WIRTW #187 (the “24” edition)

Willie Mays … Jack Bauer … Jon Hyman … what do we all have in common? The number 24. HR Examiner, one of the preeminent online magazines on HR issues, recently named me to its list of the top 25 digital influencers for human resources—number 24, to be exact. Please check out the entire list, which is chock-full of great HR bloggers and tweeters.

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

Discrimination

• What would Kenny Powers do? Interview questions to avoid – from The Employer Handbook Blog
• Sexual Harassment: You Knew or Should Have Known – from Michael Haberman’s Omega HR Solutions
• “Associational Disability Discrimination”—Yet Another Protected Category – from Labor & Employment Law Perspectives
• Non-impaired employee may be able to bring a claim under the ADA’s “associational disability” provision – from Employment Law Matters
• Wal-Mart Agrees to Give Women Extra Time to File Discrimination Lawsuits – from How Appealing
• Verizon Consent Decree Provides Road Map For Surviving EEOC Scrutiny of No Fault Attendance and Leave of Absence Policies – from Employer Law Report
• Two Recent Decisions Illuminate for Employers the Broad Contours of ADA Confidentiality vs. the Narrow Boundaries of HIPAA Privacy – from Workplace Privacy Counsel
• ADA And GINA: The EEOC Suggests That Additional Layers Of Privacy Protections For Employee Health Information May Be Necessary – from Hunton Employment & Labor Law Perspectives™
• Substance abuse and the ADA: Can too much caring get you in trouble? – from HR Cafe

Social Media & Workplace Technology

• Social Media: Used Not Just to “Friend”, but to Hire – from Smart HR Manager
• LinkedIn and Litigation – from Augmented Legality
• Twitter Fail and Compliance – from Compliance Building
• E-Monitoring in the Workplace: Do’s and Do Not’s – from Workplace Insights
• How much time are your employees on Facebook? from Rob Radcliff’s Smooth Transitions
• Monitoring Employee Communications Requires Up-to-Date Consent – from Labor & Employment Law Perspectives
• Computer Fraud and Abuse Act: A Criminal Statute That Extends to the Employment Relationship? – from Michigan Employment Law Advisor
• Employers Hunt Down Your Bachelor Party Pics on Facebook – from Evil HR Lady, Suzanne Lucas
• Google Plus for lawyers : First impressions – from Real Lawyers Have Blogs
• Social Media “Incidents” Costing Average Company $4 Million A Year – from Workplace Diva
• LinkedIn Launches “Apply With LinkedIn” Button – from Social Axcess

HR & Employee Relations

• Can you get fired for cursing at work? – from CNN
• Using Trickery and Deceit in Workplace Investigations – from iSight Blog
• How to Use Payroll Debit Cards to Pay Employees – from Virginia Employment Law Journal
• Criminal Histories and Employment Opportunities – from Stephanie Thomas’s The Proactive Employer Blog
• 21 Workplace Benefits That Are Rapidly Disappearing – from US News and World Report
• HR Mistakes in Mergers and Acquisitions – from TLNT
• What To Do When Angry Employees Leave – from Inc.

Labor Relations

• NLRB Division of Advice Provides Additional Guidance on Social Media Issues – from Seth Borden’s Labor Relations Today
• NLRB: Not All Employee Facebook Posts Deserve Protection After All – from Dan Schwartz’s Connecticut Employment Law Blog
• Ikea’s Virginia Manufacturing Plant Workers Vote for Union – from Bloomberg
• First Circuit Upholds NLRB’s Strike Against Compensation Confidentiality Policy – from Labor Relations Counsel
• NLRB Quickie Election Fact Check – from Labor Relations Institute

Wage & Hour

• U.S. DOL Seeks New Employment-Law-Related Apps – from Molly DiBianca’s Delaware Employment Law Blog
• Parental Bereavement Act Would Amend FMLA to Provide Leave Upon Death of a Child – from FMLA Insights

Trade Secrets & Competition

• Noncompete Defamation Leads to Six-Figure Verdict – from Philip Miles’s Lawffice Space
• Affidavits Not Enough to Obtain Injunctive Relief in Alleged Raiding Case – from Trading Secrets
• Court Enjoins Lawyer From Competing and Soliciting Clients of Former Law Firm – from Trade Secrets & Non-Compete Blog

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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.

Did you hear the one about the one-armed man who applied for a job with TSA?

Michael Costantino was born without a left hand. Should the Transportation Security Administration have hired him as an airport screener? Or, has it violated the ADA by refusing to hire him because of his missing hand? Eva Tahmincioglu reports the details at MSNBC.com:

After a physical examination by the agency, he got a notice stating he did not qualify for the position because of the “congenital loss of right hand.” …

But an official, who demanded anonymity, said the congressional act that created the TSA in 2001 “gave the agency the leeway to create its own physical qualifications for the Transportation Security Officer position, and potential employees have to meet certain physical standards to meet those qualifications.” The law requires that screeners “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills.”

This case will hinge on whether Costantino could perform the essential functions of the transportation security officer position, including patting down passengers and checking luggage. As this recent case from the Northern District of Ohio makes clear, the ADA does not require an employer to restructure the essential duties functions of a job as a reasonable accommodation.

I would argue that moving passengers through the line as quickly and safely as possible is also an essential function of this position. It is probably safe to assume that Costantino could screen passengers and luggage one-handed, albeit more slowly. If his limitation would cause him to take longer to screen passengers and cause an unneeded back-up, would he be performing all of the job’s essential functions? Before you slam me for being insensitive, answer these questions honestly. Do you want to be in the unnecessarily long security line when you’re trying to catch your flight? Or, would you be murmuring under your breath for the line to move faster as your eyes dart between the line, your watch, and your boarding pass?

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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.

Calling for a balanced approach to criminal background checks

Yesterday, the EEOC continued its series of public meetings examining hiring practices as alleged employment barriers, covering employers’ use of arrest and conviction records. According to the EEOC’s press release, it is trying to strike a balance between workplace fairness and workplace safety. Let’s hope that the EEOC is serious about being balanced in its approach to this important issue.

The EEOC’s position has always been that blanket policies that disqualify people with criminal backgrounds violates Title VII. Instead employers should undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job. At the minimum, the EEOC should continue this approach.

Nothing will be served by tightening the reigns on employers’ ability to conduct reasonable criminal background searches. Consider, for example, the May 2009 verdict against a Virginia assisted living facility that failed to discover that it had hired a sex offender. This example might be extreme, but it illustrates that criminal histories are necessary and relevant for many employers. Every employer does not need to check the criminal background of every applicant. However, it is imperative that the EEOC allow employers the flexibility to decide for themselves which positions warrant criminal history histories, and then which crimes disqualify a candidate from employment.

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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.

Start-up offers social media background searches; employers rejoice and privacy advocates mistakenly groan

More employers are turning to social media sites to vet potential employees. There is no doubt that sites like Facebook and Twitter offer a wealth of information about potential hires. Using these sites to vet job candidates offers a great opportunity, and also a huge risk. Using publicly available information on the Internet has the risk of disclosing protected EEO information, such as disability, age, race, or religion, or, at a minimum, raising a dangerous inference that such information was discovered and used in the hiring process.

Nearly two years ago, I cautioned employers against relying solely on online background checks to vet potential employees. I recommended using a “third-party to do the searching, with instructions that any sensitive, protected, or EEO information not be disclosed back to you.” No companies were available, though, that specialized in these types of background searches, until now.

Last month, the FTC signed-off on a year-old company that searches social media sites for employers conducting background searches on employees—Social Intelligence Corp. In last Wednesday’s New York Times, Jennifer Preston wrote a profile of the start-up that has generated a lot of online discussion:

Companies have long used criminal background checks, credit reports and even searches on Google and LinkedIn to probe the previous lives of prospective employees. Now, some companies are requiring job candidates to also pass a social media background check.

A year-old start-up, Social Intelligence, scrapes the Internet for everything prospective employees may have said or done online in the past seven years.

Then it assembles a dossier with examples of professional honors and charitable work, along with negative information that meets specific criteria: online evidence of racist remarks; references to drugs; sexually explicit photos, text messages or videos; flagrant displays of weapons or bombs and clearly identifiable violent activity.

According to Social Intelligence’s CEO, Max Drucker, its services “have turned up examples of people making anti-Semitic comments and racist remarks…. Then there was the job applicant who belonged to a Facebook group, ‘This Is America. I Shouldn’t Have to Press 1 for English.’”

I have not used Social Intelligence’s services, and I am not endorsing its product. What is appealing about it, though, is its professed ability to screen out protected EEO information:

Our technology allows us to turn around reports in 24 to 48 hours while still having social media activity about every job applicant manually reviewed. Social Intelligence Hiring presents employers with reports on only employer-defined objectionable material, such as racist remarks or behavior, explicit photos and video, and illegal activity. We flag job candidates associated with negative and positive material, filtering out their “protected class” information and reporting only relevant and desired data. Summary and detail views present easy-to-understand results, with screenshots of pertinent material.

Social Intelligence has sparked a lively debate on the Internet. The New York Times story alone has a whopping 258 comments to date. I participated in a discussion on Google+ about the New York Times article, where my opinion voicing the validity of checking employees’ social media activities was decidedly in the minority. The majority, who expressed privacy concerns, misses the mark. Social media is inherently public, and employees who do not tend to their online image risk an arduous job search.

If you want to learn more about the proper and improper uses of social media in the hiring process, Think Before You Click: Strategies for Managing Social Media in the Workplace is now available from Thompson Publishing. I also recommend part two of Stephanie Thomas’s Proactive Employer Podcast—the HR and Social Media Roundtable—airing live this Friday (July 29) at 8:30 am on BlogTalkRadio, and later 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.

Is this what a disability analysis looks like under the ADAAA?

A lot has be written over the past couple of years predicting how the 2009 amendments to the ADA have eviscerated the definition of disability. Here’s what I wrote a couple of months ago, after reviewing the EEOC’s then-new regulations:

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability.

Now, we finally have an example that starts to prove these predictions correct.

Gesegnet v. J.B. Hunt Transport (W.D. Ky. 5/26/11) concerns whether an employer failed in its obligation to reasonably accommodate an employee’s bi-polar and anxiety disorders by making arrangements for a pre-employment drug screening somewhere other than a small room. Before the court could reach the reasonable accommodation issue, it had to first address whether the employee qualified as “disabled” under the ADA. The following is the court’s searing analysis of this important threshold issue:

In difficult cases, a plaintiff usually proves disability through a combination of medical evidence and personal testimony detailing the practical impact of that medical condition. Here, Plaintiff is lacking in each area.... The Court doubts that the medical and personal evidence here is sufficient to show an actual inability to perform a basic function of life. Nevertheless, given the broad definition of disability Congress intended, the Court will assume that Plaintiff has a disability under the ADAAA.

Because employers will not be able to prove that an employee is not “disabled,” employers will be better served by focusing their ADA-compliance efforts on the two issues that now matter: avoiding discrimination and providing reasonable accommodations.

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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.

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.