Standing up for your employees

Last night, the Philadelphia Flyers rallied from 3 goals down to take game 1 of their first round series from their cross-state rivals, the Pittsburgh Penguins. Right now, you’re all thinking to yourselves, what can this possibly have to do with employment law or employee relations?

Four months ago, Dallas Stars’ center Steve Ott delivered a hit to Flyers’ star Claude Giroux, who had just returned to the lineup from a concussion. At the end of the period, Flyers’ coach Peter Laviolette chased down Ott in the Stars’ tunnel and confronted him about what he perceived as a cheap shot. According to Philly.com, Giroux appreciated his coach’s action: “It’s good to see we have each other’s back.”

Two weeks ago, Laviolette again stood up for his players, following a fight-filled conclusion to a game against the Penguins. The fights were precipitated by what Laviolette called a “gutless” move by the Pens to put its enforcers on the ice at end of a 6-3 blowout. As all 10 players on the ice fought, Laviolette stood on the boards yelling at Pens’ assistant coach Tony Granato. After the game, Laviolette defended his tirade (via CSNPhilly.com): “Those guys hadn’t played in 12 minutes; it was a gutless move by their coach.” Again, Giroux stood up for his coach (via CSNPhilly.com): “He’s got our back…. He’s an intense coach who loves his players.”

Which brings me back to last night. The Flyers fell into a quick 0-3 hole. They needed to rally. And, they did. Don’t think for a minute that whatever motivation Laviolette used to jump-start his team had added impact because his players know that he stands up for them. He has their backs, and they responded with 4 unanswered goals and a 1-0 series lead.

Your organization is not a hockey team, but there is a lesson to learn from Peter Laviolette. If you have your employees’ backs, they will reciprocate. You never know when you’ll need your employees to rally for you (overtime, sales quotas, deadlines, etc.). Make it easier for them to go the extra mile by standing up for them when they need it. Reward good performance. Recognize star performers. Take complaints seriously. Have an open-door for your employees. Your employees will pay you back in spades.

Maryland becomes 1st state to ban requiring employees’ social media passwords

The public outcry against employers requiring the job applicants turn over their Facebook passwords has resulted in legislation. Maryland has become the first state to prohibit employers from requiring or seeking user names, passwords, or any other means to access Internet sites such as Facebook as a condition of employment. Demonstrating the outrage over this issue, the measure passed both house of Maryland’s General Assembly with 96% support.

The law—entitled, “User Name and Password Privacy Protection and Exclusions” (full text here [pdf])—prohibits Maryland employers:

• from requesting or requiring that an employee or applicant disclose any user name, password, or other means to access a personal Internet account;
• from taking, or threatening to take, disciplinary actions for an employee’s refusal to disclose certain password and related information; and
• from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information.

The law exempts employers that are conducting investigations into compliance with securities or financial laws or regulations, and investigations into the unauthorized downloading of the employer’s proprietary information or financial data to an employee’s personal website.

Eric Meyer, at The Employer Handbook blog, nicely summarizes the main critiques of this bill:

[T]he Maryland Chamber of Commerce opposed the prohibition because the bills did not acknowledge there could be legitimate issues for some employers to want to review applicants' or workers' social media messages.

What concerns me is that there are no carve-outs for public agencies that protect and serve the public. I can understand why a police department may need to fully vet its candidates by making sure that applicants and officers don’t have hate speech towards a particular protected class, for example, on their Facebook page. As I imagine that this information could be used to overturn arrests and indictments.

While I agree with Eric’s take, my critique is more about the small percentage of employers who engage in this practice:

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work? … Requiring passwords is not smart.

This law affects you only if: 1) you engage in business in Maryland; and 2) you are among what I believe is the small minority of business that are requiring applicants and employees to turn over social media logins and passwords. Nevertheless, I would expect other states to follow suit, and use the Maryland legislation as a model.

Even if few public sector employers, and fewer private sector employers, are engaging in this practice, this issue bears monitoring.

[Hat tip: The Hill]

National origin harassment depends on the national origin of the harassee

Consider the following examples, both of which come from harassment cases decided in the past two weeks by the Northern District of Ohio:

• EEOC v. Spitzer Management [pdf]: Employer denied summary judgment based on allegations that an Asian-American employee was called “slant eye” and “rice rat,” and an African-American employee was called a “jungle bunny” and a “gorilla.”
• Burrage v. FedEx Freight [pdf]: Employer granted summary judgment based on allegations that an employee was repeatedly called “Mexican” and referred to as “cheap labor.”

How do you rationalize these two seemingly incongruous decisions? The reconciliation depends on the national origin or race of the complainant. In Spitzer, an Asian-American was complaining about harassment based on his national origin, and an African-American about harassment based on his race. In FedEx, however, the complainant was not Mexican-American, or any Hispanic descent. In reality, he was half-white/half-black. As the court in Burrage v. FedEx explained:

At best, the references to Burrage as “the Mexican” and “cheap labor,” and the use of the Spanish terms “andale” and “ariba,” represent the very unfortunate employment of offensive stereotypes of Hispanics, and can be said to arise out of a misperception that Burrage was of Hispanic descent….

Burrage seems to argue that he was harassed because of physical characteristics that made him appear to be a member of a protected class of which he was not an actual member. Claims based on perceived class membership are not legally viable under Title VII, and the Court will not expand the reach of Title VII to cover that which Congress chose not to protect.

Do not take refuge in Burrage v. FedEx and use it as an excuse to condone harassment. FedEx just as easily could have gotten dinged for ignoring an employee’s four years of complaints. Regardless of whether there is synergy between the harassment and the harassed, take the complaint seriously, investigate, and deploy appropriate corrective action if necessary. Do not hang your harassment hat on a technicality, because the court hearing your case might not be so generous.

Get rid of at-will employment? Give me a break!

On Donna Ballman’s blog, Screw You Guys, I’m Going Home, she argues for a radical change to at-will employment. She believes that unemployment hearing officers should have the power to reinstate, with back pay, anyone fired without just cause:

Most employers can fire you for any reason or no reason at all…. Then, to add insult to injury, our tax dollars pay for the cost of unemployment compensation and the side-effects of unemployment, all because your boss had a hissy fit one day and fired you without just cause…. Every state in the nation already has a set of hearing examiners or referees who hear unemployment cases. If the employee is fired for misconduct, they don’t get to collect. But what about the employer who fires without just cause? Why not give the unemployment hearing officers one more power: the power to reinstate with back pay.

I applaud Donna’s bravado in arguing for a radical solution to a problem she perceives. But, is it really a problem at all? In reality, few employers act on whims of fancy. We can debate what qualifies as “just cause,” but the fact is that few employer fire good employees. It is not a good business decision for a company to let a good worker go. Good employees keep their jobs, marginal employees are at risk, and bad employees are fired. And, when an undeserving employee is fired, there are myriad employment laws to protect their rights from an unjust dismissal.

Moreover, placing into the hands of unemployment hearing officers the power to reinstate (with back pay) would cripple workforce mobility and hiring. If employers face a risk of having overturned all but the clearest of terminations, they will be reluctant to fire all but worst of employees. Businesses will be stuck with the middling and marginal, harming their ability to employ the best and the brightest. Donna’s scheme would therefore result in fewer job opening, which, in turn, would irreparably damage hiring and create longer periods of unemployment for those searching for work.

Finally, at least in Ohio, the premise that individual taxpayers foot the bill for employers’ whims is faulty. In Ohio, unemployment is funded by a tax on employers. Employers’ tax rates go up and down based on the number of claims paid (like any other insurance scheme). For 2012, that rate can be as high as 9.1%. So, it is in employers’ best interests not to fire on a whim, because the resulting unemployment claim will raise their contribution rate, resulting in a higher tax. In other words, bad firing decisions hit an employer where it hurts, the bottom line. 

Donna, if you’re still convinced that your idea makes sense, I’ll make you a deal. When you agree that we need to adopt my Employer’s Bill of Rights, I’ll agree that at-will employment is a dinosaur (and, watch out for the flying pigs).

WIRTW #220 (the “social assassin” edition)

Passover starts at sundown tonight. I have nothing employment-related for this tidbit of information (don’t treat your workers like the pharaoh treated his, or you will likely face the 11th plague, litigation?). But, it does give me an excuse to play the following, which also happens to be one of the few SFW clips in the eight-seasons of Curb Your Enthusiasm.

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

Discrimination

• What Baggage Does The Employment Attorney Carry? — from Dan Schwartz’s Connecticut Employment Law Blog
• You may know where the bodies are buried, but that doesn’t mean you can sue your employer for retaliation — from Robin Shea’s Employment and Labor Insider
• Comments to OIRA on forthcoming EEOC Background Check Guidance — from the U.S. Chamber of Commerce
• Intellectual Disability under the ADAAA: A Widening Chasm of Problems? — from Michael Haberman’s Omega HR Solutions
• We Know You Don’t Mean to Discriminate - But Are You Biased Underneath the Hood? — from The HR Capitalist. Kris Dunn
• Employment discrimination by the numbers: Foreign Edition — from Eric Meyer’s The Employer Handbook Blog
• Pending Legislation Employers Can’t Afford to Ignore — from Stephanie Thomas’s The Proactive Employer Blog
• Senators Propose Amendments To ADEA — from Stoel Rives World of Employment
• Statistical disparities don’t necessarily indicate discrimination — from The Tennessean

Social Media & Workplace Technology

• Your Future Employer Is Watching You Online. You Should Be, Too. — from Michael Fertik at the Harvard Business Review
• Employees Need To Take Control Of Their Online Identities — from Anthony Zaller’s California Employment Law Report
• Employers Who Demand Facebook Passwords. Oy Vey. — from Molly DiBianca’s Delaware Employment Law Blog
• Teacher fired for refusing to hand over Facebook password — from Friending Facebook Blog
• Michigan Proposes Legislation to Ban Employers from Accessing Employees’ Social Media Sites — from Jason Shinn’s Michigan Employment Law Advisor
• The Facebook access controversy comes to Michigan — from John Holmquist’s Michigan Employment Law Connection
• Access To Social Media Accounts In The Hiring Process And Employer Ownership Of Trade Secrets Or Confidential Information Contained In Social Media Accounts: Legislation On Horizon? — from Trading Secrets
• Employee Photos on the Company’s Social Media Page? — from Nolo’s Employment Law Blog
• Social Media Ethics: Why You Should Have a Policy — from Social Media Today

HR & Employee Relations

• Should You Fire The Slugs? — from Stephanie Thomas at Compensation Cafe
• Did Your DUI Lawyer Draft Your Employee Handbook? — from TLNT
• Olbermann Employment Law-Palooza — from Phil Miles’s Lawffice Space
• Quoting scripture at work — from Evil HR Lady, Suzanne Lucas
• “Bullying” Is Becoming Part of the Zeitgeist — from Michael Fox’s Jottings By An Employer’s Lawyer
• Pet insurance as a benefit — from HR idiot
• Creating a Conflict-Conscious Workplace — from intown employer
• If the Facebook COO can leave the office at 5:30, maybe you can too — from Amy Joyce’s On Parenting (at washingtonpost.com)
• How to reduce your legal spend on employment issues — from Smart Business

Wage & Hour

• “Employers grow reluctant to offer internships following complaints” — from Walter Olson’s Overlawyered
• Intern or Employee? Unpaid Internships May End Up Costing Employers — from LE Blog
• Argument preview: The “outside salesman” exception to the FLSA’s overtime-pay requirement — from SCOTUSblog
• Will breastfeeding support die with Obamacare? — from Eve Tahmincioglu’s CareerDiva
• Can an Employer Require an Employee to Make Up Time Taken as FMLA Leave? from Jeff Nowak’s FMLA Insights

Until next week (also, remarkably, SFW):

Disturbing study about the (mis)use of employers’ confidential information

Here’s the good news: According to a recent survey conducted by FileTrek, 79% of Americans believe that removing confidential files from the office is grounds for termination. Here’s the bad news: 90% think that employees do it anyway. What is the most popular method of removing information? Exporting it to a USB drive.

Some more scary numbers? How about the answers to the question, “When is it acceptable to remove confidential company information out of the office?”

• 48% — When boss says it’s okay
• 32% — To finish a late night project from home
• 30% — To work over the weekend or while on vacation
• 16% — When the confidential information about themselves
• 2% — When it can be brought back to the office before the boss knows it was gone
• 2% — To show something to family or friends who promise to keep it confidential
• 40% — Never

According to Dale Quayle, CEO of FileTrek, “Today’s workforce believes information is an asset to be shared…. It’s critical for today’s management teams to be more IP aware to ensure data security.”

Where does this IP awareness start? With a clear set of policies and agreements that prioritize the confidentiality of your information and data. You need to set the expectation in your organization that you take confidentiality seriously, and those that do not should not expect to remain employed. You also need to be prepared to enforce that confidentiality with litigation when necessary. Otherwise, the agreements may not be worth the paper on which they are printed.

[Hat tip: Huffington Post]

NLRB Administrative Law Judge splits the baby in ruling on a social media policy

Anytime any piece of the NLRB takes action with regard to an employer’s social media policy, it’s newsworthy (even if you’re getting tired of reading about it). Such is the case with G4S Secure Solutions (USA) Inc. (3/29/12) [pdf], decided by an administrative law judge.

At issue in G4S Secure Solutions were the following two provisions of the employer’s social media policy:

• Do not comment on work-related legal matters without express permission of the Legal Department.
• Photographs, images and videos of G4S employees in uniform, (whether yourself or a colleague) or at a G4S place of work, must not be placed on any social networking site, unless express permission has been given by G4S Secure Solutions (USA) Inc.

The ALJ agreed with the NLRB’s General Counsel that the “no comment on work-related legal matters” provision was overly restrictive of employees’ rights to engage in protected concerted activity:

I find the rule is reasonably interpreted to prevent employees from discussing working conditions and other terms and conditions of employment, particularly where the discussions concern potential legal action or complaints employees may have filed…. The rule at issue here would reasonably be read to prohibit two employees … from sending messages to each other about their issues at work … via a social networking site. Likewise, it would reasonably prohibit a discussion group among concerned employees on a social networking site.

Conversely, however, the ALJ concluded that the “no photograph” provision was lawful:

Respondent clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites. Starting with the worksite, Respondent does have patient privacy concerns for the EMT services it provides. Moreover, Respondent serves a variety of clients on a national basis. The various businesses and government agencies where its employees work can be presumed to have their own rules centered on privacy and legal concerns. I find the rule at issue here is reasonably construed as protecting Respondent’s clients. To read it as a prohibition on Section 7 activity strikes me a stretch, particularly considering the rule does not ban photographs but merely prohibits employees from posting them on social networking sites.

I’ll leave you with two observations:

1. The NLRB’s Acting General Counsel does not have the last word on these issues. Many (including me) were up in arms when the NLRB’s Office of General Counsel issued its latest report on social media in the workplace, which opined that almost all workplace policies that could potentially regulate social media violate the NLRA. G4S Secure Solutions disagreed with the General Counsel, and concluded that an employer’s reasonable and legitimate reason to regulate employees’ use of social media trumps a potential and tangential effect on employees’ protected, concerted activity.

2. These issues remain very unsettled. One opinion from an ALJ is nowhere close to a conclusive proclamation of the law. This case will head to Washington for consideration by the NLRB, which could reach an opposite conclusion on the “no photographs” policy. Ultimately, the federal circuit courts, and the Supreme Court, will have to weigh-in on these issues. But, that guidance is years away. Until then, move very cautiously, and only with the advice of counsel well-versed on these issues, if trying to regulate social media in your workplace.

Dealing drugs disqualifies an employee from collecting workers’ comp

Ever heard of the phrase “sustained remunerative employment?” In the world of workers’ compensation, it means that if you are earning money, or capable of earning money, you cannot be eligible for an award of PTD (permanent total disability) for a workplace injury. Seems like common sense, right? What, if, however, the evidence of sustained remunerative employment is illegal activity? Last week, the Ohio Supreme Court weighed-in with an answer.

Donald McNea was a police officer the city of Parma. In 2004, the state awarded him PTD compensation for alleged on-the-job injuries. As it turns out, at the same time McNea was receiving PTD payments, he was being investigated for the illegal sale of narcotics. Ultimately, he was arrested, indicted, pleaded guilty, and sentenced to three years in prison. The Industrial Commission terminated McNea’s PTD benefits as of the date of his incarceration. It also concluded that McNea’s side business selling narcotics was “sustained remunerative employment,” and as a result declared that all compensation paid after his first confirmed drug sale constituted an overpayment.

McNea appealed the determination of the overpayment all the way to the Ohio Supreme Court, where—in State ex rel. McNea v. Industrial Commission (3/29/12) [pdf]—common sense prevailed:

In this case, the evidence established an ongoing pattern of phone calls and other sales-related activity that culminated in the four recorded sales that McNea made between October and December 2005. The commission characterized this sales activity as sustained remunerative employment, and we decline to disturb that finding.

It is unlikely that you will ever face the situation of having to seek disqualification of an employee from collecting workers’ comp benefits because he’s dealing drugs. Nevertheless, this case holds an important lesson. Despite all of the laws technicalities and nuances, when you rip most cases down to their cores, ligation is a morality play. If you can show that an employee did something that offends our idea of what is right versus what is wrong (dealing drugs, stealing, other dishonesty, etc.), you will place yourself in a very good position to win your case.

An good example of an overly broad social media policy

Reuters is reporting that a union representing employees at a New York grocery chain has asked the NLRB to investigate whether the store’s social media policy is violates employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

According to the article, the policy in question “forbids employees from disclosing confidential information—including salaries—on social networking sites like Facebook or Twitter, and from discrediting the store’s practices or products.” For its part, the employer commented that “the store’s policy is meant simply to remind employees to use ‘reasonable guidelines’ when posting to social media sites.”

The employer’s goal is commendable, and reminiscent of my four word social media policy, “Think before you click.” But, if the article is correctly reporting the scope of the challenged policy, it goes well beyond reasonable. The clearest example of protected, concerted activity is conversations about wages. You cannot have a policy that prohibits employees from talking about how much they make, and that rule doesn’t change whether the conversations are at the water cooler, in the break room, or over the Internet. If I was the company’s lawyer, I’d be telling them to change the policy ASAP, before the NLRB orders them to do so.

[Hat tip: Delaware Employment Law Blog]

WIRTW #219 (the “recap” edition)

The Labor & Employment blawgosphere nearly blew itself up this week, with Facebook passwords and the Supreme Court’s healthcare argument dominating the headlines. In case you were under a rock this week, here’s my 140 character summary, fit for you to copy and paste into Twitter: “Requiring Facebook passwords from job applicants is bad, but, it looks like S Ct might think individual health insurance mandates are worse.”

Looking for more details?

Facebook Passwords

• Don’t Demand Facebook Passwords — from Manpower Employment Blawg
• Requiring Social Media Information Is a Bad Idea — from Workplace Privacy Counsel
• What Could Go Wrong? Facebook Passwords — from LaborRelated
• Leave Facebook out of your hiring decisions — from HR Cafe
• Password Protected - Proposed Social Media Privacy Legislation — from Labor Employment Law Blog
• Facebook Controversy Spawns Legislation — from New Jersey Employment Law Blog
• Facebook Policy Against Sharing Passwords to Block Employers — from Texas Employer Handbook
• Employers Requesting Facebook Access May Face Federal Consequences — from LE Blog
• Think Twice Before Asking Applicants for Facebook Passwords — from Dan Schwartz’s Connecticut Employment Law Blog
• Relax! Businesses don’t want employee Facebook passwords. — from Eric Meyer’s The Employer Handbook Blog
• UPDATE - Still Trending On Password Demands — from Social Media Employment Law Blog
• Facebook Finally Takes a Position on Screening! — from employeescreenIQ Blog
• Is Social Media Legislation Coming Your Way? — from Rob Radcliff’s Smooth Transitions

Health Care Law Oral Argument

• SCOTUSblog, health care, and a few things you might have missed — from SCOTUSblog (with links to all of SCOTUSblog’s amazing coverage)
• In Plain English: Is half a loaf better than no loaf? — from SCOTUSblog
• “A Moment of Silence for Obamacare: Prayers, depression, and Latin phrases. Obamacare looks to have had another very bad day.” — from Howard Bashman’s How Appealing
• As health care arguments close, fate of law seems uncertain — from Law.com
• Oral Arguments Close With Severability, Medicaid Expansion Issues — from Joe’s HR and Benefits Blog
• Supreme Court Hears Final Day of Oral Argument on Severability, Medicaid Expansion — from Washington D.C. Employment Law Update
• SCOTUS on ACA, Day 1: Supreme Court Signals Reluctance to Postpone ACA Decision on Procedural Grounds — from E is for ERISA

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

Discrimination

• ENDA “Lite” On the Way? — from Michael Fox’s Jottings By An Employer’s Lawyer
• March Madness and Employment Litigation – It’s All About the Numbers … and a Little Luck — from Jason Shinn’s Michigan Employment Law Advisor
• Reasonable accommodation: Shifting tasks among employees — from HR Cafe
• Discriminating Against the Long-term Unemployed: Tips to Avoid This Practice — from Mike Haberman’s Omega HR Solutions
• Fourth Circuit Allows Sex Discrimination in Severance go Forward — from Maryland Employment Law Developments
• If your job makes you want to kill yourself, you may (or may not) be an ADA “direct threat” — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• 10.5 billion minutes spent on Facebook daily, excluding mobile — from Friending Facebook Blog
• What Should Go Into a Social Media Policy? — from Lindsay Walker at i-Sight Investigation Software Blog
• A (Hopefully Needless) Reminder That Skype Conversations On Your Work Computer Aren’t Very Private — from Kashmir Hill’s The Not-So Private Parts
• My So-Called (Double) Life … On Facebook — from Fistful of Talent
• Why Pin(interest)? — from Social Axcess

HR & Employee Relations

• The Real Leadership Lessons of Steve Jobs — from Harvard Business Review
• Rogue Employees of the Week – Saints Coach Sean Payton and Defensive Coordinator Gregg Williams — from damnedif
• Stupid (beep) People Say — from Cost of Work
• Victoria Hospital Won’t Hire Very Obese Workers — from The Texas Tribute
• The How and Why of Employee Background Screening — from Stephanie Thomas’s Proactive Employer Blog

Wage & Hour

• Don’t Let Your Babies Grow Up To Be Interns — from Dan Schwartz’s Connecticut Employment Law Blog
• 6 keys to keeping unpaid internships from becoming a hot wage & hour mess — from Eric Meyer’s The Employer Handbook Blog
• HR clueless on Family and Medical Leave — from CareerDiva
• When FMLA Intermittent Leave Leads to Suspicious Attendance Patterns — from HR Hero Line
• Court Clarifies Timing Calculation for FMLA Retaliation Claims — from Minnesota Employment Law Report

Labor Relations

• Fired for Wearing Orange and Orange Employees Strike Back — from Phil Miles’s Lawffice Space
• Posting Rule Update: Brace for Concerted Activity! — from Labor Relations Institute
• Target to temporarily close store in union fight — from Michael VanDervort’s The Human Race Horses

What’s on your tombstone?

At his Work Matters blog, Mike Maslanka asked the following question: “What will be on your tombstone?” Don’t get me wrong. I love my job and would not trade what I do for a living for any other profession. But, please kill me again if my tombstone is work-related. I’d much prefer, “He was a great husband and dad,” or, “He loved his family,” to, “He could write a great brief,” or, “He could oral argue with the best of them.”

That’s my tombstone, but what about yours? A tombstone is your legacy. It’s a phrase that is supposed define you for all eternity. That’s why it's etched in stone. So, if you could pre-write your own tombstone as an employer, what would it say? How does this sound? “A company that treated everyone fairly.” Or, “Employees loved to work there.” So, what does your tombstone say? Leave me a comment below, or, post on Twitter with the hashtag #HRtombstone.

Courts are finally starting to apply ADAAA—and it ain’t pretty

It’s taken awhile for courts to start applying the ADAAA—the January 1, 2009, amendments to the Americans with Disabilities Act that rendered everyone with a medical condition disabled for purposes of the disability discrimination law. With one glaring exception, courts have concluded that the amendments are not retroactive, and only apply to personnel decisions taken on or after January 1, 2009. After a bit of a waiting period, courts are now starting to weigh-in on disability cases under the ADAAA, and, as expected, for employers it is not pretty.

Consider Wells v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 2/15/12). Elizabeth Wells, a nurse at Cincinnati Children’s, suffered from gastrointestinal problems. When she returned to work following gall bladder surgery and FMLA leave, she committed various errors (e.g., pulling morphine for a patient that had no orders for it) that called into question her fitness to work as a nurse in a Critical Airway Transplant Surgery unit. The hospital believed the errors were related to her post-surgical medicine, Lotronex, which can cause confusion, sedation, and equilibrium disorders. The hospital placed Wells on administrative leave and referred to her its employee assistance program. The hospital refused to reinstate Wells to the transplant unit after her doctor cleared her to return to work. Ultimately, it found her a position in a bone marrow transplant unit, albeit at reduced hours and with a pay cut.

The trial court concluded that Wells’s disability discrimination claim relating to the hospital’s failure to reinstate her to her old position should go to a jury. Notably, the court pointed out that she need only prove that the hospital “regarded her as having an impairment,” and, in contrast to the pre-amendment ADA, under the ADAAA’s “regarded as” prong, “a plaintiff … only has to prove the existence of an impairment…; she no longer is required to prove that the employer regarded her impairment as substantially limiting a major life activity.” In other words, as long as Wells could prove that the hospital believed she was impaired, the ADA covers her. That burden was easy for her to meet: “The gastrointestinal problems which caused Plaintiff nausea, vomiting, and diarrhea clearly qualify as a physiological disorder. Moreover, to the extent that the side effects of Plaintiff’s proper use of prescription medication adversely affected her ability to work, it would contribute to a finding that she was disabled.” Because the hospital essentially demoted her following her leave, her ADA claim survived.

The hospital’s only sin was that it did not want a nurse who blacks out and becomes confused when treating and administering narcotics to critically ill children. Perhaps, however, the hospital doomed itself by re-employing Wells at all. Because the bone marrow transplant unit also involved critically ill children, the court was skeptical of the employer’s rationale.

The ADA has become one of the most dangerous statutes for employers to administer. It covers virtually any medical condition, actual or perceived. Any time you are making an employment decision concerning any employee about whom you know, or believe, to have a medical condition, you will be best served to take a step back, take a deep breath, and take a few minutes to consult with your counsel. You do not want to shoot first and have to answer questions later.

I (usually) hate unemployment challenges

As an advocate for businesses, you might assume that I stand behind an employer’s decision to challenge an ex-employee’s claim for unemployment compensation. You’d be wrong. In fact, I believe that employers are better served not challenging the unemployment compensation claims of most ex-employees. Just because an employer can win an unemployment challenge doesn’t mean it should file the challenge in the first place. In most cases, employers should simply chalk unemployment up to the cost of doing business, and having to hire (and fire) employees.

Of course, for every rule there exists the exception. Some employees lose their jobs for misconduct that cannot be tolerated and must be challenged. Case in point: Clucas v. Rt. 80 Express, Inc. (Ohio Ct. App. 3/26/12) [pdf]. Rt. 80 fired Clucas, a truck driver, after he tested positive for marijuana following a minor accident. Needless to say, the court of appeals upheld the denial of his unemployment.

Clucas is a great example of when an employer should challenge an employee’s unemployment claim. A business cannot have truck drivers under the influence while on duty. Other examples of when it’s appropriate to challenge unemployment are egregious intentional misconduct such as theft, harassment or other discriminatory conduct, or assault. Unemployment is another example of the maxim I discussed a few weeks ago—just because you have a legal right to do something doesn’t mean it’s the right business or HR decision. The legality of an action is one factor in the decision-making calculus, but not the only one.

Can we all agree that requiring Facebook passwords is a bad idea, and move on?

A lot of ink has been recently spilled in both the popular media and the blawgosphere over the apparent trend of employers requiring job applicants to turn over their Facebook passwords as part of the hiring process. The coverage has been so thick and the outrage so great that United States Senators are calling for action to outlaw this supposed practice, and Facebook officially weighed in, via a post on its blog by its Chief Privacy Officer:

If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends…. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password. We don’t think employers should be asking prospective employees to provide their passwords….

If you believe all of this coverage, you would think that this practice is rampant. In reality, I would be surprise if one-percent of one-percent of all employers have even considered asking a job applicant for access to his or her Facebook account, let alone carried through on the thought by making it a hiring requirement. Simply, this is not a problem that needs fixing.

Moreover, this supposed problem isn’t even new. I covered it almost three years ago, when the city of Bozeman, Montana, made headlines by implementing, and quickly rescinding, just such a requirement. It was bad HR policy then, and it’s bad HR policy now. And, the risks of such a policy are well-documented:

1. EEO Risks: Mining Facebook and other social sites for information on job applicants can reveal a wealth of protected EEO information (age, religion, protected medical information, genetic information). The risk is great enough when the information is publicly available; it is exponentially heightened when you gain unfettered access to information shielded by a password. For some thoughts on best practices on conducting Internet searches on applicants or employees, click here. I’ve also expansively covered this topic in my book, Think Before You Click….

2. Stored Communications Act Risks: At least one court has concluded that an employer who requires employees to disclose passwords to social media sites violates the federal Stored Communications Act, which extends liability to parties that exceed authorization to access electronic communications. While this area of the law might be unsettled, testing it could prove a costly mistake.

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work?

Social media provides a lot of benefits to employers. It opens channels of communication between employees in and out of the workplace. And, when used smartly, it enables employers to learn more about potential employees than ever before. You can learn if an employee has good communication skills, is a good cultural fit, or trashed a former employer. But, this tool has to be used smartly to avoid legal risks. Requiring passwords is not smart.

Social media is still new, and the rules and regulations that govern it are still evolving. The government is looking for opportunities to regulate social media. If a small minority of business continues pursuing this poor HR practice, Congress will continue pursuing legislative and solutions and calling for regulatory action. Do not provide the government the opportunity. Can we all just agree that requiring Facebook passwords is a bad idea, and move on?

WIRTW #219 (the “madness” edition)

Workforce Management is celebrating in 90th anniversary. To commemorate this event (and to cleverly tie-in to March’s favorite non-green event), the magazine is running its own bracket challenge. It is asking its readers to vote on two different brackets — The Pop Culture Bracket (which features such intriguing first round match-ups at Seinfeld vs. Taxi and Murphy Brown vs. Monsters, Inc.) and the Workforce Impact Bracket (which pits the FMLA against the FLSA, Gloria Steinem against Background Checks, and Social Media against ERISA, among others). Voting is being done in stages every two weeks, with round 1 open until April 1.

For the curious:

• In the Pop Culture Bracket, my final four vies The Office vs. Network and The Mary Tyler Moore Show vs. Philadelphia, with The Mary Tyler Moore Show taking down The Office in the finals.
• My Workforce Impact Bracket advances The Internet to face Title VII, and AFL-CIO Teamsters to face Sexual Harassment, with The Internet edging Sexual Harassment in the finals.

How do your brackets play out? Let me know in the comments, or on Twitter @jonhyman.

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

Discrimination

• Distinguishing state & federal disability-accommodation claims — from Eric Meyer’s The Employer Handbook Blog
• Iowa sued on charge of subconscious bias — from Walter Olson’s Overlawyered
• Why You Need a Retaliation Prevention Policy — from Smart HR Manager
• Why Companies Need to Care about Caregivers: The EEOC's Focus on Caregiver Discrimination — from Employer Defense Law Blog
• Juggling Act: When Work and Special-Needs Parenting Collide — from Diversity Insight
• Title VII protects both current and former employees from discriminatory adverse employment actions — from Employment Law Matters
• Transgender Employees Are Protected from Discrimination — from Employment Law Worldview
• Do you have a gender-based pay gap? If so, you'll have some explaining to do — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• Social Media, Social Media, Social Media — from Dan Schwartz’s Connecticut Employment Law Blog
• Top Ten Social Media Tips for Businesses — from Meaghan Edelstein at Social Axcess
• Survey Shows 48% of Employers Conduct Social Media Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Why Would You Want An Applicant’s Facebook Password? — from Fistful of Talent
• Quote of the Day: Deletion Is Futile — from Kashmir Hill’s The Not-So Private Parts
• 3d Circuit Weighs in on Recovering E-Discovery Costs — from Phil Miles’s Lawffice Space
• Socializing HR — from XpertHR

HR & Employee Relations

• The Real Leadership Lessons of Steve Jobs — from Harvard Business Review
• Information Privacy 3: What Are Your Privacy Rights? — from Heather Bussing at the HR Examiner
• Kids These Days: Younger Workers Don’t Care About Confidentiality — from Workplace Diva
• Workplace Drug Testing Turning Up More Cocaine & Amphetamine Positives — from George’s Employment Blawg
• Tips for an Employee Handbook Tune-Up — from Minnesota Employer
• When Should an Employer Investigate? (Part 1) — from Workplace Investigations Blog
• What Should I Know about Terminations? — from Texas Employer Handbook
• Insensitivity & Inflammatory Language at Work — from Cost of Work

Wage & Hour

• Unpaid Internships: No Panacea — from Todd Stanton’s Intown Employer
• Time Off Requests for Exempt and Non-Exempt Employee — from Blogging4Jobs
• District Judge Finds Therapists to be Exempt Professionals — from Wage and Hour Law Update

Labor Relations

• Fired for Wearing Orange — from Workplace Prof Blog
• Workers Fired for Wearing Orange — from San Antonio Employment Law Blog
• Duty To Provide Employee Witness Names And Pro-Union Supervisory Election Interference On This Week’s NLRA Fare — from Labor Relations Update

Until next week…

If the employee doesn’t certify, you need not comply (with FMLA)

In Poling v. Core Molding Technologies (S.D. Ohio 2/9/12), the plaintiff, who suffered from Reflex Sympathetic Dystrophy Syndrome, claimed that his employer interfered with his FMLA rights when it terminated him for excessive absences. Poling’s problem, however, was that he never adequately completed the FMLA medical certification forms his employer had requested. That omission was fatal to his claim. (It probably didn’t help Poling’s cause that he called off from his Lake Erie vacation home.)

If an employee seeks FMLA leave to care for his or her own serious health condition, or that of a covered family member, the statute permits an employer to require a certification by a health care provider to support the leave. At the time the employer requests certification, it must advise the employee of the anticipated consequences of a failure to provide adequate certification. An employee has 15 calendar days to return the requested certification. If the employee fails to provide any certification, the employer may deny the taking of FMLA leave. If an employee returns an incomplete or insufficient certification, the employer must provide the employee seven calendar days to cure the deficiency. The employee’s failure to timely cure also entitles the employer to deny the FMLA leave.

The employer in Poling:

• Requested certification in writing the day after Poling’s absence.
• Told Poling in writing that “[a]ny absences not qualifying as FMLA will be subject to and recorded according to the attendance policy."
• Gave Poling 15 days to return the certification.
• Provided Poling a second chance when he missed the first 15-day deadline.
• Offered an additional seven days for Poling to cure his late-submitted, deficient certification.

It was only after Poling missed the deadline to cure his certification that the employer finally had enough and terminated him (he had already exhausted his paid and unpaid days off).

There is no doubt that the FMLA is a pain for employers to administer. It is not, however, a toothless statute for employers. The FMLA offers employer plenty of opportunities to catch a malingering employee, provided that you know, understand, and follow its maze of rules.

When drafting harassment policies, don’t forget about disabilities

I can’t tell you how many harassment policies I review (and rewrite) that are simply called, “Sexual Harassment Policy.” Most harassment complaints are about sexual harassment. But, the law just doesn’t forbid sexual harassment; it forbids harassment based on any category protected by the EEO laws. Thus, harassment based on race, religion, national origin, military status, age, disability, or any other protected class is just as illegal as harassment based on sex. Your harassment policy must account for them all. For example, last week the EEOC announced that it settled a disability harassment case for $70,000. In that case, the employee, who suffered from a major depression and social anxiety disorder, claimed that he was harassed because of his disability. Avoid these issues by reviewing and, if necessary, updating your harassment policy to account for all types of unlawful harassment.

You should pay attention to this post if you have unpaid interns

According to Law.com, wage and hour litigation is big, and getting bigger. One area that has been poised for a take-off for a couple of years is unpaid internships. Three recent filings illustrate the dangers of using unpaid interns in your business:

• A former unpaid intern for the “Charlie Rose” show has filed a lawsuit against the host and his production company. According to Steven Greenhouse at the New York Times Media Decoder Blog, the former intern claims that she was not paid at for the 25 hours a week she worked in the summer of 2007. The lawsuit seeks a class action on behalf of all unpaid interns who have worked for the show since March 2006.
• A former unpaid intern for the fashion magazine Harper’s Bazaar filed a similar lawsuit, claiming she worked full-time without any pay. Steven Greenhouse at the New York Times Media Decoder Blog quotes the lawyer who filed the lawsuit, “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work.”
• Last year, two interns who worked on the film Black Swan sued Fox Searchlight Pictures making similar claims.

The New York Times’s resident ethicist, Ariel Kaminer, calls this issue “the internship rip-off.”

Two years ago, I wrote how the Department of Labor was targeting employers who use the services of unpaid interns. As these examples show, workers (and their lawyers) have caught up.

In response to this spate of lawsuits, publishing giant Condé Naste has revised its guidelines for the use of unpaid interns. From The Atlantic, Condé Naste’s interns:

• Cannot stay at the company for more than one semester per calendar year.
• Must complete an HR orientation about where to report mistreatment or unreasonably long hours.
• Cannot work past 7 p.m.
• Must receive college credit.
• Must be assigned an official mentor.
• No personal errands.
• Will be paid stipends of $550 per semester.

These procedures might not be right for your organization. But, they highlight that you need to be thinking about these issues if you are a private sector, for-profit entity using, or considering using, interns. The rules haven’t changed; only they are now more widely known and are being enforced.

The best time to settle a case

I’ve long believed that the best time to settle a case is while summary judgment is pending. It’s when both sides have the most risk. The employer has the risk of a jury trial if the court denies the motion, and the employee has the risk of walking away with nothing if the court grants the motion.

Case in point—Webb v. Kentucky St. Univ. (6th Cir. 3/15/12) [pdf]. In Webb, the court granted the employer’s summary judgment motion while the parties were actively mediating the case. On appeal, the plaintiff argued that court abused its discretion in granting the motion while mediation was ongoing, which, in the plaintiff’s words, “makes a mockery of the mediation process.” The court of appeals disagreed:

Where, as here, the district court properly granted the summary judgment motion, the mediation process is not “sabotaged.” Instead, the district court does not waste judicial resources by preparing for trial where no genuine issue of material fact exists and the opposing party is clearly entitled to judgment as a matter of law.

The next time you receive settlement resistance from a plaintiff while a motion for summary judgment pends, you might want to forward a copy of Webb. Maybe it will grease the skids to a resolution.

WIRTW #217 (the “Statler and Waldorf” edition)

News moves fast. In today’s 140 character news cycle, a story has legs if it’s covered for more than a day. That we are on day two of the muppet manifesto tells you that this story resonates. Here’s some additional employment and HR related (and not so employment and HR related) coverage of Greg Smith’s noisy resignation from Goldman Sachs:

• Why I am leaving the Empire, by Darth Vader — from the daily mash
• Atomic Resignation Letters and the Disconnect Between Corporate Values and Performance… — from The HR Capitalist, Kris Dunn
• Disgruntled Goldman executive inspires copycats — from CareerDiva Eve Tahmincioglu
• Burning Bridges: The Perils of Ripping Your Employer Heading Out the Door — from TLNT
• Psychopaths on Wall Street — from Harvard Business Review
• Workplace experts weigh in on commentary by departing Goldman Sachs executive Greg Smith — from Corilyn Shropshire at the Chicago Tribune
• Bronze Medal Ping Pong GOD Bravely Resigns From Goldman Sachs — from Deadspin

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

Discrimination

• Flyer claims Chick-Fil-A asks potential hires about sexual history — from Eric Meyer’s The Employer Handbook Blog
• Believe It, Baby. Subjective Belief of Discrimination Ain’t Enough — from Molly DiBianca’s Delaware Employment Law Blog
• Oy Vay! Jewish Nursing Home Owns Up to Denying Religious Accommodation — from Joe’s HR and Benefits Blog
• What if you replace an older worker with another older worker? — from HR Cafe
• Fourth Circuit Emphasizes Necessity of Complaining about Sexual Harassment — from Maryland Employment Law Developments
• Paula Deen (insert cooking pun) Sexual Harassment Lawsuit — from Phil Miles’s Lawffice Space
• ESPN’s Stance on Discriminatory Remarks: Hitting the nail on the head, or a lack of consistency? — from The L•E•Jer

Social Media & Workplace Technology

• Don't be a twerp when you tweet — from Robin Shea’s Employment and Labor Insider
• If you’re a worker, you’re being Googled — from MarketWatch
• What Should You Do If Your Employer Asks For Your Facebook Password? — from ReadWriteWeb
• Infographic: How to train employees to handle social media — from Ragan
• Solutions to Mitigating Risk of Corporate Social Media — from Jessica Miller-Merrell’s Blogging4Jobs
• This Is Everything You Need To Know About Pinterest (Infographic) — from TechCrunch
• Pinterest for Social Recruiting — from Kara Mignanelli at Social Axcess
• When it comes to Social Media and Recruiting…Don’t Overthink It … Just Do It! — from Fistful of Talent

HR & Employee Relations

• Does It Matter That American Workers Get So Little “Official” Time Off? — from TLNT
• The Magic of Doing One Thing at a Time — from Harvard Business Review
• 17 Ways to Show Your Employees Appreciation — from Workplace Insights
• Mark Twain on employment reference law — from Walter Olson’s Overlawyered
• Turning a Termination into a Training Opportunity — from Dawn Lomer at i-Sight Investigation Software Blog
• Top Background Screening Survey: Criminal Records or Qualifications? — from Nick Fishman’s employeescreenIQ Blog
• “Can taking time off without permission get you fired?” — from Sklover Working Wisdom

Wage & Hour

• Are Homeless Hotspots Entitled To Minimum Wage? — from Wage & Hour Insights
• Can Employers Be Sued for Restricting the use of Certain Doctors for Disability Certifications? — from Jason Shinn’s Michigan Employment Law Advisor
• Are You an Employee or Independent Contractor? — from Legal Tastings – A Wine Law Blog

Labor Relations

• Breathe Deeply Before You Read: ALJ Finds At-Will Statement Violates NLRA — from Jonathan Segal
• Thinking About A Different World Under the NLRA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Waiting for the Dust To Settle on New NLRB Posting Requirement — from Dan Schwartz’s Connecticut Employment Law Blog

Until next week…