Progressive discipline might not be mandatory, but it makes sense

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

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

Employers cannot “ostrich” harassment allegations

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

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

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

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

Who owns social media accounts—the employer or employee?

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

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

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

[Hat tip: Forbes]

WIRTW #199 (the “Occupy” edition)

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

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

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

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

Discrimination

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

Social Media & Workplace Technology

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

HR & Employee Relations

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

Wage & Hour

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

Labor Relations

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

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

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

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

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

Do you know what an employment lawsuit costs?

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

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

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

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

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

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

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

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

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

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

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

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

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

Equal opportunity harassment is not unlawful sexual harassment

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

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

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

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

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

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

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

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

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

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

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

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

Substances abusers continue to confound employers

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

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

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

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

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

The NLRB does not troll for cases, but…

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

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

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

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

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

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

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

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

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

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

WIRTW #198 (the “James Madison” edition)

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

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

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

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

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

Discrimination

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

Social Media & Workplace Technology

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

HR & Employee Relations

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

Wage & Hour

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

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

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

Conviction Records

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

Arrest Records

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

Hustling for a lawsuit

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

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

[Hat tip: MattAustinLegal]

Winning the battle but losing the war in FMLA cases

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

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

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

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

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

Some social media stats to get you thinking this week

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

Of employees who use social media sites for personal use:

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

Of employers:

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

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

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

WIRTW #197 (the “NSFW” edition)

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

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

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

Discrimination

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

Social Media & Workplace Technology

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

HR & Employee Relations

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

Wage & Hour

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

Labor Relations

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

Social media and privacy cannot coexist

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

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

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

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

They always said I had a face for radio

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

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

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

Or, you can simply watch right here: