Resolve this year to properly handle no-fault attendance policies

For the uninitiated, a no-fault attendance policy terminates an employee who accumulates a pre-designated number of absences, regardless of the reason. For employers with high-volume, high-turnover operations, these policies make a lot of sense as the best tool to manage employee attendance. They are not, however, without their risk. For example, no-fault attendance policies cannot penalize absences that fall under the protective umbrella of statutes such as the FMLA or the ADA. As some employers have discovered, disciplining or firing disabled employees under a no-fault policy can be a costly error.

What about employees on leave for a workers’ comp injury? Can an employer count those absence under a no-fault policy? According to one recent Ohio appellate decision—Scalia v. Aldi, Inc. (12/21/11) [pdf]—the answer is a decided maybe. The court concluded that it is not per se retaliatory for an employer to terminate an employee on workers compensation leave pursuant to a facially neutral attendance policy. The court remanded the case back to the trial court to consider the issue of whether the employer—through the application of its attendance policy— terminated the plaintiff retaliation for instituting, pursuing, or testifying in a workers’ compensation proceeding.

What does this mean? This means that the plaintiff cannot rely solely on the attendance policy to prove retaliation, but must prove that the employer’s reliance on the attendance policy was a pretext for retaliation. A uniformly applied attendance policy will go a long way to disproving this pretext. As mentioned above, however, employers cannot apply attendance policies to penalize employees on leave for FMLA or ADA reasons. Will this lack of uniformity hurt employers in defending against workers’ comp retaliation cases? Or, can an employer lawfully treat FMLA-related and ADA-related absences differently than workers’ comp-related absences. Another court will have to answer these questions in another case. As this case illustrates, employers must tread very carefully when disciplining or terminating an employee who is absent from work because of work-related injury.

Does India have sex discrimination laws?

I have no idea if India has workplace sex discrimination laws. The following classified ad would suggest not:



Does anyone know if this is legal in India? Do I need to tell you that it is the absolute opposite of a best practice to list a position as one for a “Lady Computer Operator … preferably married”?

[Hat tip: my wife]

Did anyone resolve to be less connected in 2012?

Available at http://www.gocomics.com/nonsequitur/2011/12/26

Happy New Year!

Best of 2011: Numbers 2 and 1

   2.  “If I could press a button and instantly vaporize one sector of employment law?”

My answer—the Fair Labor Standards Act. The FLSA needs to go because compliance is impossible…. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

   1. The Employer’s Bill of Rights

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees…. The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer’s Bill of Rights.

Best of 2011: Numbers 4 and 3

   4. Charlie Sheen and the National Labor Relations Board

CBS fired Charlie Sheen, in part because he made public disparaging comments about his boss. Charlie Sheen is a member of SAG. He also has his own “performance” problems. Should he file an unfair labor practice charge with the NLRB, based on his own protected, concerted activity—for example, calling his boss a “stupid, stupid little man and a pussy punk”; a “piece of  shit”; a “turd”; and a “clown”?

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

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?

Best of 2011: Numbers 6 and 5

   6. EEOC sues for disabled shoplifter

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first.

   5. The most important thing you need to know about the ADAAA’s regulations

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Best of 2011: Numbers 8 and 7

   8. What does St. Patrick have to do with human resources?

Legend tells us that in the 5th century, St. Patrick banished all snakes from Ireland. In honor of the day that celebrates Ireland’s patron saint, consider banishing the following metaphorical snakes from your HR practices.

   7. How do other cultures handle HR?

Monsters, Inc., holds a special place in my heart. It was the first movie my wife and I saw together. As an employment lawyer, then, the following sign at the Mike & Sully meet and greet at Disney’s Hollywood Studios struck exactly the right note…. Interestingly, the last bullet point shows that even Monstropolis sees the importance of covering social media in workplace policies.

Best of 2011: Numbers 10 and 9

   10. Unstable employees, direct threats, and the ADA

Employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

   9. Wal-Mart v. Dukes does not equal barefoot and pregnant

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson…. So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

BREAKING NEWS: NLRB delays employee rights posting requirement until April 30

From the NLRB:

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

Merry Christmas!

WIRTW #206 (the “…and a happy New Year” edition)

Today marks the Blog’s last original post of 2011 (if you count a weekly summary as original content). Next week, I will run the 4th annual year-end countdown. In past years, I’ve counted down the top 10 labor and employment stories of that year. This year, I’ll be doing it a little differently. I’ll be recapping what I consider to be the best posts of 2011. Inevitably, we’ll hit some of the year’s biggest stories (social media, Wal-Mart v. Dukes, the EEOC, the ADA) too. What you’ll read, however, are the 10 pots of which I am the most proud from the past year, which will include some (but not all) of the year’s most newsworthy and important stories.

Everyone have a Merry Christmas, Happy Hanukkah, celebratory something else, and a safe New Year. I’ll be back on Tuesday, January 3, with brand new content for 2012.

In the meantime, if you want to give me an early Christmas present, cast your vote for the ABA Journal’s Blawg 100 (here to register, and here to vote). Thanks for your support.

Here’s what I read this week:

Discrimination

• Nothing good comes of forcing employees to go to brothels – from Eric Meyer’s The Employer Handbook Blog
• A GINA tip – from Warren & Hays Employment Law Blog
• Tempest in a flu shot: sex discrimination and religious preference – from John Holmquist’s Michigan Employment Law Connection
• Court Rules Severe Obesity Is a Disability Under the ADA – from Trade Secret / Noncompete Blog
• EEOC Performance in 2011, What it Could Mean for Employers in 2012 – from Employer Defense Law Blog

Social Media & Workplace Technology

• How to use Facebook Timeline – from The Verge
• Social Media E-Discovery: a New World of Proof – from i-Sight Investigation Software Blog
• Social Media: When Sociology and Technology Collide – from Blogging4Jobs
• Social-Media Woes for School Districts – from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Discovery Odds Dropping in Pennsylvania – from Phil Miles’s Lawffice Space
• Another TSA Officer Leaves Personalized Note In Passenger’s Bag (After Finding Marijuana) – from Kashmir Hill’s The Not-So Private Parts
• Tis the Season to Tech the Workplace Halls - Managing Employee Owned Technology Devices – from Jason Shinn’s Michigan Employment Law Advisor
• Smartphones Stressing Employees Out, Employers Encouraging Smartphones – from Workplace Diva

HR & Employee Relations

• Don’t let that employee probationary period lull you into a false sense of security – from Robin Shea’s Employment and Labor Insider
• How to handle office party embarrassments – from Evil HR Lady, Suzanne Lucas
• Don’t Assume an Employee Knows the Rules – from Mike Haberman’s Omega HR Solutions
• Millennials don’t want 9 to 5 – from Gruntled Employees
• Summing Up 2011: Everything is Amazing and Nobody is Happy – from TLNT
• Right On, Jeb – from The ChamberPost
• Who Owns Your Customer Relationships: Your Salespeople or Your Company? – from Harvard Business Review

Wage & Hour

• The Danger In Docking The Pay of Exempt Employees – from Wage & Hour - Development & Highlights
• Minimum Wage, Overtime Requirements Extended to In-Home Care Workers in DOL Proposed Rule – from Wage & Hour Counsel
• Seventh Circuit Finds Employee’s “Work"”Not Compensable Due To Lack Of Employer Knowledge – from Wage and Hour Law Update
• Podcast: How Do Employers Calculate FMLA Leave Around the Holidays? – from FMLA Insights

Labor Relations

• ALJ Again Rules in Favor of Hospital in Closely Watched Flu Shot Case – from Labor Relations Counsel
• Obama NLRB Appointees Could Run Into Congressional Buzzsaw – from Joe’s HR and Benefits Blog
• Department of Interior at Odds With National Labor Relations Board Over NLRA Application to Indian Tribes – from Seth Borden’s Labor Relations Today

The NLRB flexes its rulemaking authority … and business groups flex right back

Yesterday, the NLRB announced that it had formally adopted a final rule amending its election case procedures. The rule is set to take effect April 30, 2012. Among other changes, this new rule significantly shortens the time between when a representation petition is filed and an election is held. For this reason, the rule is known as the “ambush election” rule. According to the NLRB, this new rule is intended to “reduce unnecessary litigation and delays.” In reality, it’s an alternate route to achieve higher union representation rates following Congress’s failure to pass the Employee Free Choice Act.

As quickly as the NLRB announced its adoption of the final rule, the U.S. Chamber of Commerce announced that it had filed a lawsuit in federal court seeking to block them. From the Chamber’s press release announcing the filing:

The Chamber’s lawsuit explains that the National Labor Relations Board’s final “ambush election rule” imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize. The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections.

This lawsuit joins two others that challenge a different aspect of the NLRB’s claimed rulemaking authority—its workplace rights poster, which is scheduled to become mandatory on January 31, 2012. In one of those cases, the assigned federal judge has asked the NLRB to delay its posting requirement to provide her more time to consider the challenge before her.

These are important issues that will affect all private sector employers, and which bear watching as they work their way through the court system. (Of course, if the Republican take back the White House in 2012, all of this administrative wrangling likely becomes moot).

A Hanukkah lesson for employers

The story of Hanukkah tells us that in 165 B.C., the Maccabees led a successful revolt against the Greeks, who had invaded Jerusalem and outlawed Judaism. When the Maccabees rededicated the Holy Temple after expelling the Greeks, they only located enough olive oil for the Temple’s menorah to burn for one night. That oil, however, burned for eight nights, the time needed to prepare a fresh supply—the miracle of Hanukkah.

I’ve been thinking of a way to tie this story to the workplace and impart a lesson to employers. The story of Hanukkah is one of perseverance, courage, and fighting for one’s beliefs. Employers are under assault from all fronts—lawsuits from disgruntled employees, overly zealous regulatory agencies and their overly burdensome regulations, and courts that can lack sufficient resources to address these issues properly. It’s easy for businesses throw in the towel, such as by relocating operations out of the country or by paying ransoms to settle meritless lawsuits. Perhaps the lesson here is to simply hold firm.

Happy Hanukkah.

Sometimes it’s not all about the Benjamins: reinstatement in lieu of front pay

James McKelvey, an Army veteran, lost his right hand and suffered other serious injuries trying to defuse a roadside bomb in Iraq. As if his physical injuries were not enough for him to endure, upon returning home to a civilian job in the Army, his co-workers subjected him to more than a year of disability-related harassment. For example, they repeatedly called him “lefty” and “cripple.” He resigned, believing the work environment was so hostile that he had no realistic option but to quit. He also sued for constructive discharge, for which a jury awarded him nearly $4.4 million in front pay.

In McKelvey v. Secretary of the United States Army (6th Cir. 12/14/11) [pdf], the court concluded that the trial judge was correct by taking the monetary verdict away, and instead ordering that McKelvey return to his Army job (albeit with improved working conditions and higher pay):

McKelvey can be reinstated to work at the armory quickly, without disrupting operations and without displacing another employee. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors. McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projections about his earning capacity and about employment decisions decades into the future.

In this case, reinstatement was the court’s decision, not the employer’s. Nevertheless, it raises an interesting point. If you’ve been sued, and you’re reasonably confident that your company was in the wrong, and you are comfortable reintegrating a litigant into your workplace, don’t fail to consider an offer to bring the employee back to work. It’s called an “unconditional offer of reinstatement,” and when used correctly (with the right employee and in the right case), it is an extremely powerful tool. The key word is “unconditional.” The offer must be to the same or equal position, with equal (or better) pay and benefits, and with full back pay and restoration of other lost benefits. The benefits are several. Such an offer cuts of the employee’s entitlement to back pay or front pay, in addition to severely hampering one’s ability to prove a right to punitive damages.

Consider adding the “unconditional offer of reinstatement” to your quiver of litigation tools. It just might rescue a good employee from the litigation scrapheap, and save you a few dollars too.

Everyone’s a little bit racist?

According to CNN, the Ohio Civil Rights Commission is reviewing the case of a Columbus landlord who has a little problem with African Americans swimming in her building’s pool. Worse, she expressed her opinion via this poolside sign, which reads, “White Only.”

In her defense, the landlord said that she has to “stick up” for her “white rights.” I’m not sure what other reaction I can have to this story other than this:

In all seriousness, there are some cases you just can’t do much about. People are who they are. I once had a racial harassment case in which the accused harasser dropped n-bombs like Braylon Edwards drops passes. Our job as management-side employment lawyers is to know when it's best to go for it and when it’s best to punt. It’s safe to say that I think this Columbus landlord made the wrong decision.

WIRTW #205 (the “11 x 17” edition)

Employers have a mere 6 weeks, until January 31, 2012, to post the National Labor Relations Board’s new employee rights poster. It applies to all employers under the NLRB’s jurisdiction, union and non-union alike. Copies are available for download, in English and Spanish, from the NLRB’s website. For more information, I recommend Dan Schwartz’s Connecticut Employment Law Blog, where Dan posted a nice summary earlier in the week.

(Don’t forget, we’re halfway through December, which means you only have two weeks left to vote for the ABA Journal’s Blawg 100. If you have not yet voted, click here to register, and here to vote. Thanks for your support.)

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

Discrimination

• EEOC sues construction company for not hiring applicant with epilepsy to run heavy equipment – from Walter Olson’s Overlawyered
• Obama EEOC Wipes Out Jobs By Making Hiring More Difficult – from Washington DC Examiner
• 10 reasons for employers to be jolly about the ADA (says the EEOC) – from Robin Shea’s Employment and Labor Insider
• The ADA May Invalidate a High School Diploma Requirement – from Mike Haberman Omega HR Solutions
• The New EEOC: Aggressive, Litigious and High Profile – from In House
• Fact or Fiction: Courts recognize retaliation against ex-employees – from Eric Meyer’s The Employer Handbook Blog
• Baird v. Gotbaum – from Paul Mollica’s Outten & Golden Employment Law Blog
• Plaintiff-Employee’s Case Dismissed for Giving Differing Reasons for Leaving Employment – from Russell Cawyer’s Texas Employment Law Update

Social Media & Workplace Technology

• The 40 Most Memorable Tweets Of 2011 – from BuzzFeed
• Jack and Tweets - A Bad Workplace Combination – from Phil Miles’s Lawffice Space
• A Social Sanity Manifesto for 2012 – from Harvard Business Review
• (Alleged) Rogue Employee of the Week – the Case of the Porn Star Teacher – from damnedif
• Should my employer pay for my cell phone? – from Ask a Manager
• New Study Highlights Warning Signs of Corporate Data Theft – from i-Sight Investigation Software Blog
• The Tablet Revolution and Why It Matters to Your Small Business Technology Plan – from COSE Mindspring
• Smartphone penetration skyrockets in 2011, iPhone becomes No.1 handset – from Boy Genius Report
• Court Denies Motion to Provide Access to Social Networking Sites in Civil Discovery – from The Volokh Conspiracy
• Louis C.K. sells his latest live show directly to fans, calls anti-DRM experiment a success – from The Verge

HR & Employee Relations

• Prof says “Rudolph The Red-Nosed Reindeer” promotes bullying – from David Yamada’s Minding the Workplace
• 9 Worst holiday gifts from bosses – from Evil HR Lady, Suzanne Lucas
• The Employee/Employer Relationship: Breaking the Barrier – from Jessica Miller-Merrell’s Blogging4Jobs
• The Inevitable End of Year Employment Move – from Rob Radcliff’s Smooth Transitions
• Is My Offer Letter a Contract? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Your boss may be ruining your marriage – from Life Inc.

Wage & Hour

• Properly Accounting for Holidays in Calculating FMLA Leave – from Stephanie Thomas’s The Proactive Employer Blog
• A Holiday Wage and Hour Checklist: Are You Naughty or Nice? – from SmartHR
• DOL Pushes “Initiative”-Focused FLSA Enforcement – from Wage and Hour Laws Blog
• Southern District of New York Judge Holds that Fair Labor Standard Act Collective Action Waivers in Arbitration Agreements Are Unenforceable As a Matter of Law – from Employment Matters Blog

Labor Relations

• The NLRB: Now Extracting Ransom (for Unions) From An Employer Near You… – from The HR Capitalist, Kris Dunn
• Put the Brakes on Overregulation – from The ChamberPost
• New NLRB Nominations – from Workplace Prof Blog

Is spike in religious discrimination claims a reflection of our polarized society?

We are not a tolerant society. We like to think that we are, but in reality, not so much. Instead, we are a polarized society. More and more, we live on the fringes with little tolerance for those whose viewpoints differ from our own. For example, consider that Lowe’s pulled their ads from TLC’s new reality show, All American Muslim.

We should not be surprised then, that religious discrimination claims in the workplace are trending upward. From Marcia Pledger, writing in The Columbus Dispatch (hat tip: i-Sight Investigation Software Blog):

Equal Employment Opportunity Commission statistics show that religious discrimination complaints in workplace settings have more than doubled from a little over a decade ago, resulting in roughly $10 million in settlements. Last year, nearly 3,800 were filed.

“Religion has increasingly moved into the private sphere, so when it does pop up in the workplace, we’re less equipped to deal with it in a rational and evenhanded manner,” said John Gordon, chairman of the religion department at Baldwin-Wallace College in Ohio.

Our Founding Fathers had enough foresight to separate church and state. 220 years later, we should have enough experience to separate church from work.

Federal Court pilot program tries to simplify discovery in employment cases

No one enjoys paper discovery. Any practitioner who tells you otherwise is either insane or lying. It’s time-consuming and expensive to gather and review information to produce, and it’s painful to squabble with opposing counsel over information withheld.

In an attempt to address and alleviate some of these concerns, the Federal Judicial Center has published its Pilot Initial Discovery Protocols for Employment Cases Alleging Adverse Action [pdf]. These protocols set forth the documents and categories of information that the plaintiff and defendant must turn over during the initial disclosure process, voluntarily and without a formal request, and no later than 30 days after the employer files its answer or responsive pleading. Molly DiBianca’s Delaware Employment Law Blog provides an excellent summary.

These disclosures are comprehensive, and cover many of the documents that will be exchanged in most garden-variety discrimination lawsuits. Of all of these disclosures, I want to point out one curiosity. Employers are not required to disclose the entire employee handbook, but only its table of contents and index. The only policies that employers are required to initially turn over are those “relevant to the adverse action in effect at the time of the adverse action,” such as discipline or EEO policies. 

In light of these protocols, maybe we need to reconsider the rote production of entire employee handbooks in discrimination cases. Maybe we also need to reconsider the inclusion of tables of contents and indices in handbooks, to limit their discoverability at the outset litigation in federal court.

Bullying and at-will employment

David Yamada is a law professor and the director of the New Workplace Institute at Boston’s Suffolk University Law School. He is also the author of the Healthy Workplace Bill, draft model legislation that, if ever passed, would impose liability on employers for employees who are bullied in the workplace, regardless of any protected status.

Yesterday, on his blog (Minding the Workplace), Professor Yamada made the following argument in favor of generalized anti-bullying legislation:

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless…. In America—in contrast to many other nations—at-will is the presumptive employment relationship. This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

In other words, Professor Yamada argues that states need to pass the Healthy Workplace Bill because at-will employees can be fired for any (not otherwise unlawful) reason. This argument validates a point I made all the way back in May 2007: the passage of anti-bullying laws will destroy employment at-will.

To quote another point I made just last year:

Employers who turn a blind eye to bullying … are doing their businesses and their employees a disservice. But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit…. Indeterminate bullying … should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack “incentive to act preventively and responsively,” as Professor Yamada argues. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.

Lawyers, larps*, and lousy heavy metal: a social media lesson

I spend a lot of time writing and speaking about social media and the workplace, a lot of which discussing what I call the Big 3: Facebook, Twitter, and LinkedIn. Those 3, however, are not the only social media sites that impact the workplace. An example, you ask? YouTube.

Last Friday, Above the Law ran a story about a local attorney’s heavy metal video (which Video Ga Ga recently named the worst video of the year). Please watch—sorry, it will be permanently burned into your retinas. Then, let’s talk.

Being a lawyer is a stressful job. Trust me, I get that. We all need outlets outside of work to relieve that stress. Before I had kids, my outlet was golf. Now, it’s my kids. When your hobby involves dressing up one your company’s secretaries in a bustier, you might want to have second thoughts. It doesn’t take much to turn today’s extracurricular laugh into tomorrow’s harassment complaint.

Social networks offer tremendous benefits as added channels of communication for your employees. “Friending” subordinate employees on social media sites, however, also carries risk. Because of that risk, I advocate that companies train their employees about the dangers of unfiltered online communications and consider implementing policies and guidelines limiting who can connect on Facebook, Twitter, and their kin.

Common sense should instruct employees about right and wrong, but if employees used common sense I’d be out of a job. Apparently, I need to build a module into my workplace social media training program about using subordinate employees as scantily clad extras in bad music videos. Who knew?

---

*Larp: a type of game where a group of people wear costumes representing a character they create to participate in an agreed fantasy world. Uses foam sticks as swords, foam balls as magic and other props to create the games world.

WIRTW #204 (the “Dirty Harry” edition)

Jeff Haden, writing at Inc.com, suggests that you can make an employee’s day with two words.

My suggestion: “You’re fired.”

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

Discrimination

• Expanding mental diagnoses: the legal rub – from Walter Olson’s Overlawyered
• 10 things an employment lawyer never wants to hear – from Robin Shea’s Labor & Employment Insider
• Things Employment Lawyers Don’t Want to Hear – from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC Cries Fowl, Sues Turkey Giant Butterball for Disability Discrimination – from The Personnel Files
• Can My Employer Make Me Speak English, Even On Breaks? – from Donna Ballman’s Screw You Guys, I’m Going Home
• Changes to RFOA Defense in ADEA Claims On Horizon – from Stephanie Thomas’s Proactive Employer Blog

Social Media & Workplace Technology

• Using Social Media Posts as Evidence in an Investigation – from Lindsay Walker at the i-Sight Investigation Software Blog
• Proceed with Caution: Using Sites and Search Engines to Screen Applicants – from Kara Mignanelli at Social Axcess
• Employee monitoring services on the rise: keystrokes, mouse movements, and screenshots – from The Verge
• Facebook Is NOT The Largest Online Social Network, Email Still Rules! Infographic – from Social Media Today
• Mark Zuckerberg’s Private Photos Exposed Thanks To Facebook Flaw – from Kashmir Hill’s The Not-So Private Parts
• Accommodating Cyber Shopping – from HRE Online
• Judge Orders Divorce Couple to Turn Over Facebook Password to Lawyers – from Ethan Wall’s Richman Greer Blog
• Asking Who Owns Social Media? You’re Missing the Point – from Forbes
• Fitness Instructor Fired for Big Mac Tweet – from Molly DiBianca’s Delaware Employment Law Blog
• Electronic Documents and Redaction - A Cautionary Tale – from Phil Miles’s Lawffice Space

HR & Employee Relations

• For Clear HR Blunders, Own Up Immediately – from Russell Cawyer’s Texas Employment Law Update
• Be Cautious Of How Far Back You Are Looking Into An Applicant's Civil Or Criminal History – from Hunton Employment & Labor Law Perspectives™
• 10 HR Action Items for December from HR Magazine – from SHRM Blog
• Hiring Veterans... – from Fistful of Talent

Wage & Hour

• Employees who share porn and take FMLA lose retaliation claims – from Eric Meyer’s The Employer Handbook Blog
• Should Working Moms’ Salary Packages Include A Maid And Nanny? – from Workplace Diva
• First Circuit Rules Banquet Sales Managers Exercised Discretion and Independent Judgment, Qualify for Administrative Exemption – from Wage and Hour Law Update