Get rid of at-will employment? Give me a break!

On Donna Ballman’s blog, Screw You Guys, I’m Going Home, she argues for a radical change to at-will employment. She believes that unemployment hearing officers should have the power to reinstate, with back pay, anyone fired without just cause:

Most employers can fire you for any reason or no reason at all…. Then, to add insult to injury, our tax dollars pay for the cost of unemployment compensation and the side-effects of unemployment, all because your boss had a hissy fit one day and fired you without just cause…. Every state in the nation already has a set of hearing examiners or referees who hear unemployment cases. If the employee is fired for misconduct, they don’t get to collect. But what about the employer who fires without just cause? Why not give the unemployment hearing officers one more power: the power to reinstate with back pay.

I applaud Donna’s bravado in arguing for a radical solution to a problem she perceives. But, is it really a problem at all? In reality, few employers act on whims of fancy. We can debate what qualifies as “just cause,” but the fact is that few employer fire good employees. It is not a good business decision for a company to let a good worker go. Good employees keep their jobs, marginal employees are at risk, and bad employees are fired. And, when an undeserving employee is fired, there are myriad employment laws to protect their rights from an unjust dismissal.

Moreover, placing into the hands of unemployment hearing officers the power to reinstate (with back pay) would cripple workforce mobility and hiring. If employers face a risk of having overturned all but the clearest of terminations, they will be reluctant to fire all but worst of employees. Businesses will be stuck with the middling and marginal, harming their ability to employ the best and the brightest. Donna’s scheme would therefore result in fewer job opening, which, in turn, would irreparably damage hiring and create longer periods of unemployment for those searching for work.

Finally, at least in Ohio, the premise that individual taxpayers foot the bill for employers’ whims is faulty. In Ohio, unemployment is funded by a tax on employers. Employers’ tax rates go up and down based on the number of claims paid (like any other insurance scheme). For 2012, that rate can be as high as 9.1%. So, it is in employers’ best interests not to fire on a whim, because the resulting unemployment claim will raise their contribution rate, resulting in a higher tax. In other words, bad firing decisions hit an employer where it hurts, the bottom line. 

Donna, if you’re still convinced that your idea makes sense, I’ll make you a deal. When you agree that we need to adopt my Employer’s Bill of Rights, I’ll agree that at-will employment is a dinosaur (and, watch out for the flying pigs).

WIRTW #220 (the “social assassin” edition)

Passover starts at sundown tonight. I have nothing employment-related for this tidbit of information (don’t treat your workers like the pharaoh treated his, or you will likely face the 11th plague, litigation?). But, it does give me an excuse to play the following, which also happens to be one of the few SFW clips in the eight-seasons of Curb Your Enthusiasm.

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

Discrimination

• What Baggage Does The Employment Attorney Carry? — from Dan Schwartz’s Connecticut Employment Law Blog
• You may know where the bodies are buried, but that doesn’t mean you can sue your employer for retaliation — from Robin Shea’s Employment and Labor Insider
• Comments to OIRA on forthcoming EEOC Background Check Guidance — from the U.S. Chamber of Commerce
• Intellectual Disability under the ADAAA: A Widening Chasm of Problems? — from Michael Haberman’s Omega HR Solutions
• We Know You Don’t Mean to Discriminate - But Are You Biased Underneath the Hood? — from The HR Capitalist. Kris Dunn
• Employment discrimination by the numbers: Foreign Edition — from Eric Meyer’s The Employer Handbook Blog
• Pending Legislation Employers Can’t Afford to Ignore — from Stephanie Thomas’s The Proactive Employer Blog
• Senators Propose Amendments To ADEA — from Stoel Rives World of Employment
• Statistical disparities don’t necessarily indicate discrimination — from The Tennessean

Social Media & Workplace Technology

• Your Future Employer Is Watching You Online. You Should Be, Too. — from Michael Fertik at the Harvard Business Review
• Employees Need To Take Control Of Their Online Identities — from Anthony Zaller’s California Employment Law Report
• Employers Who Demand Facebook Passwords. Oy Vey. — from Molly DiBianca’s Delaware Employment Law Blog
• Teacher fired for refusing to hand over Facebook password — from Friending Facebook Blog
• Michigan Proposes Legislation to Ban Employers from Accessing Employees’ Social Media Sites — from Jason Shinn’s Michigan Employment Law Advisor
• The Facebook access controversy comes to Michigan — from John Holmquist’s Michigan Employment Law Connection
• Access To Social Media Accounts In The Hiring Process And Employer Ownership Of Trade Secrets Or Confidential Information Contained In Social Media Accounts: Legislation On Horizon? — from Trading Secrets
• Employee Photos on the Company’s Social Media Page? — from Nolo’s Employment Law Blog
• Social Media Ethics: Why You Should Have a Policy — from Social Media Today

HR & Employee Relations

• Should You Fire The Slugs? — from Stephanie Thomas at Compensation Cafe
• Did Your DUI Lawyer Draft Your Employee Handbook? — from TLNT
• Olbermann Employment Law-Palooza — from Phil Miles’s Lawffice Space
• Quoting scripture at work — from Evil HR Lady, Suzanne Lucas
• “Bullying” Is Becoming Part of the Zeitgeist — from Michael Fox’s Jottings By An Employer’s Lawyer
• Pet insurance as a benefit — from HR idiot
• Creating a Conflict-Conscious Workplace — from intown employer
• If the Facebook COO can leave the office at 5:30, maybe you can too — from Amy Joyce’s On Parenting (at washingtonpost.com)
• How to reduce your legal spend on employment issues — from Smart Business

Wage & Hour

• “Employers grow reluctant to offer internships following complaints” — from Walter Olson’s Overlawyered
• Intern or Employee? Unpaid Internships May End Up Costing Employers — from LE Blog
• Argument preview: The “outside salesman” exception to the FLSA’s overtime-pay requirement — from SCOTUSblog
• Will breastfeeding support die with Obamacare? — from Eve Tahmincioglu’s CareerDiva
• Can an Employer Require an Employee to Make Up Time Taken as FMLA Leave? from Jeff Nowak’s FMLA Insights

Until next week (also, remarkably, SFW):

Disturbing study about the (mis)use of employers’ confidential information

Here’s the good news: According to a recent survey conducted by FileTrek, 79% of Americans believe that removing confidential files from the office is grounds for termination. Here’s the bad news: 90% think that employees do it anyway. What is the most popular method of removing information? Exporting it to a USB drive.

Some more scary numbers? How about the answers to the question, “When is it acceptable to remove confidential company information out of the office?”

• 48% — When boss says it’s okay
• 32% — To finish a late night project from home
• 30% — To work over the weekend or while on vacation
• 16% — When the confidential information about themselves
• 2% — When it can be brought back to the office before the boss knows it was gone
• 2% — To show something to family or friends who promise to keep it confidential
• 40% — Never

According to Dale Quayle, CEO of FileTrek, “Today’s workforce believes information is an asset to be shared…. It’s critical for today’s management teams to be more IP aware to ensure data security.”

Where does this IP awareness start? With a clear set of policies and agreements that prioritize the confidentiality of your information and data. You need to set the expectation in your organization that you take confidentiality seriously, and those that do not should not expect to remain employed. You also need to be prepared to enforce that confidentiality with litigation when necessary. Otherwise, the agreements may not be worth the paper on which they are printed.

[Hat tip: Huffington Post]

NLRB Administrative Law Judge splits the baby in ruling on a social media policy

Anytime any piece of the NLRB takes action with regard to an employer’s social media policy, it’s newsworthy (even if you’re getting tired of reading about it). Such is the case with G4S Secure Solutions (USA) Inc. (3/29/12) [pdf], decided by an administrative law judge.

At issue in G4S Secure Solutions were the following two provisions of the employer’s social media policy:

• Do not comment on work-related legal matters without express permission of the Legal Department.
• Photographs, images and videos of G4S employees in uniform, (whether yourself or a colleague) or at a G4S place of work, must not be placed on any social networking site, unless express permission has been given by G4S Secure Solutions (USA) Inc.

The ALJ agreed with the NLRB’s General Counsel that the “no comment on work-related legal matters” provision was overly restrictive of employees’ rights to engage in protected concerted activity:

I find the rule is reasonably interpreted to prevent employees from discussing working conditions and other terms and conditions of employment, particularly where the discussions concern potential legal action or complaints employees may have filed…. The rule at issue here would reasonably be read to prohibit two employees … from sending messages to each other about their issues at work … via a social networking site. Likewise, it would reasonably prohibit a discussion group among concerned employees on a social networking site.

Conversely, however, the ALJ concluded that the “no photograph” provision was lawful:

Respondent clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites. Starting with the worksite, Respondent does have patient privacy concerns for the EMT services it provides. Moreover, Respondent serves a variety of clients on a national basis. The various businesses and government agencies where its employees work can be presumed to have their own rules centered on privacy and legal concerns. I find the rule at issue here is reasonably construed as protecting Respondent’s clients. To read it as a prohibition on Section 7 activity strikes me a stretch, particularly considering the rule does not ban photographs but merely prohibits employees from posting them on social networking sites.

I’ll leave you with two observations:

1. The NLRB’s Acting General Counsel does not have the last word on these issues. Many (including me) were up in arms when the NLRB’s Office of General Counsel issued its latest report on social media in the workplace, which opined that almost all workplace policies that could potentially regulate social media violate the NLRA. G4S Secure Solutions disagreed with the General Counsel, and concluded that an employer’s reasonable and legitimate reason to regulate employees’ use of social media trumps a potential and tangential effect on employees’ protected, concerted activity.

2. These issues remain very unsettled. One opinion from an ALJ is nowhere close to a conclusive proclamation of the law. This case will head to Washington for consideration by the NLRB, which could reach an opposite conclusion on the “no photographs” policy. Ultimately, the federal circuit courts, and the Supreme Court, will have to weigh-in on these issues. But, that guidance is years away. Until then, move very cautiously, and only with the advice of counsel well-versed on these issues, if trying to regulate social media in your workplace.

Dealing drugs disqualifies an employee from collecting workers’ comp

Ever heard of the phrase “sustained remunerative employment?” In the world of workers’ compensation, it means that if you are earning money, or capable of earning money, you cannot be eligible for an award of PTD (permanent total disability) for a workplace injury. Seems like common sense, right? What, if, however, the evidence of sustained remunerative employment is illegal activity? Last week, the Ohio Supreme Court weighed-in with an answer.

Donald McNea was a police officer the city of Parma. In 2004, the state awarded him PTD compensation for alleged on-the-job injuries. As it turns out, at the same time McNea was receiving PTD payments, he was being investigated for the illegal sale of narcotics. Ultimately, he was arrested, indicted, pleaded guilty, and sentenced to three years in prison. The Industrial Commission terminated McNea’s PTD benefits as of the date of his incarceration. It also concluded that McNea’s side business selling narcotics was “sustained remunerative employment,” and as a result declared that all compensation paid after his first confirmed drug sale constituted an overpayment.

McNea appealed the determination of the overpayment all the way to the Ohio Supreme Court, where—in State ex rel. McNea v. Industrial Commission (3/29/12) [pdf]—common sense prevailed:

In this case, the evidence established an ongoing pattern of phone calls and other sales-related activity that culminated in the four recorded sales that McNea made between October and December 2005. The commission characterized this sales activity as sustained remunerative employment, and we decline to disturb that finding.

It is unlikely that you will ever face the situation of having to seek disqualification of an employee from collecting workers’ comp benefits because he’s dealing drugs. Nevertheless, this case holds an important lesson. Despite all of the laws technicalities and nuances, when you rip most cases down to their cores, ligation is a morality play. If you can show that an employee did something that offends our idea of what is right versus what is wrong (dealing drugs, stealing, other dishonesty, etc.), you will place yourself in a very good position to win your case.

An good example of an overly broad social media policy

Reuters is reporting that a union representing employees at a New York grocery chain has asked the NLRB to investigate whether the store’s social media policy is violates employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

According to the article, the policy in question “forbids employees from disclosing confidential information—including salaries—on social networking sites like Facebook or Twitter, and from discrediting the store’s practices or products.” For its part, the employer commented that “the store’s policy is meant simply to remind employees to use ‘reasonable guidelines’ when posting to social media sites.”

The employer’s goal is commendable, and reminiscent of my four word social media policy, “Think before you click.” But, if the article is correctly reporting the scope of the challenged policy, it goes well beyond reasonable. The clearest example of protected, concerted activity is conversations about wages. You cannot have a policy that prohibits employees from talking about how much they make, and that rule doesn’t change whether the conversations are at the water cooler, in the break room, or over the Internet. If I was the company’s lawyer, I’d be telling them to change the policy ASAP, before the NLRB orders them to do so.

[Hat tip: Delaware Employment Law Blog]

WIRTW #219 (the “recap” edition)

The Labor & Employment blawgosphere nearly blew itself up this week, with Facebook passwords and the Supreme Court’s healthcare argument dominating the headlines. In case you were under a rock this week, here’s my 140 character summary, fit for you to copy and paste into Twitter: “Requiring Facebook passwords from job applicants is bad, but, it looks like S Ct might think individual health insurance mandates are worse.”

Looking for more details?

Facebook Passwords

• Don’t Demand Facebook Passwords — from Manpower Employment Blawg
• Requiring Social Media Information Is a Bad Idea — from Workplace Privacy Counsel
• What Could Go Wrong? Facebook Passwords — from LaborRelated
• Leave Facebook out of your hiring decisions — from HR Cafe
• Password Protected - Proposed Social Media Privacy Legislation — from Labor Employment Law Blog
• Facebook Controversy Spawns Legislation — from New Jersey Employment Law Blog
• Facebook Policy Against Sharing Passwords to Block Employers — from Texas Employer Handbook
• Employers Requesting Facebook Access May Face Federal Consequences — from LE Blog
• Think Twice Before Asking Applicants for Facebook Passwords — from Dan Schwartz’s Connecticut Employment Law Blog
• Relax! Businesses don’t want employee Facebook passwords. — from Eric Meyer’s The Employer Handbook Blog
• UPDATE - Still Trending On Password Demands — from Social Media Employment Law Blog
• Facebook Finally Takes a Position on Screening! — from employeescreenIQ Blog
• Is Social Media Legislation Coming Your Way? — from Rob Radcliff’s Smooth Transitions

Health Care Law Oral Argument

• SCOTUSblog, health care, and a few things you might have missed — from SCOTUSblog (with links to all of SCOTUSblog’s amazing coverage)
• In Plain English: Is half a loaf better than no loaf? — from SCOTUSblog
• “A Moment of Silence for Obamacare: Prayers, depression, and Latin phrases. Obamacare looks to have had another very bad day.” — from Howard Bashman’s How Appealing
• As health care arguments close, fate of law seems uncertain — from Law.com
• Oral Arguments Close With Severability, Medicaid Expansion Issues — from Joe’s HR and Benefits Blog
• Supreme Court Hears Final Day of Oral Argument on Severability, Medicaid Expansion — from Washington D.C. Employment Law Update
• SCOTUS on ACA, Day 1: Supreme Court Signals Reluctance to Postpone ACA Decision on Procedural Grounds — from E is for ERISA

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

Discrimination

• ENDA “Lite” On the Way? — from Michael Fox’s Jottings By An Employer’s Lawyer
• March Madness and Employment Litigation – It’s All About the Numbers … and a Little Luck — from Jason Shinn’s Michigan Employment Law Advisor
• Reasonable accommodation: Shifting tasks among employees — from HR Cafe
• Discriminating Against the Long-term Unemployed: Tips to Avoid This Practice — from Mike Haberman’s Omega HR Solutions
• Fourth Circuit Allows Sex Discrimination in Severance go Forward — from Maryland Employment Law Developments
• If your job makes you want to kill yourself, you may (or may not) be an ADA “direct threat” — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• 10.5 billion minutes spent on Facebook daily, excluding mobile — from Friending Facebook Blog
• What Should Go Into a Social Media Policy? — from Lindsay Walker at i-Sight Investigation Software Blog
• A (Hopefully Needless) Reminder That Skype Conversations On Your Work Computer Aren’t Very Private — from Kashmir Hill’s The Not-So Private Parts
• My So-Called (Double) Life … On Facebook — from Fistful of Talent
• Why Pin(interest)? — from Social Axcess

HR & Employee Relations

• The Real Leadership Lessons of Steve Jobs — from Harvard Business Review
• Rogue Employees of the Week – Saints Coach Sean Payton and Defensive Coordinator Gregg Williams — from damnedif
• Stupid (beep) People Say — from Cost of Work
• Victoria Hospital Won’t Hire Very Obese Workers — from The Texas Tribute
• The How and Why of Employee Background Screening — from Stephanie Thomas’s Proactive Employer Blog

Wage & Hour

• Don’t Let Your Babies Grow Up To Be Interns — from Dan Schwartz’s Connecticut Employment Law Blog
• 6 keys to keeping unpaid internships from becoming a hot wage & hour mess — from Eric Meyer’s The Employer Handbook Blog
• HR clueless on Family and Medical Leave — from CareerDiva
• When FMLA Intermittent Leave Leads to Suspicious Attendance Patterns — from HR Hero Line
• Court Clarifies Timing Calculation for FMLA Retaliation Claims — from Minnesota Employment Law Report

Labor Relations

• Fired for Wearing Orange and Orange Employees Strike Back — from Phil Miles’s Lawffice Space
• Posting Rule Update: Brace for Concerted Activity! — from Labor Relations Institute
• Target to temporarily close store in union fight — from Michael VanDervort’s The Human Race Horses