Don’t ignore common sense when conducting workplace investigations

Light night, I tuned in with curiosity for Bob Costas’s interview with Jerry Sandusky. That curiosity turned to stunned outrage when Sandusky made the following admission (among others): “I shouldn't have showered with those kids.” Of course, I have outrage as a parent and as a human being. That outrage has existed since this story broke. After last night’s public relations debacle, I also now have outrage as an attorney.

There are many teachable lessons for employers from last night’s primetime drubbing. For example, Sandusky’s lawyers, PR people, and other handlers deserve to be fired for letting their client appear so unprepared and so guilty. I’m also curious about whether Sandusky waived any 5th Amendment rights by making public statements about the crimes with which he has been charged (but I’ll leave that issue for my criminal brethren).

Here’s the employment law takeaway: when you are assessing credibility—for example, during a harassment or other workplace investigation—you do not check your common sense at the door. In fact, common sense serves as your best friend. If you eat meat you are not a vegetarian, and if you shower naked with little boys, you are a pedophile—case closed. To argue any differently borders on the ludicrous. Anyone who watched last night’s interview can only reach the conclusion that Sandusky is guilty of the charges levied against him.

Do not ignore your common sense. “I did not inhale” = I smoked pot. “I have horsed around with kids I have showered after workouts” = I am a pedophile. Keep these examples in the front of your mind during your next workplace investigation.

Tell them to their face: firing employees (a lesson from State College, PA)

Frank Roche, writing at his KnowHR blog, made the following observation the morning after Penn State announced that it had fired Joe Paterno: “Penn State did the right thing.” It’s hard to argue that every university employee whose hands touched the Jerry Sandusky scandal needed to be fired. While I cannot question the decision to fire Joe Paterno, I have a huge problem with how the school communicated the termination to him.

As I watched the PSU board of trustees’s press conference last Wednesday night, I was struck by how John Surma dodged any questions about how the board communicated its decision to Paterno. As he avoided answering those questions, I could only conclude that the board did not tell Paterno to his face that he had been fired. ESPN’s Joe Schad (reporting on Twitter) confirmed my hunch:

Paterno received at his home an envelope from a messenger with a # to call 15 minutes b/f BOT announcement.

When Paterno called he was told "you are relieved of your duties."

Don't get me wrong. I believe Joe Paterno deserved to be fired. What I take issue with was how he was fired. Every employee (let alone one with 62 years of tenure) deserves to learn of a job-loss via a face-to-face conversation. It is never acceptable to fire someone by a phone call, letter, email, text message, Facebook message, tweet, or a this-termination-note-will-self-destruct-in-10-seconds note left at the front door.

There is nothing easy about the communication of a firing. I’ve had to fire people. It’s the worst part of my job. It’s also part of what you sign up for when you assume a management role. But, as uncomfortable as it is to tell someone they are losing a job, it is exponentially more difficult to be on the receiving end of that news. Do the right thing by your employees and provide them the courtesy of delivering the news in person, no matter the circumstances.

WIRTW #200 (the “bicentennial” edition)

This week offered a lot of potential themes from which I could pick for today’s “WIRTW”: Joe Paterno (come back Monday for my thoughts on the handling of his termination), Herman Cain, Veteran’s Day, the anomaly of today’s date (11/11/11—see below). Milestones, however, are important, and today’s is significant—the 200th publication of my weekly roundup. Thanks for reading.

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

Discrimination

• Yes, Conservatives, There Is Sexual Harassment – from Donna Ballman’s Screw You Guys, I’m Going Home
• Why Panera should settle lawsuit regarding racism – from Evil HR Lady, Suzanne Lucas
• When People Get Angry: Power Outages & Khan – from Dan Schwartz’s Connecticut Employment Law Blog
• Gender discrimination at a “Big Four” accounting firm – from Employment Law Bits
• Women Who Work in Positions with Greater Likelihood of Sexual Harassment Paid More – from Wisconsin Employment & Labor Law Blog
• The impact of the Penn State controversy: filling a gap in an employer’s harassment policy – from Michigan Employment Law Connection
• Employer lessons from Penn State (Hint: ignorance is not bliss) – from Eric Meyer’s The Employer Handbook Blog
• “A closed mouth gathers no feet”: What Herman Cain teaches employers about sexual harassment – from Robin Shea’s Employment and Labor Insider
• Make War No More–Weapons Manufacturer Must Accommodate Employee Who Objects to Weaponry, EEOC Says – from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Social Media in the Workplace: Common Sense Goes a Long Way – from Lindsay Walker at i-Sight Investigation Software Blog
• Using Social Media to Screen Job Applicants - A Few Recommendations for Employers – from Michigan Employment Law Advisor
• Facebook Spoliation Costs Widower and His Attorney $700K in Sanctions – from Above the Law
• Nielsen: Soon-to-be seniors adopting smartphones faster than any other age group – from Engadget Mobile

HR & Employee Relations

• Is it Settlement or Severance? – from Phil Miles’s Lawffice Space
• The Importance of Employee Documentation – from CPEhr
• Penn State Disgrace: If Only… – from Nick Fishman’s EmployeeScreenIQ Blog
• EDDIE MURPHY: On Taking the Job That Offers No Balance and Almost Kills You… – from The HR Capitalist, Kris Dunn
• Trade Secrets and Confidentiality – from Texas Employer Handbook

Wage & Hour

• The War on Wage Theft and WHD – from Stephanie Thomas’s The Proactive Employer Blog
• Even Best Practices Can't Always Ensure Quick Dismissal of Wage & Hour Claims – from Wage & Hour Insights

Labor Relations

• NLRB lawyer: “We screwed up the U.S. economy” – from The Washington Examiner
• Is it Protected Concerted Activity to “Occupy” Your City? – from Kara Mignanelli at Social Axcess
• The state of the NLRB (a self-appraisal) – from Michael VanDervort’s The Human Race Horses

Until next week, remember, today goes to 11.

Regulating workplace photography? Think again, says one federal court

This time next week, I’ll be in San Diego presenting on workplace social media issues at the 2011 Human Resources & Employer Compliance Summit. If past presentations are any predictor, I’ll be spending a lot of time answering questions about the NLRB’s intrusions into this area. NLRB v. White Oak Manor (4th Cir. 9/22/11)—while not a social media case per se—is a great example of how workplace technology and social media issues can arise under the guise of protected concerted activity.

White Oak Manor, a long-term care facility, maintained a policy against taking pictures inside its facility without prior written approval. Nicole Wright-Gore, a supply clerk, filed a grievance over discipline she received for wearing a hat in the workplace. To document her belief that she had been unfairly disciplined for a dress code violation, she took pictures of her fellow employees, also wearing hats but un-disciplined. When the employer learned of the photographs, it terminated her.

In reviewing Wright-Gore’s unfair labor practice charge, the NLRB concluded that she engaged in protected concerted activity for which she was discharged: “a joint discussion of the unfairness of the dress code, … seeking a change in the enforcement of the dress code.” On appeal, the 4th Circuit agreed:

Wright-Gore’s complaints about White Oak's disparate enforcement of its dress code are protected under the NLRA…. Wright-Gore's documenting of the problem through photography is similarly protected conduct…. Because Wright-Gore’s conversations were initiated to induce group action—she explained that she spoke with other employees "[t]o get their support so I could go to management…,”—they constitute concerted activity.

The NLRB continues to use social media to expand the definition of protected concerted activity. As the agency (and now courts) become more involved in these issues, the rules governing what you can and cannot regulate regarding employees’ use of social media and other technologies in the workplace will continue to evolve. For now, the best course of action may be to err on the side of caution in all but the most obvious of cases, and to consult with labor counsel well-versed in social media issues in everything else. 

[Hat tip: Social Media Employment Law Blog]

Progressive discipline might not be mandatory, but it makes sense

In Fulton v. ODJFS (11/3/11) [pdf], the employee argued that he was entitled to recover unemployment compensation because his employer failed to follow its own progressive discipline policy when terminating him. The court disagreed, noting that the employer’s policy granted discretion to impose any level of disciplinary action—ranging from verbal warning, written warning,
suspension, or immediate termination of employment—depending on the seriousness of the offense.

Reading this, one might conclude that because progressive discipline policies are unnecessary they should be avoided. In fact, the contrary is true. Progressive discipline (with sufficient discretion built in) provides an early warning system to employees. While I have no empirical data to back me up, I would bet that employers who use progressive discipline systems face fewer lawsuits from terminated employees. Those that perceive fair treatment should be less likely to sue than those who perceive that they had the rug pulled out from under them.

Employers cannot “ostrich” harassment allegations

By now, you’ve likely read or heard about the disturbing sexual abuse scandal involving Jerry Sandusky, Penn State’s former defensive coordinator, and the decades-long cover-up perpetrated by the university to protect its storied football program. Of all of the allegations, however, the following, culled from a report in the New York Times, resonated with me as the teachable lesson for employers:

The chronology of events laid out by the state attorney general’s office includes multiple episodes that seem to suggest a failure by a variety of Penn State officials or employees to act emphatically— whether out of fear, incompetence or, perhaps, self-interest….

“The failure of top university officials to act on reports of Sandusky’s alleged sexual misconduct, even after it was reported to them in graphic detail by an eyewitness, allowed a predator to walk free for years—continuing to target new victims,” Linda Kelly, the state attorney general, said in a statement over the weekend. “Equally disturbing is the lack of action and apparent lack of concern among those same officials, and others who received information about this case, who either avoided asking difficult questions or chose to look the other way.”

If you take nothing else away from this horrible story, let it be this point: under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and indefensible?) harassment lawsuit.

Who owns social media accounts—the employer or employee?

What happens to an employee’s social media account when the employee leaves a company? One British court has answered this question by ordering a former employee of a recruiting firm to turn over his LinkedIn contacts to his former employer.

The answer to this question is not nearly as cut and dry as this one case may make it seem. Ownership of social media usernames, pages, and relationships depends on the nature of the employment, the nature of relationship, and the ownership of the account. Thus, for example, an employee hired to manage a business’s social media will have much less of claim over these relations than will an employee who uses social media to foster personal relationships with co-workers, customers, and vendors. Salespeople—who might use LinkedIn to manage business contacts, or Facebook and Twitter to promote their companies and products—present a much grayer issue.

Because shades of gray lead to unpredictability, you should plan for these uncertainties by reaching agreements with your employees—up front and in a social media policy—on how social media ownership will be handled at the end of employment.

[Hat tip: Forbes]