When office pranks attack

Read these facts, from Slasinski v. Confirma, Inc. (6th Cir. 1/24/12) [pdf], and I’ll be back to discuss:

In July 2007, members of Confirma’s sales team, including Mr. Slasinski, attended a week-long seminar in Bellevue, Washington.  On the evening of July 25, 2007, Mr. Slasinski and others … attended a dinner cruise….

Near the end of the cruise, but before the boat docked, Mr. Slasinski proceeded toward the ship’s lavatory on the aft end of the boat. Before he reached his destination, Mr. Slasinski observed a colleague named Kris Daw enter the lavatory. Several other Confirma employees were standing nearby, and Mr. Slasinski observed Bickford engage an external lock on the lavatory door, thereby locking Daw inside. A few moments later, Bickford unlocked the door and released Daw to the laughter of those standing nearby.

Mr. Slasinski then entered the lavatory and shortly thereafter discovered that he also had been locked inside … approximately 20 to 25 minutes. During that time, the boat docked and the other Confirma employees disembarked. After some time had passed, Mr. Slasinski began making phone calls to colleagues on his cell phone to request assistance…. Mr. Slasinski then resorted to kicking the door in an attempt to free himself, at which point the boat’s crew discovered and released him.

Like any embarrassed employee, what did Slasinski do? He sued, for false imprisonment. After a four-day trial, the jury returned a verdict in favor of Confirma, which the appellate court upheld:

If the jury accepted Confirma’s version of the facts, and drew all inferences in Confirma’s favor, it could easily have found that Mr. Slasinski entered the lavatory knowing he would be locked inside as part of the prank, and thus initially consented to the confinement. Moreover, for at least part of the duration of his confinement, Mr. Slasinski did not knock, call out to, or otherwise beseech any of the Confirma employees standing nearby to release him. A reasonable jury could conclude, therefore, that any confinement Mr. Slasinski experienced began with his consent, and only after the passage of time became against his will. A jury could further conclude, based on the evidence, that the period of unconsented-to confinement was of such brief duration as to be only momentary or fleeting.

What does this case mean? I could draw a great lesson about or the risks of lawsuits coming from anyone at any time, or the importance of workplace training to avoid similar problems, or the synergy between employee morale and having a good laugh, but instead, watch this:

See you tomorrow.

If employees had common sense, I’d be out of a job

Last Thursday, I participated in the Social Workplace Twitter Chat (#SWchat), which covered social media policies. In response to a question on whether employers need social media policies, or if they can leave employees to their own devices, I responded as follows:  

If SM was common sense for employees, we wouldn't be having this #SWchat

– and –

That's why book is called "Think Before You Click" (something few Ees regularly do) see.sc/Ja8cav #SWchat #sorryfortheselfpromo

In other words, if employees had common sense, I (and every other employment lawyer) would be out of a job.

Case in point: long-time Philadelphia TV weatherman (and notorious playa) John Bolaris, who lost his job last week because of an interview he gave to Playboy magazine discussing a debaucherous night in Miami that resulted in the Russian mob (of all things) drugging him and scamming him out of $43,712.25. Here’s my favorite quote from the Playboy interview (courtesy of Gawker):

He saw two women on a swing. Very elegant, beautiful, classy, with jet-black hair and blue eyes… They were smoking cigarettes in that exotic European manner… “I’m a guy,” Bolaris says. “There was the thought that I might get laid.” It never dawned on him to be suspicious about two gorgeous, elegant women all over him like a wet suit, he says, because “I was used to girls in Philly coming on to me aggressively once they found out I was John Bolaris, the TV weatherman.”

Needless to say, his employer was less than pleased by his very public discussions of his escapades.

As long as employees continue to engage in public discussions about what should be private matters, the role of employers in monitoring and regulating their employees’ online activities will continue to be a very active part of the discussion. And, as long as employees lack the common sense to keep these matters private, yes, you need a social media policy to direct their behaviors and expectations.

Maybe Warren Zevon said it best (and maybe John Bolaris should have heeded his advice):

I went home with the waitress
The way I always do
How was I to know
She was with the
Russians, too?

Do not forget to tell employees how you are calculating FMLA leave

Two of the most popular post on this blog relate to how employers calculate their employees’ “annual” FMLA leave allotment:

• Determining the “12-month period” for FMLA leave
• Calculating the rolling 12-month FMLA leave entitlement

(Go head, click through and read; I’ll wait).

On Friday—in Thom v. American Standard, Inc. [pdf]—the 6th Circuit illustrated for employers why it is crucial for employers to communicate to their employees which of the methods to calculating the 12-month period they are using. Thom involves an employee terminated either during his FMLA leave (if the employer was calculating his 12 weeks of leave using the “calendar year” method) or after his FMLA leave expired (if the employer was using the “rolling” method). The employer argued that it had always used the rolling method, which it formally published in its policies before Thom’s FMLA leave and termination. The Court disagreed:

Although American Standard did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give Thom actual notice of this changed policy….

This case illustrates both the importance of designating your FMLA year, and providing proper notice to your employees of that designation or any subsequent changes. In this case, the failure cost the employer $312,402.60, an expensive lesson.

WIRTW #209 (the “I am the greatest” edition)

This week, we celebrated the 70th birthday of the greatest (and most entertaining?) athlete ever, Muhammed Ali:

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

Discrimination

• Tell the EEOC What You Think — from Manpower Employment Blawg
• Not all harassment trainings are created equal — from Warren & Hays Employment Law Blog
• Alcoholism as a disability under the ADA — from Employment Law Bits
• It’s All Fun and Games Until a Fake Penis Gets You Fired — from Above the Law
• Don’t Make Me Gag: Confidentiality of Settlements When The Other Side Blabs — from Donna Ballman’s Screw You Guys, I’m Going Home
• 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit — from Molly DiBianca’s Delaware Employment Law Blog

Social Media & Workplace Technology

• 4 Tips on How to Use Facebook at Work and Not Get Fired — from Jessica Miller-Merrell’s Blogging4Jobs
• When a prospective employer wants your social media passwords — from Ask a Manager
• Download Someone’s Entire Twitter Feed — from Social Media, Esq.™
• E-discovery Made Simple (Or At Least Simpler) — from i-Sight Investigation Software Blog

HR & Employee Relations

• Stop managing by the clock — from Evil HR Lady, Suzanne Lucas
• Communicating Termination Decisions Requires Humanity from Russell Cawyer’s Texas Employment Law Update
• Modern Family F-Bomb Controversy: “This Is Not Child Abuse!” Says Star Jesse Tyler Ferguson — from E! Online’s Watch w/Kristin
• BE CAREFUL WHAT YOU WISH FOR … 2 Simple Things You Need to Do to Make Sure You Get the Best Candidate or Protect Yourself if You Don’t — from Michigan Employment Law
• Employee Trouble on the High Seas — from Minnesota Labor & Employment Law Blog
• No Fiduciary Relationship Created Between Medical Resident and Program Director — from Dan Schwartz’s Connecticut Employment Law Blog
• An 8 Hour New Hire Orientation? When Does HR Go Too Far? — from Fistful of Talent

Wage & Hour

• “Black Swan” Unpaid Interns Raising Legal Issues — from Overtime Advisor
• Email and overtime: the Brazilian connection — from John Holmquist’s Michigan Employment Law Connection
• Revenge of Dukes - Another One Bites the Dust — from Fair Labor Standards Act Law
• Timekeeping Methods the USDOL Encourages Your Employees to Use — from Mike Haberman’s Omega HR Solutions
• Insurance Company Special Investigators are Exempt Under Federal and State Laws, Ohio District Court Rules — from Wage & Hour Counsel
• Oh, baby? An employee's pre-eligibility FMLA request is protected — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• Sprague on Facebook & the NLRB — from Workplace Prof Blog
• Social Media, the National Labor Relations Board, and Why Health Care Employers Should Be Concerned — from Health Employment and Labor
• NLRB Continues to Tackle Social Media Issues — from Employer Law Report
• Obama's “Recess” Appointments and the Constitution — from Phil Miles’s Lawffice Space

Competition & Trade Secrets

• Non-Compete Agreements Are Not Always Fair — from Tom Crane’s San Antonio Employment Law Blog
• Top 10 2011 Developments/Headlines in Trade Secret, Computer Fraud, and Non-Compete Law — from Trading Secrets
• Dispute Serves Up Lessons for Restaurateurs in Employee Defection and Trade Secrets — from Trade Secrets & Non-Compete Blog
• Why Don’t Non-Compete Agreements Seem to Apply to Football Coaches? — from TLNT
• New Weapon for Michigan Employers for Protecting Against Unfair Competition and Trade Secret Theft — from Jason Shinn’s Michigan Employment Law Advisor
• The Erosion of Customer Lists As Trade Secrets: Are They Still Worth Protecting? — from The Trade Secrets Litigator

“Friending” co-workers depends on your level of organizational risk tolerance

On Time Magazine’s Moneyland Blog, Dan Schawbel asks the following questions: “Is it a bad idea to friend co-workers on Facebook? How about your boss?” In his post, Mr. Schawbel discusses a recent study of 4 million Gen-Y Facebook profiles, conducted by Millennial Branding and Identified.com, which found the following:

• Nearly two-thirds (64%) of Gen-Y Facebook users omit their employers from their profiles.
• Only 16 out of an average Gen-Y Facebook user’s nearly 700 friends are co-workers.

From these findings, Mr. Schawbel concludes:

Gen-Y needs to be aware that what they publish online can come back to haunt them in the workplace. Gen-Y managers and co-workers have insight into their social lives, which could create an awkward workplace setting or even result in a termination.

There is no one-size-fits-all solution to the issues raised by co-workers connecting via social networks. Social sites such as Facebook and Twitter can be a powerful tool for added employee engagement and communication. Because of the the added connectivity, however, they also present an added risk for problems such as harassment, retaliation, and invasions of privacy. You have five options to choose from in the level of connectivity to permit for your employees. Which answer you choose will depend on how you balance the benefit of the added communication versus the risk of potential problems:

1. Anything goes. Any employee can friend any other employee regarding of rank or position.

2. Supervisors are prohibited from friending direct reports, but employees can friend their supervisors (who can choose whether to accept the request).

3. Supervisors and their reports cannot be Facebook friends, regardless of who initiates the request.

4. Employees are only permitted to be Facebook friends with their peers. No one can friend anyone higher or lower on the org chart.

5. Employees are expressly prohibited from being Facebook friends with any co-workers, regardless of position.

Regardless of which option you choose, you should choose one to incorporate into your social media policy, and train your employees about the dangers of unfiltered online communications and the proper use of social media inside and outside of the workplace. Without the appropriate training of your employees on these new and evolving issues, you might as well not have the policy at all.

Is it time to do away with McDonnell Douglas?

For the unfamiliar, the McDonnell Douglas test is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. (For the familiar, skip down the next paragraph.) It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination. This test is engrained in the hearts and minds of anyone who practices employment litigation.

Early this month, in Coleman v. Donahoe, the 7th Circuit (albeit in a concurring opinion), asked whether the McDonnell Douglas test still has any utility:

Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, … the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one.

Yesterday, the 6th Circuit, in Donald v. Sybra, Inc. [pdf], helped prove the 7th Circuit’s point. Sybra, which owns Arby’s franchises, terminated Gwendolyn Donald’s employment after it concluded she had been intentionally mis-ringing customer orders to steal from her cash register. Among other issues, she claimed that Sybra terminated her employment both in retaliation for, and to interfere with, her rights under the FMLA. After concluding that the McDonnell Douglas framework applied to both her retaliation and interference claims, the court ignored McDonnell Douglas, and affirmed the district court’s grant of summary judgment to the employer:

The district court effectively gave Donald the benefit of the doubt and assumed that she could establish both prima facie cases. This boon notwithstanding, the district court determined that Donald produced insufficient evidence to prove that Sybra’s stated reasons, cash register and order irregularities, were pretextual….

Donald’s claims fundamentally rest on the timing of Sybra’s decision to terminate her employment [the  day after she returned from her FMLA leave], which, we admit, gives us pause. But that alone is not enough, and her other arguments are no more persuasive. Whether Sybra followed its own protocol, or its decision not to prosecute Donald, or even Donald’s history of employment, provides neither us, nor a rational juror, with a basis to believe that Sybra’s decision was improper. The district court therefore correctly dismissed Donald’s FMLA claims.

If courts skip the first two steps of the McDonnell Douglas test and go right to the heart of the matter—whether a rational jury could conclude that the employer took that adverse action on account of her protected class—does it make sense to continue the charade of pretending that McDonnell Douglas remains useful? As a management-side litigator, I like the ability to have more than one evidentiary bite at the apple in trying to get a case dismissed on summary judgment. As a pragmatist, however, I’m afraid that the concurring opinion in Coleman v. Donahoe might be correct, that “the time has come to collapse all these tests into one.”

Clearing a path to complain is a key part of any harassment policy

EEOC v. Management Hospitality of Racine, Inc. (7th Cir. 1/9/12) concerns some of the worst allegations of sexual harassment you will encounter, especially when you consider that the complaining employees were both teenagers and that the harassing manager was a decade their senior.

The employer tried to avoid liability by relying on its zero tolerance sexual harassment policy and its prompt investigations of complaints. The court disagreed for several reasons, including that managers had never received any harassment training and that the employer waited two months to investigate the complaints in this case. Most importantly, however, the court concluded that the employer’s harassment policy failed on its face:

An employer’s complaint mechanism must provide a clear path for reporting harassment, particularly where, as here, a number of the servers were teenagers…. Flipmeastack’s sexual harassment policy did not provide a point person to air complaints to. In fact, it provided no names or contact information at all.

What does this mean for you? A harassment policy is worthless if it does not tell employees how to complain and to whom to make complaints. Let me make one additional suggestion — have more than one avenue for complaints. You do not want to be in a situation where an employee does not complain because the person to whom your policy directs him or her is the alleged harasser. Suggest that employees can complain to anyone in management, up to and including the head of your company. Depending on the size of your organization and the resources available, consider implementing a harassment complaint hotline or inbox.