WIRTW #221 (the “what’s in a name” edition)

If you don’t follow me on Twitter (what are you waiting for?), or if you missed the news as it flew by in your stream, my family is adding a dog in June. We’re super excited, but are stuck on what to name her. Do you want to help? I’m running a poll. We have it narrowed down to three choices, but are open to suggestions.  She’ll be a vizsla, if that helps. Take a few seconds to vote on one of our three choices, or add your own suggestion.

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

Discrimination

• When is the Best Time to Try and Settle Employment Litigation? — from Russell Cawyer’s Texas Employment Law Update
• Men Must be Allowed the Same Child Care Leave as Women — from Employer Defense Law Blog
• The Wrong Way to Help the Disabled — from Walter Olson’s Overlawyered
• Bipolar Disorder Disability Discrimination Lawsuit — from The Proactive Employer Blog
• Workplace pregnancy discrimination cases on the rise — from The Washington Post
• Anatomy of an EEOC Charge — from Casey Sipe’s The Employer’s Lawyer
• Is Weight Discrimination OK? — from HR Examiner with John Sumser
• Obama Won’t Order Ban on Gay Bias by Employers — from the New York Times
• Women, Money, and Bias: “The Economy Is Classist, Then Racist, Then Sexist” — from The Atlantic

Social Media & Workplace Technology

• Is Violation of Employer’s Computer Use Policy a Federal Crime? — from Phil Miles’s Lawffice Space
• Is Your Smartphone Making You Less Productive? — from Harvard Business Review
• Just One More Game ... Angry Birds, Farmville and Other Hyperaddictive ‘Stupid Games’ — from the New York Times Magazine
• Forget Facebook or Emails, Bosses Booting Employees Over Bandwidth — from FOX8.com
• Bosses’ big fear? That employees will film them — from CNET News
• Employers Aren’t Likely to Ask for Your Facebook Password — from US News and World Report’s On Careers Blog
• What Advice Should Lawyers Give Clients Who Want to Ask Prospective Employees for Their Facebook Passwords? — from Mike Maslanka at the Texas Lawyer
• What to Do When A Potential Employer Asks for Your Facebook Password — from Mashable
• The Spotlight is On Practice of Employers Requesting Access to the Social Media Accounts of Employees and Job Applicants — from Fitzpatrick on Employment Law
• Employer not allowed to search for porn on employee’s home computer — from Internet Cases

HR & Employee Relations

• Backstage Peek: Pixar Animation Studios’ “Cereal Bar” — from the disney food blog
• Dear Evil Skippy: Should I Have Been Warned for Using A T.V. Show’s Name at Work? — from Evil Skippy at Work
• Hire Slow, Fire Fast: Revisted — from Mike Haberman’s Omega HR Solutions
• Thanks for the Criticism! — from by Jim Brennan at Compensation Cafe
• Got Trade Secrets? — from The Employer’s Lawyer
• The Employee Handbook is Not Your Handbook — from Strategic HR Lawyer
• Stop being the office slob — from Suzanne Lucas at CBS Money Watch
• L.A. Firefighter Arrested For Moonlighting As MMA Brawler While Allegedly On Workman’s Comp — from Deadspin
• Physics in HR – The Petrino Principle — from The HR Introvert

Wage & Hour

• WINNER TAKES ALL: Supreme Court to Determine if Pharma Reps Should Be Classified as “Exempt”… — from The HR Capitalist, Kris Dunn
• Rebuild America Act Would Hike Tip Credit, Minimum Wage, Paid Time Off — from TLNT
• Volunteers May Be Entitled to Pay Under the Fair Labor Standards Act — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Employee Wage Misclassification Should Be Taken Seriously — from Rush Nigut’s Rush on Business

  Labor Relations

• The Pros and Cons of Joining a Labor Union — from Fox News
• Three Weeks Until NLRB Posting Rule Takes Effect — from Dan Schwartz’s Connecticut Employment Law Blog
• Do Employees Read Break Room Signage Anyway? — from Jessica Miller-Merrell’s Blogging4Jobs
• Union says right-to-work law violates free speech — from Bloomberg Businessweek

Standing up for your employees

Last night, the Philadelphia Flyers rallied from 3 goals down to take game 1 of their first round series from their cross-state rivals, the Pittsburgh Penguins. Right now, you’re all thinking to yourselves, what can this possibly have to do with employment law or employee relations?

Four months ago, Dallas Stars’ center Steve Ott delivered a hit to Flyers’ star Claude Giroux, who had just returned to the lineup from a concussion. At the end of the period, Flyers’ coach Peter Laviolette chased down Ott in the Stars’ tunnel and confronted him about what he perceived as a cheap shot. According to Philly.com, Giroux appreciated his coach’s action: “It’s good to see we have each other’s back.”

Two weeks ago, Laviolette again stood up for his players, following a fight-filled conclusion to a game against the Penguins. The fights were precipitated by what Laviolette called a “gutless” move by the Pens to put its enforcers on the ice at end of a 6-3 blowout. As all 10 players on the ice fought, Laviolette stood on the boards yelling at Pens’ assistant coach Tony Granato. After the game, Laviolette defended his tirade (via CSNPhilly.com): “Those guys hadn’t played in 12 minutes; it was a gutless move by their coach.” Again, Giroux stood up for his coach (via CSNPhilly.com): “He’s got our back…. He’s an intense coach who loves his players.”

Which brings me back to last night. The Flyers fell into a quick 0-3 hole. They needed to rally. And, they did. Don’t think for a minute that whatever motivation Laviolette used to jump-start his team had added impact because his players know that he stands up for them. He has their backs, and they responded with 4 unanswered goals and a 1-0 series lead.

Your organization is not a hockey team, but there is a lesson to learn from Peter Laviolette. If you have your employees’ backs, they will reciprocate. You never know when you’ll need your employees to rally for you (overtime, sales quotas, deadlines, etc.). Make it easier for them to go the extra mile by standing up for them when they need it. Reward good performance. Recognize star performers. Take complaints seriously. Have an open-door for your employees. Your employees will pay you back in spades.

Maryland becomes 1st state to ban requiring employees’ social media passwords

The public outcry against employers requiring the job applicants turn over their Facebook passwords has resulted in legislation. Maryland has become the first state to prohibit employers from requiring or seeking user names, passwords, or any other means to access Internet sites such as Facebook as a condition of employment. Demonstrating the outrage over this issue, the measure passed both house of Maryland’s General Assembly with 96% support.

The law—entitled, “User Name and Password Privacy Protection and Exclusions” (full text here [pdf])—prohibits Maryland employers:

• from requesting or requiring that an employee or applicant disclose any user name, password, or other means to access a personal Internet account;
• from taking, or threatening to take, disciplinary actions for an employee’s refusal to disclose certain password and related information; and
• from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information.

The law exempts employers that are conducting investigations into compliance with securities or financial laws or regulations, and investigations into the unauthorized downloading of the employer’s proprietary information or financial data to an employee’s personal website.

Eric Meyer, at The Employer Handbook blog, nicely summarizes the main critiques of this bill:

[T]he Maryland Chamber of Commerce opposed the prohibition because the bills did not acknowledge there could be legitimate issues for some employers to want to review applicants' or workers' social media messages.

What concerns me is that there are no carve-outs for public agencies that protect and serve the public. I can understand why a police department may need to fully vet its candidates by making sure that applicants and officers don’t have hate speech towards a particular protected class, for example, on their Facebook page. As I imagine that this information could be used to overturn arrests and indictments.

While I agree with Eric’s take, my critique is more about the small percentage of employers who engage in this practice:

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work? … Requiring passwords is not smart.

This law affects you only if: 1) you engage in business in Maryland; and 2) you are among what I believe is the small minority of business that are requiring applicants and employees to turn over social media logins and passwords. Nevertheless, I would expect other states to follow suit, and use the Maryland legislation as a model.

Even if few public sector employers, and fewer private sector employers, are engaging in this practice, this issue bears monitoring.

[Hat tip: The Hill]

National origin harassment depends on the national origin of the harassee

Consider the following examples, both of which come from harassment cases decided in the past two weeks by the Northern District of Ohio:

• EEOC v. Spitzer Management [pdf]: Employer denied summary judgment based on allegations that an Asian-American employee was called “slant eye” and “rice rat,” and an African-American employee was called a “jungle bunny” and a “gorilla.”
• Burrage v. FedEx Freight [pdf]: Employer granted summary judgment based on allegations that an employee was repeatedly called “Mexican” and referred to as “cheap labor.”

How do you rationalize these two seemingly incongruous decisions? The reconciliation depends on the national origin or race of the complainant. In Spitzer, an Asian-American was complaining about harassment based on his national origin, and an African-American about harassment based on his race. In FedEx, however, the complainant was not Mexican-American, or any Hispanic descent. In reality, he was half-white/half-black. As the court in Burrage v. FedEx explained:

At best, the references to Burrage as “the Mexican” and “cheap labor,” and the use of the Spanish terms “andale” and “ariba,” represent the very unfortunate employment of offensive stereotypes of Hispanics, and can be said to arise out of a misperception that Burrage was of Hispanic descent….

Burrage seems to argue that he was harassed because of physical characteristics that made him appear to be a member of a protected class of which he was not an actual member. Claims based on perceived class membership are not legally viable under Title VII, and the Court will not expand the reach of Title VII to cover that which Congress chose not to protect.

Do not take refuge in Burrage v. FedEx and use it as an excuse to condone harassment. FedEx just as easily could have gotten dinged for ignoring an employee’s four years of complaints. Regardless of whether there is synergy between the harassment and the harassed, take the complaint seriously, investigate, and deploy appropriate corrective action if necessary. Do not hang your harassment hat on a technicality, because the court hearing your case might not be so generous.

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]