70% of hiring managers report rejecting candidates following internet searches

According to a recent survey conducted by Microsoft, 70% of U.S. hiring managers reject candidates based on information located online, while only 7% of consumers think that online information affected their job search.

The following are the most two most interesting findings from the study:

Do you review online reputational information about candidates when evaluating them for a potential job / college admission?

• All the time – 44%
• Most of the time – 35%
• Sometimes – 9%
• Rarely – 5%
• Never – 6%

What are the types of online reputational information that influenced decisions to reject a candidate?

• Concerns about the candidate’s lifestyle – 58%
• Inappropriate comments and text written by the candidate – 56%
• Unsuitable photos , videos, and information – 55%
• Inappropriate comments or text written by friends and relatives – 43%
• Comments criticizing previous employers, co-workers, or clients – 40%
• Inappropriate comments or text written by colleagues – 40%
• Membership in certain groups and networks – 35%
• Discovered that information the candidate shared was false – 30%
• Poor communication skills displayed online – 27%
• Concern about the candidate’s financial background – 16%

And yet, nearly 90% of recruiters and HR professionals surveyed report that they are somewhat to very concerned that the online reputational information they discover may be inaccurate. If you want to review the complete findings, Microsoft has made available a summary as a PDF, and its full research results as a PowerPoint.

What does all of this mean? Here’s what I’ve said previously on this issue:

There is a justified fear that a lot of the information on the internet is unreliable and unverifiable. I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.

For more on developing a DIY internet background screening strategy for your company, see Googling job applicants. You can also check out what the Delaware Employment Law Blog has to say on this issue.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Whose opinion counts for determining “incapacity” under the FMLA?

The FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves … continuing treatment by a health care provider.” The FMLA’s regulations define “incapacity” as the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” The regulations further define a “serious health condition involving continuing treatment by a health care provider” as requiring a “period of incapacity of more than three consecutive, full calendar days.”

How does an employee establish incapacity for three or more days? Is an employer required to take the employee and his or her word, or can the employer require the employee to support the claim of incapacity with medical evidence? Courts take three approaches.

Some courts hold that an employee’s own statements, without any medical support whatsoever, are sufficient to establish incapacitation to support a claim for FMLA leave. One court, for example, even allowed an FMLA claim to proceed when an employee’s statements about his health directly contradicted his doctor’s note, which permitted him to return to work without restrictions.

Other courts, including Schaar v. Lehigh Valley Health Services, Inc., a recent case from the Third Circuit, hold that an employee can support a claim of incapacity for FMLA-leave purposes with a combination of the employee’s own statements in combination with documentation from a health care provider. In the Schaar case, for example, the employee supported her claim for an FMLA entitlement with a doctor’s note, which said that she was incapacitated for two days, along with her own statements that she was incapacitated for another two days.

Both of these views give employees a tremendous amount of latitude to game the system by claiming FMLA-leave that may not be medically supported. Luckily for Ohio employers, Ohio’s district courts subscribe to the most restrictive view, that an employee can establish that he or she was required to be absent from work only upon the production of “evidence showing that a health care provider made a professional assessment of his condition and determined, based on that assessment, that an extended absence from work was necessary.”

Regardless of the legal standard employed in determining whether an employee is “incapacitated” and therefore eligible for FMLA leave, your best defense against potential liability is to use the FMLA’s medical certification process to verify the employee’s qualification for the statutory leave.

And, on a totally unrelated topic, in honor of St. Patty’s day here’s a very cool picture I took of O’Neill’s Pub in Dublin.

  

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? 12% of employees knowingly violate IT policies

According to a recent survey conducted by IT security company Fiberlink (H/T Workplace Diva), 12% of employees admit to knowingly violating IT policies. What types of violations might be occurring?

• Inappropriate or excessive use (YouTube, shopping, gaming, pornography).
• Misappropriation of confidential information.
• Harassment of co-workers or others.
• Moonlighting (e.g., checking Mary Kay sales).

I think the 12% number is light. I would bet that it’s closer to one-quarter to one-third of employees that misuse their employers’ technology. What can you do to best protect yourself. Let me suggest a seven-point plan.

1. Audit your internet and email systems. Take stock of how much time employees spend on-line, what types of sites are being visited, and the breakdown of personal use versus work use. Once you get a handle on how your systems are being used, you can figure out what type of policy you want for your workplace, and how restrictive it needs to be.

2. Draft and implement a Technology Policy. It should cover computers, email, social networking, and mobile devices. For more on how to draft this type of policy, see Do you know? 10 tips for drafting a workplace electronic communications policy.

3. Cross-reference the Technology Policy in your Harassment Policy and training, and in any confidentiality policies, business ethics policies, and non-competition agreements.

4. Require all employees to sign an acknowledgement that they received the policy, read it, had the opportunity to ask any questions about it, and understand it.

5. Train all employees on the ins and outs of the policy, including what you consider inappropriate use of the internet and email, and that violations will lead to discipline or termination.

6. Apply and enforce the policy fairly, consistently, and non-discriminatorily.

7. At least annually, review and if necessary revise policies to keep them legally up-to-date.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Beware these types of problem employees

Today is the Ides of March. For Julius Caesar, it meant a knife in the back from his best friend. Yet, Caesar had been warned to beware the Ides. I, too, provide the following warning. Beware these archetypes of problem employees in your organization:

• The chronically absent employee.
• The chronically late employee.
• The chronically ill employee.
• The insubordinate employee.
• The complaining employee.
• The bullying or harassing employee.
• The substance abusing employee.
• The thieving employee.
• The disloyal employee.
• The unhappy employee.

Each of these employees comes bearing a knife in the form of a potential lawsuit. At the same time, each is also loaded with legal landmines. For example, the absent or late employee may have an underlying medical issue causing their attendance issues. The harassing employee will put in a motion a chain of events under your harassment policy. The first step, though, in dealing with these issues is to recognize that they are issues at all.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #118

The big story that I missed this week is the refocused Congressional attention on the passage of the Paycheck Fairness Act on Capitol Hill. This law would make the following key changes to pay discrimination law:

1. Prohibits an employers from retaliating against employees for discussing wage information.
2. Permits uncapped punitive and compensatory damages for Equal Pay Act claims.
3. Requires employers to show “a bona fide factor other than sex, such as education, training, or experience” to establish a defense to a EPA claim (a much more difficult standard than the current “any factor other than sex” standard).
4. Changes classes in EPA class actions from “opt in” to “opt out.”

Take a look at the following posts from my fellow blawgers to catch up on what is happening with this important piece of legislation on the Hill:

• Paycheck Fairness Act, defining “fairness” as more litigation from PointOfLaw Forum

• Renewed Attention To Paycheck Fairness Act Puts Employers On Notice from Hunton Employment & Labor Law Perspectives™

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

Wage & Hour

• Department of Labor Announces New Initiative to Eliminate Independent Contractor Misclassification – from WorkplaceHorizons

• Beware the Phantom Class Action – from HR Daily Advisor

• Court Of Appeals Finds That Some Work Performed At Home Or While Commuting To Work May Have To Be Paid – from Labor Employment Law Blog

• Don't Be Blindsided with an Overtime Audit Due to Misclassifying Independent Contractors – from Overtime Advisor

• Happiness at Work: Hourly vs. Salaried – from Michael Haberman’s HR Observations

• Another Assistant Manager Case: The Time Bomb Keeps Exploding – from Wage & Hour - Development & Highlights

• AT&T Blindsided by Overtime Litigation – from Overtime Advisor

Labor Relations

• Teaching Kids About Labor Strikes: An Update with “Animal Strike at the Zoo!” – from Dan Schwartz’s Connecticut Employment Law Blog

• New Republic: President Should Recess Appoint Becker “To Mollify Unions” – from EFCA Report

• EFCA has become a proxy war – from LaborPains.org

• Implications of an NLRB Filled with Obama’s Recess-Appointees – from EFCA & Labor Law Reform Blog

• Update on the Status of Nominations to the NLRB – from New York Labor and Employment Law Report

• No Comment: Unions Upset With “Human Train Wreck” Eric Massa – from LaborUnionReport.com

Harassment

• 4/5 of an MDV, But It's the Subject Matter That Caught My Attention – from Michael Fox’s Jottings By An Employer’s Lawyer

• Second Circuit: Reporting Harassment to Harasser Alone May be Enough – from HR Briefcase

• Flirtation and Brief Touchings are Not Sexual Harassment -- Or are They? – from Florida Employment Law Blog

Other Discrimination

• A Case of Ironic Discrimination, Don't You Think? – from Workplace Prof Blog

• Using Gender at Work: Discrimination? – from The Word by John Phillips

• Fifth Circuit Distinguishes Comments Constituting Direct Evidence of Discrimination Versus Stray Remarks – from Texas Employment Law Update

• Length and Cost of a Lawsuit – from Tom Crane’s San Antonio Employment Law Blog

• Religious Discrimination: Some Fascinating Developments – from Fitzpatrick on Employment Law

• Absenteeism and Alcoholism – When can you fire? – from Jennifer Hays at the Warren & Hays Employment Law Blog

Technology

• Employees Who Check Smart Phones While Driving Aren't That Smart – from Workplace Diva

• 4 Social Media Commandments – from Rob Radcliff’s Smooth Transitions

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Playing 20 questions with the employee versus contractor distinction

As reported by the Washington DC Employment Law Update, the Treasury Department and Department of Labor have been jointly charged to eliminate legal incentives for employers to misclassify employees as independent contractors, and investigate potential misclassifications. Misclassifications carry potentially severe penalties. For example, employees are subject to wage and hour laws, and must have payroll taxes paid on their behalf. Contractors, on the other hand, do not have to paid minimum wage or overtime, and can be 1099’ed.

How do you know if you are misclassifying employees as contractors? Consider these 20 questions, none of which are dispositive, but each of which is an important part of the calculus. The more yes answers you have, the more likely the worker is an employee.

1. Is the worker required to comply with others’ instructions about when, where, and how to perform the work?

2. Is training part of the work experience?

3. Are the worker’s services Integrated into the business operations?

4. Do the services have to be rendered by the specific worker charged with the task?

5. Does the person or entity for whom the services are performed hire, supervise, and pay assistants?

6. Is there a continuing relationship between the worker and the person or entity for whom the services are performed?

7. Is the work on a full-time basis?

8. Is a regular and consistent schedule required?

9. Is the work performed on the premises of the person or entity for whom the services are performed?

10. Does the worker have to perform services in the order or sequence set by the person or entity for whom the services are performed?

11. Is the worker required to submit regular or written reports to the person or entity for whom the services are performed?

12. Is the worker paid on a set schedule, whether by the hour, week, or month?

13. Does the person or entity for whom the services are performed ordinarily pay the worker’s business and/or traveling expenses?

14. Does the person or entity for whom the services are performed furnish tools, materials, and other equipment?

15. Does the worker rely upon the person or entity for whom the services are performed to provide facilities for the work?

16. Is the worker’s base compensation unrelated to his or her performance or the performance of the enterprise?

17. Does the worker only provide services to one person or entity at a time?

18. Does the worker refrain from making his or her services available to the general public on a regular and consistent basis?

19. Does the person or entity for whom the services are performed retain the right to discharge a worker?

20. Does the worker retain the right to end his or her relationship with the person or entity for whom the services are performed at any time without incurring liability?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Who is Craig Becker and why should you care?

Craig Becker is President Obama’s nominee to the National Labor Relations Board. He is also the Associate General Counsel of the Service Employees International Union, the country’s fastest growing labor union. SEIU President Andy Stern is one of the most outspoken proponents of the Employee Free Choice Act.

Prior to being the SIEU’s in-house lawyer, Mr. Becker was a law professor at UCLA. During his academic life, he authored a 1993 article in the Minnesota Law Review, in which he argued:

• Traditional notions of democracy should not apply in union elections.

• Employers should be allowed to challenge union elections, even with evidence of union misconduct.

• Employers should be prohibited from placing observers at the polls to challenge ballots.

• Employer captive audience meetings should be grounds for overturning elections, and must grant unions equal access to company property.

It is unclear which of these ideas – including the EFCA for which the SEIU so strongly advocates – Mr. Becker things he could accomplish by administrative fiat as a member of the NLRB.

On February 9, Senate Republicans successfully filibustered Mr. Becker’s nomination, effectively blocking his appointment. In the words of Senate Republican Ben Nelson:

Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB and that he would pursue a personal agenda there, rather than that of the administration. This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand.

Now word has come that President Obama may make Mr. Becker a recess appointment to fill the three-year-old vacancy on the NLRB. This news comes on the heals of Vice President Biden’s comments to the AFL-CIO that the administration will “get [the EFCA] done.”

All of these developments should be sobering to businesses. And, the fact remains that statistics show that labor unions don’t need the help. According to recent NLRB data [pdf], labor unions win-rates in secret ballot elections is at its highest level in decades, at 66%. If Mr. Becker is appointed to the NLRB, expect his number to increase dramatically.

What can you legally do to prepare for the wave of union organizing that is on the horizon? Consider that according to the AFL-CIO Union Handbook for Organizers, the following 6 factors are likely to lower the chance of a successful organizing campaign:

1. A belief by employees that the boss is not taking advantage of them.

2. Employees who have pride in their work.

3. Good performance records kept by the employer, which reinforces the recognition and appreciation of employees’ efforts and their feelings of job security.

4. No claims of high-handed treatment, but instead firm, fair, and warranted discipline.

5. No claims of favoritism, other than that is earned through work performance.

6. Supervisors who have good relationships with subordinates.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.