RIP Patrice O'Neal

Earlier today, it was announced that comedian Patrice O'Neal passed away. He succumbed to complications from a stroke he suffered last month. Entertainment Weekly offers the details.

Patrice was one of the funniest people on the planet, and he will be missed. Our relationships with celebrities are funny. We feel like we know people we've never met just because we see them on tv or hear them on the radio. I offer my condolences to his family and friends.

In his memory, enjoy an old post of mine discussing one of his bits on sexual harassment.

Supreme Court to hear case on scope of outside sales exemption (and hopefully scope of DOL’s power)

Do you employ outside salespeople (pharmaceutical reps, for instance)? If so, then you are going to want to pay attention to what will transpire at the U.S. Supreme Court next year.

Yesterday, the Court agreed to hear Christopher v. SmithKline Beecham. This case will address two issues:

1. Whether deference is owed to the Secretary's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and 
2. Whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives.

While issue #2 is more practical, issue #1 has the potential to have the greatest long-term impact. It is no secret that the DOL—with its sweeping enforcement scheme and broad regulatory interpretations—is the bane of employers everywhere. This case has the potential to serve as a judicial referendum on the scope of its regulatory authority. A rebuke by the Supreme Court of the DOL on this narrow issue could signal that the agency’s powers are not as broad as it currently envisions, reigning in the DOL’s other attempts to broaden employee rights via regulatory interpretations.

For more coverage of this important wage and hour development, please click over and read the thoughts of others who got to this headline before me:

• SCOTUS will hear FLSA pharma sales rep case – from LawMemo Employment Law Blog
• SCOTUS Grants Cert. in FLSA Case – from Lawffice Space
• Supreme Court to Hear Arguments on Outside Sales Exemption – from SmartHR
• Supreme Court to Decide Whether Pharma. Sales Reps Are Covered by Outside Sales Exemption – from ZR Workplace Law
• Supreme Court To Decide Whether Pharmaceutical Sales Representatives Meet The FLSA’s Outside Sales Exemption – from The Wage and Hour Litigation Blog
• Supreme Court To Decide Classification of Pharmaceutical Representatives – from Wage and Hour Law Update
• Pharmaceutical Sales Representative Case Goes to Supreme Court – from Wage & Hour Insights

“SAY IT! SAY IT!” Yelling as an essential function

Did you know that the ability to yell at one’s students is an essential function of a teacher? According to Johnson v. Cleveland City School District (6th Cir. 11/15/11), because the ability to “verbally control” resistive students is an essential function of an elementary or middle school teacher, Sha’Ron Johnson was not otherwise qualified for her position with the Cleveland schools and therefore could not succeed on her ADA claims.

After a 1988 car accident damaged Johnson’s spinal cord, she suffered from Cervical Myelopathy, which caused her body to weaken over time, and which could be aggravated by stress or over-exertion. As a result, Johnson’s doctors provided the school district documentation that she “not be required to verbally control resistant behavior in students that persists after initial warning.” The school district, believing that “verbally controlling” students was an essential function of an elementary or middle school teacher or counselor, terminated her employment.

The 6th Circuit agreed: because Johnson was medically unable to “verbally control” students, she was not qualified for any available positions:

As the District explained to Johnson in its letter on July 17, 2007, these restrictions are “problematic.” They seek to exempt Johnson from “the requirement of disciplining students and maintaining order in the classroom,” which is “an essential function of the job.” The District’s letter explained that “[t]he consequences of a failure to maintain such order result in a direct threat to the safety and security of you, the students, and other faculty, staff, and students in the building,” and fail “the responsibility of the District to provide an orderly environment to its students for learning.” …

“Teachers and counselors, whether working with large groups, small groups, or one-on-one, are required to deal with the students in their care, not only when they are quiet and well behaved, but also when they are loud, restless, and possibly belligerent…. Teachers, counselors, and other adults employed at schools need to be physically, mentally, and emotionally capable of managing and controlling students in those circumstances.”

What is the takeaway for employers? Just because the ADA (as amended by the ADAAA) renders virtually every medical condition a protected disability does not render employers defenseless. Essential functions come in all shapes and sizes. When handling an accommodation request from a disabled employee, do not omit consideration of all facets of the job.

WIRTW #202 (the “thankful” edition)

I learned something new yesterday. I learned, from my kindergartener, that the first Thanksgiving feast lasted three days. I am thankful that I am able to learn something new every day—whether from my kids, or from the bloggers and tweeters I follow and whose thoughts I share with you at the end of each week.

The Thanksgiving holiday (and a much needed couple of days off) moves my weekly summary up a couple of days to Wednesday. Even though the week has been short, its been busy. Here’s what I read this week:

Discrimination

• Issue: Doctors, Diapers, and … Discrimination? – from Employment Law Matters
• Pregnancy Discrimination Case Against Chicago Law Firm Allowed to Proceed to a Jury – from Wisconsin Employment & Labor Law Blog
• Is Your Adverse Impact Analysis Arbitrary? – from Stephanie Thomas’s The Proactive Employer Blog
• Federal Express’ Six-Month Limitation on Statutes of Limitations in Employment Disputes Approved – from Fitzpatrick on Employment Law
• A Big Problem: Obesity Discrimination In The Workplace – from Hunton Employment & Labor Law Perspectives™
• Numbers Show That Sexual Harassment Claims on the Decline – from Dan Schwartz’s Connecticut Employment Law Blog
• Can an Evangelical Christian Ask For a Religious Accommodation? (re: Sharing His Faith) – from The HR Capitalist, Kris Dunn
• Public Criticism of Discrimination Claim as Retaliation – from Phil Miles’s Lawffice Space
• The 2011 EEOC Performance and Accountability Report – from Employment & the Law

Social Media & Workplace Technology

• Managing Your Social Media Mullet—Part 1 – from Jessica Miller-Merrell’s Blogging4Jobs
• Social Media Training is Important – and More Companies Need To Do It – from Lindsay Walker at i-Sight Investigation Software Blog
• What To Do When An Employee Violates Your Social Media Policy – from MonsterThinking
• Can you access an ex-employee’s Facebook posts if she sues? – from Eric Meyer’s The Employer Handbook Blog
• Employers Can Discover Employee Facebook Posts, But… – from Social Media Employment Law Blog
• The Worst Way To Lose A Job – from Kashmir Hill’s The Not-So Private Parts
• The Outshiners… – from William Tincup at Fistful of Talent
• Great sex and social media, it’s all about the response – from Mike VanDervort’s The Human Race Horses
• Out on the Town, Always Online – from John Leland at The New York Times
• No 1st Amendment Protection for Teacher’s Facebook Posts – from Delaware Employment Law Blog

HR & Employee Relations

• The Cost of Litigating Competition Cases – from Legal Developments In Non-Competition Agreements
• If you can, give your employees a rest for Thanksgiving – from Robin Shea’s Employment and Labor Insider
• When the CEO refuses to stop dishonesty – from Evil HR Lady, Suzanne Lucas
• Cheating in the Work Place – from Rob Radcliff’s Smooth Transitions
• It’s the holiday season: time to check your solicitation policy – from John Holmquist’s Michigan Employment Law Connection
• 9 Tips For Planning the Company Holiday Party – from Russell Cawyer’s Texas Employment Law Update
• When Employee Misconduct Becomes Criminal - Understanding The Fifth Amendment in Parallel Proceedings – from Michigan Employment Law Advisor by Jason Shinn
• Lessons from Penn State – from Beth Mirza at SHRM  

Wage & Hour

• Paying Employees During Bad Weather Closings – from Mike Haberman’s Omega HR Solutions
• Does An Exempt Employee Who Calls In Sick The Day Before Thanksgiving Get Holiday Pay? – from Wage & Hour Insights
• FLSA Computer Exemption To Get Revised: A Good Thing For Employers – from Wage & Hour - Development & Highlights
• Employer deemed to have interfered with Family Medical Leave Act (FMLA) benefits – from Employment Law Bits

Labor Relations

• NLRB bias is a menace to business – from Rep. Trey Gowdy in The Post and Courier
• NLRB Member Hayes: Board Plans to Ignore its Rules to Push Through “Quickie Elections” – from Seth Borden’s Labor Relations Today
• NLRB Trying to Ram Through Pro-Union Ambush Election Rules – from The ChamberPost
• Breaking: NLRB Member Hayes Details Outrageous Pearce Strong-Arming on Quickie Election Rules – from Labor Relations Institute
• NLRB To Vote On Finalizing Some Election Rules – from Workplace Prof Blog
• NLRB sets vote on portions of proposed election rule – from LawMemo Employment Law Blog
• Whining, Sniveling Employee or Protected Concerted Activity? – from Minnesota Labor & Employment Law Blog 

Sympathy for the Devil (as religious discrimination)

I haven’t always been a lawyer. During a previous life (high school and college), I spent weekends and summers as a bar mitzvah DJ, a nursing home busboy, and a warehouse loading dock guy. At one of those warehouses, I worked with a man by name of Harland Jester. (I provide his name because he named his son “Court,” and this context provides the necessary color for the rest of the story.) Harland was an interesting cat. He believed, for example, that the Freemasons ran the world from a secret office on the 36th floor of Rockefeller Center, and the Lee Iacocca saved Chrysler by making a pact with the devil. This warehouse was full of colorful characters in addition to Harland, many of whom enjoyed a good practical joke. One such joke, played at Harland’s expense, involved a sketch on Harland’s work desk of Mr. Iacocca shaking hands with Satan, with both saying, “Harland, we’re watching you!” Harland did not find the joke nearly as funny as the rest of us, and complained to management. For its part, the company took the path of least resistance, repainting his desk and requiring everyone at attend sensitivity training.

Suzanne Lucas, the Evil HR Lady, shared a story this morning about another employer which could have taken a lesson from my summer job. Billy Hyatt sued Pliant Corp. after it fired him for refusing to wear a sticker with the number 666 (representing the number of consecutive accident-free days) on it. According to the Workplace Prof Blog, Mr. Hyatt’s complaint alleges that he “asked a manager for a religious accommodation on day 666,” and was fired after he refused to work on that day at all.

Sometimes, the path of least resistance makes sense. Is it silly for an employee to refuse to wear “666” on a sticker? Yup. Was the employer within its rights to fire that employee? Maybe. Could the employer have avoided the cost (in legal fees, bad publicity, and a potential settlement or judgment) by simply exempting this employee from the sticker requirement for that one day? Absolutely. Even if this employer was legally in the right in firing this employee—and think about the reasonable accommodation requirements for an employee’s religious beliefs—sometimes it’s just not worth the cost to be right.

A new era dawns—my first post at Fistful of Talent

Today’s post is a little different. It's the first I’ve ever written that is not being debuted on my own blog. Today is my first endeavor as a guest poster on Fistful of Talent. FOT is the preeminent, collaborative human resources blog, featuring a who’s who of HR bloggers. A few weeks ago, it’s proprietor, Kris Dunn [The HR Capitalist / @kris_dunn] reached out to me looking to fill FOT’s employment law void. So, we’re trying each other out.

Today’s post marks what I hope is the beginning of a long relationship between this blog and FOT. Please help get us off on the right foot by clicking over to FOT to read my thoughts on what you can do about employees who cheat your time keeping system.

WIRTW #201 (the “Mickey Mouse” edition)

The news has been pretty somber this week, with the sexual abuse of children dominating the headlines. So, I thought we needed a light-hearted theme for this week’s WIRTW.

On this day in 1928, Walt Disney released the first Mickey Mouse cartoon, Steamboat Willie:

Steamboat Willie’s success launched an empire that has touched every aspect of pop culture in the last 83 years. Thanks Walt.

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

Discrimination

• 5 signs that you’ll lose your sexual harassment case – from Robin Shea’s Employment and Labor Insider
• Bad Christmas Card Idea – from Phil Miles’s Lawffice Space
• Speech criticizing lawsuit = “retaliation” – from Walter Olson’s Overlawyered
• EEOC to consider disparate impact and reasonable factors other than age at meeting – from John Holmquist’s Michigan Employment Law Connection
• Settling a Discrimination or Harassment Lawsuit – from Delaware Employment Law Blog
• When Is a Test a Medical Examination? – from Labor & Employment Law Perspectives

Social Media & Workplace Technology

• 6 things you must know about social media & your workforce – from Eric Meyer’s The Employer Handbook Blog
• Just The Facts About Workplace Social Media – from Blogging4jobs
• HIPAA Dangers Lurk on Facebook; Ongoing Policy Revisions Are Advised – from Health Business Daily
• Recommendations for Preventing and Responding to Workplace Violence – from Jason Shinn’s Michigan Employment Law Advisor
• The Thorny Combination of Old Laws and New Tech – from The Atlantic
• Social Media for Small Biz: Your HR Survival Guide Source – from Evil HR Lady, Suzanne Lucas
• Social Media: Don’t Get Off Track With the Law in Monitoring Employees – from SmartHR

HR & Employee Relations

• Honoring Veterans Day: USERRA and Employment Law Resources – from Dan Schwartz’s Connecticut Employment Law Blog
• Here is The Reason You Want to Be in Compliance! – from Mike Haberman’s Omega HR Solutions
• Penn State Disgrace: If Only… – from Nick Fishman’s employeescreenIQ Blog

Wage & Hour / Benefits

• Calculating FMLA Leave for Holidays, Breaks and Plant Shut Downs – from Jeff Nowak’s FMLA Insights
• Circuits Split as to Whether Public Officials Can be Sued Individually Under the FMLA – from Fitzpatrick on Employment Law
• You’ve been WARN-ed – from HR idiot
• 73% of Wage/Hour Investigations Result in Findings – from HR Daily Advisor
• Supreme Court To Decide Constitutionality of Obamacare from Above the Law

Labor Relations

• Apple Prepares to Crush Apple Store Unions – from Gawker
• NLRB Acting General Counsel Warns Companies about Social Media and Handbook Rules – from EFCA & Labor Law Reform Blog
• Senate Bill 5 Repeal—What is Next? – from Employer Law Report
• NBA Talks Collapse; Union Disbands – from Workplace Prof Blog
• Senator Johnny Isakson (R-GA) Introduces Bill to Reverse NLRB's “Micro-Union” Decision – from Seth Borden’s Labor Relations Today

I’m begging you … have a social media policy

Last week, SHRM released the results of its 3rd survey on Social Media in the Workplace [pdf]. SHRM polled 532 randomly selected HR professionals from its membership. According to the survey, 68% of companies use social media to communicate with external audiences (current customers, potential customers, or potential employees). Yet, only 27% provide their employees using social media any kind of training on its proper use.

This disconnect is disturbing. It’s bad enough that employees are using social media to communicate with each other absent any guidance or training. It’s astounding that nearly three-quarters of companies allow their employees to communicate with the public at-large in this manner.

Without a policy establishing expectations for the proper use of social media internally and externally, this is what you are asking for in your business:

Please, for the love of god, do not allow anyone in your organization to use social media for any purpose without putting a policy in place and training your employees on that policy. Anything less is a recipe for a human resources or public relations disaster.

[Hat tip: Social Media Employment Law Blog]

Who owns social media accounts? (part 2)

Last Monday, I asked the following question: “What happens to an employee’s social media account when the employee leaves a company?” The very next day, a California federal court began to sketch the outline of an answer.

PhoneDog v. Kravitz (N.D. Calif. 11/8/11) [pdf] concerns the ownership of a corporate Twitter account. Noah Kravitz worked for PhoneDog as a product reviewer and video blogger. In that role, PhoneDog provided him use of a Twitter account—@PhoneDog_Noah—to disseminate information and promote PhoneDog’s services on its behalf. When Kravitz resigned his employment, PhoneDog requested that he relinquish use of the Twitter Account. Instead, Kravitz changed the account’s name to @noahkravitz, continuing to use it. PhoneDog filed suit, claiming, among other things, that by refusing to relinquish control of the Twitter account, Kravitz stole its trade secrets and other proprietary and confidential information.

In seeking dismissal of the lawsuit, Kravitz argued that PhoneDog cannot establish any damages because it cannot establish ownership over the Twitter account. According to Kravitz: “To date, the industry precedent has been that absent an agreement prohibiting any employee from doing so, after an employee leaves an employer, they are free to change their Twitter handle.” (emphasis added). The court disagreed, and is permitting the claims alleging misappropriation of trade secrets and conversion of property to proceed to discovery.

Despite the employer’s (at least temporary) victory, why take a risk that an employee can challenge ownership rights to a social media account? If you have employees using corporate-branded or other official social media accounts, require them to sign an agreement as a condition of their employment that says the following:

1. The company, and not the employee, owns the social media account.
2. All social media accounts, including login information and passwords, must be relinquished at the end of employment.

Anything else places these issues in the uncertain hands of a judge or a jury.

Don’t ignore common sense when conducting workplace investigations

Light night, I tuned in with curiosity for Bob Costas’s interview with Jerry Sandusky. That curiosity turned to stunned outrage when Sandusky made the following admission (among others): “I shouldn't have showered with those kids.” Of course, I have outrage as a parent and as a human being. That outrage has existed since this story broke. After last night’s public relations debacle, I also now have outrage as an attorney.

There are many teachable lessons for employers from last night’s primetime drubbing. For example, Sandusky’s lawyers, PR people, and other handlers deserve to be fired for letting their client appear so unprepared and so guilty. I’m also curious about whether Sandusky waived any 5th Amendment rights by making public statements about the crimes with which he has been charged (but I’ll leave that issue for my criminal brethren).

Here’s the employment law takeaway: when you are assessing credibility—for example, during a harassment or other workplace investigation—you do not check your common sense at the door. In fact, common sense serves as your best friend. If you eat meat you are not a vegetarian, and if you shower naked with little boys, you are a pedophile—case closed. To argue any differently borders on the ludicrous. Anyone who watched last night’s interview can only reach the conclusion that Sandusky is guilty of the charges levied against him.

Do not ignore your common sense. “I did not inhale” = I smoked pot. “I have horsed around with kids I have showered after workouts” = I am a pedophile. Keep these examples in the front of your mind during your next workplace investigation.

Tell them to their face: firing employees (a lesson from State College, PA)

Frank Roche, writing at his KnowHR blog, made the following observation the morning after Penn State announced that it had fired Joe Paterno: “Penn State did the right thing.” It’s hard to argue that every university employee whose hands touched the Jerry Sandusky scandal needed to be fired. While I cannot question the decision to fire Joe Paterno, I have a huge problem with how the school communicated the termination to him.

As I watched the PSU board of trustees’s press conference last Wednesday night, I was struck by how John Surma dodged any questions about how the board communicated its decision to Paterno. As he avoided answering those questions, I could only conclude that the board did not tell Paterno to his face that he had been fired. ESPN’s Joe Schad (reporting on Twitter) confirmed my hunch:

Paterno received at his home an envelope from a messenger with a # to call 15 minutes b/f BOT announcement.

When Paterno called he was told "you are relieved of your duties."

Don't get me wrong. I believe Joe Paterno deserved to be fired. What I take issue with was how he was fired. Every employee (let alone one with 62 years of tenure) deserves to learn of a job-loss via a face-to-face conversation. It is never acceptable to fire someone by a phone call, letter, email, text message, Facebook message, tweet, or a this-termination-note-will-self-destruct-in-10-seconds note left at the front door.

There is nothing easy about the communication of a firing. I’ve had to fire people. It’s the worst part of my job. It’s also part of what you sign up for when you assume a management role. But, as uncomfortable as it is to tell someone they are losing a job, it is exponentially more difficult to be on the receiving end of that news. Do the right thing by your employees and provide them the courtesy of delivering the news in person, no matter the circumstances.

WIRTW #200 (the “bicentennial” edition)

This week offered a lot of potential themes from which I could pick for today’s “WIRTW”: Joe Paterno (come back Monday for my thoughts on the handling of his termination), Herman Cain, Veteran’s Day, the anomaly of today’s date (11/11/11—see below). Milestones, however, are important, and today’s is significant—the 200th publication of my weekly roundup. Thanks for reading.

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

Discrimination

• Yes, Conservatives, There Is Sexual Harassment – from Donna Ballman’s Screw You Guys, I’m Going Home
• Why Panera should settle lawsuit regarding racism – from Evil HR Lady, Suzanne Lucas
• When People Get Angry: Power Outages & Khan – from Dan Schwartz’s Connecticut Employment Law Blog
• Gender discrimination at a “Big Four” accounting firm – from Employment Law Bits
• Women Who Work in Positions with Greater Likelihood of Sexual Harassment Paid More – from Wisconsin Employment & Labor Law Blog
• The impact of the Penn State controversy: filling a gap in an employer’s harassment policy – from Michigan Employment Law Connection
• Employer lessons from Penn State (Hint: ignorance is not bliss) – from Eric Meyer’s The Employer Handbook Blog
• “A closed mouth gathers no feet”: What Herman Cain teaches employers about sexual harassment – from Robin Shea’s Employment and Labor Insider
• Make War No More–Weapons Manufacturer Must Accommodate Employee Who Objects to Weaponry, EEOC Says – from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Social Media in the Workplace: Common Sense Goes a Long Way – from Lindsay Walker at i-Sight Investigation Software Blog
• Using Social Media to Screen Job Applicants - A Few Recommendations for Employers – from Michigan Employment Law Advisor
• Facebook Spoliation Costs Widower and His Attorney $700K in Sanctions – from Above the Law
• Nielsen: Soon-to-be seniors adopting smartphones faster than any other age group – from Engadget Mobile

HR & Employee Relations

• Is it Settlement or Severance? – from Phil Miles’s Lawffice Space
• The Importance of Employee Documentation – from CPEhr
• Penn State Disgrace: If Only… – from Nick Fishman’s EmployeeScreenIQ Blog
• EDDIE MURPHY: On Taking the Job That Offers No Balance and Almost Kills You… – from The HR Capitalist, Kris Dunn
• Trade Secrets and Confidentiality – from Texas Employer Handbook

Wage & Hour

• The War on Wage Theft and WHD – from Stephanie Thomas’s The Proactive Employer Blog
• Even Best Practices Can't Always Ensure Quick Dismissal of Wage & Hour Claims – from Wage & Hour Insights

Labor Relations

• NLRB lawyer: “We screwed up the U.S. economy” – from The Washington Examiner
• Is it Protected Concerted Activity to “Occupy” Your City? – from Kara Mignanelli at Social Axcess
• The state of the NLRB (a self-appraisal) – from Michael VanDervort’s The Human Race Horses

Until next week, remember, today goes to 11.

Regulating workplace photography? Think again, says one federal court

This time next week, I’ll be in San Diego presenting on workplace social media issues at the 2011 Human Resources & Employer Compliance Summit. If past presentations are any predictor, I’ll be spending a lot of time answering questions about the NLRB’s intrusions into this area. NLRB v. White Oak Manor (4th Cir. 9/22/11)—while not a social media case per se—is a great example of how workplace technology and social media issues can arise under the guise of protected concerted activity.

White Oak Manor, a long-term care facility, maintained a policy against taking pictures inside its facility without prior written approval. Nicole Wright-Gore, a supply clerk, filed a grievance over discipline she received for wearing a hat in the workplace. To document her belief that she had been unfairly disciplined for a dress code violation, she took pictures of her fellow employees, also wearing hats but un-disciplined. When the employer learned of the photographs, it terminated her.

In reviewing Wright-Gore’s unfair labor practice charge, the NLRB concluded that she engaged in protected concerted activity for which she was discharged: “a joint discussion of the unfairness of the dress code, … seeking a change in the enforcement of the dress code.” On appeal, the 4th Circuit agreed:

Wright-Gore’s complaints about White Oak's disparate enforcement of its dress code are protected under the NLRA…. Wright-Gore's documenting of the problem through photography is similarly protected conduct…. Because Wright-Gore’s conversations were initiated to induce group action—she explained that she spoke with other employees "[t]o get their support so I could go to management…,”—they constitute concerted activity.

The NLRB continues to use social media to expand the definition of protected concerted activity. As the agency (and now courts) become more involved in these issues, the rules governing what you can and cannot regulate regarding employees’ use of social media and other technologies in the workplace will continue to evolve. For now, the best course of action may be to err on the side of caution in all but the most obvious of cases, and to consult with labor counsel well-versed in social media issues in everything else. 

[Hat tip: Social Media Employment Law Blog]

Progressive discipline might not be mandatory, but it makes sense

In Fulton v. ODJFS (11/3/11) [pdf], the employee argued that he was entitled to recover unemployment compensation because his employer failed to follow its own progressive discipline policy when terminating him. The court disagreed, noting that the employer’s policy granted discretion to impose any level of disciplinary action—ranging from verbal warning, written warning,
suspension, or immediate termination of employment—depending on the seriousness of the offense.

Reading this, one might conclude that because progressive discipline policies are unnecessary they should be avoided. In fact, the contrary is true. Progressive discipline (with sufficient discretion built in) provides an early warning system to employees. While I have no empirical data to back me up, I would bet that employers who use progressive discipline systems face fewer lawsuits from terminated employees. Those that perceive fair treatment should be less likely to sue than those who perceive that they had the rug pulled out from under them.

Employers cannot “ostrich” harassment allegations

By now, you’ve likely read or heard about the disturbing sexual abuse scandal involving Jerry Sandusky, Penn State’s former defensive coordinator, and the decades-long cover-up perpetrated by the university to protect its storied football program. Of all of the allegations, however, the following, culled from a report in the New York Times, resonated with me as the teachable lesson for employers:

The chronology of events laid out by the state attorney general’s office includes multiple episodes that seem to suggest a failure by a variety of Penn State officials or employees to act emphatically— whether out of fear, incompetence or, perhaps, self-interest….

“The failure of top university officials to act on reports of Sandusky’s alleged sexual misconduct, even after it was reported to them in graphic detail by an eyewitness, allowed a predator to walk free for years—continuing to target new victims,” Linda Kelly, the state attorney general, said in a statement over the weekend. “Equally disturbing is the lack of action and apparent lack of concern among those same officials, and others who received information about this case, who either avoided asking difficult questions or chose to look the other way.”

If you take nothing else away from this horrible story, let it be this point: under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and indefensible?) harassment lawsuit.

Who owns social media accounts—the employer or employee?

What happens to an employee’s social media account when the employee leaves a company? One British court has answered this question by ordering a former employee of a recruiting firm to turn over his LinkedIn contacts to his former employer.

The answer to this question is not nearly as cut and dry as this one case may make it seem. Ownership of social media usernames, pages, and relationships depends on the nature of the employment, the nature of relationship, and the ownership of the account. Thus, for example, an employee hired to manage a business’s social media will have much less of claim over these relations than will an employee who uses social media to foster personal relationships with co-workers, customers, and vendors. Salespeople—who might use LinkedIn to manage business contacts, or Facebook and Twitter to promote their companies and products—present a much grayer issue.

Because shades of gray lead to unpredictability, you should plan for these uncertainties by reaching agreements with your employees—up front and in a social media policy—on how social media ownership will be handled at the end of employment.

[Hat tip: Forbes]

WIRTW #199 (the “Occupy” edition)

I spent the first half of last week in Denver. I took the opportunity of a free Monday morning to walk the city. In front of the Colorado State Capitol Building, I came across what, at the time, was the modest Occupy Denver rally:

What effect could these “Occupy” rallies have on your workplace? Here’s some thoughts:

• “Occupy Wall Street” Protests May Lead to Workplace Issues – from SHRM
• Occupy [Insert City] Is Coming—Are You Ready If Your Employees Get Involved? – from TLNT
• Can You Fire Someone for Participating in an “Occupy” Rally? from Mike Haberman’s Omega HR Solutions

Here’s the rest of what I read this week (and last week):

Discrimination

• Great moments in age discrimination law – from Walter Olson’s Overlawyered
• Are Gender Quotas The Key To Breaking the Glass Ceiling? – from Stephanie Thomas’s The Proactive Employer Blog
• Court Finds, in Pre-ADAA Case, that Employee with Diabetes Not Disabled – from Russell Cawyer’s Texas Employment Law Update
• Disability harassment and peanuts: Can't we all get along? – from John Holmquist’s Michigan Employment Law Connection
• What Is Color Discrimination And How Do I Prove It? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Sexual claims common in pressure-cooker restaurant world – from Eve Tahmincioglu at MSNBC.com
• Presidential Politics and Sex - A Reminder for Employers on Preventing Sexual Harassment – from Jason Shinn’s Michigan Employment Law Advisor
• Herman Cain, sexual harassment, and 10 lessons for employers – from Eric Meyer’s The Employer Handbook Blog
• The Allegations Against Herman Cain–What Would the EEOC Say? – from Joe’s HR and Benefits Blog
• Sexual Harassment 20 Years Later: Anniversary of Clarence Thomas Hearings Marks Time for Reflection – from Employment Lawyer Blog

Social Media & Workplace Technology

• Why Your Four-Month-Old Social Media Policy Is Obsolete – from Mark Herrmann at Above the Law
• 10 Scariest Enterprise Social Networking Mistakes – from InformationWeek
• How Much Facebook Policing is Too Much? – from Christopher McKinney’s Texas Employment Law Blog
• Half Of Young Professionals Value Facebook Access, Smartphone Options Over Salary: Report – from Fast Company
• Social Media Sites For Corporate Spying (Beyond The Obvious Ones) – from Kashmir Hill’s The Not-So Private Parts
• Apple Employee Kicked to the Curb for Facebook Post – from Lindsay Walker at i-Sight Investigation Software Blog
• Employees Use Social Media To Quit Their Jobs – from Minnesota Labor & Employment Law Blog
• When Plaintiffs Post About Their Case on Facebook – from Molly DiBianca’s Delaware Employment Law Blog
• My boss fired me over email, then refused to let me collect my personal belongings – from Ask a Manager

HR & Employee Relations

• Why do we hate us? Women prefer working for men, study says – from Robin Shea’s Employment and Labor Insider
• Hot Topic: Workplace Tebowing – from Philip Miles’s Lawffice Space
• Daylight Savings Time Change Means Tired Employees – from Workplace Diva
• TSA Is Firing The “Get Your Freak On, Girl” Baggage Screener – from The Not-So Private Parts
• What is the #1 way HR managers can keep employers out of trouble? Think like a lawyer! – from Heather Travar
• Trade Secret and Noncompete Survey – National Case Graph – from Fair Competition Law
• Breastfeeding At Work – from Evil HR Lady, Suzanne Lucas

Wage & Hour

• Starting Computers and Reading Email May Be Compensable Work – from Wage & Hour Insights
• Assistant Manager Exemption Case Goes For The Employer: A New Day Dawns! – from Wage & Hour - Development & Highlights
• No Room for FLSA Abuses at Hilton – from SmartHR
• Target Store Manager Fired for Working Off the Clock – from Texas Employer Handbook
• Supervisor’s Inadvisable Email Creates Basis for FMLA Claim – from FMLA Insights

Labor Relations

• RARE: The Capitalist Says This Union Member Deserves Better Treatment From Management… – from The HR Capitalist, Kris Dunn
• Two Economists Explain the NBA Lockout – from Grantland
• Call Reversed: Bryzgalov Media Ban Deemed Un-CBA’able – from The700Level.com
• Breakfast with the NLRB Region 34 Director – What’s New? – from Dan Schwartz’s Connecticut Employment Law Blog
• Social Media Spotlight – from Labor Relations Institute
• Social Media and the NLRA – from The L•E•Jer
• Arguments Begin In Legal Challenges to NLRB Posting Rule – from Employer Law Report
• Legal Challenge to NLRB’s Notice-Posting Rule Heats Up – from Labor Relations Today
• Bad teachers are impossible to fire – from LaborPains.org

Unsubstantiated allegations cannot create protected activity (at least according to one Ohio court)

In Veal v. Upreach LLC (10/20/11), an employee claimed that her employer terminated her in retaliation for her contacting the EEOC. The court of appeals, however, did not believe that the employee had presented any evidence in support of her claim that she had engaged in protected activity:

Appellant did not specifically allege or present evidence establishing that she was engaged in a protected activity…. Her complaint and memorandum opposing summary judgment merely alleged that she was terminated after Pitts [her direct supervisor] saw her reading a book on employee rights and overheard her placing a call to the Equal Employment Opportunity Commission during work hours. However, appellant offered nothing to substantiate these claims, nor did she explain how her allegations amounted to conduct protected….

It is refreshing to read an opinion in which a court refused to take a plaintiff merely at her word by requiring some corroboration before sending the case to a jury. Having said that, however, this case—at least in Ohio state courts—is very much the exception, not the rule.

Do you know what an employment lawsuit costs?

My manifesto—the Employer’s Bill of Rights—continues to generate links (thanks Kris Dunn and Walter Olson) and comments. One commenter asked the following:

Most employment cases would take less than a week to try? If Defendants simply tried all these frivolous cases instead of spending 18 mos. paying lawyers to do discovery only to settle later wouldn’t these cases dry up?

The reason why businesses fear terminating employees is because wrongful termination lawsuits are so expensive to litigate. According to a recent article at CIO.com (h/t: i-Sight Blog), a company should expect to spend between $50,000 and $250,000 dollars defending a lawsuit brought by an ex-employee. In my experience, that number is pretty accurate.

I believe that every lawsuit should settle. The two key considerations are when and for how much.

The only way to survive as an employer, though, is to draw a reasonable line in the sand on settlement value for a case and stick to it. If you are dead in the water, then you are better off settling early and not spending hundreds of thousands of dollars paying your lawyers to fight a lost cause. At the other extreme, though, if the employee’s case is meritless (or frivolous, depending on your viewpoint), then why do want to spend a dime towards settlement? Settling those cases will only paint your business as an easy mark, spurring copycat claims by other employees. For this latter category of claims, this only settlement is a voluntary dismissal, or, at most, a nuisance value.

The responsibility to fairly value cases, though, falls on both sides of the table. If the employee will not come to your line, then you must litigate, all the way through trial if necessary. Otherwise, you will lose all credibility and your corporate coffers will become an ATM machine for every terminated employee.

NLRB says a “f**ktard” is different than a “d*ck” under Section 7

A employee responded to a supervisor’s LinkedIn request with the following joke: “f**ktard.” More than a year later, the company discovered the “f**ktard” post while establishing its own corporate LinkedIn site. After the company fired the employee for a violation of its Electronic Communications Policy, the employee filed an unfair labor practice charge with the NLRB. He claimed that his employer did not fire him because of the LinkedIn post, but instead because of a discussion he had with some co-workers two months earlier about the company’s overtime practices.

In Schulte, Roth & Zabel (10/13/11) [pdf], the NLRB Office of General Counsel opined that the termination was lawful, and recommended the dismissal of the charge:

Moreover, the LinkedIn posting was not a pretextua1 reason for discharging the Charging Party; the Employer has demonstrated that it only discovered the posting in its April review of prior employee posts as part of its assessment of problems with its new LinkedIn page. Finally, no one contends that the Charging Party's posting in violation of the electronic usage policy—the stated reason for his discharge—was protected by Section 7.

Almost a year ago, the NLRB made a huge splash in the world of social media by issuing a complaint against a Connecticut ambulance company in an eerily similar case—the company fired an employee who called her boss a “d*ck” on her Facebook wall. At the time, many believed that the sky was falling, and that employers would be unable to regulate their employees’ use of social media inside and outside the workplace.

Is it possible, however, that the NLRB has been running a well-staged long con? Could the NLRB have enough marketing savvy to latch on to the hot issue invading the workplace, take an extreme position to raise awareness among non-unionized employees that they have rights under the National Labor Relations Act, and then slowly and quietly backtrack into a more reasonable position on a case-by-case basis?

If you compare where we were a year ago to where we are now, this appears to be the case. In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities? Well played, NLRB.