy to direct their behaviors and expectations.

Maybe Warren Zevon said it best (and maybe John Bolaris should have heeded his advice):

I went home with the waitress
The way I always do
How was I to know
She was with the
Russians, too?

Do not forget to tell employees how you are calculating FMLA leave

Two of the most popular post on this blog relate to how employers calculate their employees’ “annual” FMLA leave allotment:

• Determining the “12-month period” for FMLA leave
• Calculating the rolling 12-month FMLA leave entitlement

(Go head, click through and read; I’ll wait).

On Friday—in Thom v. American Standard, Inc. [pdf]—the 6th Circuit illustrated for employers why it is crucial for employers to communicate to their employees which of the methods to calculating the 12-month period they are using. Thom involves an employee terminated either during his FMLA leave (if the employer was calculating his 12 weeks of leave using the “calendar year” method) or after his FMLA leave expired (if the employer was using the “rolling” method). The employer argued that it had always used the rolling method, which it formally published in its policies before Thom’s FMLA leave and termination. The Court disagreed:

Although American Standard did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give Thom actual notice of this changed policy….

This case illustrates both the importance of designating your FMLA year, and providing proper notice to your employees of that designation or any subsequent changes. In this case, the failure cost the employer $312,402.60, an expensive lesson.

WIRTW #209 (the “I am the greatest” edition)

This week, we celebrated the 70th birthday of the greatest (and most entertaining?) athlete ever, Muhammed Ali:

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

Discrimination

• Tell the EEOC What You Think — from Manpower Employment Blawg
• Not all harassment trainings are created equal — from Warren & Hays Employment Law Blog
• Alcoholism as a disability under the ADA — from Employment Law Bits
• It’s All Fun and Games Until a Fake Penis Gets You Fired — from Above the Law
• Don’t Make Me Gag: Confidentiality of Settlements When The Other Side Blabs — from Donna Ballman’s Screw You Guys, I’m Going Home
• 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit — from Molly DiBianca’s Delaware Employment Law Blog

Social Media & Workplace Technology

• 4 Tips on How to Use Facebook at Work and Not Get Fired — from Jessica Miller-Merrell’s Blogging4Jobs
• When a prospective employer wants your social media passwords — from Ask a Manager
• Download Someone’s Entire Twitter Feed — from Social Media, Esq.™
• E-discovery Made Simple (Or At Least Simpler) — from i-Sight Investigation Software Blog

HR & Employee Relations

• Stop managing by the clock — from Evil HR Lady, Suzanne Lucas
• Communicating Termination Decisions Requires Humanity from Russell Cawyer’s Texas Employment Law Update
• Modern Family F-Bomb Controversy: “This Is Not Child Abuse!” Says Star Jesse Tyler Ferguson — from E! Online’s Watch w/Kristin
• BE CAREFUL WHAT YOU WISH FOR … 2 Simple Things You Need to Do to Make Sure You Get the Best Candidate or Protect Yourself if You Don’t — from Michigan Employment Law
• Employee Trouble on the High Seas — from Minnesota Labor & Employment Law Blog
• No Fiduciary Relationship Created Between Medical Resident and Program Director — from Dan Schwartz’s Connecticut Employment Law Blog
• An 8 Hour New Hire Orientation? When Does HR Go Too Far? — from Fistful of Talent

Wage & Hour

• “Black Swan” Unpaid Interns Raising Legal Issues — from Overtime Advisor
• Email and overtime: the Brazilian connection — from John Holmquist’s Michigan Employment Law Connection
• Revenge of Dukes - Another One Bites the Dust — from Fair Labor Standards Act Law
• Timekeeping Methods the USDOL Encourages Your Employees to Use — from Mike Haberman’s Omega HR Solutions
• Insurance Company Special Investigators are Exempt Under Federal and State Laws, Ohio District Court Rules — from Wage & Hour Counsel
• Oh, baby? An employee's pre-eligibility FMLA request is protected — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• Sprague on Facebook & the NLRB — from Workplace Prof Blog
• Social Media, the National Labor Relations Board, and Why Health Care Employers Should Be Concerned — from Health Employment and Labor
• NLRB Continues to Tackle Social Media Issues — from Employer Law Report
• Obama's “Recess” Appointments and the Constitution — from Phil Miles’s Lawffice Space

Competition & Trade Secrets

• Non-Compete Agreements Are Not Always Fair — from Tom Crane’s San Antonio Employment Law Blog
• Top 10 2011 Developments/Headlines in Trade Secret, Computer Fraud, and Non-Compete Law — from Trading Secrets
• Dispute Serves Up Lessons for Restaurateurs in Employee Defection and Trade Secrets — from Trade Secrets & Non-Compete Blog
• Why Don’t Non-Compete Agreements Seem to Apply to Football Coaches? — from TLNT
• New Weapon for Michigan Employers for Protecting Against Unfair Competition and Trade Secret Theft — from Jason Shinn’s Michigan Employment Law Advisor
• The Erosion of Customer Lists As Trade Secrets: Are They Still Worth Protecting? — from The Trade Secrets Litigator

“Friending” co-workers depends on your level of organizational risk tolerance

On Time Magazine’s Moneyland Blog, Dan Schawbel asks the following questions: “Is it a bad idea to friend co-workers on Facebook? How about your boss?” In his post, Mr. Schawbel discusses a recent study of 4 million Gen-Y Facebook profiles, conducted by Millennial Branding and Identified.com, which found the following:

• Nearly two-thirds (64%) of Gen-Y Facebook users omit their employers from their profiles.
• Only 16 out of an average Gen-Y Facebook user’s nearly 700 friends are co-workers.

From these findings, Mr. Schawbel concludes:

Gen-Y needs to be aware that what they publish online can come back to haunt them in the workplace. Gen-Y managers and co-workers have insight into their social lives, which could create an awkward workplace setting or even result in a termination.

There is no one-size-fits-all solution to the issues raised by co-workers connecting via social networks. Social sites such as Facebook and Twitter can be a powerful tool for added employee engagement and communication. Because of the the added connectivity, however, they also present an added risk for problems such as harassment, retaliation, and invasions of privacy. You have five options to choose from in the level of connectivity to permit for your employees. Which answer you choose will depend on how you balance the benefit of the added communication versus the risk of potential problems:

1. Anything goes. Any employee can friend any other employee regarding of rank or position.

2. Supervisors are prohibited from friending direct reports, but employees can friend their supervisors (who can choose whether to accept the request).

3. Supervisors and their reports cannot be Facebook friends, regardless of who initiates the request.

4. Employees are only permitted to be Facebook friends with their peers. No one can friend anyone higher or lower on the org chart.

5. Employees are expressly prohibited from being Facebook friends with any co-workers, regardless of position.

Regardless of which option you choose, you should choose one to incorporate into your social media policy, and train your employees about the dangers of unfiltered online communications and the proper use of social media inside and outside of the workplace. Without the appropriate training of your employees on these new and evolving issues, you might as well not have the policy at all.

Is it time to do away with McDonnell Douglas?

For the unfamiliar, the McDonnell Douglas test is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. (For the familiar, skip down the next paragraph.) It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination. This test is engrained in the hearts and minds of anyone who practices employment litigation.

Early this month, in Coleman v. Donahoe, the 7th Circuit (albeit in a concurring opinion), asked whether the McDonnell Douglas test still has any utility:

Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, … the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one.

Yesterday, the 6th Circuit, in Donald v. Sybra, Inc. [pdf], helped prove the 7th Circuit’s point. Sybra, which owns Arby’s franchises, terminated Gwendolyn Donald’s employment after it concluded she had been intentionally mis-ringing customer orders to steal from her cash register. Among other issues, she claimed that Sybra terminated her employment both in retaliation for, and to interfere with, her rights under the FMLA. After concluding that the McDonnell Douglas framework applied to both her retaliation and interference claims, the court ignored McDonnell Douglas, and affirmed the district court’s grant of summary judgment to the employer:

The district court effectively gave Donald the benefit of the doubt and assumed that she could establish both prima facie cases. This boon notwithstanding, the district court determined that Donald produced insufficient evidence to prove that Sybra’s stated reasons, cash register and order irregularities, were pretextual….

Donald’s claims fundamentally rest on the timing of Sybra’s decision to terminate her employment [the  day after she returned from her FMLA leave], which, we admit, gives us pause. But that alone is not enough, and her other arguments are no more persuasive. Whether Sybra followed its own protocol, or its decision not to prosecute Donald, or even Donald’s history of employment, provides neither us, nor a rational juror, with a basis to believe that Sybra’s decision was improper. The district court therefore correctly dismissed Donald’s FMLA claims.

If courts skip the first two steps of the McDonnell Douglas test and go right to the heart of the matter—whether a rational jury could conclude that the employer took that adverse action on account of her protected class—does it make sense to continue the charade of pretending that McDonnell Douglas remains useful? As a management-side litigator, I like the ability to have more than one evidentiary bite at the apple in trying to get a case dismissed on summary judgment. As a pragmatist, however, I’m afraid that the concurring opinion in Coleman v. Donahoe might be correct, that “the time has come to collapse all these tests into one.”

Clearing a path to complain is a key part of any harassment policy

EEOC v. Management Hospitality of Racine, Inc. (7th Cir. 1/9/12) concerns some of the worst allegations of sexual harassment you will encounter, especially when you consider that the complaining employees were both teenagers and that the harassing manager was a decade their senior.

The employer tried to avoid liability by relying on its zero tolerance sexual harassment policy and its prompt investigations of complaints. The court disagreed for several reasons, including that managers had never received any harassment training and that the employer waited two months to investigate the complaints in this case. Most importantly, however, the court concluded that the employer’s harassment policy failed on its face:

An employer’s complaint mechanism must provide a clear path for reporting harassment, particularly where, as here, a number of the servers were teenagers…. Flipmeastack’s sexual harassment policy did not provide a point person to air complaints to. In fact, it provided no names or contact information at all.

What does this mean for you? A harassment policy is worthless if it does not tell employees how to complain and to whom to make complaints. Let me make one additional suggestion — have more than one avenue for complaints. You do not want to be in a situation where an employee does not complain because the person to whom your policy directs him or her is the alleged harasser. Suggest that employees can complain to anyone in management, up to and including the head of your company. Depending on the size of your organization and the resources available, consider implementing a harassment complaint hotline or inbox.

What Dr. King fought for … and what he didn’t

What MLK fought for…

From abcnews.com, discussing the resolution of a story on which I reported last month:

The Ohio Civil Rights Commission dismissed a landlord’s claim today that a “white only” pool sign was simply an historical antique sign and ruled that it was discriminatory…. The five-member commission decided unanimously on the matter, upholding an earlier ruling…. [According to the landlord,] “If I have to stick up for my white rights, I have to stick up for my white rights. It goes both ways.”

What MLK did not fight for…

From Brown v. Village of Woodmere [pdf], a race discrimination case decided last week by the Cuyahoga County Court of Appeals:

Brown further admitted that he was aware of the village’s electronic use policy and his use of the sergeant’s computer was in violation of the policy…. The mayor testified that she terminated Brown after she viewed the pornographic images that were on the sergeant’s computer; the images included pictures of Brown’s genitalia…. Under the circumstances presented in this case, summary judgment on Brown’s racial discrimination claim was entirely appropriate

Any questions?