Best of: 10 thoughts for your mobile device policy

10 thoughts for your mobile device policy:

http://www.ohioemployerlawblog.com/2012/02/10-thoughts-for-your-mobile-device.html

Best of: Disability discrimination law in Ohio is a mess

Disability discrimination law in Ohio is a mess:

http://www.ohioemployerlawblog.com/2012/01/disability-discrimination-law-in-ohio.html

See also Courts are finally starting to apply ADAAA—and it ain’t pretty:

http://www.ohioemployerlawblog.com/2012/03/courts-are-finally-starting-to-apply.html

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

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

http://www.ohioemployerlawblog.com/2012/01/friending-co-workers-depends-on-your.html

See also Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data:

http://www.ohioemployerlawblog.com/2012/02/latest-stats-about-supervisors-being.html

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

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

http://www.ohioemployerlawblog.com/2012/01/trying-to-make-sense-of-nlrbs-lastest.html

WIRTW #228 (the “Sound Odyssey” edition)

Where were you in 1983? I was in the 5th grade at Loesche Elementary School in Northeast Philly. I’ll get back to 1983 in a second.

Today is my daughter’s last day of kindergarten. Her (amazing) teacher (see #13 below) assigned the class a time capsule project. Each child had to answer 14 questions, which, along with a letter from mom and dad, will be sealed in a time capsule, to be opened at their graduation in 2024. Here’s my daughter’s submission:

When I posted this photo to Facebook, one of my grade school classmates reminded me of the time capsule our 5th grade class buried in 1983. He even had the article from The Jewish Times discussing the project (page 1 / page 2). For the record, I sacrificed the instruction manual from our Smurfs ColecoVision game. I’m not sure what’s more shocking, that I’m admitting to owning a Smurfs game, or that people paid $569.99 for a VCR (check out the Sound Odyssey ad at the bottom of page 2, and bonus points to anyone who can name any other store that was in the Leo Mall).

I am taking a much needed vacation next week. Enjoy some of my greatest hits spanning the past 6 months. I’ll be back on June 11 with brand new content.

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Thanks to Tom Mighell for featuring me on Wednesday as the Blawg of the Day at Inter Alia. Tom’s blawg is one of the originals, dating all the way back to 2002. It’s always nice to be recognized by one of the trailblazers.  

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

Discrimination

• Employee “loses track of time” due to disability — from Walter Olson’s Overlawyered
• Up in smoke: Hopes of ADA protection for medical marijuana use are dashed … for now, anyway — from Robin Shea’s Employment and Labor Insider
• The ADA does not protect medical-marijuana use, but… — from Eric Meyer’s The Employer Handbook Blog
• USERRA’s Statute of Limitations — from Molly DiBianca’s Delaware Employment Law Blog
• Crude, Bullying, and Despicable Workplace Conduct Does not Create Hostile Work Environment based on Sexual Harassment — from Jason Shinn’s Michigan Employment Law Advisor
• Company’s wording of termination letter, which mentioned employee’s disability leave, was direct evidence of discrimination — from Employment Law Matters
• ‘The Bachelor’ and ‘The Bachelorette’: Inside the Racial Discrimination Lawsuit — from Jennifer Pozner at The Daily Beast

Litigation

• Surprise! Study Finds That Everyone Hates Employment Litigation — from Mark Toth’s Manpower Employment Blawg
• You’re Damned if You Don’t Take the Right Steps After Being Sued — from damnedif
• Litigation is Not War, Nor Should it Be — from San Antonio Employment Law Blog

Social Media & Workplace Technology

• Trash Your Social Media Policy — from Heather Bussing at HR Examiner
• NLRB Releases Memo on Social Media Policies — from Phil Miles’s Lawffice Space
• Homeland Security reveals hundreds of words that could put you on their online watch list — from Boy Genius Report
• Who Owns Social Media? Risk Management? — from SocialFish
• The Password Debate: What’s an Employer to Do? — from Technology for HR
• Michigan Federal Court Adopts Narrow Interpretation of Civil Liability Under Computer Fraud and Abuse Act — from Trading Secrets

HR & Employee Relations

• Summer Reading: Is the “Mommy Porn” in “Fifty Shades of Grey” Workplace Safe? — from Dan Schwartz’s Connecticut Employment Law Blog
• How to handle sexual misconduct at work — from Evil HR Lady, Suzanne Lucas
• What the 1990s taught us about abusive work environments — from David Yamada’s Minding the Workplace
• Watch Where You Turn Up the Volume — from New York Times
• Treat Your Terminations as “For Cause” (Even When They’re “At Will”) — from Litigation PostScript
• Can Task-Based Employment Really Work? — from The Proactive Employer Blog
• Whistleblowers: Why you should heed their warnings — from Fortune
• Employee Handbook Version 2.Awesome — from Workplace Prof Blog
• Dear Evil Skippy: I Caught My “Temporarily Disabled” Employee Out Shopping — from Evil Skippy at Work

Wage & Hour

• 5 Steps to Better Wage & Hour Law Compliance — from Blogging4Jobs
• Wage and Hour Violations in the New Economy: A Tricky Business for Employers and Employees Alike — from Employment Lawyer Blog
• What Is A “9/80” Pay Plan? — from Wage and Hour Laws Blog
• Paycheck Fairness Act Moves Forward — from Washington D.C. Employment Law Update
• Fairness Doctrine — from We Know Next
• In FMLA-leave cases, here’s why employers' counsel always should depose the family member the employee claims needs to be “cared for” — from Mike Maslanka’s Work Matters
• Must an Employer Designate FMLA Leave When the Employee Does Not Want to Use FMLA Leave, or When the Employee Fails to Mention FMLA? — from Jeff Nowak’s FMLA Insights

Labor Relations

• Unions Restrict What Workers Can Get Paid — from Michael Haberman’s Omega HR Solutions
• Appellate Court Credits Employer’s Challenge of Mock Card Check Ceremony During Union Campaign — from Labor Relations Counsel

NLRB’s position on social media policies remains a bungled mess

Oh! what a tangled web we weave
When first we practice to deceive!
– Walter Scott, Marmion, Canto VI, Stanza 17 (1808)

Yesterday, NLRB Acting General Counsel Lafe Solomon issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” If you read the employment law blogs today, my guess is that you will find a whole bunch of management-side employment bloggers critical of Mr. Solomon (Molly DiBianca, Eric Meyer, and Dan Schwartz, for starters). Allow me to add my name to the mix. I apologize in advance for my treatise-length post.

As you might recall, I was very critical of Mr. Solomon’s 2nd report in its treatment of employer policies. Has the Acting GC solved any conundrums for employers with his latest missive? Can a company draft a social media policy with any teeth that the NLRB will conclude passes muster? Don’t count on it. In fact, Mr. Solomon's latest missive is as galling of a piece of legal analysis I have ever read. It's nothing short of intellectual dishonesty masquerading as hair splitting. How else can you explain the following razor-thin distinctions?

• A policy that prohibits the “release [of] confidential guest, team member or company information” is illegal, but a policy that cautions employees to be suspicious when asked to disclose confidential information is okay.
• This policy is illegal: “When in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea.” And this policy is illegal: “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline" are illegal.” Yet, this policy is legal: “Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers”.
• “Get permission before reusing others’ content or images” is illegal, while “Respect all copyright and other intellectual property laws. For [Employer’s] protection as well as yours” is legal.

Other baffling illegal policies?

• “Think carefully about ‘friending’ co-workers.”
• “Report any unusual or inappropriate internal social media activity.”
• “Don’t comment on any legal matters, including pending litigation or disputes.”
• “Adopt a friendly tone when engaging online. Don’t pick fights…. Remember to communicate in a professional tone…. Don’t make any comments about [Employer’s] customers, suppliers or competitors that might be considered defamatory.”
• “You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers.”
• “Avoid harming the image and integrity of the company.”

Mr. Solomon also invalidated various “savings clauses,” including one that provided:

This policy is for the mutual protection of the company and our employees, and we respect an individual’s rights to self-expression and concerted activity. This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own 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.

This unlawful policy is not all that different from the workplace posting that the NLRB wanted to have in every break room in America, yet it’s not good enough for any employer’s social media policy? Where is the logic and consistency? This is the exact breed of intellectual relativism that makes me furious.

Here’s the kicker. If challenged, Mr. Solomon would have to take issue with his own agency’s internal social media policy. Thanks to Mike VanDervort’s The Human Race Horses and Human Resources Executive Online, we can take a peek at the NLRB’s own social media policy, which prohibits: “Comments that the NLRB Office of Public Affairs deems inappropriate.” How is the NLRB’s own policy substantively different than any of the policies Mr. Solomon thinks are overly restrictive of employees’ rights to engage in protected concerted activity?

So, what’s the takeaway? The NLRB’s position on social media policies remains an absolute mess. If anything, it’s more confusing now than before Mr. Solomon issued his 3rd report. Employers need to be able to adopt bright line rules to guide their employees towards proper conduct. Yet, this report puts employers in the dangerous position of being fearful of drawing even the simplest of lines. The result, I’m afraid, is that businesses won’t adopt any rules, creating online anarchy among their employees.

As a emerging communication tool, social media is unstructured enough. Do we really want to create unnecessary legal impediments to disincentivize employers from drafting the rules their employees desperately need?

Perhaps the answer for employers lies in this policy, which Mr. Solomon concluded was lawful:

Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate [Employer] policies, and with outside individuals and/or entities. If you’re about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it.

Think before you click? My four-word social media policy might be a whole lot closer to reality.

Epilogue: If you scroll down to the last 3 pages of Mr. Solomon’s report, you will find a form social media policy on which the NLRB signed off. If you want to err on the side of abundant caution, this policy is the one you should be using (with the input of your attorney). Until the federal courts weigh in on this issue, however, we will have to live in world of uncertainty over the permissible scope, reach, and breadth of social media and other workplace communication policies.

BREAKING: NLRB issues 3rd report on social media

Hot off the presses, NLRB Acting General Counsel Lafe Solomon has issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” I am digesting the report and will share my thoughts first thing tomorrow morning. Here’s a preview: if you are holding your breath for a sign that the NLRB will allow employers to draw lines to guide employees about what’s right and wrong (or permissible and impermissible), you will suffocate.