Thursday, May 21, 2015

New poll reveals continued risk in Googling job applicants

According to a recently published Harris Poll, 52 percent of employers use social media to research job candidates. This number is up from 43 percent in 2014 and 39 percent in 2013.

What information are employers looking for?
  • 60 percent are looking for information that supports their qualifications for the job.
  • 56 percent want to see if the candidate has a professional online persona.
  • 37 percent want to see what other people are posting about the candidate.
  • 21 percent admit they’re looking for reasons not to hire the candidate.
The same poll found that 35 percent of hiring managers who use social media to screen applicants have sent friend requests or otherwise attempted to connect with applicants online. As stunning as that number is, it’s even more stunning that 80 percent report that job seekers report accepting such requests. 

Employers, please stop the insanity. I’m not treading new ground here by telling you that you are taking a huge risk by Googling or Friending applicants without proper checks in place to guard against the disclosure of protected information. “What types of information,” you ask? How about information about the individual’s medical history or religious preference, for starters. 

Yes, there are a host of reasons to engage in these searches. Indeed, I believe that, in a world of increasing transparency online, employers take a risk by not including Facebook in their pre-employment background searches. But, it needs to be part of larger background screening program. And, you need to ensure that you have the right checks in place to keep protected information (such as EEO stuff) as far away from the decision makers as possible. 

How do you do this? Train someone external to your hiring process to perform the searches, and provide a scrubbed report to those internal to the hiring process. These scrubbed reports should be void of any protected information, while including any info relevant to the hiring decision (such as whether the applicant has ever trashed an ex-employer online, or disclosed an ex-employer’s confidential information, or exhibits poor judgment by posting inappropriate or harassing stuff).

And, for god’s sake, please stop Friending job applicants. It’s just plain creepy.

Wednesday, May 20, 2015

Employment Law Blog Carnival: The “Wreck of the Old 97” Edition #ELBC

On September 27, 1903, the Old 97, a Southern Railway mail train running between Washington DC and Atlanta, Georgia, derailed near Danville, Virginia. The wreck inspired a famous ballad (most famously covered by Johnny Cash and Hank Williams III), which, in turn, inspired the Old 97’s to name their band some 70 years later.

I’m not shy with my love for the Old 97’s. Part of my adoration stems from how great their music is. And it’s not just the jangly vibe that kills on an album, or in a bar, or in a concert hall. Rhett Miller writes some of the best lyrics you will ever find, with most songs focusing on love, heartache, booze, or some combination of the three. The rest of my love stems from how cool they’ve been to my daughter, Norah (here and here).

Regardless the reason, my favorite band gets billing as the honoree of this month’s Employment Law Blog Carnival, as we look at the month’s best blog posts through the swarthy lens of some of the Old 97’s best songs.



This is the story of Victoria Lee
She started off on Percodan and ended up with me
She lived in Berkeley ’til the earthquake shook her loose
She lives in Texas now where nothin’ ever moves

Poor Victoria Lee had a rough go of it. Narcotics and one-night stands. What if your corporate wellness program reveals an employee like Victoria. Employment Essentials has some suggestions, in The EEOC Asks: Is Your Corporate Wellness Program Really Voluntary?


The New Kid

The new kid, he’s got money
The money I deserve
He’s got the goods
But he’s not good for his word

This song hold a real special place in my heart (see above, about my daughter). When you hire a new employee, do you know how to handle trade secrets and restrictive covenants? Jesse R. Dill at Walcheske & Luzi, in Wisconsin Supreme Court Adds New Twist to Restrictive Covenant Law, and Heather Bussing at HR Examiner, in People Are Not Trade Secrets, offer some suggestions.


Over the Cliff

Please don’t call me cool just call me, “A⌇⌇hole”
’Cause I will be a beggar not a king
And the devil don’t care if you’re a fish or you’re a stick
Yeah, I’m goin’ over the cliff

Has the NFL gone over the cliff with Deflategate? Did the league screw the pooch by choosing the wrong investigator? Lorene Schaefer’s Win-Win HR, in Given the Stakes, Should the NFL Have Selected a Different Investigator in Deflategate?, has some thoughts on what Roger Goodell should have done.


Wish the Worst

I hope you crash your momma’s car
I hope you pass out in some bar
I hope you catch some kinda flu
Let’s say I wish the worst for you

Crashed cars and the flu are certainly bad. The Mad Pooper, though, is clearly worse, says Eric Meyer’s Employer Handbook Blog, in Well, that stinks! Doo-doo creates a discrimination claim.


Four Leaf Clover

I got a lucky silver dollar
My granddad gave it to me now he’s dead
Times like this I wish that I could join him
Might just stop this pounding in my head

How lucky will franchisors feel when the NLRB finally clarifies its stance on joint employers? Phil Miles’s Lawffice Space shares NLRB GC on Joint Employers.


Every Night Is Friday Night [Without You]

Now I’m no saint
But I ain’t such a freak
On the days of the week
I work hard, hard

If an employee works hard, but feels he or she is getting the short end of the pay stick, will the FLSA cover their oral complaints? Doug Hass’s Wage & Hour Insights offers Second Circuit Extends FLSA Anti-Retaliation Provision to More Oral Complaints.



Eighteen-hundred miles from this old niteclub
A girl is turning twenty-two today
How am I supposed to entertain you?
My fingertips are worthless when my mind’s so far away

Long distance relationships certainly present their problems. What about remote employees? Read 6th Circuit Holds That Regular and Predictable On-Site Job Attendance is an Essential Function via Randy Enochs’s Wisconsin Employment & Labor Law Blog



Some day somebody’s gonna ask you
A question that you should say yes to
Once in your life
Maybe tonight I’ve got a question for you

“Question” might be (is?) the most romantic song ever written. Meanwhile, John Holmquist, at his Michigan Employment Law Connection, warns about another (much less romantic) question, Arbitration … be careful what you ask for, while Donna Ballman, at her aptly titled Screw You Guys, I’m Going Home, asks, What Did The Florida Legislature Do For Employees? Diddly squat, with one silly exception.


Let’s Get Drunk & Get It On

Take you to a cheap hotel out on the interstate
Well you look so great to me
This is the perfect place for a rendezvous
Its got a rotten view but the ice is free
Let’s drink whiskey and do it
all night long
Let’s get drunk
and get it on

Believe it or not, “Let’s Get Drunk…” is also a romantic song; don’t let the catchy title fool you. Be careful about getting it on at work, warns Dan Schwartz, at his Connecticut Employment Law Blog, in 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo.


Murder (Or A Heart Attack)

And I told the neighbors, I put pictures up
And handed out some flyers at the show
And the whole town speculating
Situations could’ve been avoided if I’d only shut the window

One of the band’s biggest hits tells the story of a lost cat that escapes through an open window. You can imagine the investigation that followed to bring the kitty home. “What about investigations at work,” you say? I have you covered, via Ari Rosenstein’s Small Biz HR Blog, in Conducting Effective (and Legal!) Workplace Investigations, and Stuart Rudner at Rudner McDonald, in Employees: Honesty in the Course of a Workplace Investigation Pays Off.



When I first met Doreen
She was barely seventeen
She was drinking whiskey sours in the bar

Sex with a minor at work? Check. What if it happens only once? Did the 4th Circuit’s recent decision spell certain doom for employers? Robert Fitzpatrick on Employment Law provides a nice summary, in Fourth Circuit Overturns Decade of Precedent in Blockbuster En Banc Hostile Work Environment Decision, while Robin Shea’s Employment & Labor Insider, in Is this new harassment decision the end of the world for employers?, thinks the reaction to this decision is way overblown.



I got a timebomb in my mind Mom
I hear it ticking but I don’t know why
I call the police but they don’t like me
I hear ‘em whispering when I walk by

This month’s carnival ends the same way every Old 97’s show ends, with the raucous riffs of Timebomb, from 1997’s Too Far to Care. If you have a timebomb in your workplace, I bet the FMLA has something to do with it. Janette Levey Frisch’s The EmpLAWyerologist suggests how to handle an employee abusing FMLA, in Is Your Employee Abusing Her FMLA Leave?

Philip Miles, author of Lawffice Space and all around good guy, will host next month’s Employment Law Blog Carnival, on June 17. If you want to participate, email Phil a link to your employment-law-related blog post by June 12.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with edition #368.

Tuesday, May 19, 2015

Some thoughts on arbitration agreements for employees

Recently, the Cuyahoga County Court of Appeals stymied an attempt by an employer to enforce an arbitration agreement against an employee. The employer was a Burger King franchise and the employee was a former employee claiming she was raped by her supervisor in the restaurant’s men’s bathroom. The court, in Arnold v. Burger King, concluded that, for various reasons, enforcing the agreement against her and requiring her to arbitrate her claims would be unconscionable.

Arnold notwithstanding, arbitration continues to the favored method used by employers to limit their potential exposure in front of a jury. I, however, am not a fan of arbitration agreements. Conventional wisdom suggests that arbitration is quicker and cheaper means to resolve lawsuits. Research, however, suggests that the opposite may better match reality.

lf arbitration is neither faster or less expensive than court, but you still want to foster expediency and limit the risk of a runaway jury verdict, consider two possible alternatives.

Contractual Waivers of Jury Trials

First, employers can have employees sign agreements waiving the right to ask for a jury in any subsequent legal disputes. More than 20 years ago, in K.M.C. Co. v. Irving Trust Co., the 6th Circuit stated: “It is clear that the parties to a contract may by prior written agreement waive the right to jury trial.... [T]he constitutional right to jury trial may only be waived if done knowingly, voluntarily and intentionally.” The contract should clearly and unambiguously advise the employee that by signing the agreement the employee is giving up any and all rights to have any claims related to his or her employment raised by a jury. The more broadly the waiver is drafted, the more likely it will cover an employment-related claim, provided it is otherwise knowing and voluntary.

Agreements to Shorten the Statute of Limitations

Secondly, employers can attempt to limit the amount of time employees have to assert employment claims. In Thurman v. DaimlerChrysler, Inc. [pdf], the 6th Circuit held that a clause in an employment application limiting the statutory limitations period for filing a lawsuit against the employer was valid. Thurman’s employment application with DaimlerChrysler contained a clause waiving any statute of limitation and agreeing to an abbreviated limitations period in which to file suit against the employer. Specifically, the clause stated:

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

The Court held that the abbreviated limitations period contained in the employment application was reasonable, and that all of Thurman’s claims against DaimlerChrysler were time barred by the six-month limitations period. The Court paid particular attention to the “read carefully before signing” language, and noted that it was in bold and placed conspicuously directly above Thurman’s signature acknowledging that she read and understood the document. It also found the specific language used was clear and unambiguous.

The advantage of using these types of clauses is that you can limit the duration of potential liabilities. For example, in Ohio employees have 6 years to file discrimination claims (other than age) under R.C. 4112.99. A clause such as the one in Thurman would shorten that time frame from 6 years to 6 months, a dramatic improvement.

Monday, May 18, 2015

“FMLA” is not a magic word

Does an employee have to invoke the letters “F-M-L-A” for an employer to offer it? Or, what if an employer fires an employee who misses work because of an FMLA-qualifying illness for which FMLA-leave was not offered? Has the employer violated the statute?

In Festerman v. County of Wayne (6th Cir. 5/8/15) (h/t: Eric Meyer), a police officer felt chest pains at left work for the emergency room. Five days later, he submitted an incident report, and, a day after that, a doctor’s note that stated, “Patient is advised to limit working hours to 8 hrs/day.”  At no time, however, did the employee specifically request FMLA leave, or invoke the statute for his time off from work.

The 6th Circuit concluded that neither the hospital visit nor the doctor’s note were individually sufficient to place the employer notice that the employee qualified for FMLA leave. However, the court concluded that, presented with the total picture, a fact issue existed as to whether the FMLA covered this employee’s leave.

This Court is confronted with a doctor’s note that expressly discloses a requirement of limiting the employee’s work hours per day, but fails to disclose the condition that gives rise to this requirement or any additional prescribed treatment. Consequently, the doctor’s note submitted by Festerman, in isolation, may not have provided sufficient notice to Wayne County of a qualifying condition under the FMLA. The circumstances surrounding Festerman’s initial qualifying leave, however, provided additional context to the doctor’s note and are evidence that Festerman’s superiors were aware of his potential FMLA-qualifying condition….

Given Wayne County’s knowledge of a serious health-related incident that occurred in the workplace and the doctor’s note which advises that Festerman’s workday should be limited to eight hours per day, a reasonable jury could find that Festerman provided sufficient notice to Wayne County of a FMLA-qualifying serious health condition.

I’ve previously discussed how an employer should handle an employee’s potential or questionable request for leave under the FMLA.

  • If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

  • If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools  to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

In other words, employers, err on the side of caution. Use the FMLA’s checks and balances. When in doubt, offer conditional FMLA leave, and confirm with the statute’s medical certification process. And, just, as importantly, train your supervisors to recognize a potential FMLA issue so that they do not get in the way of this process working.

Friday, May 15, 2015

WIRTW #367 (the “warped” edition)

In my never-ending quest to retire from law and manage my daughter’s burgeoning music career full-time, I bring you highlights from last weekend’s School of Rock Warped Tour show, with Norah singing lead vocals on “Russian Roulette” by Tsunami Bomb, and playing lead guitar on “Prosthetic Head” by Green Day.

This weekend, you have two chances to catch the SoR Warped Tour band in action. Tomorrow, they will be playing a few songs at the Relay for Life, at Pat Catan Stadium in Strongsville, at 3:30, and Sunday they will reprise the entire show at the Music Box Supper Club at 12:30. Or, if you follow me on Periscope or Twitter, you’ll likely be able to catch a song or two live from the comfort of your iPhone.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, May 14, 2015

NLRB offers some good news for franchisors, or does it?

We are in the middle of class war in America, and your local fast-food restaurant is ground zero. Workers are fighting for higher wages and better working conditions. And, they are getting some help from the federal government.

Last summer, the NLRB Office of General Counsel authorized complaints against 43 different McDonald’s franchises, along with the restaurant’s franchisor, McDonald’s, USA, LLC. In each case, the franchisor did not own the restaurant or employ the workers. Instead, McDonald’s merely licenses its trademarks and operating procedures to the local franchisees. The franchisees, in turn, hire, fire, discipline, pay, and take all other responsibilities for the employees. As a “joint employer,” however, McDonald’s will share liability with the direct employer as if it stands in their shoes, because if a franchisor is a joint employer with its franchisee, the franchisor would share liability for all the franchisee's employment and other sins.

This week, however, we received some news on this front from the same NLRB Office of General Counsel. In Nutritionality, Inc. d/b/a Freshii [pdf], the OGC issued an advice memorandum concluding that the franchisor is not a joint employer with the franchisee.

Nevertheless, it’s not all happy meals for franchisors. The OCG compared two possible legal test for “joint employers,” the Board’s current standard and the “industrial realities” test.

Under the Board’s current standard—

The Board will find that two separate entities are joint employers of a single workforce if they “share or codetermine those matters governing the essential terms and conditions of employment.” To establish such status, a business entity must meaningfully affect matters relating to the employment relationship “such as hiring, firing, discipline, supervision, and direction.” … The Board and the courts have also considered other factors in making a joint employer determination, including an employer’s involvement in decisions relating to wages and compensation, the number of job vacancies to be filled, work hours, the assignment of work and equipment, employment tenure, and an employer’s involvement in the collective bargaining process.

In Nutritionality, however, the OGC lobbied for the NLRB to apply a more liberal “industrial realities” test—

Under that standard, the Board finds joint employer status where, under the totality of the circumstances, including the way the separate entities have structured their commercial relationship, the putative joint employer wields sufficient influence over the working conditions of the other entity’s employees such that meaningful bargaining could not occur in its absence. This approach makes no distinction between direct, indirect and potential control over working conditions and results in a joint employer finding where “industrial realities” make an entity essential for meaningful bargaining.

Ultimately, the OGC concluded that the franchisor failed as a joint employer under either test. Nevertheless, as the NLRB continues litigate against McDonald’s as a “joint employer,” this issue bears monitoring, especially as to the legal standard espoused by the NLRB. If the NLRB ultimately concludes that McDonald’s is a joint employer with its franchisees under a looser, more liberal joint-employer standard, it could be the most significant legal development of the year to come.

[Hat tip: Phil Miles]

Wednesday, May 13, 2015

NLRB judge strikes down termination based on HIPAA violation

HIPAA. Five letters that strike fear into the heart of anyone that handles employee medical information. That is, anyone except an NLRB judge passing judgment on whether an employer was justified in firing a union-supporting employee for clear HIPAA violations.

In Rocky Mountain Eye Center [pdf], and NLRB administrative law judge was faced with the issue of whether the NLRA protects an employee of a medical practice, Britta Brown, who accessed co-worker medical information in her employer’s Centricity database for the purpose of gathering contact info for a union-organizing campaign. The judge concluded that the employee’s HIPAA violation did not strip her of the Act’s protection.

I find the Respondent’s comingling of employee and patient data in Centricity, along with its training instructions to employees and its practices, detailed above, preclude any legitimate defense that Brown’s accessing the system to obtain employee phone numbers warranted discipline as a HIPAA violation. While the Respondent's general concerns about HIPAA compliance are unquestionably legitimate, the circumstances here lead me to conclude they were seized upon to stop Brown’s union activity.

In other words, because the employer: 1) permitted the co-mingling of non-protected employee contact information with protected patient medical information, regardless of whether the employee was also a patient, and 2) trained (or, at least, acquiesced in) employees using Centricity to access each others’ contact info for work-related reasons, such as scheduling and social events, the employer could not discipline an employee who used the same tools to access the same information for a union-organizing campaign.

HIPAA isn’t the only law that mandates the confidentiality of medical information.

  • The ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and be treated as a “confidential medical record.”
  • If an employer has genetic information obtained under one of GINA’s limited exceptions, it must also keep this information separate from personnel files and treat it as a confidential medical record.

If you are a medical practice and your employees are also your patients, HIPAA adds a deep layer of complexity to these confidentiality issues. The judge’s decision in Rocky Mountain Eye Center notwithstanding, take these confidentiality requirements seriously, and train your employees on the proper handling of, and access to, confidential medical information. Otherwise, instead of an unfair labor practice charge, you might be facing a lawsuit from an employee relating to a breach of confidentiality.

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