Some social media stats to chew on

Last week, Facebook announced that there are more than 1 billion people using Facebook actively each month. Think about that number for a second. It means that 1 out of every 7 people on Earth are active on Facebook. When you consider the vastness of our planet and the diversity of its social-economics, that number is staggering.

Of course, a number is nothing more than a number. What does that number mean to you, as an employer? It means that most of your employees are on Facebook (and Twitter, and LinkedIn, and YouTube, and Pinterest, and blogs, and, well, you get the point).

It also means that a lot of your employees will get themselves in trouble on social media. IIndeed, according to a recent survey published by Blogging4Jobs, 46% of company leaders believe that their employees will misuse social media and other workplace technology.

Some companies will react to this statistic by turning off the switch in their businesses—blocking social media websites and issuing policies prohibiting their access by employees at work. If you are inclined to go that route, consider these statistics, which come, via TLNT, from the SilkRoad Social Media and Workplace 2012 Report:

• Only 43 percent of employees responding to the survey report working in companies in which social media access was completely open in the workplace.
• Yet, 60 percent say that they check social media multiple times throughout the day on their mobile devices, with 75 percent checking it at least once a day or more.

In other words, unless you require that your employees check their mobile devices at the door (and suffer the anarchy that would likely ensue) it is impossible to prohibit employees from accessing personal social media accounts during the workday. And, if its impossible to monitor or enforce a policy, why have it in the first place?

Heads Up: My RSS feed has changed

For those of you who follow the Ohio Employer’s Law Blog via RSS. I have changed the RSS feed for the sight.

If you have no idea what I’m talking about, you can skip the rest of this post. If you receive your daily updates via email, you can also skip the rest of this post; you’ve already been moved over, and, except for a new look to the daily email update, you won’t notice any difference and shouldn’t miss any updates.

If, however, you subscribe to the RSS feed, and read updates in a reader such as Google Reader, then please read on.

Historically, I used FeedBurner to provide the site’s feed. Google acquired FeedBurner a few years ago. Many believe that Google will soon shut FeedBurner down. In fact, last week Google shut down one major piece of FeedBurner, with only one day’s notice.

I cannot sit around and wait for Google to do the same with the entire FeedBurner service. So, I’ve migrated the feed from FeedBurner to FeedBlitz. For now, you should not see any interruptions. However, if FeedBurner shuts down, you will stop getting updates unless you re-subscribe to the new feed.

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So that you do not miss any updates, please take a moment and re-subscribe to the new feed address: http://www.ohioemployerlawblog.com/feeds/posts/default

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I know that a lot of you read my content via RSS. Please know that I’ve done my best to minimize disruptions, and accept my apology in the unlikely event you experience any inconvenience from the change.

The right way to use subjective criteria in layoffs

Reductions-in-force present a unique issue for an employer defending its decision in a subsequent discrimination case. The employer already has its legitimate, non-discriminatory reason baked into the termination—the economics of a layoff, which often causes qualified employees to lose their jobs. For this reason, reduction-in-force cases are often singularly focused on the issue of pretext.

In Beck v. Buckeye Pipeline Services Co. (6th Cir. 9/28/12) [pdf], the plaintiff claimed that the employer’s use of subjective criteria to select her for inclusion in the layoff created an inference that the employer singled her out because of her age or gender.

While agreeing the subjective decision-making can prove problematic in some cases, the court disagreed that its use is per se discriminatory.

Subjective criteria, it is true, sometimes make it difficult to distinguish between lawful and unlawful employment actions, and they deserve careful scrutiny…. When all is said and done, the use of subjective evaluation criteria does not by itself show discrimination, particularly in a reduction in force case. 

What factors did the court rely upon to conclude that this employer’s use of subjective criteria in this layoff did not create an inference of discrimination?

• There was no evidence that a disproportionately high rate of women or older workers were included in the layoff.
• There was no evidence that the employer’s use of subjective evaluation procedures was a deviation from its normal decision-making process.
• There was no evidence of dishonesty in the subjective decision-making process.

What lessons does this case teach hold for employers considering the use of subjective criteria in determining which employees to include in a workforce reduction?

1. What do your workforce demographics look like before and after the RIF, company-wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria.
2. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm, an explanation that may be enough for the employee to survive summary judgment and get his or her case to a jury.
3. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Are their objective criteria (sales numbers, for example) that could contradict a subjective evaluation? 

WIRTW #245 (the “bald IS beautiful” edition)

According to the ABA Journal, “balding men who want to advance in their careers might want to consider shaving their heads.” The ABA Journal cites an article in the Wall Street Journal discussing a recent study out of the University of Pennsylvania's Wharton School, which concluded, “Men with shaved heads are perceived to be more masculine, dominant and, in some cases, to have greater leadership potential than those with longer locks or with thinning hair.”

Hot damn! I love being masculine and dominant, with great leadership potential.

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

Discrimination

• Religious Frustration — from Smelling Some Roses
• Believe it or Not – White Male Proves Discrimination — from Texas Employer Handbook
• The Four Corners Of An EEOC Charge Can Make All The Difference In A Nationwide Employment Discrimination Class Action — from Workplace Class Action Litigation
• Nooses And The “N Word” Are In The Employment News These Days — from Employment Discrimination Report
• $$$ reasons to have a second-language anti-harassment policy — from Eric Meyer’s The Employer Handbook Blog
• A Bill to Make Employers Less Mean to Pregnant Women — from Workplace Fairness
• No, Seriously - EEOC Targeting Pregnancy Discrimination — from Phil Miles’s Lawffice Space
• 10th Circuit Finds Transferring Disabled Employee to Different Geographical Location for Better Access to Medical Care is Reasonable Accommodation — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• California’s Comprehensive Social Media Privacy Law — from Social Media, Esq.™
• Survey: 75% of Workers Are Accessing Social Media While on the Job — from TLNT
• Social Media Workplace Freedom a Hot Button for College Students and the NLRB — from Social Media Today
• Instagram surpasses Twitter in daily active mobile users in U.S. — from Boy Genius Report
• One billion people now “actively using” Facebook — from The Verge

HR & Employee Relations

• Fighting Back: Bullies and Obesity — from Molly DiBianca’s Delaware Employment Law Blog
• The Benefits of Criminal Background Screening for Your Company — from From the Sidebar
• Survey Says … 50% of Employers Have Hired People with Criminal Records — from Nick Fishman’s employeescreenIQ Blog
• Checking Your Background Check: Is Your Authorization in Compliance with the FCRA? — from LE Blog
• Here’s Your New Motivational Script to Use When Firing Someone — Or to Those Who Dare Fire You … — from The HR Capitalist, Kris Dunn
• 6 Tips to Lower Risk in High-Risk Employee Terminations — from i-Sight Investigation Software Blog
• Workplace Investigation Tip: Outside Investigators are not Tainted by Internal Politics — from Strategic HR Lawyer
• The 3 best ways to stop employee rumors — from Ragan.com
• Laughter in the Workplace Increases Productivity and Job Satisfaction — from Workplace Insights
• Trade Secret Misappropriation - $taggering Numbers For Employers to Consider — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Six Steps to Having an Unpaid Intern — from Blogging4Jobs
• ABCs of the ACA for Employers — from Stephanie Thomas’s The Proactive Employer Blog
• Take Care When Applying the Outside Sales Exemption — from HR Defense Blog
• Employer Burned for Failing to Return Employee to Equivalent Position After FMLA Ended — from Jeff Nowak’s LA Insights

Labor Relations

• NLRB Keeps Doing What It Always Does. Why Is Anyone Surprised? — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Condones Sexual Harassment — from Mike Haberman’s Omega HR Solutions
• Employee Flare: I Will Have a Venti, Half-Caf., Cappuccino - Hold the Union Propaganda — from The Labor and Employment Law Blog

New pregnancy discrimination legislation is unneeded, redux

On September 19, the Pregnant Workers Fairness Act [pdf] was introduced in the Senate. It is identical to the bill by the same name introduced in the House back in May. The bill would amend Title VII to to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. At the time, I critiqued the bill as unnecessary:

The Pregnancy Discrimination Act [already] requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

Last Friday, HuffPost Live ran a story on the re-introduction of this legislation. The host, Nancy Redd, cited my May blog post as support for the argument that this bill is unneeded. Some on the panel took issue with those that argue against the need for this legislation.

So that my position is crystal clear, I am not saying that pregnant women should be discriminated against. What I am saying, however, is that because the law requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition, Title VII already guarantees the rights laid out in the Pregnant Workers Fairness Act.

In other words, we do not need legislation to duplicate rights that already exist. If employers are not granting these rights, and pregnant workers are not receiving the accommodations they need and are requesting, then pregnant workers should be filing discrimination lawsuits. The answer lies in educating employers on their obligations under existing laws, not passing new, duplicative ones.

EEOC goes nuts as its fiscal year closes

How do you know that last Friday marked the end of the EEOC’s fiscal year? Because it filed over two dozen lawsuits that week. The filings provide a glimpse into the agencies enforcement priorities:

• 14 of the cases allege disability discrimination
• 5 allege race discrimination
• 3 allege retaliation
• 3 allege pregnancy discrimination
• 2 allege sexual harassment
• 2 allege racial harassment
• 1 alleges age discrimination

What’s more interesting than the flurry of filings, however, is the fact that only 6 allege systemic discrimination—discrimination against a group of employees based on a common policy or practice. Earlier in September, the EEOC published its draft strategic enforcement plan for the next 5 years. Its number 1 claimed priority is “eliminating systemic barriers in recruitment and hiring.” Yet, only approximately 20 percent of its flurry of filings strike at these systemic barriers.

What does this activity by the EEOC mean for employers?

• You have to remain vigilant in your efforts to rid your workplaces of all kinds of discrimination. The EEOC is watching, and, where the facts warrant, will litigate on behalf of an aggrieved individual.
• Disability discrimination is a prime enforcement target. Invest some time and money (i.e., training) to ensure that your managers and supervisors understand their obligations under the ADA to reasonably accommodate disabled employees. Review your policies to ensure that they do not single-out disabled employees or operate to deny them reasonable accommodations.

[Hat tip: Dan Schwartz]

Pay attention: NLRB issues its second social media decision in a month (Knauz BMW)

Late last week, the NLRB issued its second decision in a case involving employee use of social media. In Karl Knauz BMW, the Board concluded that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. For the background on this case, please go here to read my post from a year ago discussing the Administrative Law Judge’s earlier decision.

The case hinged on whether Knauz BMW terminated a salesperson for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event, or for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership. The NLRB concluded that it was the latter, which did not invoke the Act’s safeguards for protected concerted activity:

It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

This case, however, is not a total victory for employers. In addition to ruling on the legality of the termination, the NLRB also ruled on the illegality of the employer’s “Courtesy” rule, which stated:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

As was the case in the Costco case decided last month, the NLRB took issue with a facially neutral workplace policy that, if taken to its illogical extreme, could potentially chill employees’ conversation about workplace conditions:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements … that object to their working conditions and seek the support of others in improving them…. A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work.

As was the case in Costco, Member Hayes dissented. He criticized the majority for making a stretched and tortured interpretation of the work rule at-issue. He instead called for a reasoned reading of the rule as a whole:

Reasonably construed and read as a whole, the rule is nothing more than a common-sense behavioral guideline for employees…. Nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages); rather the rule concerns the tenor of any conversation. In short, by its “Courtesy” rule the Respondent sought to promote civility and decorum in the workplace and prevent conduct that injures the dealership’s reputation—purposes that would have been patently obvious to Respondent’s employees, who depend on the dealership’s image for their livelihoods.

Unfortunately for employers, Member Hayes was out-voted 2 – 1.

What now for employers, as we are starting to receive some clarity on these issues from actual Board decisions instead of advice memoranda?

• Unfortunately, the rationale of these decision on the legality of workplace communication policies is as strained as that suggested by the Office of General Counsel earlier this year. For now, the best course of action is to tread cautiously when dealing with these issues (and hope that November’s election brings some relief to the American business community from activist federal agencies).
• In the meantime, however, employers need to pay careful and diligent attention to this issue. Social media and other employee communication policies remain on the forefront of the NLRB’s hit parade. No matter how this issue ultimately shakes out, and no matter how ludicrous this result seems, this case, Costco, and Fresenius USA Manufacturing (giving employees a right to make vulgar, offensive, or threatening statements, and then lie about them to their employer) deserve the attention of every company doing business in America.

[Hat tip: Workplace Prof Blog]

Now the NLRB says employers can’t regulate threatening or offensive speech (this is getting ridiculous)

Hopefully you’re not getting tired of me railing against the National Labor Relations Board for its parade of opinions designed to undermine the rights of employers to regulate the workplace. As long as the NLRB keeps pumping out these opinions under the generic umbrella of “protected concerted activity,” I feel a moral obligation to continue writing about them.

The latest victim is Fresenius USA Manufacturing [pdf], which concluded that an employer cannot discipline or terminate employees who make vulgar, offensive, or threatening statements.

In this case, an open and active supporter of the union, employee Kevin Grosso, anonymously scribbled vulgar, offensive, and threatening statements on several union newsletters left in an employee breakroom. The anonymous notes included “Dear Pussies, Please Read!” and “Warehouse workers, RIP.” No one disputed that Grosso was attempting to encourage his fellow employees to support the union in an upcoming decertification election.

In a good-faith response to female employees’ complaints about those statements, Fresenius investigated the statements. The investigation included questioning Grosso, during which he lied about writing the statements. Upon confirming Grosso’s authorship, the company suspended and discharged him for making the statements and lying about writing them.

The NLRB concluded that the employer was within its rights to investigate the statements and question Grosso, but could not suspend or discharge him as a result.

[A]lthough we find that Fresenius did not violate the Act by investigating and questioning Grosso, we find … that Fresenius did violate the Act by suspending and discharging him…. Grosso’s handwritten comments encouraged warehouse employees to support the Union in the decertification election. We therefore conclude that, in writing them, Grosso was engaged in protected union activity…. Fresenius discharged Grosso for writing those comments.

You might be thinking to yourself, why can’t we circumvent all this nonsense with a simple conclusion that the employer was within its rights to terminate Grosso for his dishonesty? Well, the NLRB has an answer to that question, too … and you’re not going to like it either:

Fresenius’ discharge letter to Grosso also cited his false denial of responsibility for the comments, but Fresenius could not lawfully discipline him on that ground…. Fresenius’ questioning of Grosso put him in the position of having to reveal his protected activity, which Board precedent holds an employee may not be required to do where, as here, the inquiry is unrelated to the employee’s job performance or the employer’s ability to operate its business…. As a result, although Fresenius had a legitimate interest in questioning Grosso and lawfully did so, Grosso had a Sec. 7 right not to respond truthfully.

Do you read that quote the same way I do? Did the NLRB really say that investigating complaints of harassment, consistent with an employer’s obligations under Title VII, is “unrelated to the employee’s job performance or the employer’s ability to operate its business.”

Perhaps the dissenting opinion put it best:

Notwithstanding their disavowals, my colleagues thereby impermissibly fetter the ability of employers to comply with the requirements of other labor laws and to maintain civility and order in their workplace by maintaining and enforcing rules nondiscriminatorily prohibiting abusive and profane language, sexual harassment, and verbal, mental, and physical abuse.

The business community needs to pay careful attention to cases such as Fresenius USA Manufacturing. The NLRB continues to dangerously regulate employers rights to control and remedy workplace misconduct, all in the name of “protected concerted activity.” Forcing employers into a Hobson’s Choice between the NLRA and Title VII is just plain silly. If the NLRB continues its path, employers will be left with little recourse against misbehaving employees, and at-will employment may become an historical relic.

WIRTW #244 (the recap edition)

All week, I’ve be posting the one question I’d ask each of the Presidential and Vice Presidential candidates during the upcoming debates:

• President Obama: protections for working families
• Mitt Romney: LGBT civil rights
• Vice President Biden: union rights and the National Labor Relations Act
• Paul Ryan: Ayn Rand and fiscal conservatism

I’m not the only one who has been posting these questions this week. My fellow employment law bloggers have also been chipping in: Dan Schwartz (who came up with the idea at his Connecticut Employment Law Blog), Eric Meyer (The Employer Handbook Blog), Robin Shea (Employment and Labor Insider), and Donna Ballman (offering a perspective from the plaintiffs’ bar at Screw You Guys, I’m Going Home).

If nothing else, we’ve been consistent with our themes:

• Family Leave Rights: Eric’s question to Mitt Romney
• Paycheck fairness and pay equity: Donna’s question to Barack Obama, Eric’s question to Joe Biden, Eric’s question to Barack Obama
• LGBT Rights: Robin’s questions to Joe Biden; Dan’s question to Barack Obama; Dan’s question to Paul Ryan
• Union issues: Dan’s question to Joe Biden, Eric’s question to Paul Ryan, Donna’s question to Joe Biden, Robin’s question to Paul Ryan

Suffice it to say that these four issues comprise some of the biggest issues facing employers now and for the next four years. Let’s hope we get some clarity on these from the candidates as we get closer to November 6.

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

Discrimination

• Changing Attitudes: Why Employers Need to End Pregnancy Discrimination — from TLNT
• Employer’s “Shockingly Thin” Response to Anonymous Harassment = $3.5 Million in Punitive Damages — from Lorene Schaefer’s WinWinHR
• EEOC Announces Plan for Class Warfare — from Molly DiBianca’s Delaware Employment Law Blog
• EEOC’s Multifaceted Effort To Aggressively Target Employer Policies Potentially Having “Disparate Impact”  — from Stoel Rives World of Employment
• Rhode Island bans discrimination against homeless persons — from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• 13 Things That Will Disappear From the Workplace In Five Years — from Workplace Diva
• Law and Order: Human Resources Unit — from HR idiot
• Time for the Right Discussion About Social Media in the Office — from Social Media Today
• Will Gen Y Have Professional Regret for Embedding Facebook? — from The HR Capitalist, Kris Dunn
• Read My Hips: Is the Trade Secret Litigator Waffling on a Key Provision of the Protecting American Trade Secrets and Innovation Act of 2012? — from Trade Secret Litigator Blog
• Pondering damages under the federal Computer Fraud and Abuse Act — from Work Matters
• “Reply All” Claims Another Victim — from Phil Miles’s Lawffice Space
• Social Media Training [infographic] — from Sharlyn Lauby’s hr bartender

HR & Employee Relations

• Mindy Kaling on Chronicling the American Workplace — from Harvard Business Review
• Background Checks That Don’t Invite Employment Litigation — from i-Sight Investigation Software Blog
• Employers: Meet members of the next generation of your workforce — from John Holmquist’s Michigan Employment Law Connection
• What can I do about a coworker who never wears a bra? — from Ask a Manager
• What Do You Say To A Naked Co-Worker? — from Evil Skippy at Work
• Politickin’ in the World of HR — from HR Schoolhouse

Wage & Hour

• Beware Draconian USDOL Settlement Terms — from Wage and Hour Laws Blog
• 7 Paycheck No-No’s the Department of Labor is Focusing On — from Wisconsin Employment & Labor Law Blog

Labor Relations

• Replacement employees: how not to do it — from Andrew Scott-Howman’s WorkFace
• Telling An Employee “Don’t Discuss It” Can Be Illegal — from Troutman Sanders HR Law Matters
• NLRB Finally Delivers Knockout Blow to Broad Employer Social Media Policies — from Jason Shinn’s Michigan Employment Law Advisor

My one question for Paul Ryan: Are you a real fiscal conservative?

Today ends my series of debate questions for the Presidential and Vice-Presidential candidates. On the hot seat is Paul Ryan. Here's my question:

You cite Ayn Rand as your inspiration for getting involved in politics. You even gave copies of her novel Atlas Shrugged as Christmas gifts to your staff. Among other philosophies, Atlas Shrugged endorses the belief that a society's best hope rests on adopting a system of pure laissez-faire government. Philosophically, you would seem opposed to government economic intrusions, yet you voted in favor of both the TARP bank bailout and the auto industry bailout. How do you reconcile your claim to be a fiscal conservative with your pro-regulatory Congressional votes on these two key federal bailouts?

Tomorrow I'll wrap up this series by discussing the posts of my fellow blawgers: Dan Schwartz, Eric Meyer, Robin Shea, and Donna Ballman.

My one question for Joe Biden: labor unions and the NLRB

Today, I continue my series on the one debate question I would ask each of the Presidential and Vice-Presidential candidates. Today’s target—Vice President Joe Biden. Here’s my one question:

Mr. Vice President, Governor Romney has accused your administration of supporting a partisan, pro union National Labor Relations Board. Historically, you have been outspoken of your support of the Employee Free Choice Act, which would provide employees the right to form a labor union without the benefit of a secret ballot election. At a Labor Day rally in Detroit earlier this month, you publicly stated that organized labor is one of the reasons why American is recovering. The American business community would not-so-respectfully disagree with you, and believe that activist federal agencies and labor unions are dangerously holding us back.

What would you say to business owners of all sizes who believe that your administration’s labor policies have stifled their ability to operate in today’s economic climate?

My one question for Mitt Romney: civil rights

Today, I continue my series on the one debate question I would ask each of the Presidential and Vice-Presidential candidates. Today’s target—Mitt Romney. Here’s my one question:

You are on record opposing the Employment Non-Discrimination Act, a bill that would make it illegal under federal law for employers to discriminate on the basis of sexual orientation or gender identity. Yet, you have also publicly stated that you support anti-discrimination and equal rights for all.

Which is it? Are you in favor of equal rights for all, or you do believe that it permissible for employers to deny rights to individuals based on their sexual orientation or their gender identity? And, if the Employment Non-Discrimination Act came across your desk in the Oval Office, would you sign it or veto it?

The one question I would ask President Obama during the debates

Four years ago, Dan Schwartz, on his Connecticut Employment Law Blog, answered the following question: What One Question Regarding Labor & Employment Law Would You Ask the Candidates During the Debates?

With this election cycle's debates on the horizon, Dan has put out a challenge for his fellow employment law bloggers to answer the same question this year. Today through Thursday, I'll be providing the one question I would ask each of the two Presidential and two Vice-Presidential candidates. On Friday, I'll recap the best from my blogging brethren.

First up, President Obama:

Four years ago, you campaigned on a promise to help working families. You promised to expand the FMLA to cover smaller employers, and promised that employers would be required to provide paid sick days to all employees. Yet, four years later, your track record on these issues is spotty at best. The only accomplishment to which you can point in the Lilly Ledbetter Fair Pay Act. What can you say to working families to earn their trust that the next four years will be different?

Tomorrow, my question for Mitt Romney.

Firing an employee? Tell them! (don’t Milton the termination)

Office Space is one of the great movies about the modern workplace. One of its key plot lines involves sad sack employee Milton Waddams, who mumbles through the movie about his missing stapler and ever-moving desk. Amazingly, the company had laid off Milton years earlier without anyone telling him. When the company fixed a computer glitch that had accidentally kept him on the payroll, Milton finally cracked and burned down the office.

Lawrence v. Youngstown (9/21/12) [pdf], decided last week by the Ohio Supreme Court, gives employers a reason other than arson-avoidance to tell employees that they’ve been fired.

Ohio’s workers’ compensation retaliation statute (Revised Code 4123.90, for those counting) is an odd-duck. It has a two-part statute of limitations. First, the aggrieved employee must provide the employer “written notice of a claimed violation … within the 90 days immediately following the discharge, demotion, reassignment, or punitive action taken.” If the employee sends that written notice, he or she then has up to 180 days from the adverse action to file suit. The 90-day notice requirement is “mandatory and jurisdictional,” and no employee is permitted to file a workers’ compensation retaliation claim without sending the written notice.

In Lawrence, the Court answered a question of timing — does that 90-day period begin to run on the effective date of the discharge or when the employee receives notice of the discharge?

The facts of Lawrence illustrate the potential problem. On January 7, 2007, Youngstown suspended Lawrence without pay from his position with the city. Two days later, the city converted the suspension to a termination, and mailed, via regular mail a letter notifying him of the termination. Lawrence claimed he did not learn of his discharge until February 19, 2007. On April 17, 2007, Lawrence’s attorney sent the city a letter stating that Lawrence intended to bring a lawsuit claiming unlawful workers’ compensation retaliation. When he filed his lawsuit a few months later, the city sought, and obtained its dismissal on the basis that Lawrence’s letter was untimely based on his termination date.

The Ohio Supreme Court reversed. It held that normally the start of the 90-day period triggers from the actual discharge date. It also created an exception when the employee both did not know of the discharge and could not reasonably have learned of it:

A limited exception to the general rule that the 90-day period for employer notice … runs from the employee’s actual discharge…. The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice … commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.

As the Court reminded us in the Lawrence opinion, “Usually, an employer will make a good-faith effort to communicate the fact of the employee’s discharge to the employee when it occurs…. The employer commonly will use a method like personal notification, hand delivery of notice, or a certified letter.” In other words, if you are going to fire an employee, don’t you owe it to him as a human being to at least tell him?

Testing a New RSS Service. Fingers Crossed, Here it Goes

To my loyal readers,

I'm using this rainy Saturday afternoon in Cleveland to test a new feed service, as it appears that Feedburner, who I've used since this site launched more than five years ago, is shutting down. To hedge against all of you losing me, I'm migrating to a new RSS service. If all goes according to plan, you should see no breaks in your daily updates. Otherwise, it's back to the drawing board for me.

Hopefully you be reading me on Monday as usual.

All the best,
Jon

WIRTW #243 (the “SAHM no more” edition)

Over the years, I’ve used this space to share some things about my family and me. I figure it helps you better understand me as a person, which, in turn, helps you understand what forms my beliefs and positions on the various issues on which I write. I’ve written about my wedding story, the birth of my son, and my daughter’s first day of kindergarten. I’ve posted on my son’s trials and triumphs during his three-week hospital stay. I’ve shared the loss of old friends and the acquisition of new ones. I’ve drawn lessons from some of our family vacations. And I’ve written about my childhood, growing up in Philadelphia, and some of the summer jobs that helped form my early views about the workplace.

Today, I’m sharing something new.

On Monday, my wife re-joins the workforce, after more than 6 years at home. Thank you to my wife. She made a very difficult decision in May 2006 to stay at home, sacrificing her career to give our kids the gift of her time and attention. Our kids and I are forever grateful. Thank you also to companies that are willing to hire stay at home moms re-entering the workforce. The difficulty of the decision to give up one’s career is exacerbated by the uncertainty of whether you’ll be able to jump back in when ready. Companies should be commended for realizing that a parent’s choice to leave the workforce does not undermine that parent’s capability as an employee upon their return.

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

Discrimination

• Hospital To Pay Nearly $1 Million To Settle Workplace Language Lawsuit — from TLNT
• That moment right before the pain begins: an EEOC subpoena — from Eric Meyer’s The Employer Handbook Blog
• Realistically Compare Your Employment Fact Finders — from Litigation PostScript. Persuasion Strategies for Litigators
• It’s Depressing That We Need Legislation To Provide Reasonable Accommodations For Pregnant Workers — from Mommyish (my thoughts on this issue are here)

Social Media & Workplace Technology

• Court Finds Broad Requests for Social Media Content Fail to Uphold Rule 34(b)(1)(A)’s “Reasonable Particularity” Requirement, Denies Motion to Compel (in part) — from Electronic Discovery Law
• Fired for WHAT!? - Saints Fan on Facebook — from Phil Miles’s Lawffice Space
• Delaware Court of Chancery on Workday Distractions — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Unemployment is a Larger Barrier to Employment Than Criminal Record — from Nick Fishman’s employeescreenIQ Blog
• My former employer can't prevent me from working, right? Dissecting the Enforceability of a Noncompete Agreement — from Jason Shinn’s Michigan Employment Law Advisor
• Unfair Competition Basics… Boundless Noncompete Restrictions — from Fair Competition Law

Wage & Hour

• Pay Attention Managers: You have to track time ACTUALLY WORKED! — from Mike Haberman’s Omega HR Solutions
• Red Lobster: We Sea FLSA Differently — from The Proactive Employer Blog
• The Sixth Circuit Gives Employers a “Twofer”: An Employer’s Automatic Pay Deduction Policy Does Not Automatically Violate the FLSA and a Class Plaintiff Must “Commence” Suit — from Employer Law Report

Labor Relations

• National Labor Relations Board Issues First Decision Striking Down Employer's Social Media Policy — from Seth Borden’s Labor Relations Today
• Employer Social-Media Policies in NLRB's Cross-Hairs — from Outten & Golden Employment Law Blog
• The NLRB Takes Its Own Advice — from Social Media Employment Law Blog
• In light of NLRB ethics probe, is Walmart social media policy still ok? — from Robin Shea’s Employment and Labor Insider

Employers are increasingly worried about social media and workplace technology

What policy will cause employers to lose the most sleep in the coming year? According to a recent survey conducted by BLR, social media will be the most formidable challenge for businesses in 2013.

The complete answers to the question of which policy presents the biggest challenge to employers:

• social media: 47.1%
• cell phone use and distracted driving: 21.6%
• attendance and punctuality: 17.4%
• computer and Internet: 15.9%
• FMLA: 15.9%

Perhaps what’s more interesting, however, is that if you look at these issues more broadly, they fall into two main categories: technology and attendance. Amazingly, technology trumps attendance by more than 2.5 to 1 margin. You may not be convinced that workplace technology (which includes social media and mobile devices) is not the key issue currently facing employer. This survey, however, says otherwise.

Do your employees know what “loyalty” means?

In almost all states (Ohio included) all employees owe their employer a “duty of loyalty,” which, in the words of one court, means “a duty to act in the utmost good faith and loyalty toward his [or her] employer.” According to another court, “[A]n … employee is prohibited from acting in a manner inconsistent with his … employment and is bound to exercise the utmost good faith and loyalty in performance of his obligations.” Examples of employee misconduct that courts have found to be in breach of this duty of loyalty include acting in competition against one’s employer, giving away company property, using company funds as one’s own, taking bribes or kickbacks, and reaping secret profits.

A story I read yesterday serves as a good reminder that employees owe a responsibility to those who sign their paychecks not only to avoid breaches of this duty of loyalty, but also to avoid placing themselves in circumstances that could call their loyalty into question. While appearing on a local sports radio station yesterday, Philadelphia Eagles running back LeSean McCoy said the following about the replacement referees working in place of the locked-out regular officials: “One of the refs was talking about his fantasy team, like ‘McCoy, come on, I need you for my fantasy.’”

It is highly doubtful, even laughable, that an NFL referee would change a call to help his fantasy football team. Yet, this official exercised very poor judgment in cracking this joke. Employees must avoid even the appearance of a breach of their loyalty to their employer. Should this official lose his job or suffer some other discipline for this lapse in judgment? Probably not. Should the NFL talk to him and remind him of the importance of these issues? Absolutely.

Do your employees understand this issue? When you conduct training of your employees, you might want to consider tossing a discussion of these concepts into the materials.

No call, no show, no FMLA

Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer’s attendance policies. According to section 825.302(d) the FMLA’s regulations:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer’s policy to contact a specific individual…. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

This means that if you have a policy requiring employees to call-in if they are going to be late or absent, you can enforce that policy to the detriment of a non-compliant employee taking FLMA leave.

For example, in Ritenour v. Tenn. Dep’t of Human Servs. (6th Cir. 8/29/12), the employee, who mistakenly believed she had been approved for intermittent FMLA to care for her mentally ill son, did not comply with employer’s job abandonment or absenteeism policies, which required the employee to provide appropriate notice to avoid the accrual of unexcused absences. Because the employer terminated Ritenour because of her violation of the policy, her FMLA claims failed:

Even assuming that Ritenour was entitled to take FMLA leave and that TDHS interfered with Ritenour’s FMLA rights, TDHS has provided a legitimate reason for Ritenour’s dismissal that is not related to her request for FMLA leave—because Ritenour did not call in, in violation of the job abandonment policy….

Ritenour knew that the absenteeism policy required that absent employees call-in their absences in order to give their supervisor appropriate notice to make alternative work assignment arrangements. TDHS’s job abandonment policy applies to all employees who are absent from duty without approval. The enforcement of that policy against Ritenour was not related to Ritenour’s request for FMLA leave because the policy applies to employees who are absent from work without approval for any reason.

While it sometimes seems as if employees hold all the high cards in the FMLA poker game, as Ritenour makes clear, employers are within their rights to enforce neutral attendance policies against employees who fail to follow their rules. Now, go check your policies to make sure they contain these types of notice and call-in rules.

NLRB continues to attack facially neutral employment policies

The NLRB continues its assault on garden-variety employment policies, issuing three decisions over the last 10 days, each of which concluded that facially neutral employment policies violated employees’ rights to engage in protected concerted activity. The cases are Flex Frac Logistics, LLC [pdf], TT&W Farm Products, Inc. [pdf], and Costco Wholesale Corp. [pdf].

To place this issue within a legal context (and for the uninitiated), the National Labor Relations Act grants all private-sector employees (union and non-union) the absolute right to engage in protected concerted activity, which includes, among other things, the right to discuss, between and among themselves, their wages, hours, benefits, and other terms and conditions of their employment. An employer cannot maintain a work rule that reasonably tends to chill employees in the exercise of that right.

The NLRB used this doctrine to invalidate the following neutral work rules:

• A rule prohibiting employees from using the employer’s electronic systems to “defame any individual or damage any person’s reputation.”
• A rule prohibiting employees from going AWOL during their shifts, either by walking off the job, or leaving company premises, without management permission.
• A confidentiality policy which defines “confidential information” to include “personnel information and documents.”

Perhaps most telling is the Board’s explanation, in Costco, of its decision invalidating a rule against defamatory language:

In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications…. [T]he Respondent’s rule does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to—among other things—certain protected concerted activities, such as communications that are critical of the Respondent’s treatment of its employees.

In her analysis of the Costco decision, Molly DiBianca hit the nail on head insofar as the dangerous course charted by the NLRB:

If there’s one thing I’d give the NLRB, it’s consistency. If a workplace rule attempts to regulate employees’ online activities, it’s a safe bet that the Board is going to be skeptical of it, at the least. Even if the rule prohibits employees from harming their employer, the Board may find it to violate the NLRA. Harm away, employee. Harm away.

Under the guise of “protected concerted activity,” the NLRB is making it next to impossible for employers to maintain any work rules that regulate what employees cannot say or do. If I apply a tortured interpretation to any work rule, I can reach some far-fetched conclusion that it could deter employees from engaging in protected concerted activity. The NLRA only is supposed to concern itself with work rules that reasonably tends to chill employees. Yet, these tortured interpretations go well beyond the realm of what is reasonable.

Employers, I wish I could whisk up a magical elixir to solve this problem. Alas, at least for the time being, we are stuck with the NLRB’s intrusiveness into the world of work rules, and the grave uncertainty that comes along for the ride.