WIRTW #254 (the “until the end of the world” edition)

Today is December 21, 2012, which, according to the Mayans, is the day the world ends. Or, it’s the day that they simply stopping counting days on their calendar. Or, it’s entirely a coincidence.

Either way, one thing will end today for certain— my original posts for the year. As I’ve done in years past, on Monday I will start counting down my top 10 posts of the past year, two per day through December 31. I’ll be back on January 2, 2013, with fresh content. Please have a happy, healthy, and safe holiday.

---

Today is the last day to vote for the ABA Journal Blawg 100. If you’ve voted, thank you. If you haven’t, what are you waiting for?

---

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

Discrimination

• Does the law require transfers for employees seeking medical treatment? — from Eric Meyer’s The Employer Handbook Blog
• The right way to handle a request for a religious accommodation — from Warren & Associates Blog
• Can Volunteers Sue For Discrimination? — from LE Blog
• Does Ho Ho Ho = Prostitutes? — from Evil Skippy at Work
• Can You Withhold Severance To An Employee Who Files An EEOC Charge? — from Employment Discrimination Report

Social Media & Workplace Technology

• Enforcing an Unwritten Social-Media Policy — from Molly DiBianca’s Delaware Employment Law Blog
• Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line — from netWORKed Lawyers
• Fired for What!? - Defending Her Hair on Facebook — from Phil Miles’s Lawffice Space
• Twitter now has more than 200 million active monthly users — from The Verge
• The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) — from Electronic Discovery Law
• Like or dislike? Social media profiles and employer access — from Technology for HR
• 5 pitfalls to avoid when responding to rogue employees — from Ragan.com

HR & Employee Relations

• My boss says I smell bad from Evil HR Lady, Suzanne Lucas
• Would You Enforce Workplace Policy If You Had to Follow Them? — from Blogging4Jobs
• An Employer’s Opinion on How To Quit Your Job — from Lifehacker
• How to Prevent/Deal With Employee Theft in the Workplace – Part 1 — from i-Sight Investigation Software Blog
• Medical Device Industry Remains a Hotbed for NonCompete Litigation — from Trade Secrets & Non-Compete Blog
• How Not to Unwittingly Reveal Company Secrets — from Harvard Business Review
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store, Conclusion — from The Emplawyerologist
• Holidays in the workplace: Listen to Bad Santa, and do precisely the opposite — from Robin Shea’s Employment and Labor Insider
• Letter to the Editor, Cleveland Plain Dealer on Background Checks Story — from employeescreenIQ Blog

Wage & Hour

• A Recent Off-The-Clock Case Should Not Breed Complacency — from Wage and Hour Laws Blog
• Independent contractor or employee? — from EmployerLINC

Labor Relations

• Libertarians and right to work laws — from Walter Olson’s Overlawyered
• Right-to-Work or Wrong-to-Work? Why the Michigan Vote Makes Sense — from Tim Sackett at TLNT
• Hell Freezes Over: Michigan is Right-to-Work — from Labor Relations Institute

Happy Holidays.

The NLRB’s holiday gift: a Facebook firing decision

Earlier today, I suggested that the appropriate gift on the 5th day of Employment Law Christmas is 5 Facebook firings. Today, the NLRB made good on this suggestion by publishing its decision in Hispanics United of Buffalo [pdf].

Hispanics United concerned the terminations of five employees on the heels of a Facebook discussion critical of another employee’s job performance. Last year, the Administrative Law Judge ruled that the terminations violated the non-union employees’ rights to engage in the protected concerted activity.

The NLRB affirmed the earlier decision.

There should be no question that the activity engaged in by the five employees was concerted for the “purpose of mutual aid or protection” as required by Section 7. As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee’s complaint that they “don’t help our clients enough,” stated that she “about had it” with the complaints, and solicited her coworkers’ views about this criticism. By responding to this solicitation with comments of protest, Cole-Rivera’s four coworkers made common cause with her, and, together, their actions were concerted …, because they were undertaken “with … other employees.” … The actions of the five employees were also concerted … because, as the judge found, they “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.” …

The Facebook comments here fall well within the Act’s protection. The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject. As discussed, the employees were directly responding to allegations they were providing substandard service to the Respondent’s clients. Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.

This case clarifies a two key points for employers.

     1. Employees can engage in protected concerted activity even if their online conversations take place off-duty and via their own computers.

     2. The employer argued that the employees’ Facebook posts lost any protections because they were a form or harassment or bullying in violation of company policy. The Board did not buy that argument, concluding that the National Labor Relations Act trumps any workplace bullying or harassment policy. It did, however, leave open the possibility that objectively and subjectively illegal harassment (that which is on the basis of “race, color, sex, religion, national origin, age, disability, veteran status, or other prohibited basis”) would strip the employees’ comments of their protected status.

The 12 Days of Employment Law Christmas

Since the holidays are almost upon us, and the news is a little slow, I thought I’d have a little fun. So I wrote a song. For your listening pleasure (you have to sing yourself; trust me, there’s no pleasure if I do it for you), I present The 12 Days of Employment Law Christmas.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Happy holidays!

The importance of getting your story straight

Many discrimination cases hinge on the issue of pretext—whether the employer’s proffered non-discriminatory reason was the real reason for the adverse action, or subterfuge to cover up illegal discrimination.

One way for an employee to establish pretext is to demonstrate that the employer’s reason for the adverse action changed over time. As the 6th Circuit explained in Thurman v. Yellow Freight System: “An employer's changing rationale for making an adverse employment decision can be evidence of pretext.”

For example, in Asmo v. Keane, Inc. (another 6th Circuit case), a manager gave the employee five different reasons for her termination at the time of the dismissal. However, when the company responded to the EEOC charge, and again during that manager’s deposition, the company and manager provided different reasons. The Court held that the employer’s changed explanation required that the matter be submitted to a jury:

It is unclear how Santoro [the manager] initially came up with these [five] reasons for termination, but the fact that they were later eliminated, and they happen to be the two reasons that Santoro gave that are false, is very suspicious. It appears that Santoro offered any and all reasons he could think of to justify his decision to Asmo, whether or not they were true. Once a lawsuit was filed and Keane knew the reasons would be subject to scrutiny, it changed the justifications … to include only those that were either circumstantially true or could not be as easily penetrated as false.

What lessons can you take away from this case? An employer’s reason for a termination is fixed at the time of termination. Changing that reason in litigation will only help the employee prove his or her case by offering evidence of pretext. For this reason it is vitally important that companies have all their ducks in a row before terminating an employee. Conduct a full investigation before pulling the termination trigger. Have a bona fide reason and stick to it.

If the proffered reason is based on an honest business judgment, it is unlikely that a court will disturb it. If, however, the reason shifts over time, it is conceivable that a jury will find pretext and concluded that discrimination, and not one of your changing reasons, motivated the decision.

Ohio Supreme Court all but eliminates the intentional tort exception to workers’ comp claims

The history of the workplace intentional tort as an exception to the state workers’ compensation system has  a long and tortured history in the annals of Ohio jurisprudence. In Houdek v. ThyssenKrupp Materials N.A., Inc. (Ohio 12/6/12), the Ohio Supreme Court may have put the final nail in the coffin of this long misused claim.

Generally speaking, the state workers’ comp law providers immunity to employer from their employees’ workplace injuries. In Blankenship v. Cincinnati Milacron Chems., Inc. (1982), the Ohio Supreme Court recognized a cause of action for an employer’s intentional tort against its employee, holding that because intentional tort claims do not arise out of the employment relationship, the workers compensation laws do not provide immunity from suit.

Blankenship started at three-decade odyssey to define the meaning of “intention.” This odyssey included three different statutes, the first two of which the Court declared unconstitutional. The current statute (R.C. 2745.01), the constitutionality of which the Court in 2010 blessed twice, provides:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

In Houdek, the plaintiff brought suit for an intentional tort under 2745.01 after being struck by a sideloader. He alleged that his employer deliberately intended to injure him by requiring him to work in a dimly lit aisle without a reflective vest and by failing to place orange safety cones or expandable gates to prevent machinery from entering aisles where employees were working.

The Court concluded that for an employee to prevail on an intentional tort claim, the employee must prove that that the employer deliberately intended to cause injury:

Absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system.

The Court made clear that the law differentiates between accidents and intentional injuries, and that 2745.01 provides a remedy only for the latter:

Here, Houdek’s injuries are the result of a tragic accident, and at most, the evidence shows that this accident may have been avoided had certain precautions been taken. However, because this evidence does not show that ThyssenKrupp deliberately intended to injure Houdek, pursuant to R.C. 2745.01, ThyssenKrupp is not liable for damages resulting from an intentional tort.

The lone dissenter, Justice Pfeifer, laments that the majority’s decision ends the workplace intentional tort claim under Ohio Law:

The court below … wrote what the consequences would be if my dire evaluation of the law was indeed correct: “As a cautionary note, if Justice Pfeifer is correct, Ohio employees who are sent in harm’s way and conduct themselves in accordance with the specific directives of their employers, if injured, may be discarded as if they were broken machinery to then become wards of the Workers’ Compensation Fund. Such a policy would spread the risk of such employer conduct to all of Ohio’s employers, those for whom worker safety is a paramount concern and those for whom it is not. So much for “personal responsibility” in the brave, new world of corporations are real persons.” More’s the pity.

Houdek is a huge victory for Ohio’s employers. “Deliberate intent” is a very high standard for injured employees to meet, and should protect employers  except in the most egregious of circumstances.

What cases will still prove problematic for employers under this statute? Because of presumption of deliberate intent created by 2745.01(C), those in which it is alleged that the employer deliberately removed an equipment safety guard or deliberately misrepresented a toxic or hazardous substance. How do you guard against these intentional tort cases?

• Train all of your employees about the importance of safety guards, and the dangers of toxic and hazardous substances.
• Inspect all equipment at the beginning and end of each shift to ensure that safety guards are in the proper place.

Some thoughts on Sandy Hook

There is nothing to say that can capture the grief and inhumanity we all witnessed last Friday. For what it’s worth, and because these events of unmistakable tragedy seem to be occurring at a more rapid clip, let me share some of my previous thoughts on how to cope when violence invades the workplace.

• In the wake of a tragedy, more on humanity and human resources
• Do you know what to do when violence invades your workplace?

In the wake of this tragedy, lots will be written about the need for tougher gun laws, better help for the mentally ill, and whether 24/7 news coverage of these tragic events helps encourage the next person to shoot for his 15 minutes of fame. The reality is that nothing can stop these events from happening. If an evil or sick person wants to get his or her hands on some guns and impose his evil or illness on a group of innocent people, there is nothing anyone to can do to stop it. All we can do is offer our prayers in its aftermath.

WIRTW #253 (the “words to live by” edition)

The Greenhouse Tavern is my favorite restaurant, anywhere. If you live in Cleveland and have not paid it a visit, do your palate a favor and get yourself to E. 4th Street to sample its amazing food (do not miss the confit-fried chicken wings). And, if you don’t live in Cleveland but find yourself visiting my fine town, put the Greenhouse at the top of your list of restaurants at which to dine.

It’s not just the amazing food that makes the Greenhouse so memorable. Its chef/owner, Jonathon Sawyer, is one of the most gracious small business owners in Cleveland. I had the pleasure of meeting Chef Sawyer several years ago at Hopkins Airport while both of our families were waiting to board a flight to Disney World. He and his wife treated my wife and me like royalty on our subsequent visit to his restaurant. As good as his food is (and it really is that good), it tastes that much better when the business is run by someone who pays such acute attention to his patrons.

For that reason, I paid special attention to a recent Washington Post Q&A column, entitled, On Small Business, which asked several small business owners, including Chef Sawyer, the following question: “Have you found any simple, inexpensive methods to make your workspace more employee-friendly? What tricks have you used to make sure your staff is happy with your office?” This was part of Chef Sawyer’s answer: “It starts from the top — employees must want to work with you, not for you. We’ve found the most success in this mutual respect….” You cannot go wrong following this advice in your own business and with your own employees.

[Hat tip: Steve Suttell]

---

Have you voted yet for the ABA Journal Blawg 100. Polls close next Friday, Dec. 21.

---

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

Discrimination

• EEOC: Requiring Old Medical Documentation Violated ADA — from Joe’s HR and Benefits Blog
• Testimony for U.S. Civil Rights Commission Hearing on Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Criminal Background Checks: Good in Theory, Problems in Practice — from LP Magazine
• EEOC Plans to Heavily Attack Pregnancy Discrimination in the Workplace — from Wisconsin Employment & Labor Law Blog
• Dear Evil Skippy: Is It Religious Discrimination To Have Christmas Trees At Work? — from Evil Skippy at Work
• Employers, don't let that "protected" employee hold you hostage — from Robin Shea’s Employment and Labor Insider
• When Dads do “Mom work,” how much accommodation is required? — from HR Cafe

Social Media & Workplace Technology

• Who Owns Your Company’s Social Media? Are You Sure? — from Dan Schwartz’s Connecticut Employment Law Blog
• Big Brother Can’t Ask For Access To Your “Personal” Social Media Accounts Either … More Social Media Legislation Proposed In California — from Trading Secrets
• Proposed Michigan Social Media Law Banning Employer Access to Employee Passwords - Not Something to “Like” — from Jason Shinn’s Michigan Employment Law Advisor
• Social Media Horror Stories: More to Come In 2013 — from Alabama Employment Law Report
• MATH: How Much Would Banning "Reply All" Save Your Company? — from The HR Capitalist, Kris Dunn

HR & Employee Relations

• Santa Fired For Telling A 3-Year-Old The Maple Leafs Suck — from Deadspin
• Keys For A Successful Holiday Party – Infographic — from Stephanie Thomas’s The Proactive Employer Blog
• Rudeness at Work: What's Your Story? — from Harvard Business Review
• The Trade Secret Litigator's 7 Deadly Sins of Former Employers in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store? Part II — from The Emplawyerologist
• More Thoughts on Arbitrating Non-Competes — from Rob Radcliff’s Smooth Transitions
• Slack To The Future: The 50 Best Places To Work In 2013 — from Workplace Diva
• 10 terrible holiday gifts from bosses — from Evil HR Lady, Suzanne Lucas

Wage & Hour

• FMLA Leave for Same-Sex Couples to be Clarified by Supreme Court's DOMA Decision? — from Jeff Nowak’s FMLA Insights
• Fact or Fiction: Breaks/lunch taken at work may qualify for FMLA — from Eric Meyer’s The Employer Handbook Blog
• Employers Provide Too Little Leave Time — from Blogging4Jobs
• Tis the Season of Holiday Hiring — from DOL's Work in Progress
• What Deductions Are Allowed From an Exempt Employee’s Salary Under the FLSA? — from Minnesota Employer
• A Crash-Course in Paid Vacation and Holiday Policies — from CPEhr
• Man Fired After Complaining About Clocking In May Maintain Lawsuit For Retaliation — from Overtime Lawyer Blog

Labor Relations

• Great moments in labor arbitration — from Walter Olson’s Overlawyered
• Would You Buy THIS Union Made Product? — from Mike Haberman’s Omega HR Solutions
• Labor and the “Union” Name: Is a Rebrand Really the Answer? — from LaborPains.org

Holiday parties say a lot to about your workplace culture … for good and for bad

Last week I shared my thoughts on avoiding liability during your workplace holiday parties. Among the 7 tips I shared was:

Normal work rules and standards apply to holiday parties. As a subtle reminder, consider holding an anti-harassment refresher in anticipation of the party.

Shiner v. State Univ. of N.Y. (W.D.N.Y. 11/2/12) illustrates what can happen when a company ignores this advice and allows an office party to get out of hand.

Lesley Shiner worked as a clerk at the University at Buffalo Dental School. Dr. Jude Fabiano was the school’s Associate Dean and Steve Colombo its Director of Clinical Operations. Each year the school holds an annual Christmas party. Shiner attended the 2010 party despite her reservations about sexually inappropriate conduct and sexually explicit comments made by Colombo and Fabiano during the 2008 and 2009 parties.
As it turned out, Shiner should have listening to her inner voice and stayed home. In her lawsuit, she alleged that during the party Fabiano:

• Fondled her breasts.
• Inserted his tongue in her ear.
• Chased her around a table.
• Grabbed her by her neck and bent her over a table.
• Pushed her face together with that of another female employee and told them to kiss, stated that he wanted some “girl on girl” action, and asked for the three of them to be together sexually.
• Puller her on his lap and asked her to meet him somewhere after the party.
• Pinched and squeezed her ribs when she resisted his advances.

Colombo encouraged and cheered Fabiano’s behavior. At one point during the party, Colombo grabbed Shiner’s hand and pulled her onto his lap, stating to Fabiano “you might be the boss, but I have her now.”

All you need to know about the Shiner case is that, unsurprisingly, the court denied the school’s motion to dismiss.

This case, however, holds a deeper lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render your holiday parties (or any workday, for that matter) safe. You need to decide what kind of company you want to be, and set the tone year-round. Then, when it comes time for the annual holiday party, you do not have to worry about an employee being bent over a table or asked for a threesome. And, if it happens, your employees will have confidence that your company will arrest the offending behavior quickly and severely.

12 is the magic number: 12 thoughts for your workplace

Today is 12/12/12. The number 12 holds a lot of historical significance. There are 12 tribes of Israel, 12 months in the Gregorian calendar, 12 signs of the zodiac, 12 days of Christmas, and 12 original studio albums released by the Beatles (in the UK).

Since today won’t come around for another 100 years, I thought I’d honor its unique date with 12 thoughts to help better your workplace.

1. Review your employee handbooks and other personnel policies (annually is preferred).

2. If you don’t have policies addressing social media and the other roles technology plays in your workplace, draft one(and train your employees on them).

3. Hold company-wide harassment training (least once every two years, if not every year).

4. Make it a point to rid your workplace of bullies (even though there is no law against it).

5. Even if your business is not a jurisdiction that bans sexual orientation discrimination, adopt a policy outlawing it anyway.

6. Audit your wage and hour practices.

7. Document all discipline and performance problems.

8. Do not make promises to your employees that you cannot keep.

9. Make hiring and firing decisions based on performance.

10. Be more understanding of your employees’ family responsibilities outside of the office.

11. Employ the golden rule — treat your employees as you would want to be treated.

12. Have fun (but not too much fun).

What are right-to-work laws, and should you care?

Michigan is poised to become the 24th state to enact a right-to-work law. These laws prohibit agreements between labor unions and employers that require employees to pay union dues as a condition of their employment, whether or not the employees are members of the union.

These laws are a creature of 1947’s Taft-Hartley Act. Before 1947, it was legal for unions and employers to agree, via their collective bargaining agreement, to maintain what is known as a “closed shop.” In a closed shop, unions and employers could require that employees join the union as a condition of employment. The Taft–Hartley Act outlawed closed shops, making it illegal for any employer to force an employee to join a union.

The Taft-Hartley Act, however, did not outlaw “agency shops,” in which employees do not have to join the union, but can be required to pay the union their share of union dues. Right-to-work laws were born out of an exception in the Taft-Hartley Act, under which individual states can pass laws outlawing agency shops.

Ohio is not a right-to-work state. Yet, this map (courtesy of National Right to Work Legal Defense Foundation), illustrates why every employer in every state should care about the right-to-work movement:

The map of right-to-work states bears a striking resemblance to the electoral maps in recent presidential elections. In other words, regardless of whether your state is, or is not, a right-to-work state, the state of these laws around the country says a lot about our current polarized (and polarizing) political system.

Moreover, with Republicans controlling Ohio’s governor’s office and both houses of Ohio’s legislature, do not be surprised when a strong push is made for this legislation in our own state. If so, it will make for a fierce battle between business interests—who argue these laws are necessary to attract companies—and unions—who argue that these laws are nothing more than a move to curb the power of labor and reduce its influence.

EEOC rejects staffing company’s “just following orders” defense

The EEOC recently announced that it filed a disability discrimination lawsuit on behalf of an employee fired because of her prosthetic leg. It not only brought the lawsuit against the company on whose behalf she had been performing work, but also the staffing agency that had placed her there.

The staffing agency had told the employee it was removing her from the warehouse position because the company did not want anyone bumping into her.

The EEOC, however, did not put any stock into the staffing company’s “we-were-just-following-orders” defense. From the EEOC’s news release:

“Staffing agencies cannot avoid liability for discrimination by saying they were just following an employer-client’s orders, nor can employers avoid liability by saying the victim was ‘really employed’ by their staffing agency,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “It’s a pretty good bet that a worker with a prosthetic leg is always going to be protected by the ADA, and an equally good bet that flat-out firing the worker for that reason is going to violate the law. This scenario should not be all that difficult for employers to avoid. If they don’t, the EEOC will be there to make things right.”

For businesses, this story is a good reminder that staffing agencies and the employers that use their services often share liability under the various EEOC laws. If you are a staffing company, consider writing indemnification clauses into your agreements to help insure against liability when the company for whom you are staffing discriminates. Otherwise, there is a good chance that the law will not protect you from your customer’s discrimination.

WIRTW #252 (the “eat, drink, and be merry … and safe” edition)

The end of the year is here, which means that it’s time for the office holiday party. Deep from the archives, here are 7 tips for a safe workplace holiday party, a post which is as pertinent now as when I first wrote it two years ago.

As an added bonus, consider these tips on workplace holiday parties from some other bloggers:

• Horror Stories From the Workplace Christmas & Holiday Party — from Mike Haberman at Blogging4Jobs
• 10-Step Company Holiday Party Planning Checklist — from ERC Insights Blog
• Evil Skippy’s Ten Essential Office Party Tips — from Evil Skippy at Work
• Holiday Parties In The Social Media Age - You Never Know Who Is Watching! — from HR Defense Blog
• Employer’s Holiday Guide — from Heather Bussing at HR Examiner with John Sumser

As another added bonus, here are two exceedingly clever wrap-ups of the year in labor and employment law:

• Once “Moore” With Feeling: ‘Twas the Month of December – Again! — from Employment Essentials
• 2012 Employment Law Year In Review — from Labor Letter

---

Don’t forget to cast your votes for the ABA Journal Blawg 100.

---

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

Discrimination

• 10 rules of etiquette that will save you from a pregnancy discrimination suit — from Robin Shea’s Employment and Labor Insider
• Attempted Suicide and the ADA — from Molly DiBianca’s Delaware Employment Law Blog
• Have Faith in Your Religious Accommodations — from Tim Eavenson’s Current Employment
• Hangman's Nooses And the “N-Word” — from Employment Discrimination Report
• “Younger people are the future” comment creates age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• You’re Damned if You Fall Into the Retaliation Trap — from damnedif

Social Media & Workplace Technology

• This Is How Much Time You Spend on Facebook, Twitter, Tumblr — from Mashable
• @noahkravitz and PhoneDog Settle Twitter Follower Lawsuit — from Social Media for Law Firms
• Employee/Ex-Employer Lawsuit Over Twitter Account Settles — from Eric Goldman
• Which Side Are You On? Employers and Employees Battle Over Ownership of Social Media Accounts — from Socially Aware Blog
• Massachusetts Court Rules That Facebook Posting of New Job Does Not Violate Non-Competition Covenant — from Trading Secrets
• Criminal Facebooking — from Workplace Prof Blog
• How to Respond to an Inappropriate Request for Access to Personal Social Media — from HR Gazette
• The Importance of a Bring Your Own Device to Work Policy — from InhouseBlog
• Obsessed With Checking Your Phone? You’re Not Alone — from ABC News

HR & Employee Relations

• No flu shot? No job! — from EmployerLINC
• No Flu Shot? That's a Firing — from Donna Ballman’s Screw You Guys, I’m Going Home
• Are You a Bad Boss? — from The Sociable Lawyer Blog
• Management Lessons from the NFL: Avoiding Monday Morning Quarterbacking of Your Termination Decisions — from Jason Shinn’s Michigan Employment Law Advisor
• Favoritism at Work: How to Respond When Unequal Treatment Impacts Your Productivity and Satisfaction — from Workplace Fairness
• Should Employers Arbitrate Non-Compete Claims? — from Rob Radcliff’s Smooth Transitions
• The Ugly Side of Employee Complaints — from Elevated HR
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store? Part I — from The Emplawyerologist

Wage & Hour

• Is It Ever OK For Employers to “Round” an Employee’s Worktime? — from TLNT
• Lawsuits by Restaurant Employees Keep on Coming — from Overtime Advisor
• Sixth Circuit Awards Employer Over $55,000 in Costs in FLSA Collective Action — from Employer Law Report

The Internet is today’s employee complaint box

In Amalgamated Transit Union Local 1433 [pdf], an NLRB administrative law judge ruled that a union did not violate federal labor law by failing to disavow threatening posts made by employees on the union’s Facebook. While the legal nuances of the opinion are interesting, this case raises an issue of deeper import for employers. Labor unions are using social media, and using it effectively, to disseminate information to members and to reach potential members during organizing drives.

It is not just labor unions that are using social media and the Internet to engage employees collectively. Employees are using these tools outside the organizational outreach of labor unions.

Case in point—the recent launch of coworker.org. “What is coworker.org,” you’re asking yourself? “I’ve never heard of it.” I never had either until I read a post yesterday on the Workplace Prof Blog. Coworker.org, describes itself as a website that allows employees to start, run, and win campaigns to change their workplaces. Employees accomplish this mission on the website by starting online petitions.

To date, coworker.org only has one active campaign. It’s against Wal-Mart, seeking the reinstatement of an employee allegedly fired for speaking out against having to work on Black Friday.

I’ll be watching coworker.org to see if it gains any traction. Employers should be watching this site too, but not for the reason you think. Retaliation against any employees who post on the site would be illegal under the National Labor Relations Act, as employees have a right to engage in protected concerted activity.

Instead, employers should pay attention to coworker.org for the same reason they should pay attention to the Amalgamated Transit Union Local 1433 case, Facebook, Twitter, and the blogosphere. Employees are online, talking about what is happening in your workplace. The Internet is today’s complaint box. If you want to fix problems before they get out of control, you need only turn to social media sites and sites like coworker.org and Glassdoor. If your employees are online complaining about you, should you be paying attention?

Officially announcing the release of The Employer Bill of Rights

After a “soft launch” a couple of weeks ago, I am officially announcing the launch of my latest book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law. 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. Among other topics, it covers—

• How to make personnel decisions that will help avoid costly litigation.
• The who, what, why, when, where, and how of each of the major federal employment discrimination laws.
• Cutting-edge human resources issues such as wage-and-hour disputes and managing social media in the workplace.
• How to hire and fire employee without the fear of an expensive lawsuit.
• How to control operations by implementing legal policies and procedures related to plant shut downs, employee scheduling, work rules, and the maintenance of confidential information.
• The importance of following the Golden Rule in all personnel matters.

I’m really proud of how the book turned out.

I have a lot of people to thank. Here’s what I wrote in the book’s acknowledgements:

First, I must thank all of my partners at Kohrman Jackson & Krantz and, especially, our managing partner, Marc Krantz, who knows that there exist many ways for a lawyer to market himself or herself. He never hesitated when I suggested that I author a legal blog or write a book (or two), and for his support I am eternally grateful.

Before attending law school, I worked at a few jobs that were less than glamorous. To all of the people who shared those jobs with me, thank you for unknowingly and unwittingly helping me craft my views on the modern workplace.

Thank you to anyone who has ever published anything I have written, quoted me in an article, hosted me on a show, invited me to speak at an event, re-tweeted one of my 140-character thoughts, or linked to my blog. Without each of you, this book would not have occurred.

I thank the wonderful publishing team at Apress—Jeff Olson, Robert Hutchinson, and Rita Fernando—along with the publisher itself. They made the writing process work smoothly, which was essential as I juggled the authoring of this book with my full-time legal practice. They also patiently put up with my less-than-perfect execution of their SharePoint site as we worked though the editorial process.

Thank you to my parents, who taught me the value of education without ever pushing too hard.

Finally, thank you to my family—Colleen, Norah, and Donovan. You put up with my late-night and early-morning blogging and writing. You sometimes suffer in my absence caused by long workdays, late nights, or out-of-town trips. Yet, if I did not know that you are always standing behind me, none of it would be worth it. Thank you for loving me for who I am and supporting me for what I do.

If you want to purchase the book, it’s available in several places and formats:

• Amazon – paperback
• Amazon – Kindle (available soon)
• Barnes & Noble – paperback
• eBook

I have also been told that an iBooks version is coming, although Apple runs a tad behind the others on its approvals.

I cannot think of a better stocking stuffer for that special business owner, manager, supervisor, or HR professional in your life. Amazon will even gift wrap it for you.

---

If you want to hear me talk about the book, you can tune in tomorrow to Stephanie Thomas’s The Proactive Employer. I’ll be live at 3 pm (and available on-demand thereafter) to discuss why employers need a bill of rights, the areas of greatest legal concern for employers, and how my book can help businesses make informed decisions and hedge against the biggest errors that too often result in expensive and time-consuming lawsuits.

Does an unaccepted offer of judgment moot a wage and hour case? Genesis HealthCare Corp. v. Symczyk

Let’s say an employee sues you, claiming that you withheld certain wages owed under the Fair Labor Standards Act. In addition to defending the lawsuit, you make her what is called an “offer of judgment” to make her whole for all wages she claims she is owed (including any liquidated damages and attorneys’ fees). Does the offer render her lawsuit—that she not only brought on her own behalf, but also sought on behalf of a class of similarly situated co-workers—moot? Alternatively, does the fact that she sought relief on behalf of others keep her lawsuit alive, despite the fact that she no longer has any personal skin in the game?

Yesterday, the Supreme Court took up this important issue in Genesis HealthCare Corp. v. Symczyk. The precise issue the Court considered during yesterday’s oral argument is as follows:

Whether a case becomes moot … when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims.

In the case below, the 3rd Circuit offered a succinct explanation of the doctrine of mootness, its role in federal court cases, and how an offer of judgment impacts it:

Article III of the United States Constitution limits the jurisdiction of the federal courts to “actual ‘Cases’ and ‘Controversies.’” When the issues presented in a case are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome, the case becomes moot and the court no longer has subject matter jurisdiction. An offer of complete relief will generally moot the plaintiff’s claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation. Thus, whether or not the plaintiff accepts the offer, no justiciable controversy remains when a defendant tenders an offer of judgment under Rule 68 encompassing all the relief a plaintiff could potentially recover at trial. (internal quotations omitted).

Genesis HealthCare is not the Supreme Court’s first rodeo on the issue of offers of judgment in class actions. In Deposit Guar. Nat'l Bank v. Roper, the Court previously expressed its concern about the use of offers of judgment to strategically “pick off” claimants:

Requiring multiple plaintiffs to bring separate actions, which effectively could be “picked off'” by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement.

How did the Court address these issues in yesterday’s oral argument, and what do the Court’s questions tell us about how the Court may rule in the case?

• The left wing of the Court hit the employer’s counsel hard on the perceived underlying unfairness of dismissing an entire collective action based on the inactivity of one member of the class.
• The right wing of the Court hit the plaintiff’s counsel hard on the underlying procedural issues, and the inability of a named plaintiff to do anything to affect the interests of potential class members who have yet to join the lawsuit.

The outcome of this case is difficult to gauge based on the oral argument, because both potential sides of the Court attacked the underlying issues so differently. Again and again, however, this pro-business Court has revealed itself to be pro-employee in its recent employment rulings. Reading the tea leaves, I predict that the Court rules against the employer and concludes that the unaccepted offer of judgment did not moot the collective action in this case.

A copy of the oral argument transcript is available for download [pdf] from the Supreme Court’s website.

Do you have a workplace policy banning the electronic recording of conversations?

In Jones v. St. Jude Medical Center (6th Cir. 11/8/12) the employee—fired for surreptitiously recording workplace conversations about her job performance—sought the protection of Title VII’s anti-retaliation provision. She argued that because she made the recordings to gather evidence about discrimination, the act of recording was protected activity under Title VII. Because her employer fired her because of the recordings, she claimed retaliation.

The 6th Circuit concluded that the hospital fired Jones because she violated its policy against recording conversations in the workplace, and rejected her retaliation claim.

Importantly, the Court further concluded that Title VII’s anti-retaliation provision does not protect the act of recording in and of itself:

Jones has not shown why she needed to violate the recording policy in order to oppose defendants’ alleged discrimination. She might have taken notes of the conversations, obtained the same information through legal discovery, or simply asked her interlocutors for permission to record. Jones argues that her conduct was reasonable because the recordings were not illegal, did not breach confidential information, were not disruptive of business operations, and were not disseminated beyond the litigation. But none of this suggests that the recording policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the policy. In light of these considerations, we decline to hold that Jones’ recordings were protected.

What can an employer learn from this case?

1. If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy?

2. Your managers and supervisors should assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down. You would be surprised how many plaintiffs keep copious, contemporaneous journals of the goings-on in the workplace. Managers and supervisors need to be vigilant in making sure that they do not say anything that could come back and bite your company in later litigation.

WIRTW #251 (the “sphere of influence” edition)

I’ve been at this blogging thing for more than five-and-a-half years. In that time, I’ve had some awesome opportunities come my way as a result.

• My second book—The Employer Bill of Rights: A Manager’s Guide to Workplace Law—is now available on Amazon. (More details on this next week.)
• My first book, which I co-authored with some friends—Think Before You Click: Strategies for Managing Social Media in the Workplace—remains available for download from Thompson.
• I’ve appeared too many times to count on Stephanie Thomas’s fabulous Proactive Employer Podcast, including my upcoming appearance next Thursday at 3 pm to promote The Employer Bill of Rights.
• I’ve done other radio appearances, including DriveThruHR and NPR.
• I’ve spoken at myriad seminars (thanks to SmartBusiness for my most recent speaking gig, an engaging panel on the legal risks of social media at this week’s Midwest Social Media Summit)
• And, I’ve been syndicated. In addition to reading my posts right here at the Ohio Employer’s Law Blog, you can also read many republished on Crain’s Workforce, under the byline, The Practical Employer.

This week, I’m adding another opportunity. For the past four years, I’ve edited Business Management Daily’s Ohio Employment Law Newsletter. Next month will be its last print edition. The publisher offered to continue our relationship online, and will publish my content in blog form. My newest blog, Business Management Daily’s The Legal Workplace, debuted yesterday. It will feature original content every other Thursday.

If I could just figure out how to clone myself, this would all become a whole lot easier.

Here’s the rest of what I read the past two weeks:

Discrimination

• Holiday Tale From A Jewish Guy Who Wears A Chai — from We Know Next
• Dislike of religious accommodations at work does not constitute a hostile work environment — from Warren & Associates Blog
• We’re More Passive Than We Predict When Sexually Harassed, New Study Shows — from EmployerBrief
• Employer Can Depose All 94 Claimants In EEOC Lawsuit — from Molly DiBianca’s Delaware Employment Law Blog
• You’re Damned if You Aid and Abet Discrimination or Interfere with an Employees’ Rights to Be Free of Illegal Discrimination — from damnedif
• Percentage of EEOC Sexual Harassment Claims Filed by Men on the Rise, But… — from Philip Miles’s Lawffice Space
• Not “Set for Life”: Boomers face layoffs, discrimination, and bullying at work — from Minding the Workplace
• Is Breastfeeding Bias the EEOC's Next Battleground? — from Employer Defense Law Blog
• The most blunt same-sex sexual harassment judicial opinion...evah! — from Eric Meyer’s The Employer Handbook Blog
• HR’s Dirty Little Secret – We don’t like to hire Vets — from Tim Sackett at Fistful of Talent
• The Bump In The Room — from the New York Post

Social Media & Workplace Technology

• Smartphone growth expected to slow again in 2013 — from Boy Genius Report
• Facebook activity did not support claim that employee solicited former employer’s clients — from Internet Cases
• AmLaw 2012 survey shows strong iPhone, iPad support at the most profitable law firms — from iPhone J.D.

HR & Employee Relations

• Are “90 Day Probationary Periods” for New-Hires Required By law? — from Texas Employer Handbook
• The Case for an Employee Rehire Policy: Coach Synder Effect — from Jessica Miller-Merrell’s Blogging4Jobs
• U.S. Supreme Court Holds that Arbitrator, Not State Court, Must Determine Enforceability of Noncompetition Agreement — from Russell Cawyer’s Texas Employment Law Update
• Transitioning from Employee to Shareholder: Businesses and Individuals Need to Pay Careful Attention to Noncompete Agreements — from Jason Shinn’s Michigan Employment Law Advisor
• How much does it cost companies to lose employees? — from Evil HR Lady, Suzanne Lucas
• Recording Rants — from Workplace Prof Blog
• Oversharing at Work: When Gossip Turns Into Something More — from Dan Schwartz’s Connecticut Employment Law Blog
• Flu + Crowded Office + Antibiotic Overuse = Disaster for Your Company? — from Mike Haberman’s Omega HR Solutions
• Taming the Workplace Bully — from Bloomberg Businessweek

Wage & Hour

• Holiday “Volunteer” Services Might Be FLSA Employment — from Wage and Hour Laws Blog
• The Culture Wars: Exempt vs. Non Exempt — from Robin Schooling’s HR Schoolhouse
• Overtime Pay Lawsuits On The Rise — from Overtime Lawyer Blog
• Are you Risking a Wage and Hour Lawsuit when Employees Volunteer? — from i-Sight Investigation Software Blog
• What!?! Time Caring for Mom in Las Vegas is FMLA Leave — from Jeff Nowak’s FMLA Insights
• Recordkeeping: The Often Overlooked Element of FMLA Compliance — from Stoel Rives World of Employment
• Is Your Company A “Large Employer” Subject to “Obamacare”—Understanding the 50 full-time Equivalent Threshold — from California Labor and Employment Defense Blog

Labor Relations

• Petition for EFCA — from Labor Relations Institute
• The Wal-Mart Not-Strike by the Not-Labor Union — from LaborPains.org
• Mandatory Employment Arbitration Agreements and the NLRB: (DR) Horton Hears a “Who”? — from The Emplawyerologist
• NLRB Developments Post-Election – What The Future May Hold In Labor Relations — from Labor Relations Update

Certification harassment? 6th Circuit rejects claim under FMLA

Have you ever heard of certification harassment? Me neither, until I read Smith v. City of Niles [pdf] last week.

According to Leddrew Smith, from 2002 to 2009, the city asked him to provide six separate medical certifications for his 2001 back injury. Those repeated requests, per Smith, exceeded the FMLA’s limits, and therefore interfered with his right to medical leave.

Here is what the 6th Circuit said about Smith’s claim:

He is right about one thing: An unreasonable demand for recertification may interfere with FMLA rights. He is wrong about another: The City’s requests all fit comfortably within the regulatory boundaries.

The FMLA has a maze of regulations that define when an employer can ask for a recertification of a serious health condition. Critical to this case is the rule that permits an employer to require a recertification any time that the “circumstances described by the previous certification have changed significantly.”

In this case, the court relied upon Smith’s changed circumstances to conclude that the city had not harassed him with its recertification requests.

• In one instance, Smith took six days of medical leave, instead of the two days estimated in his prior certification. Per the 6th Circuit, “If an employee desires more time off than described in the prior certification, the employer may require updated information from a physician. That is all that happened.”
• In another instance, Smith sought to change his work restrictions to accommodate a new physical limitation. Per the 6th Circuit, “The City responded with a request for recertification because the new limitations were not listed on the previous certification. That is the epitome of a reasonable recertification request.”

In other words, following the rules does not equate to harassment. Now if we can all just figure out those annoying rules…

Who is a supervisor under Title VII? (Vance v. Ball St. Univ.)

On Monday, the Supreme Court heard oral argument in one of the key employment cases it will hear this term—Vance v. Ball St. Univ. This case asks whether one can qualify as a supervisor under Title VII if one is given any authority to direct and oversee another’s daily work, or if supervisory status is limited to those who have the power to hire, fire, demote, promote, transfer, or discipline others.

This distinction is an important one. Under Title VII, employers are vicariously liable for actionable harassment committed by supervisors that results in a tangible employment action.

The appellate court in Vance drew a bright line, and concluded that “supervisor” means “direct supervisor,” with the power to directly affect the terms and conditions of the plaintiff’s employment via hiring, firing, demoting, promoting, transferring, or disciplining; the mere authority to direct an employee’s daily activities is not enough.

Yet, in the Supreme Court, not even the employer, who won in the court of appeals, could argue that the 7th Circuit got the standard right. At oral argument, the employer argued that the bright line drawn by the appellate court is too rigid:

[S]omeone who does control virtually all aspects of one’s schedule but yet lacks the authority to hire, fire, or demote, nevertheless still would be qualified….

By way of example, the employer’s counsel referred to the following hypothetical posed by Justice Kagan:

There’s a professor, and the professor has a secretary. And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary. What would the Seventh Circuit say about that situation?

Even though no one argued in support of the bright-line rule articulated by the 7th Circuit, I predict that the 7th Circuit’s rule will carry the day when the Court issues its opinion sometime next year. The Justices were clearly looking for a bright line to guide future cases, and appear to be wary of adopting a middle-of-the-road approach that will only serve to muddle the issue in future cases. If we are lining up Justices to get aboard one line or the other, the 7th Circuit’s stricter approach should garner more votes than the loosey-goosey standard the plaintiff sought.

For any additional background on this case, visit SCOTUSblog. The oral argument transcript is available from the Supreme Court’s website [pdf].

It’s a Blawg 100 Three-Peat

Edward James Olmos once said, “I didn’t get into this business to get awards.” And while that may be true, it certainly is nice to be recognized.

Yesterday afternoon, the ABA Journal announced its annual list of the top 100 legal blogs, which it calls the Blawg 100. I was fortunate enough to be part of this list in 2010 and 2011, and equally fortunate that the ABA Journal recognized me again this year as part of its 6th annual list.

The labor & employment blawgosphere is among the richest, and I am pleased that I am sharing this honor with five fellow bloggers, each of whom I consider a friend.

• Dan Schwartz’s Connecticut Employment Law Blog
• Molly DiBianca’s Delaware Employment Law Blog
• Phil Miles’s Lawffice Space
• Jeff Nowak’s FMLA Insights
• Donna Ballman’s Screw You Guys, I’m Going Home (which wins for the best title among the group, hands down)

(For what it’s worth, this list is short by two. Next year, I hope that Eric Meyer’s The Employer Handbook Blog and Robin Shea’s Employment & Labor Insider join the list.)

Now comes the part where I graciously and unapologetically ask for your help. Between now and December 21, you have the opportunity to vote for your favorite blawg. All you need to do is go to www.abajournal.com/blawg100, register, and vote. You’ll find my blog under the “Labor & Employment” category. Thank you for your support.

Congratulations to all of the winners, and thank you to the ABA Journal for, once again, deeming my little project worthy of your recognition. It is much appreciated.

Tomorrow, I start my march toward a four-peat, with a post on the Supreme Court’s oral argument in Vance v. Ball State Univ., which will (maybe) answer the important question of who qualifies as a supervisor under Title VII.

When is confidential medical information NOT confidential?

The ADA requires that employers treat employee medical information obtained from "medical examinations and inquiries … as a confidential medical record." In EEOC v. Thrivent Financial for Lutherans, the 7th Circuit recently decided the extent to which that confidentiality requirements applies when an employee volunteers medical information to an employer.

Gary Messier worked for Trivent as a business analyst, and during his first four months of employment developed a reputation for letting his employer know when he would be absent from work. When he failed to report to work one day, his supervisor emailed looking for a report and explanation. In response, Messier sent an email detailing his long battle with migraine headaches.

Messier quit one month later, but had trouble finding a new job. Whe three jobs fell through after a reference check, he hired a company to conduct a fake reference check for him. In response, his former supervisor at Trivent said that Messier "has medical conditions where he gets migraines."


Based on that statement, the EEOC brought suit on Messier's behalf for a violation of the ADA's confidentiality requirements.

In affirming the district court's dismissal of the lawsuit, the 7th Circuit examined the plain language of the ADA.

The EEOC argued that the ADA's confidentiality provisions protect all employee medical information revealed through "job-related" inquiries.

The 7th Circuit disagreed:

The subject matter discussed in the body of section (d) confirms that the word "inquiries" does not refer to all generalized inquiries, but instead refers only to medical inquiries. The entire section is devoted to a discussion of a disabled employee's "medical record," "medical condition or history," "medical files," and medical "treatment."

Instead, the Court concluded that the ADA's confidentiality requirements only apply to medical information provided by an employee in response to a medical examination (not an issue in this case) or a medical inquiry.

Because Trivent had not made a medical inquiry before Messier sent his email detailing his migraines, any disclosure it made did not violate the ADA.

[P]revious courts have required—at minimum—that the employer already knew something was wrong with the employee before initiating the interaction in order for that interaction to constitute a [protected] inquiry. There is no evidence in the record suggesting that Thrivent … should have inferred that Messier's absence on November 1, 2006 was due to a medical condition. There is no evidence in the record that Messier had been sickly during his first four months of employment. There is no evidence that Messier had experienced a headache at work during his first four months. For all Thrivent … knew, Messier's absence was just as likely due to a non-medical condition as it was due to a medical condition. Indeed, as Thrivent pointed out to the district court, "Messier could have had transportation problems, marital problems, weather-related problems, housing problems, criminal problems, motivational problems, a car or home accident, or perhaps he simply decided to quit his job…."

Thus, Thrivent was not required to treat the medical information that Messier sent in response to the email as a confidential medical record. Accordingly, Thrivent did not violate (and could not have violated) the ADA by revealing Messier's migraine condition to anyone, including to prospective employers.

While this case is a great holding for employers, businesses should still tread carefully when dealing with employee medical information. This area of the law remains risky waters in which companies swim.

Another reason not to ban social media on company time (hint … it’s the NLRB)

I’ve written before about the practical problems employers face when trying to ban employees from accessing social media at work.

Last week, an NLRB administrative law judge provided us another reason for employers not to implement workplace bans on social media—such a ban might be an unlawful infringement on employees’ rights to engage in protected concerted activity.

In Dish Network [pdf], the ALJ considered the following policy in the company’s employee handbook:

Unless you are specifically authorized to do so, you may not … Participate in these activities [Social Media—blogs, forums, wikis, social and professional networks] with DISH Network resources and/or on Company time.

The ALJ struck down the policy as an unreasonable restraint on the right of employees to engage in protected concerted activity:

The Social Media policy is unlawful…. [T]he policy banned employees from engaging in negative electronic discussion during “Company time.” The Board has found that equivalent rules, which ban union activities during “Company time” are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.I’ve written before about the logistical problems of workplace social media bans.

If you are going to consider banning social media in your workplace, the practical reasons far outweigh the legal issues (Dish Network notwithstanding). I call it the iPhone-ification of the American workforce. If most of your employees can take their smartphones out of their pockets to circumvent your policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce?

Instead of legislating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the Internet, then address the performance problem. A slacking employee will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off.

When dealing with employment concerns, there are legal issues and there are business issues. Decisions cannot be made without considering both, and sometimes one must trump the other. In this case the legal issue and the business issue happen to jive. The legal issue, however, remains in flux, as the NLRB continues to grapple with the role of technology in the 21st century workplace. The business issue, though, dictates the employers think long and hard about implementing a policy they will struggle to enforce.

---

The blog is taking the rest of the week off. I’ll be back on Monday with fresh content. In the meantime, enjoy your holiday, and take a moment to say thank you to that and those for which you are grateful.

If you put up with bullies in your workplace, stop (before someone else makes you)

I came across an article on TLNT last week entitled, The 7 Ways Organizations Justify Bullying in The Workplace. According to the article, these are the seven most popular excuses companies make for workplace bullies:

• He just goes off from time to time; he means no harm.
• OK, I will ask him to apologize again.
• Ron’s skills are so valuable we can’t afford to lose him.
• I just had “another” conversation with Ron. He will be OK.
• It’s easier to keep him than to find a replacement.
• That’s just how Ron is. He is just passionate.
• He doesn’t mean any harm; he’s just under a lot of stress.

If you find yourself making these excuses for anyone in your organization, it’s to reevaluate the type of workplace you want to be.

And, it’s not because bullying is illegal. In fact, in many cases, it’s not. Unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin…) bullying is probably lawful. As the U.S. Supreme Court has famously said, our workplace discrimination laws are not meant to be a “general civility code” for the American workforce. In layman’s terms, our laws allow people to be jerks to each other at work.

The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace. If you want state legislatures to pass workplace bullying legislation, then continue to ignore the issue in your business. If you want to be sued by every employee who is looked at funny or at whose direction a harsh word is uttered, then continue to tolerate abusive employees. If you want to lose well-performing, productive workers, then allow them to be pushed out the door by intolerable co-workers.

The reality is that if companies do not take this issue seriously, state legislators will. What can you do now to protect your workplace from a future of anti-bullying legislation?

1. Review current policies. Most handbooks already have policies and procedures in place that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

2. Take complaints seriously. These policies are only as good as how they are enforced. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

In other words, take seriously bullying in your workplace. If you don’t state legislatures will, and you won’t like the results.