I’ll be on NPR tomorrow morning talking about social media

Tomorrow morning, from 9 – 10 a.m., I’ll be a guest on WCPN’s The Sound of Ideas (the “best radio show” in Ohio, according to The Cleveland Press Club). I’ll be discussing workplace social media and labor/employment law. One of the other guests will be Lafe Solomon, General Counsel of the National Labor Relations Board, so it should be an interesting and spirited conversation.

You can listen/watch live at www.ideastream.org/soi. Following the live show, a recording will be available at iTunes and from The Ohio Channel.

The phone numbers, should you want to call with a question or comment during the show, are 216-578-0903 or 866-578-0903.

The Employer Bill of Rights

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The Employer Bill of Rights is now available as a book. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations.

You can purchase your copy in a variety of formats:

• Amazon – paperback
• Amazon – Kindle
• Barnes & Noble – paperback
• eBook

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According to Liz Ryan, writing at Businessweek.com. “Actual employee rights in the U.S. are fairly limited.” She posits that because “it’s legal to make hiring and termination decisions for random (nondiscriminatory) reasons” (such as an employee’s favorite sports team), employees need a “Bill of Rights” to protect themselves.

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees:

• Title VII: race, color, religion, sex, and national origin
• PDA: pregnancy
• ADEA: age
• ADA and ADAAA: disability
• GINA: genetic information
• USERRA: returning veterans
• FMLA: family leave
• FLSA: minimum wage, overtime, and child labor
• ERISA: benefits
• COBRA: continuing health coverage
• OSHA: safety
• NLRA: labor
• FCRA: background checks
• WARN: plant closings

The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer Bill of Rights:

1. The Right to Hire on Qualifications: We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire.
2. The Right to Fire on Performance: We also want the right to fire without the fear of an expensive lawsuit when you fail to perform. Every performance review is not an attempt to push you out the door. Believe it or not, every employee we hire represents an investment by us. We want that investment to bear a substantial return. Criticism is meant be a constructive attempt to help you improve, not a destructive set-up for you to fail.
3. The Right to Control Operations: We know how many people we need to employ, how many shifts we need to run, and how many facilities we need to operate. Most importantly, we know what can afford to remain profitable. If we have to shutter or relocate a plant, lay people off, or furlough hours, it’s not because we are discriminating against you; it’s because it’s necessary for us to remain open and able to employ anyone at all.
4. The Right for You to Follow Our Work Rules: We do not distribute handbooks and other policies because we like destroying trees. We do so because we think every relationship needs to be guided by a set of expectations under which each side is supposed to operate. All we ask is that you live up to your end of the bargain and accept the consequences if you don’t.
5. The Right to Be Told When There Is a Problem: We cannot fix workplace problems if the first we hear about them is when a lawsuit is served. Help us help you by letting us know if you think you’re being discriminated against, retaliated against, paid incorrectly, or otherwise being treated unfairly. If you’re right, we’ll fix it. Right or wrong, we won’t hold it against you.
6. The Right to Receive an Honest Day’s Work: When you are at work, we ask that you reasonably dedicate yourself to the tasks at hand. It’s only fair; after all, we are paying you for your services.
7. The Right to Have Our Say Before You Form a Union: We recognize your right as employees to form a union if that’s the collective choice of your majority. Just hear us out and let us have our say on why it’s not all it’s cracked up to be and may not be in your best interest.
8. The Right to Reasonable Notice: We understand that certain laws (the ADA and the FMLA, for example) provide employees rights to certain accommodations, which we follow. In return, we merely ask that when possible, you not wait until the last minute to request an accommodation or a leave of absence. It wreaks havoc with our scheduling and operations.
9. The Right to Be Treated With Respect: Businesses need respect too. We expect that you will demonstrate that respect to us and your fellow employees by showing up on time, not passing off to others that which you can (and should) do yourself, not waiting until the last minute to schedule your vacation, and generally treating others as you would want to be treated.
10. The Right to Confidentiality: We expect you will not share internal workplace issues with the outside world, whether they are our trade secrets or other proprietary information, or the day-to-day goings-on inside our company.

Stereotypes

On last Sunday’s episode of HBO’s Boardwalk Empire, Chalky White, a jailed African-American bootlegger, comforted his wife with the following information about his attorney: “He a Hebrew gentleman.” Lest you think that such observations were left in the 1920s, I once had a client I was defending in a race harassment case refer to me as his “Jew lawyer.”

I relay these tales (both real and fictional) because of a story on Businessweek.com about a national origin discrimination case recently filed by the EEOC against a Colorado hotel. The lawsuit claims that hotel ownership directed management “to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder.” The lawsuit further claims that management told one of the fired employees that ownership did not want to employee American or Caucasian workers “because it was their impression that such workers are lazy.”

There is no hiding that stereotypes—both positive and negative— exist. To some degree we all harbor them (and anyone who tells you differently is full of it). The better job you do of insulating your personnel decisions from these stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

WIRTW #196 (the “atonement” edition)

As I’ve mentioned in this space before, my family is of mixed religion. I’m Jewish and my wife is Catholic. I offer this information because tonight at sundown begins Yom Kippur, the Jewish day of atonement. Unlike Catholics, who confess their sins every week, we Jews ask for God’s forgiveness in a lump sum, once per year on Yom Kippur.

While this comparison is an over-simplification, it nevertheless serves as a jumping-off point to offer my apologies for any posts I’ve written over the past year that might have offended. I do not offer this apology for my viewpoints and opinions—for which I would never apologize or shy away from. Instead, I apologize if language and word choice caught some of my readers off-guard. Employment law can be dirty and offensive. For me, it’s part of what makes it interesting. It is not, however, everyone’s cup of tea.

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

Discrimination

• Employers, don’t be overzealous with your wellness. Beware of the ADA and everything else – from Robin Shea’s Employment and Labor Insider
• Criminal Background Checks and Avoiding Discriminatory Hiring Practices – from i-Sight Investigation Software Blog
• What Does “Similarly Situated” Really Mean? – from Stephanie Thomas’s The Proactive Employer Blog
• Employee drug testing and bashful bladders; it’s a wicked pissah! – from Eric Meyer’s The Employer Handbook Blog
• Attorneys Dancing Around Impact of Gender Identity Discrimination Law – from Dan Schwartz’s Connecticut Employment Law Blog
• Disparate Impact and the Non-Traditional Plaintiff – from Michael Fox’s Jottings By An Employer’s Lawyer
• Supreme Court Weighs Rights Of Parochial-School Teachers – from NPR
• EEOC vs. the ministerial exception – from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• What Prospective Employers Hope To See In Your Facebook Account: Creativity, Well-Roundedness, & “Chastity” – from Kashmir Hill’s The Not-So Private Parts
• A Canadian Perspective on Social Media and Concerted Activity – from Fitzpatrick on Employment Law
• Attorneys’ Duties Regarding Employee Emails – from Phil Miles’s Lawffice Space
• Privacy and company email use—what can employees expect? – from Employment Law Bits
• Employee Privacy 3—Social Media – from Heather Bussing at HR Examiner
• You Are Your Company’s Biggest Security Risk – from Above the Law
• Employer did not violate employee’s privacy by accessing personal laptop – from Internet Cases

HR & Employee Relations

• On WWE and Organized Labor – from Grantland
• Reasons to Terminate: More Is Not Merrier – from Molly DiBianca’s Delaware Employment Law Blog
• The DNA of HR Decisions: Why Documentation is Important – from Michael Haberman’s Omega HR Solutions
• Scratching My Head – from KnowHR Blog
• The “exit parade” as a worker termination protocol – from David Yamada’s Minding the Workplace
• Keep Your Employees off the Playground: Preventing and Dealing with Workplace Bullying – from Workplace Insights
• Do You Regularly “Fit Test” Your Employees? – from Ann Bares’s Compensation Force

Wage & Hour

• Ohio Minimum Wage Increase for 1/1/12 – from THRD’s Blog
• DOL/IRS Collaboration Memo Makes For Interesting Reading – from Wage and Hour Laws Blog
• In “Salary Misclassification” Case, Unpaid OT Calculated at Time and a Half Rate, Not FWW – from Overtime Law Blog
• Do Employers Have to Pay for Travel Time? – from Wage & Hour Insights

Mourning Steve Jobs

I never knew Steve Jobs, but he's always been a part of my life—from the Apple IIe on which I learned to program BASIC three decades ago, to the iPad on which I'm typing this post, and all the life-altering products I've owned in between. And, while my kids don't know it, he's been an important part of their lives too, through the wonderful characters he made possible with Pixar.

I have little to add to what others have already eloquently said. The world has lost a great visionary—our generation's Edison—whose impact will be felt for years to come, yet whose import will not fully be known for centuries. Instead of imparting some great words of wisdom, I'll let Steve speak for himself, via his 2005 Stanford commencement address, given shortly after his cancer diagnosis.



Rest in peace. Heaven will be a cooler place with you there.

BREAKING: NLRB postpones posting of notice of employee rights

Don’t rush to post the NLRB’s latest missive advising union and non-union employees of their rights under federal labor laws.

From the NLRB:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

I wonder if the outcry from business groups, coupled with a pending lawsuit to block the workplace posting, has anything to do with the NLRB’s delay?

Betting on a lawsuit

There have been a lot of bad bets made over time. For example, two years ago I bet on the World Series and, after the Phillies lost, had to painfully write a blog post praising the Yankees. On The Office last week, newly-appointed regional manager Andy Bernard bet his staff a butt tattoo that they couldn’t reach an unheard of sales quota. Perhaps the most famous pop culture example of a bet is Seinfeld’s contest, where the four bet on who would be the “master of their domain.”

Then, there’s this gem, courtesy of the Des Moines Register:

A Bettendorf businessman, branded as the “boss from hell” by some of his employees, offered prizes to workers who could predict which of them would next be fired…. William Ernst, the owner of a Bettendorf-based chain of convenience stores called QC Mart, sent all of his employees a memo in March, outlining a contest in which the workers were encouraged to participate. The memo read: “New Contest – Guess The Next Cashier Who Will Be Fired!!! … To win our game, write on a piece of paper the name of the next cashier you believe will be fired. If the name in your envelope has the right answer, you will win $10 CASH.”

An administrative law judge sided with an ex-employee in her unemployment hearing, writing about the “egregious and deplorable” contest: “The employer’s actions have clearly created a hostile work environment by suggesting its employees turn on each other for a minimal monetary prize…. This was an intolerable and detrimental work environment.”

To be fair, in my career I’ve seen a lot worse work environments. For example, I vividly recall a cake in likeness of a vagina, iced with homophobic epithets, presented to an employee as a challenge to his perceived lack of manliness. Notwithstanding, I’m not sure I’d ever recommend a firing contest as a form of employee motivation.