The NLRB does not troll for cases, but…

During my NPR appearance from a couple of weeks ago, NLRB General Counsel Lafe Solomon made an interesting comment about his agency: “We don’t solicit business. We only deal with charges that are filed in our regional offices around the country.”

Here’s the whole clip [1:13], which includes my response:

I take issue with Lafe’s statement that the agency doesn’t “solicit business.” Yes, the agency doesn’t do things like set up tables in public spaces looking for individuals to file charges (it leaves that tactic to the EEOC). There are, however, lots of types of solicitation. Under Lafe’s reign as its general counsel, the NLRB has aggressively issued press releases announcing myriad cases dealing with social media. He published an entire report on the issue. He’s been quoted in the New York Times and has been doing the media circuit (like our NPR appearance). All of that publicity sends a very strong message to employees that the NLRB is their recourse if they are fired for something they write on a social media website. If that isn’t “soliciting” business, I don’t know what is.

New movie asks this question about workplace social media: “Have I Shared Too Much?”

If you are asking questions in job interviews about candidates social media activities, I bet it’s not like what happened in a short movie that debuted recently online, Have I Shared Too Much?

In the 12-minute movie, an interviewee trying to land his dream job is forced to defend why no one has recommended him on LinkedIn, why he only has 6 Twitter followers, why follows Kim and Courtney but not Chloe, and why he’s a fan of Justin Bieber. He also suffers through the uncomfortable squabbling among the three interviewers debating their own social media issues with each other. For anyone interested in social media in the workplace, this movie is a must match.

All Twitter talked to the writer and director, Sameer Acharya, who said the following about his project:

I started writing the film last summer after reading several articles, and watching news reports about the paranoia of social media. Prospective job applicants were becoming increasingly weary that their online posts could potentially cost them career opportunities….

Yes, these are all amazing tools that have significant personal and community benefits. However, there is also a downside. In addition to maintaining a life balance, hopefully audiences will see that social networking has blurred the lines separating our personal and private lives, and with that comes significant consequences.

Pop some corn, turn down the lights, and enjoy.

WIRTW #198 (the “James Madison” edition)

My post about a proposed Employer’s Bill of Rights has gotten a lot of people talking. It is the most commented post in the history of the blog. It is also well on its way to becoming the most read post, an honor which (for now) belongs to the post from earlier this year on Charlie Sheen’s workplace rants as protected, concerted activity. I’ve also had offers to publish my thoughts as an 11x17 workplace poster (an idea I might run with) and to run for president of South Africa (Nelson Mandela’s legacy is safe).

Other bloggers have also picked up the torch on this issue:

• Employee vs Employer Bill of Rights – from Suzanne Lucas, the Evil HR Lady, writing at BNET
• An Employer Bill of Rights? Well, Not Exactly, But… – from Dan Schwartz’s Connecticut Employment Law Blog
• A Great Read for the End of the Week – from Mike Haberman’s HR Observations Blog
• The Employment Law Blog Carnival is here! – from The full 360 … People, Organizations & Technology

WIRTW is taking much needed Friday off next week, but I will have original posts the rest of the week.

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

Discrimination

• “Anita Hill Defends Her Legacy: Two decades after her seismic testimony, she doesn't shy away from talking about it” – from Howard Bashman’s How Appealing
• Sexual Harassment 20 Years Later: Anniversary of Clarence Thomas Hearings Marks Time for Reflection – from Employment Lawyer Blog
• Adverse Impact Tool From Thomas Econometrics – from Stephanie Thomas’s The Proactive Employer Blog
• Federal Court in CT Rules Pregnancy Discrimination Act Protects More Than the Pregnant – from Wisconsin Employment & Labor Law Blog
• Age Before Beauty … The Pervasive Problem of Age Discrimination – from Texas Employer Handbook
• “Actress sues Amazon over her age on its IMDb site” – from Walter Olson’s Overlawyered
• Knowing When to Hold ‘Em: Considerations for Getting the Preservation Obligation Right in Employment Discrimination Claims – from Michigan Employment Law Advisor
• More Discrimination is Needed – from Compensation Cafe

Social Media & Workplace Technology

• Why Employers Should Include Limiting Language in Social Media Policies – from Minnesota Employer
• Politics and Social Media: Is Your Company Prepared for 2012? – from Social Media Today
• Double Fisting and Crazy Bitch Bingo – from Phil Miles’s Lawffice Space

HR & Employee Relations

• 5 reasons for employers to “hold their fire” on dismissal of employment suits – from Robin Shea’s Employment and Labor Insider
• Negligent Supervision & Hiring – from Rob Radcliff’s Smooth Transitions
• Gallup Data on Obese Workers: Time to Dust Off “Lighter” Workplace Tips – from SmartHR
• My Employer Defamed Me! – from Donna Ballman’s Screw You Guys, I’m Going Home
• Workplace Bullying: Make It Stop – from i-Sight Blog

Wage & Hour

• An honest belief is all it takes to fire a suspected FMLA abuser – from Eric Meyer’s The Employer Handbook Blog
• 7th Circuit Reverses Summary Judgment in FMLA Retaliation Case – from ZR Workplace Law
• Retaliation Claims Under the Fair Labor Standards Act: Applicants Need not Apply – from Employment Essentials
• Violations Of Overtime Laws On The Rise – from Overtime Lawyer Blog

Using arrest and conviction records for hiring. What Does the EEOC Say?

The Peace Corps asked the EEOC for an opinion on the legality of its use of conviction and arrest records to screen potential volunteers. In response, the EEOC published an informal opinion letter, which offers guidance for employers who are considering using conviction or arrest as part of their screening processes.

Conviction Records

• According to the EEOC, conviction records have the potential to have a disparate impact on African Americans and Hispanics. Therefore, employers should only use them when “job related and consistent with business necessity.”
• To ensure that applicants’ criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that employers limit criminal history inquiries to convictions that are related to the specific positions in question, and that have taken place in the past seven years.

Arrest Records

• Arrest records are different than conviction records because of their inherent unreliability. For example, they are not persuasive evidence that the person engaged in the alleged conduct, and may also be poorly reported or updated.
• If employers decided that arrest records serve a useful purpose in screening applicants, their use should be limited to offenses related to the specific position.
• To account for the potential unreliability of arrest records, employers should also provide applicants a reasonable opportunity to dispute their validity.

Hustling for a lawsuit

Larry Flynt is no stranger to the courtroom. Now, it appears his brother, Jimmy Flynt, isn’t either. Jimmy has filed suit in federal court in Cincinnati, claiming that the family business wrongfully terminated his employment. Flynt v. Flynt Management Group, LLC [pdf] is the latest salvo fired by Jimmy against his brother and former business partner. Earlier this year he lost a different lawsuit that sought to take control of the business. According to the Cincinnati Enquirer, this fight started “several years ago when the brothers had a falling out after Larry fired Jimmy’s two sons.”

Lawsuits come from all angles. As this story illustrates, and as is often the case, the stronger the relationship, the nastier the fall-out.

[Hat tip: MattAustinLegal]

Winning the battle but losing the war in FMLA cases

The FMLA allows for two different theories of recovery—interference and retaliation. Interference is when an employer denies an FMLA benefit to which an employee is entitled and of which the employee provided notice. Retaliation is when an employee’s use of a protected FMLA right causes an employer’s adverse action. These claims are mutually exclusive, and a terminated employee can succeed on one and fail on the other.

Consider, for example, Platt v. Lamrite West, Inc. (N.D. Ohio 8/17/11). Platt involved an employee terminated for violating an employer’s call-off policy after making a request for FMLA leave. The court denied the employer’s motion for summary judgment on the employee’s interference claim, but granted summary judgment and dismissed the employee’s retaliation claim.

On the interference claim, the court concluded that there was a genuine issue of fact as to whether the employer’s FMLA paperwork modified the call-in procedure. At the same time, however, the court concluded that there was no issue of fact on the employee’s retaliation claim:

He … would have been terminated for violating this policy even if he had not requested FMLA leave…. Between 2007 and 2010, 56 warehouse employees were terminated by Defendant for failing to comply with Defendant’s attendance policies. Like Plaintiff, these former employees were terminated for failing to report to work or notify Defendant for three consecutive work days. Unlike Plaintiff, these former employees did not seek FMLA leave, further supporting Defendant’s proffered non-retaliatory grounds for termination.

As the court pointed out, holding the employee to the call-off policy “may create an interference claim, [but] it does not give rise to a retaliation claim.” Thus, you can terminate an employee for exercising an FMLA right without retaliating against him or her, so long as you do not treat the employee any differently than any other employee. However, that termination still might give rise to a claim under FMLA for interfering with the exercise of FMLA rights. In other words, you might win the retaliation battle against a terminated employee, but ultimately lose the FMLA war.

Some social media stats to get you thinking this week

This time next week, I’ll be in Denver to speak about workplace social media issues at the annual Meritas Litigation and Labor & Employment Conference. In preparing for my session, I came across the following statistics (taken from a recent survey conducted by DLA Piper):

Of employees who use social media sites for personal use:

• 39% have befriended a colleague or business contact on Facebook or LinkedIn
• 14% have posted a status update or tweeted about their work
• 22% have posted a status update or tweeted about a work colleague
• 28% have posted photos of colleagues or business activities
• 1% have posted confidential business information

Of employers:

• 21% have taken disciplinary action because of information an employee has posted about a co-worker
• 25% have taken disciplinary action because of information an employee has posted about their activities at work
• 31% have taken disciplinary action because of information an employee has posted about the organization
• 30% have taken disciplinary action because of the level of an employee’s social media use at work

Despite these results, only 14% of employers reported having a social media policy that regulated the use of social media outside the workplace. In other words, there is still a huge divide between employees’ use of social media and employers’ regulation of that use.

Employers, you may think it is common sense that your employees not Tweet or Facebook about the goings-on in your workplace. These numbers say otherwise. Doesn’t it make sense to have a formal, written policy to guide the discussion, set expectations, and bridge this gap?