Do you know? Are your employees getting Unvarnished?

What is Unvarnished? It’s a website (currently in private beta) that you should be very concerned about. TechCrunch describes it as a website where “any user can create an online profile for a professional and submit anonymous reviews. You can claim your profile, but unlike LinkedIn, you have to accept every post, warts and all. And once the profile is up there’s no taking it down.” In other words, it's akin to a virtual bathroom stall wall, where anyone can write anything about anyone else, with a cloak of anonymity and without real fear of repercussion.

TechCrunch also nicely summarizes the dangers businesses face from this type of anonymity:

This could be the place to anonymously settle vendettas: co-worker swipes a promotion, go to Unvarnished, boss dishes out a small bonus, go to Unvarnished, the vice president makes an ambiguous pass at your girlfriend, go to Unvarnished…you get the idea.

Here's CNET's take on the dangers of Unvarnished:

The thing I dislike most about this idea is that it gives someone else all the power to exert his or her will or personal preference on the reputation of another. Just because you don't like your boss doesn't mean you should have the power to affect his or her future employment prospects. After all, it's possible you're the jerk, not your boss. And so what if you can counter a negative review? If it hasn't risen to the level of outright defamation, it's just a matter of opinion, and the presence of that opinion could cost you a job.

Here’s what a particularly scathing review on Unvarnished looks like (again, courtesy of TechCrunch):

Whether Unvarnished catches on remains to be seen. For now, it's still in private beta and not available to the general public. Yet, as employers try to navigate the daily changes of the social media landscape, they need to be aware that sites like Unvarnished exist. Employees are on the Internet, bad mouthing each other and their employers. Better to at least have a policy directing employees to the responsible use of these tools than having them posting, without regulation, from your workplace and about your workplace.

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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.

Does the punishment fit the crime in your workplace?

Last week, this happened at a Philadelphia Phillies game:

 

A fan ran onto the field, and was promptly tasered by the police.

“What does this have to do with employment law,” you might be asking yourself? The Philadelphia police department is in he middle of a debate as to whether its use of a Taser was necessary or excessive. While your employees are likely at-will, you will be embroiled in the same debate when you defend a termination in court. While you have the legal right to terminate an employee at any time for any reason, juries will be asking themselves if the punishment fits the crime. If it does not, they will look for another reason for the punishment—such as discrimination.

When you make the difficult decision to terminate an employee, ask yourself: Do the actions really warrant termination? How have we treated other employees under similar circumstances? Is there a lesser punishment we can live with? Or, is the action so bad that termination is necessary? Judges and juries will be asking these questions when they decide your case. It is probably a good idea for you to also ask them of yourself.

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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 #126

Believe it or not, Sunday is the three year anniversary of the Ohio Employer’s Law Blog. Need proof? Here’s a link to my very first post, May 9, 2007: The Song Remains the Same – Has Burlington Northern Really Changed the Landscape of Retaliation Claims? I’ve since written 867 posts, a number that is hard even for me to comprehend. Maybe at the five year milepost I’ll compile my best posts into a book for those that have been with me from the beginning.

In the meantime, here’s post number 868—what I’ve been reading across the blogosphere this week.

Wage & Hour

• Employers Beware of the Misclassified Employee – from Jennifer Hays at the Warren & Hays Employment Law Blog

• President Obama’s Inaugural Year and Future Agenda: The Department of Labor – from Washington Labor & Employment Wire

• Clamping Down on Misclassification – from Human Resource Executive Online

• BNA: AFL-CIO Lawyer Highlights Government Focus on Misclassification of Employees, Independent Contractors – from Labor Relations Today

• PTO Passing the Tipping Point? Majority of Employers Report Pooled Leave Plans – from Ann Bares at Compensation Force

Social Media

• Do You Need to Use Social Media to Provide Legal Advice on It to Employers? No, But... – from Dan Schwartz’s Connecticut Employment Law Blog

• Social Media and the Hiring Process, Benefits and Risks – from the Iowa Employer Law Blog

• The Revolution Continues… Social Media Is Not a Fad – from Jennifer McClure’s Cincy Recruiter’s World

• Managing your Online Identity – from Marcia McCormick at the Workplace Prof Blog

• Panel Discussion on Social Media, Background Checks and Employment Screening – from Nick Fishman at employeescreenIQ Blog

Technology

• Survey says: most teens don't have a data plan, almost all send texts – from Engadget Mobile

• R.I.P. Floppy Disks (1981-2011) – from Inside Opinions: Legal Blogs

Trade Secrets and Competition

• San Jose Business Journal: “Trade Secret Theft By Rogue Employees On the Rise” – from Trade Secrets Blog

• First District upholds contempt sanctions for violation of non-compete agreement – from the FSSP Blog

EEO & Harassment

• The Un-pretty Protected Class? – from Philip Miles’s Lawffice Space

• EEOC Charge Filed for Illegal Firing Under GINA – from Nolo’s Employment Law Blog

• DOL Unveils Federal Disability Law Compliance Website for Employers – from Washington D.C. Employment Law Update

• “But they didn't ask”-The Interactive Process and ADA compliance – from HR Cafe

• Discipline of Employees Who Have Engaged in Protected Activity – from GT LE Blog

• Employees Harassed by Customers: When is the Employer Responsible? – from Fitzpatrick on Employment Law

• 4th Circuit Remands Discrimination Case For Trial – from Laconic Law Blog

• 3rd Court weighs in on what constitutes a hostile work environment – from Work Matters

• Combating “arbitrary discrimination based on appearance” – from Walter Olson’s Overlawyered

• Blown Up Breasts Blown Off by Jury – from The Word on Employment Law with John Phillips

Labor Relations

• A Good Catch: NLRB footnote may signal things to come – from LaborUnionReport.com

• Preparing For Democracy In The Workplace – from Hunton Employment & Labor Law Perspectives™

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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.

Caregiver discrimination, three years later

It’s been nearly three years since the EEOC published its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. According to a recent report published by the Center for WorkLife Law, employers that have not yet paid attention to this issue should start. The Center for WorkLife Law’s Family Responsibility Discrimination 2010 Litigation Update [pdf] paints a grim picture for employers that ignore caregiver issues or have to defend their employment practices in court. Here are the highlights:
Key Case Trends.

1. New Supervisor Syndrome—new supervisors canceling flexible work arrangements, changing shifts, or imposing new productivity requirements, with the intent of pushing family caregivers out.
2. Second Child Bias—mothers report little discrimination until they have their second child, at which point they report preemptive personnel actions based on assumptions about their commitment to their growing families over their jobs.
3. The Elder Care Effect—employers acting preemptively against employees who have to care for aging parents, again because of assumptions about the employee’s work commitment.

Types of Cases Filed

• pregnancy and maternity leave—67%
• elder care—9.6%
• care for sick children—7%
• care for sick spouses—4%
• time off for newborn care by fathers or adoptive parents—3%
• association with a family member who has a disability—2.4%

Number of Cases Filed

• The number of cases filed nationwide has increased from 13 in 1983 to 269 in 2008, with a 400% increase from decade to decade (1989 – 1998 as compared to 1999 – 2008).
• Ohio has the 4th highest number of caregiver discrimination cases filed.
• 88% of the cases are filed by females.

Success Rates

• Overall, employees win 50.4% of the time.
• But, in the Midwest, employees win 48.9% of the time.
• And, in Ohio, employees only win 46% of the time.
• The national average verdict or settlement is $578,316.

The conclusion of the Center for WorkLife Law:

This report is a warning siren for employers. The increase in family responsibilities discrimination cases indicates that employers do not yet understand their legal risks in this area. Blatantly discriminatory comments made by supervisors show a lack of recognition of employers’ obligations to treat caregivers equally, which in turn suggests a lack of direction from management and a lack of training.

Given Ohio high number of filed cases and the risk of a large damage award or settlement, this report is a warning that Ohio’s businesses should take seriously. What can companies do?

1. Ensure coverage of caregiver and family responsibity discrimination in EEO, harassment, and other policies.
2. Train supervisors and managers on how to recognize and avoid this breed of discrimination.

Common sense interview questions

Most businesses know that there are certain topics that simply are off limits during job interviews. Questions about race, sex, age, religion, disability, and marital and family status, for example, are EEO no-nos. Yet, some illegal questions are not all that obvious. “What year did you graduate high school?” might seem like innocuous small talk, but such a question could lead to an illegal inference about a candidate’s age.

Some illegal questions, though, are so obviously illegal that you have to question to sanity of the interviewer. Take, for example, the case of recent NFL draftee Dez Bryant. Mr. Bryant’s and his family’s checkered past notwithstanding, why in his right mind did Miami Dolphins GM Jeff Ireland think it was a good idea to ask Bryant during a pre-draft interview if his mother was a prostitute?

For more on subtle and not-so-subtle EEO interview traps, I recommend the following:

• Avoid hidden interviewing traps
• Common stereotypes to avoid during job interviews

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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? DOL to require “compliance plans”

Now we know what the Department of Labor plans to do with the 250 new investigators it recently hired. They are going to sifting through mandatory employer compliance plans looking for violations. Here’s the details, from Steven Greenhouse in last Thursday’s New York Times (with a tip of the hat to Mark Toth’s Manpower Employment Blawg and Philip Miles’s Lawffice Space):

In a move that will affect most American corporations, the Labor Department plans to require companies to prepare and adopt compliance plans aimed at ensuring they do not violate wage, job safety and equal employment laws.

The effort, aimed in part at reducing the incidence of employers not paying overtime and improperly classifying workers as independent contractors, will require them to document many of their decisions and share that information with their workers and the government….

Deputy Labor Secretary Seth Harris said … many specifics of what companies would be required to do had yet to be worked out. The department’s proposed rules are still being drafted, and businesses will have a chance to respond before any final rules are issued. The process is likely to take more than a year.

I have to say, this one caught me completely off-guard. If businesses are not taking wage and hour compliance seriously, they better starting thinking about it now.

One more thought—this plan will be a boon to all management-side labor and employment lawyers. This story is developing, and bears further monitoring as the DOL works out the specifics. If you want to get a head-start on compliance, let me suggest KJK’s proprietary 200-point HR and employment practices audit.

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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.

Your business is behind the 8-ball if you don’t have an email policy

Here’s some sobering stats on employees’ personal use of corporate email, courtesy of the Ruth Mantell at the Wall Street Journal:

• 71% of full-time employees with a company-assigned email account at least sometimes use it for personal communications.
• 89% of workers say admit to sending email from work to an outside party that contained jokes, gossip, rumors, or disparaging remarks.
• 14% sent messages that contained confidential or proprietary information.
• 9% admitted to sending sexual, romantic, or pornographic text or images.

In other words, you employees are likely using email and other corporate technologies inappropriately. Yet, according to a 2009 survey by the the American Management Association, only 80% of organizations have written email policies, and only 47% of employers train workers about policies, risks, and appropriate use.

Are you one of the 20% of employers that does not have a policy to cover email and its appropriate use? Do you want to trust the common sense of your employees not to spend all day reading personal emails, or, even worse, divulge confidences or sexually harass coworkers?

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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.