How to avoid your organization’s muppet manifesto

Beware the ides of March.
– Julius Caesar, Act I, scene i.

2,056 years ago, Julius Caesar was assassinated. To mark that occasion two years ago, I wrote that employers should be wary of the types of problem employees within their organizations. That lesson rings as true today as it did then: certain archetypes of employees bear a knife in the form of a potential lawsuit, or worse.

Yesterday, Greg Smith offered his resignation to Goldman Sachs by way of a scathing op-ed in the New York Times. The banking giant thought enough of Smith to include him in its college recruiting video and promote him from summer intern all the way to executive director. Yet, I’m certain it had no idea that he harbored a level of unparalleled disenchantment and dissatisfaction that led him to a very public (and embarrassing) resignation. Smith objected to a corporate culture of greed that included his colleagues privately referring to clients as “muppets” (hence, the press labeling Smith’s op-ed the “muppet manifesto”). I’m not here to defend Smith. In fact, his very public bridge burning should cause any prospective employer great pause before hiring him.

In my piece, Beware these types of problem employees, Smith is archetype number 10: the unhappy employee. You must know what’s going on with your employees. Be aware and tackle these problems head-on. Do not provide your employees the opportunity to stab you in the back.

Employees use of Facebook biggest time-suck, according to recent survey

According to a recent survey conducted by Salary.com, 64% of employees visit non-work related websites everyday during work hours. The biggest culprit is Facebook, at 41%. Of those who access personal sites during work, 68% spend as much as two hours per work day, with reasons that include not being challenged or satisfied, or being bored.

So, what is an employer to do about this? Banning access to personal websites is not practical. Employees will circumvent the ban by using their mobile devices, and will resent you on top of it. Instead, I suggest the following approach.

1. Accept this as reality. Employees spend long hours at work. Because of the prevalence of mobile devices, they will access Facebook and other personal websites whether you allow it or not. You cannot be Big Brother at all times, at all places, and with all employees. Instead of banning Facebook and the like, train your employees on the appropriate use of social networks and other non-work related sites, including the benefits your organization will realize from the work-related use social networks. 

2. Remove the incentive. If disengagement and boredom are the biggest causes of distraction, engage your employees and keep them busy. They will be more productive, you will be more profitable, and we won’t have to keep having these conversations. 

And, for more on these issues, my book, Think Before You Click: Strategies for Managing Social Media in the Workplace is available.

Discrimination is discrimination, period: rejecting the idea of “reverse” discrimination

At her Employment & Labor Insider, Robin Shea wrote a great post reminding everyone that it’s “illegal to discriminate against white people” (aka, reverse discrimination). But, did you know that courts impose different legal standards for discrimination against white employees than for discrimination against black employees? A non-minority employee asserting a claim of race discrimination “must demonstrate background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Last I checked, EEOC stands for “Equal Employment Opportunity Commission,” not “Minority Employment Opportunity Commission.” A minority manager is just as capable of committing discrimination as a white manager. The law should not treat “reverse” discrimination any differently. Discrimination is discrimination. Applying different proof standards depending on the perpetrator of the alleged discrimination re-enforces the very stereotypes that our EEO laws intend to eradicate. Can we please remove from the law this idea of “reverse” discrimination, and just agree that discrimination is wrong regardless of the races of those accused of perpetrating it.

Reassignment as reasonable accommodation: mandatory or not?

Earlier this month, I wrote about the ADA and hiring preferences, pointing out that the disability discrimination laws do not prevent an employer from giving a hiring preference to a disabled job applicant by creating a cause for action in favor of a non-disabled applicant or employee. What happens, however, if you are not dealing with a disabled applicant, but a disabled employee who requests a transfer to an open position a reasonable accommodation? Are you required to overlook more qualified non-disabled employees and provide the transfer as a reasonable accommodation? The ADA's regulations provide that "reassignment to a vacant position" may qualify as a reasonable accommodation. But, that statement only begs the question of whether that accommodation is mandatory for employees who can longer perform the essential functions of their jobs, or just one part of the matrix of accommodations that an employer should consider.

Recently, in EEOC v. United Airlines [pdf], the 7th Circuit answered this question. In that case, the EEOC challenged United's "Reasonable Accommodation Guidelines," which provide that transfers to open positions are competitive, and that disabled employees will only receive "priority consideration over a similarly qualified applicant." The 7th Circuit concluded that this policy passes muster under the ADA: "The ADA does not require employers to reassign employees, who will lose their current positions due

to disability, to a vacant position for which they are qualified." 

The 6th Circuit appears to follow a similar approach. There exists, however, split among the federal courts, with a minority interpreting the ADA as requiring the transfer as a reasonable accommodation. What does this mean for your business? It means that this area of the law it unsettled. It means that if you are considering a transfer as a reasonable accommodation, your location will dictate the legality of your decision. It means that the Supreme Court will likely weigh-in on this issue at some point and provide some clarity (It tried to once, but the parties settled before the Court could rule). And, it also means that no matter the rule of law, you should ensure that the disabled employee is actually qualified for the position sought. No matter whether a transfer is discretionary or mandatory, no employee, disabled or not, is entitled to a job for which he or she is not qualified.

WIRTW #216 (the “one that got away” edition)

One piece of news you may have missed this week involved a lawsuit filed seeking to block the NLRB’s impending workplace rights poster. The District Court for the District of Columbia upheld the NLRB’s right to require the poster, but invalidated certain portions related to penalties for non-compliance. All hope is not lost, as a similar lawsuit awaits ruling in a different federal court. And, the courts of appeals will have to have their say. For now, however, the poster is still on track for its April 30, 2012, debut in your workplace.

For more on this issue, I recommend the following, who have already covered it in much greater detail than me:

• NLRB Posting and Goose/Gander Rule for Employer and Employee NLRA Rights — from Russell Cawyer’s Texas Employment Law Update
• Court Strikes Down Portions Of NLRB Notice Posting Rules — from Labor Relations Update
• Federal Court Upholds the NLRB’s Notice-Posting Rule, But Limits The Rule’s Enforcement Provisions — from Minnesota Employer
• District Court Partially Upholds/Blocks NLRB Notice-Posting Rule — from Labor Relations Today
• Posting Rule Upheld (Sort Of) — from Manpower Employment Blawg
• Update: Challenges to NLRB Posting Rule — from Employer Law Report
• Two out of Three is Bad: Judge Says Poster Goes Up — from Michigan Employment Law

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

Discrimination

• Can one anti-Semitic email make a tenable employee bias claim? — from Eric Meyer’s The Employer Handbook Blog
• Employment Discrimination Protocols for Discovery: They’re Coming — from Dan Schwartz’s Connecticut Employment Law Blog
• White guys need love too: Punitive damages and reverse discrimination — from Robin Shea’s Employment and Labor Insider
• Unemployed Status—The New Protected Class — from Labor Employment Law Blog
• Regarded-as disability and the ADA amendments — from Work Matters
• Direct threat with regards to employment discrimination — from Employment Law Bits
• Boys, Girls and Workplace Discrimination — from i-Sight Investigation Software Blog
• Why is Pregnancy Discrimination Still Happening? — from Fistful of Talent
• $168 Million Verdict In Single Plaintiff Termination Case — from California Employment Law

Social Media & Workplace Technology

• What Employers Are Thinking When They Look At Your Facebook Page — from Kashmir Hill’s The Not-So Private Parts
• Using Social Media to Screen Job Applicants – Yes or No? — from Unbridled Talent
• Should Cyber-Screening by Employers Be Legislated? — from Molly DiBianca’s Delaware Employment Law Blog
• The Problem’s Not Just Porn Anymore — from The Employer's Lawyer
• Off-Duty Blogging Creates Employer Harassment Liability — from Phil Miles’s Lawffice Space
• As Social Media Adoption Grows So Does Corporate Risk — from Jessica Miller-Merrell’s Blogging4Jobs
• The Anatomy of a Good Social Media Policy — from Social Media Today
• Steakhouse Waiter Fired For Showing The World What A Great Tipper Peyton Manning Is — from Deadspin
• Why You Should Check With Legal Before Searching Employee’s Emails — from LE Blog

HR & Employee Relations

• Bullies, Reputational Hijackings and Corporate Responsibility… — from The HR Capitalist, Kris Dunn
• How to Destroy Employee Morale in Four Easy Steps — from ABA Journal Daily News

Wage & Hour

• Ten Things Small Business Needs To Know About Minimum Wage and Overtime — from Wage & Hour Insights
• Have I Been Properly Labeled as an Exempt Manager for Overtime Purposes Under the FLSA? — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Donning + Doffing = Divided Decisions — from Smart HR Manager
• Does an Employer Violate the FMLA When an Employee Answers Email or Telephone Calls While on Leave? — from Jeff Nowak’s FMLA Insights
• New mandates for paid sick leave raise hackles — from MSNBC.com

Labor Relations

• Herding home care workers into unions — from Walter Olson’s Overlawyered
• Workers, and NLRB, Under Attack — from The Nation

The value in delivering good news

Yesterday started out pretty lousy. My kids were all bent of shape because the cable box wasn’t working and they couldn’t watch their morning cartoons with their breakfast. (Thinking back to when I was 3 and 5, I would have been out of whack too.) So I spent more than an hour on the phone with AT&T’s customer service, which is not how I intended to spend my morning. Needless to say, I was in a pretty sour mood when I got to the office.

That sour mood lasted until the mail came at 11:30. Yesterday’s mail included an opinion and order granting summary judgment in my client’s favor in a discrimination and retaliation case. Sadly, the opportunities to deliver really good news to a client are seldom. Hearing the elation in my client’s voice when I told him that he had been vindicated in his decision to terminate an employee is what makes this job worthwhile.

I am not telling this story to toot my own horn. I’m always proud of the work I do for clients, and whether a court grants or denies a summary judgment motion is out of my control. Instead, I tell this story to focus on the part we can control—the ability to deliver really good news.

Think about the last time you pulled an employee aside to offer praise. I bet it’s been a little while. It’s not your fault. We’re all busy, and just don’t think about communications with employees unless it’s performance-related. We get bogged down in the bad and ignore the good.

Today, I want you to take a minute to offer a deserving employee some good news. Whether it’s a pat on the back for a job well done, or some praise for going the extra mile on a project, or something else entirely, take a minute to brighten someone’s day. Then, report back on the value you found in the experience.

The importance of selecting the right counsel

No matter how good of an employer you are, no matter how well you treat your employees, and no matter how closely you try to follow the myriad laws that regulate your relationships with your employees, the harsh reality is that the fact that you are an employer means that you will get sued. Once you are sued, the first and most important decision you have to make is the choice of the lawyer who will defend you.

For example, consider Falzone v. Licastro (N.D. Ohio 3/4/12) [pdf], which dismissed an employee’s claims against his former employer. The lawyering involved in the briefing directly impacted the viability of the lawsuit:

At the outset, the Court observes that Falzone has greatly complicated the Court’s task.  His ten-page-long opposition to summary judgment does not contain a single heading, is littered with unsupported conclusory allegations, eschews legal analysis for paragraph-long block quotes, and, with a couple of exceptions, either fails to identify the portions of the record on which his claims depend or cites parts of the record so voluminous that the Court can only wonder what it should be looking for.... For this reason alone, a grant of summary judgment to Defendants on Falzone’s claims is appropriate. Nevertheless, because the Court can, on its own, piece together enough of this poorly developed record to address in substance most of Falzone’s claims, it will.

As Falzone illustrates, your choice of counsel can make or break your case. Choose wisely.