WIRTW #406 (the “April Fools” edition)

Happy April Fool’s Day.

Here’s what I read this week.

Do you understand your state’s wiretap law?

Here’s one you don’t see everyday. According to ESPN, the Los Angeles Lakers are peeved at one of their teammates, rookie D’Angelo Russell. So far, no big deal. That is, no big deal until you understand the cause of the rift. I’ll let ESPN take it from here.

Sources told ESPN.com that some teammates' trust in Russell is eroding after a video surfaced in the past week that shows Russell recording a private conversation between himself and teammate Nick Young. Young does not appear to realize he is being taped. The video, which is believed to have come to light last week via the Twitter account of a celebrity gossip site, shows Russell filming Young while asking questions about Young being with other women.

7 tips for employers, from your friendly neighborhood plaintiff lawyer

I found a blog post in which a plaintiff-side employment lawyer shared the 7 things employers don’t do, that they should be doing. The three that jumped off the page to me—

• “With every new potential client, I ask if they received a warning before being terminated. As soon as I hear ‘yes,’ it does slow us down in the march toward litigation.”

• “Juries expect some level of progressive discipline—they think it should be required.”

• “People don’t run to attorneys because they think they’ve got a great legal case. They come to see me because they’re angry about they way they were treated, especially on their way out.”

NLRB judge shoots down employee separation agreement as overly broad

Employers prefer finality when they pay an employee severance at the end of employment. One way employers sure up this finality is by obtaining a broad release of claims and covenant not to sue from the employee. But, that is not the only way. Employers use of variety of terms in separation agreements to try to ensure that the agreement is the last they will hear from the employee. That is, unless the employee runs to the NLRB, which seems to believe that there isn’t a policy that doesn’t violate the Board’s rules on protected concerted activity.

When schoolyard bullies become workplace bullies

This is Donovan.

He’s 7 years old. And he has Noonan Syndrome. Noonan Syndrome is genetic disorder caused by one of several genetic mutations. Donovan’s is of the PTPN11 gene. It is a multi-system disorder with an estimated prevalence of 1 in 1,000 – 2,500 births. In Donovan’s case, he has a bleeding (platelet function) disorder, a congenital heart defect (pulmonary valve stenosis), feeding and gastrointestinal issues (Celiac disease), ptosis of his right eye, small stature (for which he takes daily injections of growth hormones), and low-set ears.

DOL's “Persuader Rule” goes live; unions rejoice

The U.S. Department of Labor has issued its long awaited Final Rule reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act, otherwise known as the “persuader” rule.

What does this mean for you? In summary, it means that if you engage an outside law firm or other consultant to provide advice, or to otherwise represent you concerning employee organizing, concerted activities, or collective bargaining activities, you must report that engagement to the DOL, and, therefore, also to the union.

The class action is dead … long live the class action! #SCOTUS upholds “representative samples” for class certification

It’s been nearly five years since the Supreme Court decided, in Wal-Mart Stores, Inc. v. Dukes, that the claims of large groups of employees that involve differing calculations of damages must be litigatated as individual claims, and not as a class action.

At the time, and since, may pundits declared the wage-and-hour class action lawsuit dead (or at least with one foot squarely in the grave).

Earlier this week, however, the Supreme Court applied the paddled and shocked the class action back to life.

Employment Law Blog Carnival: The “Candy Cane Children” Edition #ELBC

People seem to like lists, so here’s one to kick off this month’s Employment Law Blog Carnival. Who is the greatest rock band of each decade (according to Jon Hyman)?

• The 1960s — The Beatles (with apologies to the Rolling Stones)
• The 1970s — The Who (with apologies to Led Zeppelin and the Clash)
• The 1980s — U2 (with apologies to Guns N’ Roses and Talking Heads)
• The 1990s — Nirvana (with apologies to Pearl Jam and Green Day)
• The 2000s — White Stripes (with apologies to absolutely no one)

This month’s ELBC will focus on the latter, the White Stripes. They allegedly formed on Bastille Day 1997, and most certainly broke up five years ago. In between, they single-handedly saved rock ‘n’ roll.

Is your employee handbook a contract of employment? Well, does it have a disclaimer?

Employee handbooks come in all shapes and sizes. For example, some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. Some grant formal appeal rights to employees who are disciplined or terminated. And some set forth terms of compensation, benefits, and time-off.

Is your handbook a contract of employment, or a compilation of discretionary policy statements? The answer depends on whether your handbook has a disclaimer telling employees that they are at-will and cannot rely on the handbook as a contract.

Does HR understand their own personal liability for FMLA violations?

If you’ve ever held supervisor and manager training on any employment-law issue, you know the glazed-over expression of a group of individuals going through the motions. “Oh goody, we have training today. Here’s an hour of my life I’ll never get back,” is what you’ll hear around the coffee machine before they enter the training room.

Want to wake them up and ensure rapt attention? Hit them with the idea of individual liability. Under Ohio law, we have it for discrimination claim. It exists for wage-and-hour claims under the FLSA. And, last week, in Graziadio v. Culinary Institute of Am. [pdf], the 2nd Circuit Court of Appeals held that a manager or supervisor can be individually liable for FMLA violations.

WIRTW #405 (the “Norah live” edition)

This week’s musical highlight comes courtesy of the Cleveland School of Rock Jr. Headliners. What can I say? I’m either a proud dad or a shill for my kid.

Norah live.
Posted by Jon Hyman on Sunday, March 13, 2016

You can catch her live on April 3.

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If you are interest in having your post featured in this month’s Employment Law Blog Carnival, email me your submission by Monday. The carnival goes live March 23.

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

NLRB judge protects the lone wolf in Chipotle social-media firing decision #RaganDisney

I spent last Thursday and Friday in Disney World. It wasn’t a pleasure trip, although Epcot was toured during some down time. I was invited to speak at this year’s Ragan Social Media Conference, which, I have to say, was one of the best organized and produced events I’ve ever attended. It was a day-and-a-half of cutting edge information on using social media for marketing and PR. My session covered how employers can protect their brands from employee social-media missteps. It’s always fun to watch a room full of non-employment lawyers’ mouths gape when I start talking about the NLRB.

So, to anyone out there who was at my session, Chipotle Services LLC, decided earlier this week by an NLRB judge, is mandatory reading.

The case involves an employee fired by Chipotle after he took to his personal Twitter account to voice his displeasure about the state of his wages and other working conditions at Chipotle. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” the employee replied, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Another, directed at Chipotle’s communication director, concerned a lack of pay for snow days.

The NLRB judge had little trouble concluding that Chipotle had fired the employee for engaging in protected concerted activity: speech about his wages, benefits, or other terms and conditions of employment between or among employees.

I agree that the NLRA protects tweets about wages and days off. Pay attention, however, to how this judge defines “concerted”, as it is becoming apparent that one employee, voicing his concerns to about work on social media, without any engagement from co-workers, is sufficient to constitute “concerted” protected activity:

Kennedy’s tweet concerning snow days was directed to Chipotle’s communications director but visible to others; Kennedy’s other two tweets were in response to customer postings, and likewise visible to others. All these postings had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific. They did not pertain to wholly personal issues relevant only to Kennedy but were truly group complaints. I conclude that Kennedy’s postings constitute protected concerted activity.

In other words, as long as an employee is addressing a group complaint, the activity is concerted, regardless of whether any other employee engages.

Earlier this year, I predicted the breadth of the NLRB’s coverage of “concerted” in social-media cases:

If, as the Board suggest, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social-media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted.

So, we have another social media case in which an employee triumphs over an employer based on a liberal interpretation of NLRA protections. Fear not employers, for this case has a silver lining. According to Jane von Bergen of the Philadelphia Inquirer, the employee has offered to accept food vouchers in lieu of back pay: “You cannot deny that their food is delicious, but their labor policies were atrocious.” If only every case was that simple to resolve.

The 10 essential cyber security training issues for your employees

Do you know what the biggest threat is to your company’s cyber security? I’ll give you a hint. It’s not the middle-aged man in yesterday’s John Oliver video.

It’s your employees. Cyber attacks target the weakest link, and more often than not that weak is your employees.

According to CFO magazine, nearly half of all data breaches result from careless employees. Whether it’s an employee using a company-issued laptop on an unsecured wifi network, or an employee losing a password-unprotected iPhone, your employees present the greatest risk to the security of your company’s network and data.

What can you do about it? Train your employees. They need to understand the risk of their carelessness, and the steps they can take to mitigate that risk.

Here are 10 issues about which you should be training your employees right now to limit your company’s cyber exposure.

The best argument you’ll hear on why you must train your employees on cyber security

This fake Apple ad, from Last Week Tonight with John Oliver, is the best argument you will hear on why training your employees on cyber security is perhaps the most important thing you can do for your business in 2016.

Come back tomorrow, when I’ll discuss the 10 cyber-security issues about which you should be training your employees right now.

Video killed the lawsuit star

If a picture tells a thousand words, then how many does a video tell?

Last week, the 6th Circuit affirmed the dismissal of a retaliation claim based on a video of an altercation that the plaintiff claimed she had not started.

WIRTW #404 (the “home is where is art is” edition)

We just added this piece of art to our home.

This particular painting is special to our family. If you look closely…

The artist, Anthony Kleem, likes to include friends and family in his paintings, and he happens to love our kids. How could we not buy it?

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

Discrimination

• HR 101: Temporary disabilities and the ADA — via Eric Meyer’s The Employer Handbook Blog
• Dilemma of the Month: When a Personal Matter Gets Professional — via Evil HR Lady, Suzanne Lucas
• Preventing Discrimination For Dummies! — via FisherBroyles
• Transgender Bathroom Access — via Employment Law Lookout
• Does my black face make me look more diverse? — via The Tim Sackett Project
• EEOC Continues Visible Stance on Sexual Orientation Discrimination Protection — via Currents

Social Media & Workplace Technology

• Top 7 Data Security Lessons for In-House Counsel — via In House
• “BYOD”—the pitfalls of bring-your-own-device policies — via Technology for HR
• Home Depot to pay nearly $20M over 2014 data breach that affected more than 40M customers — via ABA Journal Daily News
• Your Boss Cares About Your Health and Happiness—Really — via Fitbit Blog
• Emojis At Work: They’re Not the Enemy — via Blogging4Jobs

HR & Employee Relations

• Ohio Ranks In Top-10 for Small Business Climate — via Ohio Chamber Blog
• Amazon is using scare tactics to deter employee theft — via The Verge
• Who knows what evil lurks in the hearts of employees? The Shadow knows. — via Robin Shea’s Employment & Labor Insider
• Employee Relations! — via Next Blog
• Don’t decide to fire that employee at the end of the day — via Mike Haberman’s Omega HR Solutions
• “When this happens firefighters are praised, but then disciplined.” — via Walter Olson’s Overlawyered
• March Madness in the Workplace: Boosting Morale or Legal Nightmare? — via ERC Insights Blog

Wage & Hour

• 2017 DOL Survey Coming on “Gig” Economy — via Joe’s HR and Benefits Blog
• In the Beginning… — via Compensation Cafe
• Unreported Working Lunches May Still Be Work Time — via Wage & Hour Insights
• Lawyers’ FLSA advice may be discoverable — via Employer Law Report

Labor Relations

• Big Labor’s $420 Million Political Advocacy Budget — via LaborPains.org
• BREAKING: CT Supreme Court Gives Employers Using Independent Contractors A Big Victory — via Dan Schwartz’s Connecticut Employment Law Blog
• The Battle Over the Status of Uber and Lyft Drivers Continues — via Labor Relations Today
• Employers Can’t Press Mute on Employee Solicitations at Work, NLRB Says — via The Employment Brief

OSHA & Workplace Safety

• New workplace safety and environmental crime initiative will use cross-enforcement — via HR Hero Line
• Injury and Illness Recordkeeping and Reporting Requirements – Posting 300A — via OSHA Law Blog
• Eleventh Circuit Upholds OSHA Violation with Participating Supervisor — via OSHA Law Update

Does OSHA provide a defense for employee misconduct? It depends.

As the saying goes, you can’t teach stupid. No matter what safety measure you put in place, your employees will do stupid things at work, and sometimes they will get hurt.

Court rejects customer’s claims based on harassing Facebook posts by employees

Consider the following scenario. An employee makes offensive posts on his personal Facebook page about one of your customers, which include the following:

“I seen Maurice’s bougie ass walking kahului beach road … nigga please!”

A number of other employees comment on or like the post, including a comment to “run that faka over!!! lol.”

When the customer learns of the posts and comments, he complains. You investigate and fire the offending employees.

Case over, right? Not so fast. The customer sued the employer for negligence relating to its supervision, retention, and training of the offending employees.

The EEOC says, “Preventing Discrimination is Good Business”

Are you a small-business owner? Do you have problems understanding your obligations under the federal employment-discrimination laws? Then the EEOC is here for you.

Last week, the agency published a one-page face sheet, entitled, “Preventing Discrimination is Good Business” (available in English and 29 other languages, such as Amharic, Marshallese, or Tagalog … really).

NLRB narrows employer property rights in key solicitation decision

One of an employer’s best tools to stave off labor unions and their organizing campaigns is a no-solicitation policy. It keeps employees focused on work during working hours, and keeps non-employees (including, but not limited to, union organizers) off your property and out of your workplace.

Yet, over the past couple of years, the NLRB has narrowed employers’ no-solicitation rights. For example, employer email systems must now be open for union-related activities during non-working time.

What about low-tech solicitations? Conventional wisdom used to be that employers could prohibit solicitations in work areas during working time and non-working time. Does this work-area rule still hold?