Ohio Employer Law Blog

Tuesday, November 1, 2011

NLRB says a “f**ktard” is different than a “d*ck” under Section 7

A employee responded to a supervisor’s LinkedIn request with the following joke: “f**ktard.” More than a year later, the company discovered the “f**ktard” post while establishing its own corporate LinkedIn site. After the company fired the employee for a violation of its Electronic Communications Policy, the employee filed an unfair labor practice charge with the NLRB. He claimed that his employer did not fire him because of the LinkedIn post, but instead because of a discussion he had with some co-workers two months earlier about the company’s overtime practices.

In Schulte, Roth & Zabel (10/13/11) [pdf], the NLRB Office of General Counsel opined that the termination was lawful, and recommended the dismissal of the charge:

Moreover, the LinkedIn posting was not a pretextua1 reason for discharging the Charging Party; the Employer has demonstrated that it only discovered the posting in its April review of prior employee posts as part of its assessment of problems with its new LinkedIn page. Finally, no one contends that the Charging Party's posting in violation of the electronic usage policy—the stated reason for his discharge—was protected by Section 7.

Almost a year ago, the NLRB made a huge splash in the world of social media by issuing a complaint against a Connecticut ambulance company in an eerily similar case—the company fired an employee who called her boss a “d*ck” on her Facebook wall. At the time, many believed that the sky was falling, and that employers would be unable to regulate their employees’ use of social media inside and outside the workplace.

Is it possible, however, that the NLRB has been running a well-staged long con? Could the NLRB have enough marketing savvy to latch on to the hot issue invading the workplace, take an extreme position to raise awareness among non-unionized employees that they have rights under the National Labor Relations Act, and then slowly and quietly backtrack into a more reasonable position on a case-by-case basis?

If you compare where we were a year ago to where we are now, this appears to be the case. In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities? Well played, NLRB.

Monday, October 31, 2011

Equal opportunity harassment is not unlawful sexual harassment

For harassment to qualify as sexual harassment it must be because of sex. That means that the complained-of misconduct is of a sexual nature, or it singles out women differently than men. Non-sex-based conduct that targets women and men the same, no matter how harsh, is not sexual harassment. Case in point? Miceli v. Lakeland Automotive Corp. (N.J. App. Div. 10/19/11) [pdf].

During her tenure at Lakeland Automotive, Diana Miceli was its only female salesperson. Generally, she alleged that her manager abused, belittled, and harassed her. She admitted, however, that the manager treated the other salespeople (all male) the same way. Because the manager was an equal-opportunity abuser, the court upheld summary judgment:

The sales manager’s abrasiveness was not limited to Miceli. In Miceli’s deposition testimony she stated that “[e]veryone complained about [the sales manager].” Miceli admitted that the sales manager treated another male co-worker “extremely abusive[ly]” and “very condescending[ly].” …

[T]here is no evidence to suggest that the … conduct, although rude and obnoxious, was motivated by gender. “Personality conflicts, albeit severe, do not equate to” hostile work environment claims simply because the conflict is between a male and female employee.

There is no law against being an ass, just against being an ass based on some protected characteristic.

Thursday, October 27, 2011

Are you checking in on your “sick” employees? Maybe you should be (or not)

According to a recent survey by careerbuilder.com, 29% of employees admit to playing hooky from work, taking “sick” days when they were really running errands or having fun with friends or family.

Despite this number, only 28% of businesses report that they check on “ill” employees. Of that 28%:

69% require a doctor’s note
52% call the employee
19% had another employee call the employee
16% drove by the employee’s home

Let me suggest a radical alternative to going Inspector Clouseau on your employees. Get rid of sick days (and vacation days, and any other days off) and replace them with paid time off.

PTO is a flexible arrangement that provides the employee a set number of days off per year to be used for any reason (sick time, personal days, vacations, or anything else). Employees like PTO because of its flexibility. Employers like PTO because there is no time spent verifying the legitimacy of sick days and other time off. PTO, however, is not without its downside. For example, it encourages sick employees to come to work because they do not want to burn a paid day off they can use for a vacation later. Employers also lose control over how, why, and even when employees are off.

Depending on your employees’ work ethics and absentee records, and your management’s level of comfort with a more flexible leave policy, you might want to consider whether shifting to PTO makes sense for your business.

Wednesday, October 26, 2011

Substances abusers continue to confound employers

The EEOC announced that it has filed a lawsuit on behalf of a job applicant who lost his position after a pre-employment drug screen revealed methadone in his system:

According to the EEOC’s complaint, Craig Burns is a recovering drug addict who has been enrolled in a methadone treatment program since 2004. In January 2010, United Insurance offered Burns a position as an insurance agent in its Raleigh office, conditioned upon Burns’ passing a drug test. After Burns’ drug test showed the presence of methadone in his system, Burns submitted a letter to United Insurance from his treatment provider explaining that he was participating in supervised methadone treatment program and taking legally prescribed medication as part of the treatment. Upon receiving this information, United Insurance notified Burns that he was not eligible for hire and withdrew its offer of employment.

When dealing with addicts, the ADA requires employer to balance a fine line between not wanting substance abusers in the workplace and the need to accommodate addiction as a disability. This balance comes from the ADA’s lack of protection for current drug and alcohol abuse, but its ongoing protection of addiction as a disability. From the EEOC:

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA does not protect an individual who currently engages in the illegal use of drugs, but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability,” and who is “qualified.”

Even without these legal complications, dealing with employees who have a substance problem is never easy. Because of the layer of complexity added by the ADA, you should not tread in these waters without guidance from employment counsel.

Tuesday, October 25, 2011

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.

Monday, October 24, 2011

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.

Friday, October 21, 2011

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).