WIRTW #150 (the sesquicentennial edition)

It’s hard to believe that I’ve been writing these wrap-ups for 150 weeks. When I started this feature on October 12, 2007, I never imagined I’d still be doing it three years later, let alone blogging three years later. Some other milestones from the week of October 12, 2007 (courtesy of Wikipedia):

• U.S. athlete Marion Jones returns the five medals she won at the Sydney Olympics and accepts a two-year ban from the sport after admitting to her use of a prohibited substance.

• The general election in the Canadian province of Newfoundland and Labrador gives the Conservative government of Premier Danny Williams an enlarged majority at the expense of the Liberals.

• Polish police evict about 65 rebellious ex-nuns who had illegally occupied a convent in Kazimierz Dolny, Poland, for more than two years in defiance of a Vatican order.

• The United States Centers for Disease Control and Prevention warns consumers not to eat Banquet pot pies or other pot pies made by ConAgra with a printed code ending in C9 due to possible links with a salmonella outbreak.

• Former U.S. Vice President Al Gore and the UN Intergovernmental Panel on Climate Change (IPCC) share the 2007 Nobel Peace Prize.

I’ll let you decide if WIRTW #1 was the most significant event of that week. Next week’s WIRTW #151 marks another milestone—my 1000th post. I promise I’m getting all my self-aggrandizing out of my system this week.

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

Social Networking & Workplace Technology

• Take a Discovery Lesson From “The Social Network” – from Litigation PostScript. Persuasion Strategies for Litigators

• Who “Owns” A Twitter Account: Employer Or Employee? – from techdirt

• 6 Facebook, Twitter Mistakes That Can Get You Fired – from Joan Goodchild at PCWorld

• Social Media and Trade Secrets – Time to Panic? – from Trade Secrets Blog

• Survey: Judges Split on Their Use of Social Media – from Robert Ambrogi’s LawSites

• Why you should scrub departing employees’ emails – from Rob Radcliff’s Smooth Transitions

• Violation of a Non-Solicitation Provision Via Blog Post – from Molly DiBianca at the Delaware Employment Law Blog

• Should You Be Using Facebook For Recruiting? – from Lance Haun at TLNT

• Google tightening privacy leash on its employees – from Michael Liedtke at USAToday

Discrimination

• What Anita Hill did for America – from Workplace Fairness

• How General Counsel Can Recognize and Manage the Growing Risk of Retaliation Claims – from Shanti Atkins at Corporate Counsel

• Trucker demands religious accommodation for refusal to haul alcohol, tobacco – from Walter Olson’s Overlawyered

• Paid Administrative Leave is Not an “Adverse Employment Action” – from Daniel Schwartz’s Connecticut Employment Law Blog

• Sexual Harassment—You Know It When You See It – from HR Daily Advisor

• If not the face-slap standard, then what? – from Work Matters

• Husband Fired for Wife’s Conduct or Vice Versa – from The Word on Employment Law with John Phillips

• Distraction Theory - ADA Association Provision – from Philip Miles’s Lawffice Space

• Firing Offense: When is 'Shoot the Boss' Comment Not Considered a “Threat”? – from Mindy Chapman’s Case In Point

Wage & Hour

• Could Your PERSONAL Assets Be In The FLSA Crosshairs? – from Wage and Hour Laws Blog

• Overworked Employees Filing More FMLA Claims – from Workplace Diva

• DOL Stands for Department of Labor NOT Department of Employers – from Michael Haberman’s HR Observations

• Employer Not Liable For Telecommuter’s Accident While Traveling From Home To Office – from Laconic Law Blog

• Reporters are Not “Creative” Professionals – from Overtime Advisor

• Brett Favre Scandal Raises Issue of Workplace Protections for Independent Contractors – from Prima Facie Law Blog

• Satellite Dish Workers Tune In A FLSA Working Time Class Action – from Wage & Hour - Development & Highlights

Labor Relations

• Is Less Time from Petition to Election a Good Idea? – from EFCA & Labor Law Reform Blog

• Stop, Look, And Listen Before Terminating An Employee During A Union Organizing Campaign – from Hunton Employment & Labor Law Perspectives™

• NLRB Awards Compound Interest, Changing Long-Standing Rule – from Labor Relations Today

HR & Employee Relations

• 3 Workplace Guidelines for the Upcoming Election – from Where Great Workplaces Star

• If Your Employee Handbook References Progressive Discipline, You Better Use Progressive Discipline – from Minnesota Labor & Employment Law Blog

• NPR’s firing of Juan Williams: Politics aside, not a textbook example of how to fire with dignity and respect – from Sindy Warren at the Warren & Hays Employment Law Blog

Litigation

• Referring to Former Boss as Slimebag Does Not Constitute Disparagement, At Least in Ohio – from Fitzpatrick on Employment Law

• Using Litigation: Put out the client's lingering fires--permanently. Do that before you respond to the complaint – from What About Clients?

• Just Another Battle Between Employers and Employees – from Workplace Prof Blog

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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.

Best remedy for sick day abuse is a clear policy

In a 2006 episode of The Office, Dwight goes undercover to spy on co-worker Oscar when he suspects sick day abuse. He discovers that Oscar was using his sick day to ice skate. He also nearly discovers Oscar’s closeted homosexuality. I bring this up because, yesterday, careerbuilder.com published its annual list of the most unusual excuses for calling in sick.

The nationwide survey of more than 2,400 employers uncovered that 16% of businesses have fired a worker for missing work without a proven excuse. 29% of employers reported checking up on an employee who called in sick. Of those employers:

• 70% required a doctor’s note
• 50% called the employee at home
• 18% had another worker call the employee
• 15% (including Dwight Schrute) drove by the employee’s home

Of the more creative (or intriguing, depending on your perspective) excuses given by employees:

• A chicken attacking an employee’s mom
• A finger stuck in bowling ball
• A foot stuck in a garbage disposal
• One employee even called in sick from a bar at 5 p.m. the prior night.

I suggest that you call a sick day a sick day, and if you want to allow employees to use days off for “mental health days,” call your time off Paid Time Off, and not Sick Leave.

The best way to curb sick day abuses is to clearly spell your business’s expectation in a sick leave policy. What are the legitimate reasons for using a sick day? When is a doctor’s note required? What level of specificity is required? And, most importantly, what are the consequences if an employee is discovered lying about sick leave? According to CareerBuilder’s survey, 60% of employers allow employees to use sick day for mental health days. You may not think an employee’s “mental health day” is that big of a deal. You will reconsider, however, when you face a discrimination lawsuit from an employee terminated for dishonesty and you have to explain when you did not discipline a white employee who lied about his sick days.

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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.

Court concludes that “common slang” does not violate non-disparagement clause in severance agreement

I’ve seldom, if ever, negotiated a separation or settled an employment dispute for an employer without insisting that a non-disparagement clause be part of the signed agreement. The reasoning is simple—it’s not in a company’s best interest to have an ex-employee running around bad-mouthing it or trashing its reputation. The reality, however, is that a clause in a contract is only as good as one’s ability to enforce it when breached. In Ohio Education Assn. v. Lopez (10/19/2010) [pdf], one Ohio appellate court has removed a good deal of the bite from this class of clauses in separation and settlement agreements.

The facts of Lopez are straight-forward. In connection with the resignation of its assistant executive director and general counsel, the Ohio Education Association presented Lopez with a severance agreement. The agreement contained the following non-disparagement language, which is similar to that which you will find in most such agreements:

Employee further agrees not to at any time disparage, defame, or otherwise derogate Employer’s Officers, Executive, Committee Members, employees or agents.

OEA sued Lopez for an alleged breach of that clause by leaving the following voicemail for its outside counsel:

Davey, you never call me anymore. This is el jeffe. Call me sometime. I’m all settled with the OEA so you don’t have to worry about this gag order and all this s___ that slimebag Reardon said to you. So call me…. Bye.

The court of appeals concluded that while the voicemail did breach the non-disparagement clause, the breach was immaterial and therefore not actionable:

Here, the purpose of the separation agreement was to end the employment relationship and resolve all disputes. The nondisparagement provision was a negotiated term of the agreement. The provision OEA alleged Lopez breached uses the terms “disparage, defame, or otherwise derogate.” All of these terms connote harming a person’s reputation or causing one to seem inferior. The term “slimebag” is a common slang expression meaning “[a] despicable person, usually a male.” McGraw-Hill Dictionary of American Slang and Colloquial Expressions (4th ed.2006), 323…. This kind of trifling figure of speech is of so little consequence it cannot be said to be material and should be disregarded…. [T]he slang expression is such a part of modern casual speech as to be almost meaningless. OEA could not demonstrate that the message caused any damage to OEA or Reardon.

Because this case requires a showing of actual harm to prove a material breach of a non-disparagement clause, it will make it that much more difficult to enforce these provisions. Nevertheless, they remain an important part of any severance or settlement agreement because: 1) they establish the expectation that ex-employees are to act professionally and business-like when talking about your organization, and 2) protect your business from the malicious speech intended to cause real harm.

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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? The DOL is encouraging employee covert ops in your business

Six months ago, I wrote about the Department of Labor’s Wage & Hour Division’s launch of a one-stop web portal, We Can Help. Its stated purpose is to provide employees with information about their rights under federal wage and hour laws. At the time, I noted my concern that the most prominent part of this website is a section entitled, “How to File a Complaint.”

While trolling the We Can Help website over the weekend (yes, I know, the exciting life of an employment lawyer-cum-blogger), I came across a Work Hours Calendar [pdf]. The calendar encourages employees to track their arrival and leave times, start and stop times, meal breaks, and other breaks on a daily basis. The distinctions drawn between arrival versus start times and stop versus leave times suggests that the DOL is trolling for potential off-the-clock claims against employers. The calendar’s instructions shed some light on the DOL’s other goals, and lends further support to my belief that the DOL is prioritizing off-the-clock claims.

It is recommended that you keep all your pay stubs, information your employer gives you or tells you about your pay rate, how many hours you worked, including overtime, and other information on your employer’s pay practices. This work hours calendar should help you keep as much information as possible.

Employers must pay employees for all the time worked in a workday. “Workday,” in general, means all of the hours between the time an employee begins work and ends work on a particular day. Sometimes the workday extends beyond a worker’s scheduled shift or normal hours, and when this happens the employer is responsible for paying for the extra time. Usually, workers have to be paid for all the time that they work, including:

• Waiting for repairs to equipment necessary for work
• Time spent traveling between worksites during the workday
• Time spent waiting for materials during the workday
• Breaks less than 20 minutes long
• Time spent completing unfinished work after a shift

The form ends with the following ominous statement:

You work hard, and you have the right to be paid fairly. It is a serious problem when workers in this country are not being paid every cent they earn. All services are free and confidential, whether you are documented or not. Please remember that your employer cannot terminate you or in any other manner discriminate against you for filing a complaint with WHD.

Still think you can afford to put off that wage and hour 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.

Court compels production of social networking user names, logins, and passwords, and dispels any notions of personal privacy

As I’ve recently discussed (Discovey of Social Networks in Employment Disputes and More on the Lack of Privacy in Social Media), social networking profiles and posts have become fertile ground for the formal discovery of information about litigants. Last month, one Pennsylvania trial court took this discovery one step further, and ordered the production of a plaintiff’s social networking user names and passwords.

In McMillen v. Hummingbird Speedway, Inc. (Pa. Ct. of Common Pleas 9/9/10), the plaintiff filed suit to recover damages for substatial injuries he allegedly sustained during a stock car race. The defendant asked in discovery for the names of any social networking sites to which the plaintiff belonged, along with users names, logins, passwords. The plaintiff objected, claiming that his Facebook and MySpace user names and login information were confidential. The trial court disagreed, and ordered the production: “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, … access to those sites should be freely granted.” It relied, in part, on Facebook’s terms and conditions, which the court concluded dispelled any notion that information one posts on Facebook is private:

Yet reading their terms and privacy policies should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else…. Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion. Implicit in those disclaimers, moreover, is that whomever else a user may or may not share certain information with, Facebook’s operators have access to every post….

The court also found that the relevancy of social networking information outweighed the potential of harm from the disclosure of that information.

Furthermore, whatever relational harm may be realized by social network computer site users is undoubtedly outweighed by the benefit of correctly disposing of litigation. As a general matter, a user knows that even if he attempts to communicate privately, his posts may be shared with strangers as a result of his friends’ selected privacy settings. The Court thus sees little or no detriment to allowing that other strangers, i.e., litigants, may become privy to those communications through discovery….

Millions of people join Facebook, MySpace, and other social network sites, and as various news accounts have attested, more than a few use those sites indiscreetly…. When they do and their indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail to bright to light relevant information that may not otherwise have been known.

In last Sunday’s New York Times Magazine, Walter Kirn made the following observation about the intersection between social networking and the loss of personal privacy:

As the Internet proves every day, it isn’t some stern and monolithic Big Brother that we have to reckon with as we go about our daily lives, it’s a vast cohort of prankish Little Brothers equipped with devices that Orwell, writing 60 years ago, never dreamed of and who are loyal to no organized authority. The invasion of privacy—of others’ privacy but also our own, as we turn our lenses on ourselves in the quest for attention by any means—has been democratized.

As McMillen illustrates, by choosing to sacrifice our personal privacy through social interactions on social websites, we are also choosing to sacrifice our right to protect those interactions from discovery. 

[Hat tip: Delaware Employment Law Blog]

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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 #149 (the work / family edition)

October is National Work & Family Month. In it’s honor, I bring you three posts I read this week celebrating this cause:

• European MPs Vote to Extend Maternity Leave – from Workplace Prof Blog

• The Top Five Issues Affecting Working Families Today – from Work and Family Blog

• Is There More to the Story About the New Mom Who Quit Her Job Because She Was Denied Access to a Lactation Room? – from Patrick Smith’s Iowa Employment Law Blog

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

Discrimination

• EEOC Holds Public Hearing on Use of Credit Reports for Hiring – from Dan Schwartz’s Connecticut Employment Law Blog

• Employment Credit Reports Have Value: I Hope the EEOC Listened – from employeescreenIQ Blog

• Credit Checks: Yes or No? – from Michael Haberman’s HR Observations

• Extraterrestrial Employment Law – from Stephanie Thomas’s The Proactive Employer

• ADA accommodation: How supervisors can navigate the gray zone – from Stephen Meyer’s HR Cafe

• Recent Lawsuit Reminds Employers: You May Be Liable For Non-Employee Harassment – from Hunton Employment & Labor Law Perspectives™

• Meet GINA Before You're Introduced in Court – from Employment Essentials

• Religious Discrimination Complaints On the Rise at Work – from Courtney Rubin at Inc.com

• Obesity Under the ADA - EEOC Files Suit – from Philip Miles’s Lawffice Space

Workplace Technology & Social Networking

• Controlling Workplace Language is a Real Concern – from Digital Workplace Blog

• Too Much Information: When Social Media Spills Into The Workplace – from Lance Haun at TLNT

• Legal Ethics and The Social Network – from Social Media Law Update

• Take-Aways from the Navy’s Social-Media Handbook – from Molly DiBianca at the Delaware Employment Law Blog

• Social Media Update II from Fitzpatrick on Employment Law

• Seven Steps to Managing Your Online Reputation – from You’re the Boss Blog

• Fullbright’s 7th Annual Litigation Trends Survey – from Sharon Nelson’s Ride The Lightning

• Your touchscreen phone is a petri dish – from Boy Genius Report

• New Jersey Appellate Court: Lawyers Can Google Jurors – from Molly DiBianca’s Going Paperless

• Workers hogging bandwidth for personal use – from Barry Shlachter at the Columbus Dispatch

Wage & Hour

• A Brief Refresher on the Reemployment Rights of Veterans Under USERRA – from WorkplaceHorizons

• Coffee Breaks? Meal Breaks? Smoke breaks? What Is Required By Law? – from Minnesota Labor & Employment Law Blog

• Personal Liability Under The FLSA: The Issue Of Contro – from Wage & Hour - Development & Highlights

• Happy 72nd Birthday, FLSA - Time For An Overhaul – from Jennifer Gokenbach’s Colorado Employer's Law Blog

• Argument Recap: Court seeks clarity on what counts as a “complaint” under the Fair Labor Standards Act – from SCOTUSblog

• Conflicting Fitness for Duty Reports Preclude Retaliation Claim from FMLA Insights

HR & Employee Relations

• Putting Me and Other Employer’s Lawyers Out of Work – from Michael Fox’s Jottings By An Employer’s Lawyer

• What if we applied the Golden Rule at work? – from David Yamada’s Minding the Workplace

• Poppy seed bagels and false positive drug tests – from Walter Olson’s Overlawyered

• Getting a sense of a corporation’s culture: the job of every investigator (or, ruminations during a 7 hour layover in Dallas) – from Sindy Warren at the Warren & Hays Employment Law Blog

• Evidence Employees Are MORE SATISFIED With Their Bosses: Why It May Be So – from Bob Sutton

• Suggestions and Links for Creating or Updating Employee Handbooks – from George's Employment Blawg

• Dogs at Work – from Nolo’s Employment Law Blog

• Is a Policy Still a Policy if It's Not in Writing? – from Mindy Chapman’s Case In Point

Labor Relations

• “Card Checkmate” – from The ChamberPost

• Company Needs vs. Employee Wants—Guess Who Wins? – from RJ Morris at Fistful of Talent

• Unions, Recognition and Employee Engagement – from Derek Irvine at Compensation Cafe

Non-Competes & Trade Secrets

• Reducing the Risk of Litigation When Hiring Employees with Non-Compete Agreements – from Delaware Non-Compete Law Blog

• Jasmine v. Marvell: Remember To Hang Up Your Telephone After You Leave A Voicemail Message (Oh, And Don't Admit IP Theft Over The Telephone Either) – from Trading Secrets

• Hiring From the Competition – from Trade Secret / Noncompete Blog

• Conspiracy Theory: Employees Conspire to Breach Non-Competes or Steal Trade Secrets – from Trade Secrets & Non-Compete Blog

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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.

EEOC holds public hearing on credit histories and employee selection criteria

Yesterday, the EEOC held a public hearing on the use of credit histories as selection criteria in employment. It heard testimony from representatives of the National Consumer Law Center, Lawyers’ Committee for Civil Rights Under Law, the National Council of Negro Women, the U.S. Chamber of Commerce, and the Society of Human Resources Management, in addition to lawyers and psychologists. Following the hearing, the EEOC posted a press release summarizing the testimony. It has also posted the prepared remarks of the people testifying. 
Kudos to the EEOC for presenting a balanced panel of representatives of both employee interests and business interests, even though it is trying to further an agenda against the use of credit histories in employment. Sara Murray, reporting at the Wall Street Journal, synthesizes the core debate between employee advocates the business advocates on this issue:

The underlying concern is that poor credit could become a barrier to landing a job. Employers contend credit checks help them evaluate candidates and protect against fraud. Another concern is the potential discriminatory impact on hiring…. Opponents of the practice cite studies showing that African-Americans and Latinos tend to have lower credit scores. They also dispute whether credit reports are an accurate way to measure an employee’s qualifications.
Proponents of credit checks, which include fraud examiners and credit-reporting groups as well as employers, contend the histories are an important screening tool for employers and tend to be used sparingly…. Michael Eastman, an executive director at the U.S. Chamber of Commerce, told the EEOC that employers take individuals’ circumstances into account. Many at the hearing stressed that employers look for a pattern of careless financial behavior, not one-time events. “It’s very easy for the best, well-intentioned people to have very difficult times,” he said. “Employers recognize that.” Credit checks can also be used as a tool to protect businesses against fraud, supporters argue.

Blanket prohibitions on any practice are usually not a good idea. In this area, there are good reasons to allow the use of credit checks for job candidates. Consider the following, cited during yesterday’s EEOC testimony by Christine Walters of the Society for Human Resource Management and Pamela Devata of Seyfarth Shaw:

• While 60% of employers use credit checks to vet job candidates, only 7.8% use them for all candidates.
  
• Employers generally conduct credit checks when the information is relevant to the particular position: jobs with financial or fiduciary responsibilities (91% of employers), senior executives (46%), and jobs with access to confidential employee information (34%).
  
• Employers do not use credit checks to screen out applicants before they can even get in the door. 57% of businesses only initiate credit checks after a contingent offer, and another 30% only after the job interview.
  
• Credit checks can help protect against employee theft and fraud. In 44.7% of cases of employee fraud, the perpetrators were experiencing financial difficulties, and in 44.6% of cases they were living beyond their means.
  
• According to credit report provider Experian, employers never see credit scores. However, most of the research on the disparities in credit histories between racial groups is based on those scores. It is unfair to hold employers accountable for the scores they never see.
  

Additionally, it is not as if employees are without protections when employers seek to use credit histories in employment decisions. There is an entire federal statute— the Fair Credit Reporting Act—that provides myriad hoops for employers to jump through before and after using credit information. It also requires that employees give their consent before an employer can even request a credit history. And, Title VII prohibits the discriminatory use of credit histories. To per se prohibit employers from using information that is relevant to many positions simply does not make sense from a business perspective, and HR perspective, or an EEO perspective.

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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.