A pisser of an HR policy

I’m a firm believer in good, sound, and comprehensive HR policies. They are necessary evil to establish the baseline expectations between a company and its employees. For example, they help avoid any confusion about the appropriate uses of email and the Internet. They also tell employees how many days-off they are allowed. And, in some cases, such as harassment and the FMLA, the law just flat-out requires them.

But, like all good things, HR policies can go too far. An example, you ask? How’s this one, courtesy of Above the Law. A San Francisco law firm issued an “Office Restroom Etiquette” policy, which included discussions on how much time to spend taking care of business, how to clean up, and what to do about certain natural odors and noises. It also offered some pointers for its male employees on what to do at urinals:

In urinals, keep your eyes up and ahead and avoid looking around as a mistaken glance in the wrong direction may be embarrassing and might even result in a confrontation. Also, keep as much distance between yourself and others in public restrooms. Always choose the urinal farthest away from other people if possible; this goes for stalls too.

Here’s another true story. I know someone who worked for a company at which the boss monitored employees’ every move via hidden cameras, including how often, and for how long, they visited the restroom. If your management has so much time on their hands that they need to involve themselves in employees’ bathroom habits, you might want to consider downgrading them to part-time status. They obviously do not have enough to fill their plates on a full-time basis.

WIRTW #211 (the “Vegas, baby!” edition)

Are you attending next week’s Social Media Strategies Summit in Las Vegas (presented by GSMI)? Social Media Today recently rated it as one of the 10 best social media conferences to attend in 2012. Guess who’ll be speaking, at 10 am, on February 9? If you guessed me, you’re the big winner. I’m presenting, Lawyers, Booze and Money: Social Media Compliance for Regulated Industries. If you’re at the conference, please stop by and say hello. I’ll also be around Wednesday afternoon, so look for me around The Mirage. I won’t be the guy at the high roller tables.

Here’s what I read this week:

Discrimination

• Employers, you might (or might not) be liable for retaliation if… — from Robin Shea’s Employment and Labor Insider
• EEOC’s Shifting Focus: Systemic Discrimination — from Stephanie Thomas’s The Proactive Employer Blog
• USERRA protections expanded to include hostile work environment — from Sindy Warren’s Warren & Hays Employment Law Blog
• Obesity: The New Discrimination under the ADA — from Restaurant Law Blog
• The Top 5 Most Intriguing Decisions In EEOC Cases Of 2011 — from Workplace Class Action Litigation
• EEOC Sues Employer for Not Allowing Employee to Attend Religious Convention — from Joe’s HR and Benefits Blog
• Catholic Teacher Fired for Having a Baby — from Legal As She Is Spoke
• Should Pregnancy Be Treated as a Disability? — from The Juggle (Wall Street Journal)

Social Media & Workplace Technology

• Monitoring and Accessing Employee Private Email Results in Lawsuit — from Jason Shinn’s Michigan Employment Law Advisor
• Could You Go Three Months Without A Mobile Phone, Email, Facebook, LinkedIn and Twitter? — from Kashmir Hill’s The Not-So Private Parts
• Your Gen Y employees love mixing business with pleasure online — from Eric Meyer’s The Employer Handbook Blog
• Posited “right to be forgotten online” — from Walter Olson’s Overlawyered
• Dark side of social media: age discrimination — from CBS News
• Just Friends? What To Consider Before Befriending Your Boss — from Huffington Post
• Study: 91% of Gen-Ys Use Their Phones in the Bathroom — from ReadWriteWeb
• Tell employees of monitoring plans — from Judy Greenwald at Business Insurance
• Privacy on social media – do we even care? — from Soshable

HR & Employee Relations

• Does your Startup Need an Employee Handbook? — from JumpStart Blog
• Courtroom Lessons for the Business Owner/Employer — from Rob Radcliff’s Smooth Transitions
• Welcome to the Company, Oh By the Way You Will Be Fired in Four Years — from Mike Haberman’s Omega HR Solutions
• An Employment Brand Is A Relationship — from HR Examiner with John Sumser
• A Lighthearted Take on Deposition Preparation — from Russell Cawyer’s Texas Employment Law Update
• The Background Check Results Are In … Who Won’t HR Hire — from Nick Fishman’s employeescreenIQ Blog
• Building Rapport with Non-Western Interview Subjects — from Dawn Lomer’s i-Sight Investigation Software Blog
• Giants Or Patriots - Do Employers Care? — from Social Media Employment Law Blog
• Super Bowl Hangover? Yes, Employees May Be Less Productive on Monday — from TLNT
• Most Outrageous Employee Excuses — from Philip Miles’s Lawffice Space

Wage & Hour

• When “letting off steam” becomes protected activity under the FLSA — from Fair Labor Standards Act Law
• “Right to Know” Rule Not Likely in 2012 — from Wage & Hour Insights
• 3d Cir. Finds Individual Supervisor Liable Under FMLA — from Molly DiBianca’s Delaware Employment Law Blog
• Five 2011 FMLA Cases That Give Guidance To Employers In 2012 — from Hunton Employment & Labor Law Perspectives™
• DOL Proposes FMLA Regulatory Changes Regarding Military Family Leave, Flight Crew Eligibility and How Employers Calculate FMLA Leave — from Jeff Nowak’s FMLA Insights

Labor Relations

• An Overview of “Right to Work” — from Dan Schwartz’s Connecticut Employment Law Blog
• NLRB Chairman Says He Will Push For Additional Election Rule Changes — from Labor Relations Counsel

What does Groundhog Day teach us about federal courts?

In the movie Groundhog Day, Bill Murray repeats February 2—over, and over, and over again—until he gets it right. In Sollitt v. Keycorp (6th Cir. 2/1/12) [pdf], Kevin Sollitt and his former employer are doomed to repeat his wrong discharge lawsuit, because the bank took an aggressive position in removing his case to federal court.

(For the uninitiated who want to read all about the removal of lawsuits from state court to federal court, click here, read, and then come back.)

In sum, the appellate court concluded that the Edge Act—which permits claims involving international or foreign banking to be filed in federal court—did not provide a basis for removal of Sollitt’s state law wrongful discharge claim. The Court was reluctant to subscribe “an inherently limitless view” to the Edge Act’s grant of federal jurisdiction:

Suppose, for example, that Sollitt had tripped and fallen over a stack of carelessly placed printouts of foreign-currency transactions. This meager association—ridiculous as it is—between the potential negligence claim and the foreign banking transaction that generated the printouts, would appear to suffice for Edge Act jurisdiction under so limitless a view. That cannot be correct….

Sollitt accused a co-worker of misconduct, KeyCorp fired Sollitt, and Sollitt sued in federal court for wrongful termination. KeyCorp’s firing of Sollitt was not an aspect of “banking” and, therefore, Sollitt’s claim of wrongful termination did not “arise out of” a banking transaction, even though the entire episode arguably can be traced back to the PHC foreign currency transaction.

As a result, the case will be remanded back to state court, where it was originally filed. In the interim, the parties litigated the case, and the employer won summary judgment. Now, the parties are going back to state court, (maybe) to do it all over again. The plaintiff will certainly want the chance to re-present the factual issues raised in opposition to the summary judgment motion, or present new issues he may have discovered.

The lesson? Be very careful when you remove cases. A federal court’s subject matter jurisdiction is always in play, at each stage of litigation. An appellate court can bounce a case back to state court even if the district court never even entertained the jurisdictional issue. When that happens, you will have a Bill Murray moment.

Happy Groundhog Day.

10 thoughts for your mobile device policy

According to a recent survey, there are 324.3M mobile devices in the United States. Let that number sink in. It equates to 1.025 mobile devices per American. And, according to another recent survey, 46% of all American those mobile devices are smartphones. This number does not even account for the number of iPads and other tablets.

In other words, your employees are connected all the time, both at, and away from work. It also means you need to have a policy to account for this penetration of mobile devices.

Here are 10 questions for you to think about in drafting (or revising) your mobile device policy:

1. Do you allow for your employees to connect personal devices to your network? Or do you limit network connectivity to employer-provided devices? And, where is the data stored, on the device itself, or remotely? The answer to these questions will not only impact the security of your network, but also dictate which mobile devices and OSs will your company support.
2. Do you permit employees to use mobile devices in the workplace? It’s difficult to require employees to check their devices at the door. But, if you have safety-sensitive positions, you should consider protecting these employees from the distractions mobile devices cause.
3. Who pays for the device, not just at its inception, but also if it is lost or broken and needs to be replaced? If you require your employees to reimburse for lost phones, state wage payment laws may limit your ability to recoup via a paycheck deduction.
4. And, do employees have an expectation of privacy as to data transmitted by or stored on the device? Do you tell employees that their expectation of privacy is limited or non-existent? Are you tracking employees via GPS, and, if so, are you telling them? In light of last week’s ruling in U.S. v. Jones, limiting employees’ expectation of privacy is more important than ever.
5. For non-exempt employees, do you permit mobile devices to be used for business purposes, and if so, do you prohibit their use during non-working hours? Otherwise, you might be opening your organization up to a costly wage and hour claim.
6. Do employees know what to do if a device is lost or stolen? Do you have the ability to remote-wipe a lost or stolen device? Even if you have the ability to remote-wipe a device (and if you don't, you should), your employees will prevent a remote wipe if their first call upon losing a device is to Verizon (which will deactivate the phone) instead of your IT department.
7. Do you prohibit employees from jailbreaking their iPhones or rooting their Androids? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Android Market. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.
8. Are devices required to be password-protected? It will provide an extra layer of protection if the device is lost or stolen. Also, your industry might dictate an added layer of protection. Do you employ lawyers or medical professionals, for example? If so, ethical rules or HIPAA might mandate password locks.
9. Do you forbid employees from using their mobile devices while driving? 35 states (but not yet Ohio) have a laws that bans some type of mobile device use while driving. It is safe to assume that the other 15 states will soon join in. Even if your state is not included, do the right thing by suggesting your employees be safe while operating their vehicles.
10. How does your policy interact with other policies already in existence? Your mobile device policy should cross-reference your harassment, confidentiality, and trade secrets policies, all of which are implicated by the use of mobile technology.

Social media background checks : off-duty conduct laws :: oil : water

One report suggests that as many as 91% of employers use social networking sites to screen potential employees, with as many as 69% of employers rejecting a candidate because of information discovered on a social site. I’ve written before about some of the risks employers face when conducting background checks on employees via Facebook or other social media sites. Here’s one more risk for you to consider: off-duty conduct laws.

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities:

• 17 states have “smokers’ rights” statutes, which prohibit discrimination against tobacco users. (Connecticut, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming)
• 8 states have statutes that protect the use of any lawful product (e.g., tobacco or alcohol) outside of the workplace. (Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin)
• 4 states have statues that protect employees who engage in any lawful activity outside of work. (California, Colorado, New York, and North Dakota)

What do these laws mean for employers’ online background searches? Businesses need to understand that reviewing Google or Facebook before making a hiring or firing decision is a risky proposition, which could reveal myriad lawful off-duty activities that could implicate one of these statutes (in addition to all sorts of protected EEO data).

My suggestion for a best practice? Either to hire a third party to do your searches for you, or to train an employee, insulated from the hiring process, to do them. In either case, the screener should scrub all protected information before providing any report to the the person responsible for making the hiring (or firing) decision.

Notice that Ohio is missing from the list of states with off-duty conduct laws. However, if you have operations in one of the 29 states that have do have these laws, you will want to pay close attention to this issue.

Trying to make sense of the NLRB’s lastest social media missive? Good luck!

I’ve now had a few days to digest the NLRB’s latest foray into regulating social media in the workplace. I can sum up the NLRB’s report in three words: What a mess.

In a mere 35 pages, the NLRB appears to have ripped the guts out of the ability of employers to regulate any kind of online communications between employees. The NLRB found the following facially neutral, boilerplate policies to be unlawful restraints of employees’ rights to engage in protected concerted activities:

• A provision in a social media policy which provided that employees should generally avoid identifying themselves as the Employer’s employees unless discussing terms and conditions of employment in an appropriate manner.
• Work rules that simply prohibited “disrespectful conduct” and “inappropriate conversations.”
• A social media policy that prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with its mission or unprofessional/inappropriate communication regarding members of its community.
• A communications systems policy that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.
• A communications systems policy that prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department.
• A communications systems policy which required that social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments.
• A communications systems policy which required that employees state as part of posts on social media sites that their opinions are their own and not their employer’s.
• A social media policy that prohibited discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites. 

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

What policy did the NLRB conclude was lawful? A policy that limited its reach to social media posts that were “vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

What are the four takeaways for employers from this fiasco?

1. I’m not sure anyone at the NLRB actually uses social media. If they had any real-world knowledge about the topic on which they are opining, the report would read a whole lot differently.
2. If these boilerplate, facially neutral, communications policies cannot withstand scrutiny, I would venture to bet that 99% of all employers in this country have policies that the NLRB would strike down if challenged. 
3. If communications that would otherwise violate Title VII are the only types of workplace communications that employees can lawfully regulate, businesses might have to concede that they are very limited in their ability to regulate employees’ online conversations (at least until federal courts begin to weigh in on these issues and rein in the NLRB).
4. Businesses that try to implement a workplace social media policy, or discipline employees for their online activities, without first consulting with counsel are asking for trouble with the NLRB.

WIRTW #210 (the “organizing my life” edition)

I live in a constant search for the perfect task organizer/to-do list. For the past several months, I’ve been using Toodledo, which is robust, but overly complex for my needs. But, I’ve stuck with it because I can use it across all of my platforms (the PC in my office, my Mac at home, my Android phone, and my iPad—this is what life has become in 2012). Toodledo, however, is about to get kicked to the curb. Welcome to my life, Any.do. Where Toodledo is complex, Any.do is elegant in its simplicity, allowing you to add tasks to complete today, tomorrow, this week, or next week, drag and drop tasks between days, set priorities, reminders, folders, notes, and automatically sync to your contact list for emails and phone calls. Right now, it’s only available on Android, but the developer promises an iPhone app is on the horizon, as is a web app. Once the web app is released, I will say toodles to Toodledo.

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

Discrimination

• Fired for Wearing a Fake Penis? — from Phil Miles’s Lawffice Space
• “Religious employers must cover pill, Feds say” — from Walter Olson’s Overlawyered
• Company's “100% healed” policy does not create per se disability discrimination — from Employment Law Matters
• Employee Suffering from IBS Allowed to Proceed with Retaliation Claim — from SmartHR
• Discrimination Claims At EEOC Hit Record Level — from Laconic Law Blog
• Can you be fired if your dad had cancer? — from CareerDiva, Eve Tahmincioglu

Social Media & Workplace Technology

• #McDStories: When A Hashtag Becomes A Bashtag — from Kashmir Hill’s The Not-So Private Parts
• Is It Legal for an Employer to Secretly Track an Employee’s Personal Vehicle 24/7 for One Month? Perhaps! — from Workplace Privacy Counsel
• What Employers Should Know about the Supreme Court’s Decision Concerning GPS Privacy Rights — from Minnesota Employer
• The Small Business Social Media Cheat Sheet — from Flowtown
• Married to Your Business Twitter or Facebook Account? Think Before You Say, “I sue” — from Social Media Today
• Teachers warned over befriending pupils on Facebook — from The Guardian

HR & Employee Relations

• That Comment Bubble Could Get You In Trouble — from Stephanie Thomas at Compensation Cafe
• Super Bowl Office Pools in Connecticut – What Box Are You In? — from Dan Schwartz’s Connecticut Employment Law Blog
• Why HR Professionals Should Never Rely on “the Law” as the Source of Their Power — from Strategic HR Lawyer
• Can you be fired for skipping lunch? — from Evil HR Lady, Suzanne Lucas
• Real World, Real Life: Why Your Kids Need a Good Work Ethic — from TLNT
• “No-poach” emails between Apple, Adobe, and Pixar revealed in court documents — from The Verge
• Don’t Send Me Your Kid and Expect Me to Fix The Big Problems… — from The HR Capitalist, Kris Dunn

Wage & Hour

• OFF-CLOCK WORK: “Flintstone” laws in a “Buck Rogers” world — from Robin Shea’s Employment and Labor Insider
• Three Times Employees Must be Paid Not to Work — from Reuters
• Certification of Call Center Class Given the Boot — from The Wage and Hour Litigation Blog
• Never Ever Retaliate — from Manpower Employment Blawg
• Taking Note of How Family and Medical Leave Act Interference Claims to be Decided — from Jason Shinn’s Michigan Employment Law Advisor
• Fact or Fiction: If you don't say “FMLA”, you can’t take FMLA leave? — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• Can a Neutrality Agreement be an “Improper Payment” to a Union? — from Labor Relations Update
• IKEA Workers In Maryland Vote To Unionize — from The Huffington Post
• More Lockouts as Companies Battle Unions — from Steven Greenhouse at the New York Times