Friday, September 12, 2014

WIRTW #336 (the “tinder-box” edition)

If you’re a start-up in the business of selling online dating through an iPhone app, its probably best that one of your executives not be accused of sexual harassment. Thus, it shouldn’t come as a surprise that earlier this week, Tinder’s chief marketing officer resigned as part of a settlement of a sexual harassment claim levied by one of the company’s female co-founders. From USAToday:

Justin Mateen, the Tinder executive accused of sexually harassing a coworker he had dated, has resigned from the company. The resignation came as the dating startup settled the sexual harassment lawsuit from Whitney Wolfe, one of Tinder’s early employees.

Wolfe, who says she was a Tinder co-founder, alleged in June that she was pressured to resign after complaining about Mateen’s behavior which included “sexist, racist and otherwise inappropriate comments, emails and text messages.” She also claimed she was stripped of her “co-founder” title.

This is one of several high-profile cases that alleges sexist behavior in California’s tech industry.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, September 11, 2014

Do your BYOD employees understand the remote-wipe?

Remote_Wipe_Apple_iPhoneMy kids are growing up. For example, we’ve now graduated from me having to wake them up in the morning for school and helping my son get dressed, to his big sister setting the alarm on her iPod, and both kids waking up and dressing without parental supervision. There is one area, however, for which my 6-year-old still requires help. Every now and again, I will hear the familiar cry of, “Daddy, I went poopies,” which beckons me into the bathroom to inspect, and, if necessary, aid his wiping technique.

Employers and employees are getting used to wiping of another kind—the remote wiping of employees’ personal mobile devices.

More and more employers are embracing BYOD (“bring your own device”) as a win-win for employers and employees. Employees get to use the device of their choice, without having to juggle multiple gadgets, while employers save on hardware costs. One survey I read (as cited by the Wall Street Journal) suggested that by 2017, half of all employers will stop providing mobile devices to employees and require them to use their own for work.

The use of personal devices for work, however, raises an important issue. How do employer ensure that company information is removed from a device if it goes missing or if an employee leaves the business. The answer is the employer must have the ability to remote-wipe the device to remove its data. What happens, however, if a remote-wipe compromises an employee’s personal data? I would argue that it is the risk employees take for BYODing. Employer have to be able to guarantee the security of their own information, even if it might compromise employee’s personal data.

SHRM predicts that “as state and federal regulations struggle to keep up with new technology, an employer’s ability to wipe employee personal cell phones and devices will likely be tested through the courts.” How can you best protect your organization from the risk of lawsuit by an employee who loses personal data through your remote-wipe of a mobile device? Have a BYOD policy—upon which employees place their John Hancock attesting to having read and understood the policy—which unequivocally states that:

  1. the employee’s phone will be wiped (remotely or otherwise) of all company-related information if the device is reported lost or stolen and upon the termination of employment;
  2. the employee understands that this wiping could result in the loss of personal data or information; and
  3. the employee indemnifies the company for an loss or damage that may result from the wiping of the phone under the policy.

With those protection in place before an employee decides to use his or her own personal device for work, an employee will have a harder time challenging the after-effects of a remote wipe.

As for my son, that’s for another day…

[Image by Intel Free Press [CC-BY-2.0], via Wikimedia Commons]

Wednesday, September 10, 2014

We are always being watched—Ray Rice and workplace investigations

On Monday, the NFL indefinitely suspended, and the Baltimore Ravens terminated the contract of, Ray Rice after TMZ published security camera footage of Rice hitting his then-fiancée. What’s surprising about this story isn’t that the footage existed, but that it took the NFL six months to see it and act on it.

We live in a surveilled world. There are an estimated 30 million closed-circuit surveillance cameras in the United States. There are an additional 190 million cell phones with cameras. These numbers don’t account for drones in the sky and other modes of video recording. In total, there exists the potential of 220 million recording eyes watching you at all times.

It is a brave new world of workplace investigations. He-said/she-said has been replaced by “let’s go to the tape.” If you are not considering the possibility (probability?) of an alleged incident between employees having been recorded somehow, by someone or something, you cannot and should not consider your investigation complete. There is no doubt that we have sacrificed a lot of personal privacy in the name of personal security. Employers should be using this to their advantage to leave no stone unturned in uncovering the truth about allegations of harassment and other misconduct.

[Photo by Hustvedt (Own work) [GFDL or CC-BY-SA-3.0], via Wikimedia Commons]

Tuesday, September 9, 2014

Protected activity doesn’t protect against poor performance

Yesterday brought us two different 6th Circuit cases upholding dismissals of lawsuits in which the employees alleged that their terminations followed their exercise of protected activity.

  • In Wilson v. Cleveland Clinic Foundation, the hospital fired a patient transporter for failing to follow proper procedures for moving a post-surgical patient. That incident was not her first breach of protocol, as the hospital had previously suspended her for leaving a corpse unattended in a patient room. She had filed an EEOC charge after the corpse incident.
  • In Travers v. Cellco Partnership, the employer fired an employee with a history of performance problems on her first day back from FMLA leave, after she made yet another on-the-job mistake.

These cases illustrate that it is not impossible for fire an employee on the heels of protected activity. In both cases, the court concluded that there existed no factual dispute as to the veracity of the performance problems, and that each was a terminable offense.

“Terminability,” however, is the key. If an employee can show either that stated reason for the termination (1) had no basis in fact, (2) did not actually motivate the employer’s action, or (3) was insufficient to motivate the employer’s action, then the employer cannot prevail on summary judgment.

Consistency is crucial. How did the Clinic and Verizon treat other employees who committed similar violations? If the treatment is consistent, it becomes difficult for the employee to establish either of the three indicia of pretext, even if the termination follows on the heels of the protected activity.

What can you learn from these cases? Protected activity does not per se protect a poor performer from termination, provided that you can demonstrate a history of treating similarly situated poor performers similarly.

Monday, September 8, 2014

Is this the end of the independent contractor as we know it?

In Alexander v. FedEx Ground Package Sys. (8/27/14), the 9th Circuit Court of Appeals concluded that FedEx’s delivery drivers are employees of the company, not independent contractors.

The opinion’s introductory two paragraphs pretty much sum up the entire case:
As a central part of its business, FedEx contracts with drivers to deliver packages to its customers. The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards. FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent. 
FedEx contends its drivers are independent contractors under California law. Plaintiffs, a class of FedEx drivers in California, contend they are employees. We agree with plaintiffs.
Even though this case is decided under California law, it confirms that in determining whether one who performs services for pay is an employee or a contractor, the label placed by the company is irrelevant. As noted by the concurring opinion:
Abraham Lincoln reportedly asked, “If you call a dog’s tail a leg, how many legs does a dog have?” His answer was, “Four. Calling a dog’s tail a leg does not make it a leg.” … Bottom line? Labeling the drivers “independent contractors” in FedEx’s Operating Agreement does not conclusively make them so.… [O]ur decision substantially unravels FedEx’s business model.…
This case also confirms that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors. This distinction is important, because, unlike contractors, employee are subject to a host of employment laws, including the anti-discrimination laws, workers’ comp laws, and wage-and-hour (minimum wage and overtime) laws.

While this case only covers employers governed by California law in the 9th Circuit, I would expect the filing of copycat lawsuits under the laws of different states in different courts. In other words, this case is not the final word on this issue. Thus, to answer the specific question I posed in the title to this post, while this case does not necessarily spell the end of the independent contractor, it very well could be the beginning of trend of cases leading down this path.

Friday, September 5, 2014

WIRTW #335 (the “Cutetallica” edition)


“What is Cutetallica”, you ask? It’s my daughter’s latest School of Rock band (earlier, here and here). What else could it be?

If you’re in the Cleveland area over the next three weekends, you have three different chances to see the band.

  • September 6 and 13 at the Music Box Supper Club, 1148 Main Ave., on the West Bank of the Flats. Show time, 2 pm.
  • September 21, at the Metroparks Chalet, 16200 Valley Parkway, Strongsville. Show time, 4 pm.

If you’re there, please stop by and say hello.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, September 4, 2014

6th Circuit agrees to re-hear telecommuting accommodation case

In April, the 6th Circuit issued a decision that recognized telecommuting as a possible reasonable accommodation under the ADA. Work-life balance advocates rejoiced. It seems that their revelry may have been premature.

Earlier this week, that same court agreed to rehear the case — EEOC v. Ford Motor Co.en banc. Thus, the entire panoply of 6th Circuit judges, and not just a random panel of three, will hear the case anew.

Would the 6th Circuit backtrack on its pronouncement that “[C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home?” Or will the court take issue with the panel’s decision that a fact issue existed over whether physical attendance at the place of employment was an essential function of this plaintiff’s job? Or will the en banc panel reach the same result with a new opinion?

Stay tuned. The outcome of this case will be one of the most significant ADA cases of 2015.

[Hat tip: Robin Shea]

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