Do your policies cover electronic message boards

The National Law Journal reports that "message boards in the workplace could be a troublesome new source of liability for employers." Many companies have policies that cover the use of traditional bulletin boards. What happens, however, if an employee posts on a company-owned message board that he wants to start a union? Can the company lawfully take action against that employee? What other liability risks do online message boards pose for employers?

DynCorp Inc. v. NLRB sets the standard for employer regulation of bulletin board use in the Sixth Circuit. Like many companies, DynCorp had a bulletin board in its employee cafeteria. Shortly after a union organizing campaign began, an employee posted a pro-union flyer on the bulletin board. A manager removed the flyer and threatened to discipline the employee who posted it. Shortly thereafter, the company designated the bulletin board "For DynCorp Business Use Only." DynCorp unsuccessfully argued that the bulletin board was for company use only and that the Company had consistently removed employee postings on the bulletin board in the past. The Court cited examples of other non-business related postings remaining on the bulletin board. Moreover, no employee had ever been disciplined, or even warned, for posting non-business related materials. Regardless of any policy, the employer's lack of consistency created a practice of allowing non-business related postings, and it was therefore unlawful to remove the pro-Union posting and threaten the employee.

As DynCorp illustrates, consistency is key. If a company want to limit online message boards to discussions of company business only, it must not only have a clear policy stating so, but it also must actively police the message board to prevent violations of the policy. A company cannot turn a blind eye to all sorts of non-troublesome non-business threads, but delete the first thread the pops up talking about a labor union. That selective enforcement is asking for trouble with the NLRB.

Liability risks do not end with the NLRA. Online message boards also present risks from employees who use them as a means to harass or defame a coworker, or post trade secrets and other sensitive confidential information. If a company is going to maintain an online message board, it should be incorporated into sexual harassment policies, technology use polices, and confidential information policies, so that employees understand that online malfeasance will not be treated any differently than any other workplace misconduct.

Of course, policing a message board is much more difficult, time consuming, and expensive than the traditional cork board hanging in a lunch room. That difficulty makes me wonder whether companies are just better off not having employer sponsored message boards in the first place.

Is mommy bias real?

The Cincinnati Enquirer writes that "anti-mommy bias persists. There's an assumption that once a woman becomes a mother, she won't be as competent at her job or as committed or dependable - without the employee ever getting the chance to prove herself." The article continues:

Mother's Day recognizes mothers for their dedication, resourcefulness and persistence. But some working mothers say that on the job, they're viewed in opposite terms. They say employers see them as less reliable, focused and committed than their co-workers, and weed them out of job interviews or bypass them for promotions. 

The practice has been labeled maternal profiling, and it is the source of a growing body of discrimination lawsuits being filed against employers. 

According to the Center for WorkLife Law at the University of California's Hastings College of Law, family-related discrimination cases increased by 400 percent from 1996 to 2005. Some workers sued because they were questioned about their marital status, family plans or child-care provisions during job interviews, then promptly dismissed. Other mothers say they were taken out of contention for jobs that required travel, long hours or physical labor.

But, does the empirical data support the popular notion of maternal profiling. HR World reports on a survey done by Adecco, the staffing firm, which suggests that mommy bias might be more fiction than reality:

Think what you want about parents in the workplace, but a new survey from Adecco found that 71 percent of working moms are likely to work late and respond to emails. That’s only two points below non-parents. However, 32 percent of workers would be less likely to ask working parents to stay late or answer emails after hours. 

Nonetheless, 49 percent of moms believe their companies should do better at helping achieve work/life balance. 

According to the survey:

• Do Moms Have It Better When It Comes to Access to Work/Life Balance?: Depends on who you ask! 60% of working moms think they have the same level of access to work/life benefits as non-parents. Less than half of non-parents (44%) agree with the statement and one in four (25%) non-parents think they have less access.
• Which is Harder to Manage?: According to working moms, managing career is a piece of cake next to managing family: 71% of working mothers find it more difficult to manage their family vs. career (29%).
• Career & Motherhood Can Go Hand-in-Hand: A majority of working mothers (59%) say becoming a mother has not impacted their career path, while 15% say its actually had negative impact on their career.

So, what's the answer? It mommy bias real, fiction, or somewhere in between? It's hard to ignore the realities of maternal profiling when companies are hit with multi-million dollar verdicts. At the same time, it is only a small minority or working moms (15%) who report that motherhood had a negative impact on their careers. At the end of the day, maternal profiling is real, but simply may not be as big of a problem as the Kohl's case makes it seem. Yet, 49% of moms still believe their companies should do better at helping them achieve work/life balance.

The takeaway for employers is that regardless of whether maternal profiling is as prevalent and widespread as some claim, it is still illegal sex discrimination. Separate and apart from the legalities of mommy bias, promoting a strong work/life balance is becoming increasingly important in the recruiting and retention of quality employees. Purposing screening out parents (moms and dads) from hiring or promotions needlessly removes a significant portion of the population of the workforce from a company. After all, today's young go-getter is tomorrow parent. Mommy tracking employees will result in a revolving door of younger, less qualified employees. And, it's illegal.

Carnival of HR is available

The Career Encouragement Blog has posted this week's Carnival of HR. Please take a few minutes out of your day to peruse the best of the of the HR blogosphere.

Cat fight on aisle 6: court leaves open the possibility that a handbook can create a contract

In White v. Fabiniak, Wal-Mart fired Carla White for threatening to "slap the piss" out of a co-worker, Stephanie Jeppe. Prior to the termination, White had used Wal-Mart's Open Door Policy to complain to her supervisor that Jeppe had been threatening her.

White was an at-will employee of Wal-Mart. At the start of her employment, Wal-Mart provided her an employee handbook that contained, among other provisions, an Open Door Policy. That policy provided:

If you have an idea or a problem, you can talk to your supervisor about it without fear of retaliation. Problems may be resolved faster if you go to your immediate supervisor first. However, if you feel your supervisor is the source of the problem, or if the problem has not been addressed satisfactorily, you can go to any level of management in the Company. But remember, while the Open Door promises that you will be heard, it cannot promise that your request will be granted or that your opinion will prevail.

White claimed that the open door policy created an implied contract between her and Wal-Mart, and terminating for using the policy violated that contract. The court of appeals disagreed:

The policy provides an avenue an employee may use in the event he or she has a work related concern, idea, or grievance. Within the context of the policy, therefore, Wal-Mart admits it will not terminate or otherwise punish an employee for choosing to share his or her ideas or problems with management. Read plainly, this is neither an implied or express promise of continued employment. Rather, it is merely an assurance that an employee can utilize the policy without concern of unfair reprisals on behalf of management or the company at large. ...

[W]e hold the plain meaning of the open door policy assured an employee he or she would not be retaliated against for utilizing it as a means to air his or her grievances. This does not imply the policy guaranteed an employee continuous employment if, for example, he or she breached a separate policy set forth in the manual in the course of utilizing the open door policy. ...

Nothing in the open door policy states that an aggrieved employee who decides to use the policy may utilize or threaten to utilize vigilante tactics if a particular supervisor does not handle the grievance in a manner the employee demands. Quite the contrary, the policy provides that, while an employee will assuredly be heard, an employee's view or opinion regarding the resolution of a problem will not always prevail.

Appellant does not specifically allege Chuba refused to hear her complaint, nor did she provide any evidence that her termination was retaliatory in nature. Appellant acknowledges, and the record demonstrates, she was fired for threatening Jeppe in violation of the workplace violence policy. Nothing in the record indicates Wal-Mart acted inappropriately in terminating appellant on this basis.

This opinion, however, may not be as pro-employer as it seems. It does not say that the employee handbook cannot create a contract, but merely that it does not in this case because Wal-Mart terminated White because she violated its workplace violence policy. The court did not find that White had no legal claim, but that Wal-Mart had a good reason to fire her. Thus, this opinion leaves the door open to the possibility that an employee can make a breach of contract claim if the employer does not have good cause for the termination.

Although unclear from the opinion, it is safe to assume that the handbook contained an at-will disclosure, such as: "This handbook is not a contract, express or implied, and does not guarantee employment for any specific period of time. Although we hope that your employment relationship with us will be long term, you are at all times an at-will employee, which means that either you or the company may terminate this relationship at any time, for any reason, with or without cause or notice." If that is the case, I fail to see how any employee could complain that the handbook creates an implied contract that the employer can breach, even if the employer admitted it fired an employee for using a handbook provision such as the open door policy.

Unless handbook disclaimers are to be rendered meaningless, employees cannot be permitted to bring breach of contract claims based on an employer's failure to follow a policy in the handbook. The claim must be based on some other recognized legal right, such as statutory retaliation or some public policy separate and apart from the handbook language itself.

Overtime not required for time not actually worked

One article that caught my eye last week while I was out was a piece by Tracy Coenen, on her Fraud Files Blog, about a scam that was uncovered in the Wisconsin prison system. It seems that under the prison's overtime policy, the guards figured out that they could call of sick for their own shift, but then pick up the next shift and collect time-and-a-half for overtime.

It appears that the Wisconsin prison system might be paying overtime when it is not otherwise required. Under the Fair Labor Standards Act, an employee is entitled to paid time-and-a-half for any hours in excess of 40 worked in a given work week. The key word is worked. Sick days are not days worked. Either are vacation days or paid holidays. In calculating the number of hours an employee has worked in a given week, you only look at the number of hours spent working. Now, there are a lot of variables to look at when determining whether an employee is working. But, for certain, sick days, holidays, vacations, and other paid days off are not time spent working.

Let's take as an example an employee who works Monday - Friday, 8 hours a day. That employee takes a paid day off on Monday, works 9 hours Tuesdays, and 8 hours each of Wednesday, Thursday, and Friday. At what rate should that employee be compensated for the extra hour worked on Tuesday - straight time or time-and-a-half? The answer is straight time. While the employee was paid for 41 hours that week, the employee only worked 33 hours. Thus, the employee did not work in excess of 40 hours in that work week.

Part of any wage and hour audit is a review of not just which employees are eligible for overtime, but the work rules under which overtime is calculated and paid. Depending on the size of your organization, thousands, tens of thousands, or even hundreds of thousands or millions of dollars could needlessly be paid to employees for overtime to which they may not be entitled.

What else I'm reading this week #30

After an exciting week in Tulsa, Oklahoma, I have returned. I hope everyone enjoyed some of the hits from the archives I ran last week in my absence. Before we get back to regular posting, let's take a look at some of what else we missed last week.

Recall that in Dewitt v. Proctor Hosp., the 7th Circuit permitted an associational disability discrimination claim to proceed based solely on evidence that the employment decision was made on the basis of increased medical costs. The Workplace Prof Blog reports that the 10th Circuit has followed suit, and permitted a family to bring a claim that they were fired because of healthcare costs associated with their son's illness.

The Pennsylvania Employment Law Blog provides a very thorough comparison of an employer's responsibilities under the FMLA and the ADA, with a helpful chart included.

Last week gave us two interesting posts on the improper use of workplace computers -- the Evil HR Lady on how to handle a termination for "extremely inappropriate web-site browsing", and The Word on Employment Law's John Phillips on potential corporate liability for an employee's use of company computers to store or transmit inappropriate images of children.

One more from the Evil HR Lady, on managing employees' expectations. To add my two cents, I think 90% of employment relations issues could be avoided simply by management having honest conversations with employees about the expectations of the job and the workplace - performance, production, conduct, rules, and policies should all be laid out up front (where possible, in a writing the receipt of which is signed by the employee) to avoid any confusion or disappointment down the road.

Kris Dunn, The HR Capitalist, writes about one company that decided that penalizing employees for smoking made for bad business and rescinded a wellness $100 penalty. Everyone should also check out Kris's new blog, Fistful of Talent. Kris describes it as a conversation on talent, which includes recruiting, in addition to everything you do with the talent once you've got it in the door.

Best of -- Lessons from Childrens' Lit

"Farmer Brown has a problem. His cows like to type. " So starts Click Clack Moo, Cows That Type, one of my soon to be two year old daughter's favorite books. In Click Clack Moo, Farmer Brown's cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows' typewriter in exchange for electric blankets. The labor dispute ended, and the cows and hens went back to producing milk and eggs. The deal backfired on Farmer Brown, though, as Duck absconds with the typewriter and leverages it into a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize, and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don't discriminate. There is no guarantee that you'll stay out of court, but if you end up there, you'll have a much easier time convincing a judge and a jury of the rightness of your decision if you are perceived as being fair, reasonable, and even-handed.
2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an outcome. But, you should always keep an open mind towards a resolution.
3. Don't Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).