Announcing the publication of Think Before You Click: Strategies for Managing Social Media in the Workplace

It is with great pride and accomplishment that I announce the publication of Think Before You Click: Strategies for Managing Social Media in the Workplace (née HR and Social Media: Practical and Legal Guidance). This book, which I believe is the first of its kind discussing the intersection of social media, HR, and labor/employment law, comprehensively covers the following:

• What Is Social Media?: An examination of the “Big Four” in social media (blogs, Facebook, Twitter, and LinkedIn): how they are used today, and what’s on the horizon for tomorrow.
• Drafting the Workplace Social Media Policy: 10 considerations every employer needs to think through before drafting and implementing a workplace social media policy.
• Hiring and Recruiting: How employers are using social media to locate, vet, and screen potential employees and new hires.
• Privacy Protections: How privacy and social media interact in the workplace, and the various constitutional, statutory and common law privacy rights implicated by social media.
• Post-Employment Covenants and Trade Secret Claims: How best to protect confidential information and trade secrets from disclosure via social networks by current and former employees.
• Litigation: How lawyers are using social media as evidence in litigation against employers.
• Labor Law: The meaning of protected, concerted activity, anti-solicitation policies, and how the National Labor Relations Board is applying these long-standing principles in an attempt to gut employers’ attempts to regulate what employees about saying about them online.

Having edited the entire book, I can say without reservation that it is a must for any business owner, executive, manager, human resources professional, or attorney who is concerned about the effect social media is having on the modern workplace and the liability risks that flow from it. In short, this book will prove to be an invaluable resource as businesses try to navigate these uncharted waters.

When Thompson first approached me about authoring this book, I candidly told them that I would love to write the book, but my busy practice would not permit the time to crank out the entire tome. For that reason, I am eternally grateful to my team of contributing authors—Seth Borden (Labor Relations Today; @SHBorden), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Philip Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz)—who helped write an amazing book and without whom the book would not have been possible and would not be as good as it is.

Now click over to Thompson Publishing for more information, including how to order a copy.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #186 (the carnival edition)

This week marks the 186th edition of What I Read This Week, where I share the best what caught my eye as I surfed around the blogosphere (mostly) for the last 7 days. This week, Eric Meyer’s The Employer Handbook launched the Employment Law Blog Carnival, a monthly collection of submitted blog links on employment law arranged around a particular theme. I’ll be hosting the Carnival’s 2nd edition (theme tbd), on August 17, so feel free to send (jth@kjk.com) or DM (@jonhyman) your links by August 15.

I’d also be remiss if I did not give one more plug for Stephanie Thomas’s Proactive Employer Podcast on social media, in which I participated, which aired live at 8:30 this morning. Part 2 airs next Friday at the same time. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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

Discrimination

• Cubicle Walls Closing In On ADA Violations – from Stephanie Thomas’s The Proactive Employer Blog
• 4 Ways Employers Skirt Discrimination Laws – from The Street
• Religious Discrimination Based on Abercrombie “Look Policy” – from Employment Matters Blog
• Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law – from Michigan Employment Law Advisor
• No-Fault Attendance? In light of the EEOC/Verizon settlement, what’s the point? – from Employment and Labor Insider
• Avoiding discrimination class actions – from Inside Counsel

Social Media & Workplace Technology

• Steamed—Employment Law Attorneys & Social Media – from Blogging4Jobs
• OMG! The cost of social-media blunders – from today.com
• Plaintiffs, Beware of Social Media – from Social Media Today
• Nearly Half of Companies Have No Social Networking Policy – from Manpower Employment Blawg
• Using Social Media for Discovery Has Ethical Implications – from From the Sidebar
• Someone Posted Something Nasty About You On The Internet. Now What? – from Kashmir Hill’s The Not-So Private Parts
• The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree – from Pennsylvania Labor and Employment Blog
• The New Norm in HR: Social Media Recruiting – from Social Axcess
• Social Recruiting On The Rise In 2011 – from Cincy Recruiter’s World
• How to Create A Social Recruiting Strategy – from MonsterThinking

Employment Relations & HR

• Potty Training and how it relates to Careers (this should be interesting) – from Smelling Some Roses
• Bill Clinton and the “Extreme and Outrageous” IIED Hurdle – from Philip Miles’s Lawffice Space
• 7 Ways to Get at the Truth in a Workplace Investigation – from iSight Blog
• Employee Morale Tanks When A Co-worker Takes Sick Leave – from Workplace Diva
• Plaintiff’s Lawyer Reveals: Mistakes that Make My Day – from HR Daily Advisor
• Anti-Anti-Smoking Rules – from Workplace Prof Blog
• Leaky Hiring Tests: Are They Your Organization’s Most Expensive Mistake? – from TLNT
• Horrible Bosses? – from Harvard Business Review
• Unlimited Vacation, but Can You Take It? – from The Wall Street Journal

Wage & Hour

• Complaint re: Wages on Facebook Not Basis for FLSA Retaliation Claim – from Molly DiBianca’s Delaware Employment Law Blog
• Salaried Workers, Do You Get Overtime Pay? Odds Are You Should! – from Donna Ballman’s Screw You Guys, I’m Going Home
• You Be the Judge: Did boss tell employee to falsify his time card to omit overtime? – from HR Cafe
• DOL Playbook – from Laconic Law Blog
• Employers Urge Congress To Revise the Fair Labor Standards Act – from Wage & Hour - Development & Highlights
• Using GPS Tracking Technology to Prove Intermittent FMLA Abuse? – from Texas Employment Law Update
• Is There Paternity Leave in Baseball? – from Work and Family Blog
• Taking FMLA Leave to Care for a Parent or Parental Figure – from Wisconsin Employment & Labor Law Blog

Labor Relations

• NLRB’s Invisible Hand Will Hold Back Business – from The ChamberPost
• Bill That Would Remove NLRB’s Authority to Order Employers to Relocate or Close Their Facilities is Introduced – from Washington D.C. Employment Law Update
• Speakers List Grievances About Proposed NLRB Election Rule Changes – from Labor Relations Counsel

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Find the sweet spot when firing a bad employee

There is a balance between providing a poor-performing employee sufficient time to improve and waiting to long to fire someone. Cohen v. CHLN, Inc. (E.D. Pa. 7/13/2011) illustrates what can go wrong when this balance goes out of whack.

Howard Cohen managed various restaurants from 1998 through 2006, and again from 2007 until his termination in August 2009. During his second tenure with the restaurant company, his performance was less than stellar; he received various disciplinary warnings, write-ups, and suspensions, and two consecutive negative annual reviews. The restaurant waited to terminate Cohen, though, until the day after he advised of his need for back surgery. Based on that fact alone, and ignoring management’s internal discussions about terminating Cohen before he communicated his need for surgery, the trial court denied the employer’s motion for summary judgment:

Defendants have undoubtedly presented a wealth of evidence justifying their termination of Plaintiff. Nonetheless, their failure to fire Plaintiff, after years of poor performance reviews, until the morning after he requested leave for his back condition raises a sufficient question as to Defendants’ alleged discriminatory motive to render summary judgment inappropriate.

Don’t make the same mistake. Look for the sweet spot before firing a poor performer.

• Fire after you’ve provided the employee sufficient and reasonable warnings and opportunities to improve. Firing too early could lead a judge or jury to conclude that the termination was an ambush, and punish accordingly.
• Fire before the employee engages in some protected activity. Firing too late—as in the Cohen case—could lead a judge or jury to conclude that something other than poor performance motivated the decision. The last thing you want in a discrimination or retaliation case is a search for an explanation other than your proffered legitimate non-discriminatory reason.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

You’d think a businesses named “Menorah House” would know something about accommodating the Sabbath

The EEOC is alleging that Menorah House, a Boca Raton, Florida, nursing home, violated Title VII when it fired an employee who wanted time off to observe the Sabbath. From the EEOC’s press release:

According to the EEOC’s suit … Menorah House denied a religious accommodation to Philomene Augustin and fired her because of her religious beliefs. Augustin … is a Seventh-Day Adventist, and her Sabbath is from sundown on Friday to sundown on Saturday evening. Menorah House had accommodated Augustin’s request not to work on her Sabbath for over ten years until management instituted a new policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

When will accommodating the weekly Sabbath requests of an employee pose an undue hardship?

• If it would require hiring additional employees.
• If it would require paying other employees overtime.
• If other employees refuse to voluntarily swap shifts to cover.
• If it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.

If, however, an employer can schedule around the request without adding employees or costs, or without forcing employees to swap shifts, then the accommodation likely should be made.

If the facts as alleged by the EEOC are true, this employer should have forsaken its across-the-board prohibition against Saturdays off. Instead, it should have engaged in a cooperative information-sharing process with the employee to determine if it could provide a reasonable accommodation without incurring an undue hardship.

For more information on religious discrimination and reasonable accommodations, the EEOC offers the following resources on its website:

• Compliance Manual on Religious Discrimination
• Questions and Answers: Religious Discrimination in the Workplace
• Best Practices for Eradicating Religious Discrimination in the Workplace

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Can you hear me now? Don’t forget mobile devices in your social media policy

You think you’ve crafted the perfect social media policy for your employees. You let employees have the freedom to engage in limited and reasonable social media from work, yet use server-side software to spot-monitor their activities just in case things get out of hand. Your company Internet also blocks grossly inappropriate content, such as pornography. Yet, your policy is missing one key component ... mobile devices.

According to a recent report by the Pew Internet Project (c/o Mashable), more U.S. adults have a smartphone than a college degree. 35% of surveyed adults reported that they own a smartphone, and of those people 87% use their smartphones as an Internet device. Moreover, smartphone adoption is set to grow an additional 45% this year alone. (GigaOm). Smartphone use is approaching a critical mass in our society.

What are these smartphone owners doing with their devices at work? If a recent survey published by TechNewsDaily is to be believed, they are accessing websites they wouldn’t ordinarily visit from their workstation PCs:

• 52% look for a new job
• 47% watch pornography
• 37% research embarrassing illnesses or conditions

In light of these stats, if your social media policy is written as an outright ban on the use of social media in the workplace, that policy is not workable. Moreover, if your social media policy does not account for smartphone use, it has a gaping hole that you need to fill immediately.

If you want to learn more about these issues, I cannot more strongly recommend picking up a copy of HR and Social Media: Practical and Legal Guidance, which (God willing) finally will be published and available for purchase this week. I’ll have more information as soon as it is launched.

You should also check out a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast, during which Seth Borden (Labor Relations Today; @SHBorden), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), and I will discuss all things social media and HR (and promote our new book at the same time). Part 1 airs on BlogTalkRadio at 8:30 AM on Friday, July 22; part 2 at 8:30 AM on Friday, July 29. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Retaliation is the Hannibal Lecter of employment claims

How often do you see a perfectly defensible employment claim go up in flames because of retaliation? Take, for example, MacDonald v. UPS (6th Cir. 7/14/2011) [pdf]. In that case, the Court affirmed the dismissal of the disability discrimination claim and a companion whistleblower claim, but sent the case back for trial on the retaliation claim.

MacDonald engaged in protected activity on September 18, 2006, and was fired the same day. He returned to work on October 16, 2006, and was immediately required to write the safety rules over and over again in a notebook while his coworkers had down time. Viewed in the light most favorable to MacDonald, this requirement was punitive…. Further, within as little as two weeks, UPS ordered that surveillance be conducted on MacDonald, with the goal of disciplining him, and as soon as the security supervisor was available, MacDonald was subject to extreme scrutiny in the form of hidden surveillance cameras and tails. MacDonald again engaged in protected activity on December 18, 2006. Three weeks later, MacDonald was tailed by two supervisors, who looked for and documented the most miniscule of infractions, which were not enforced against other drivers. UPS terminated MacDonald for those infractions the following week, and a week later, MacDonald was sent on a training ride with a supervisor, who fabricated a story of gross insubordination. The following day, MacDonald was removed from service.

Retaliation claims are pure evil. They are difficult to get rid of. Have the lambs stopped screaming?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #185 (the “3 is the magic number” edition)

Yesterday, my son turned three. For those of you who follow regularly, you’ll understand why yesterday was just a little more special to our family. If you want to know what helps makes me who I am, take a gander at my wife’s excellent blog, from yesterday, about our guy’s birthday (it really is well-written; I'm not just saying that because she's my wife).

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

Discrimination

• 5 signs that you may be in trouble with the EEOC for employee harassment – from Employment Law Bits
• Gender Pay Gap, Menstrual Cycles and Productivity – from The Proactive Employer Blog
• Fifth Circuit Holds Title VII Damage Caps Apply “Per Party” Not “Per Claim” – from Texas Employment Law Update
• Does My Employee Have a Medical Problem or a Performance Problem? – from Evil HR Lady, Suzanne Lucas
• Accused of sexual harassment? That's bad, but don't make it worse – from Employment and Labor Insider
• Male coworkers think I won’t return to work after my pregnancy—and won’t shut up about it – from Ask a Manager

Social Media & Workplace Technology

• Compliance and Google+ – from Compliance Building
• “Social Checks” Come of Age: What Does It Mean for Employers? – from Workplace Privacy Counsel
• Is The Jury Still Out On Social Media Background Checks? – from California Employment Law Report
• Monitoring the Private Lives of Your Employees – from You’re the Boss Blog
• Social Media Continues To Impact Litigation and Trial – from Connecticut Business Litigation Blog
• Social Media and the front porch – from Legal Marketing: Social Media Edition
• Facebook Trash Talk Is Not Protected Speech In A University Setting – from Minnesota Labor & Employment Law Blog
• Digging Up Social Media’s Treasure Trove of Discovery – from Law Technology News
• Tips for Electronic Communications – from Employment Matters Blog

Employee Relations & HR

• Looking at Employee and Going “Bang Bang” Is Not “Extreme and Outrageous” Conduct – from Dan Schwartz’s Connecticut Employment Law Blog
• Fact or Fiction: A “general release” settles all discrimination claims – from Eric Meyer’s The Employer Handbook Blog
• Noncompete Doesn't Prevent Ex-Employee from Working for Competitor – from Philip Miles’s Lawffice Space
• Diagnose and Eliminate Workplace Bullying – from Harvard Business Review
• When bad employers retain thuggish employment lawyers – from David Yamada’s Minding the Workplace
• The Value of EPL Insurance to Protect Your Business Against Employment Lawsuits – from CPEhr

Wage, Hour, & Benefits

• Web Chat Participants Ask Several Questions, Receive Few Answers from DOL’s Wage and Hour Division – from Washington D.C. Employment Law Update
• Working 40 Hours Per Week: A Normal Schedule, or Career Suicide? – from TLNT
• Ohio District Court Rules Profit-Based Compensation Scheme Constitutes Bona Fide “Commission” for Purposes of 7(i) Overtime Exemption – from Wage and Hour Law Update
• New Wal Mart Case Helps Defeat FLSA Class Action – from Wage & Hour - Development & Highlights
• Classless Claim In Topless Bar: Arbitration Clause Strips FLSA Action Bare – from Hunton Employment & Labor Law Perspectives™
• Adequate Employee Notice of the Need for FMLA Leave Involving In Loco Parentis Parent: Further Explanation Required – from The FMLA Blog
• To invoke FMLA protection for care of another, some geographic proximity is required by the employee – from Employment Law Matters
• Should you mention call-in policy in your FMLA notice to employees? – from HR Cafe
• Firing Employees for Gross Misconduct: How Is COBRA Coverage Affected? – from SmartHR

Labor Relations

• NLRB Public Hearings on “Quickie” Elections to Proceed on July 18-19 – from Seth Borden’s Labor Relations Today
• WFI: Ten Ways to Spur Economic Growth – from Labor Relations Institute

Until next week...

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.