WIRTW #240 (the “see me … hear me” edition)

Every once in a while I like to give you, my readers, an update of where you can catch me live.

Next week, you have two chances to hear me from the comfort of your desk:

• On Thursday, September 6, at 1 pm EDT, I’ll be making my triumphant return to DriveThru HR, the Internet’s most popular daily radio show covering human resources. Listen live at http://www.blogtalkradio.com/drivethruhr, and share your thoughts on twitter using #dthr or @drivethruhr.

• That same afternoon, at 3 pm EDT on September 7, I’ll be making my 7th appearance on The Proactive Employer radio show, hosted by Stephanie Thomas. This appearance, entitled Your Most Challenging and Bizarre HR Questions Answered, will be a little different. Instead of discussing a pre-arranged topic, I, along with Phil Miles, Robin Shea, and Eric Meyer, will be answering questions, live and unrehearsed, from Stephanie’s listeners. It should make for an interesting experience. If you have a weird or bizarre employment law question, or just want to chat, you can:

  • Call on the listener Line: 1-888-553-6673
  • Tweet questions with the hashtag #TPESHOW
  • Login as “guest” to the show’s live chat and ask questions anonymously

If you’d rather see me live and in person, October and November give you four different chances to see me speak on my favorite topic, social media in the workplace.

• On October 1, I’ll be in Uncasville, Connecticut, leading a panel discussion at the 7th Annual National Employment Practices Liability ExecuSummit entitled, Employment Law in the Information Age: Best Practices for Employers 

• On October 16, I’ll be in San Francisco, speaking at the GSMI HR Compliance Conference. I spoke at this same conference last year, and am very excited to make a return appearance. It’s a great conference because it is specifically tailored to to the concerns of strategic level decision-makers, legal staff, and HR pros and leaders. My topic: Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace

• I am also presenting Think Before You Click… at the 7th annual COSE Small Business Convention, on October 25, at the Kalahari Resort & Convention Center in Sandusky, Ohio. COSE’s SBC is the premier small business event in the country. Over two days it offers 48 educational workshops, six national keynote speakers, a business-to-business tradeshow, and hands-on learning labs.

• Finally, I’ll be back on home turf on November 28, leading a panel discussion on workplace social media issues at the 2012 Midwest Social Media Summit.

If you are planning on attending any of these events, please reach out and let me know ahead of time so that we can meet. Or, just stop me and say hello.

Finally, if you are a fan of this blog (or others), you still have a whole week to submit your nomination(s) for the ABA Journal’s Blawg 100. The deadline is September 7, and the process is easy. Thanks for your support.

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

Discrimination

• The mommy track — from The Economist
• An employer’s nightmare: the anonymous harasser — from Robin Shea’s Employment and Labor Insider
• Dear Evil Skippy: Two Men, No Wedding, One Complaint — from Evil Skippy at Work
• Chrysler Liable for “Repulsive Harassment” of Employee — from Maryland Employment Law Developments
• America Runs on … Discrimination? — from The Proactive Employer Blog

Social Media & Workplace Technology

• Spying on Your Employees? Know the Law First — from Dan Schwartz’s Connecticut Employment Law Blog
• Can Law Keep Up with Technology? — from Heather Bussing at HR Examiner
• FINRA Regulatory Notice 12-29: Its Impact on Social Media Use — from Social Media Today

HR & Employee Relations

• Can my employer cut my paid time off — from Evil HR Lady, Suzanne Lucas
• The Trade Secret Litigator’s 7 Deadly Sins of Departing Employees in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Reference Checks: Neutral is the New Negative, and Getting Negative Info is Gold… — from The HR Capitalist, Kris Dunn
• Protecting Our Children: Another Rant About School Employment Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Apple’s Genius training manual shows how company herds and grooms its “iSheep” — from Boy Genius Report

Wage & Hour

• FLSA Questions In Wake Of Hurricane Isaac — from Wage and Hour Laws Blog
• The Importance Of Accurate Time/Hours Records In The Social Media Age — from Social Media Employment Law Blog
• BYOD Workers Are Working An Extra 20 Hours Per Week Unpaid — from Workplace Diva
• Work breaks: a right or a privilege? — from Employment Law Bits
• Can an Online Checklist Really Help Decide Who Is an Exempt Employee? — from TLNT
• FMLA may require you to adjust employee performance standards — from Eric Meyer’s The Employer Handbook Blog
• FMLA “Hours Worked” Includes Prep Time at Home — from Impact Litigation Journal
• Employee’s FMLA Leave Requires an Employer to Adjust Performance Standards — from Jeff Nowak’s FMLA Insights

Labor Relations

• Is the NLRB In Need of a Dictionary? — from Molly DiBianca’s Delaware Employment Law Blog
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Who’s the Boss? New Book Warns About Public-Sector Unions — from LaborPains.org
• Sixth Circuit Upholds NLRB's Pre-Recognition Framework Agreement Ruling — from Workplace Prof Blog

Until next week…

Are you allowed to use social media at work?

This week, Lifehacker has been running a poll asking this question — are you allowed to use social networks at work? The results so far (from nearly 3,100 votes):

• 58.63% = Yes
• 25.8% = No
• 5.89% = Only at specific times
• 9.68% = Only on personal devices

What’s more interesting to me, though, is the comments posted by Lifehacker’s readers. I’ve chosen three to reprint, each of which illustrates an important point about employers’ attempts to regulate social media in the workplace.

1. My employer blocks everything but linkedin, yet they promote internally how they use and we are to use social media to promote and otherwise discuss (in a good manner of course) the company. It’s kind of ridiculous when you get an internal company wide email saying follow us, like us, etc and when you click on it, you get good ole’ websense saying “Denied.” (comment by SpiffyMcDougal)

Companies cannot promulgate a disconnect between their external social media efforts and their internal social media policies. Openness to the public at-large will cause resentment among your employees if you restrict internal access. It sends a mixed (and wrong) message.

2. I can use FB and other sites all I want on my phone because it's not connected to anything in the office. I'm sure it's not allowed but no one really cares. (comment by Dear Zeus)

Bans on the internal use of social media are mostly worthless. Employees are increasingly technologically savvy, and will figure out work-arounds. Why implement a policy that you cannot monitor or control?

3. As the IT Administrator, it was my call whether or not to block social media. I chose not to since I work with a bunch of responsible adults who put their work ahead of their social life. If they need to take a peek a few times a day, no one cares, and it's never become a problem. (comment by Sergio526)

This commenter absolutely hits the nail on the head. The issue of whether to ban or limit access to social media in the workplace is not a black or white issue. It’s an employee-by-employee issue. I am reasonably certain you don’t have a policy telling employees that they are forbidden from reading the newspaper all day long. Yet, if an employee’s productivity or performance is suffering because they can’t pry themselves away from the New York Times, you deal with the problem with that particular employee. The same holds true for Facebook, Twitter, YouTube, or Amazon. It’s only an issue if an employee makes it an issue. Deal with it as a performance problem for that employee, not as a systemic problem that might not exist across your workforce at large.

Accommodating religions starts at home (a love story)

Nine years ago today I got married. Our wedding was not what you’d call traditional. I’m Jewish and my wife is Catholic, and we wanted our ceremony to blend the best of both traditions. While my wife’s dream wedding included her dad walking her down a church aisle, we were willing to sacrifice if we could not find a priest and a rabbi who would accommodate our wishes. With nervous trepidation, we met with the priest of Colleen’s parish, who, as it turned out, was 100 percent on board with our plan. We next found a rabbi, and all of us worked together to craft the ceremony we wanted: in a church, under a chuppah, with a beautiful blend of both religions and our respective traditions and customs.

There has been a lot of ink spilled lately about employers not accommodating employees’ religions. Whether it’s Disneyland refusing to permit a Muslim employee to wear a hijab, or a Burger King franchise denying the request of a Pentecostal employee to wear a skirt instead of pants, or a New York state university firing an employee because of his “I ♥ Jesus” lanyard, employers seem to have forgotten how to accommodate. People are quick to lay blame at the feet of these companies. Yet, teaching how to accommodate starts at home. If children learn exclusion, how can we expect them to act any differently as adults? If nothing else, I know my kids (being raised Catholic, but with a healthy dose of Jewish in the home) should not make these mistakes as they grow. We won’t let them, and, as they age, I hope they won’t want to.

(Happy Anniversary Colleen. I love you.)

Sorry shouldn’t be the hardest word to say

More than two years ago, I wrote the following, in a post entitled The art of the apology:

Sometimes, all someone wants to resolve a problem is an apology. It’s easy to dig your heals in and fight, especially when you are being accused of something as insidious as discrimination. Those fights will cost you hundreds of thousands of dollars in legal fees. Most times, those fights are necessary. Sometimes, though, a simple apology will suffice to restore the status quo…. The next time you are dealing with a sensitive situation with an employee, before shifting into battle mode stop and ask yourself whether a sincere apology will solve the problem. It may be one of the hardest, and best, decisions you will ever make.

Still need convincing? Watch the following video, and then let me know if you still think there is no value in swallowing your pride and simply saying, “I’m sorry.”

Do you know what to do when violence invades your workplace?

Tragically, mass shootings seem to be all the rage in America. The latest occurred last Friday morning outside New York City’s Empire State Building. The shooter was a disgruntled ex-employee targeting his former coworkers.

Do you have a plan in your workplace for a shooting or other emergency? If not, OSHA offers a comprehensive guide for putting together an emergency action plan. According to OSHA, “the best way” to protect your business and your employees “is to prepare to respond to an emergency before it happens.” Part of that preparation is the drafting of, implementation of, and training your employees about an emergency action plan.

The other part, though, is creating a culture in your workplace to deter violence, or spot potential violence, before it can happen. How can you accomplish this culture?

• Treat employees with respect—while they work for you, during a termination, and even after they are no longer your employees.
• Flag at-risk employees for assistance.
• Offer employee assistance programs for those who need them.
• Involve security personnel and local law enforcement at the first hint that an employee might turn violent.

As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against the kinds of tragedies that we’ve seen lately, these few steps can go a long way to putting you in the best place to deter and respond.

WIRTW #239 (the “has it been a year already” edition)

I have been blessed that the ABA Journal has included me on its list of the top 100 legal blogs (its “Blawg 100”) for the past two year (2011; 2010). As in the past, it is soliciting input on which blawgs to include on its 2012 list. From the ABA Journal:

We’re working on our annual list of the 100 best legal blogs, and we’d like your advice on which blawgs you think we should include.

Use the form to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know which ones. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

There are a few rules to keep in mind if you are inclined to click through and nominate any blogs:

• You can’t nominate your own blawg of any blawg on which you’ve contributed content.
• Wives and husbands cannot nominate their spouses’ blawgs (sorry, honey).
• Employees of law firms cannot nominate blawgs written by their co-workers.
• PR professionals cannot nominate their clients’ blawgs.
• Blawggers cannot enter into any kind of gentlemen’s agreement to nominate each other.

Submissions are being accepted until September 7.

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

Discrimination

• EEOC Background Check Policy is Fair Game — from Nick Fishman’s employeescreenIQ Blog
• 5 Ways to Avoid Caregiver Discrimination Claims — from i-Sight Investigation Software Blog
• When sexual harassment isn’t obvious — from HR Cafe
• Turning the Tables — from Workplace Prof Blog
• When an Employer’s Decisionmaker is Unavailable, What Then? — from Dan Schwartz’s Connecticut Employment Law Blog
• Not So Magical Kingdom: Alleged Discrimination at Disney — from The Proactive Employer Blog
• Got an appearance code? Make sure you allow exceptions for religion — from Robin Shea’s Employment and Labor Insider
• 11th Circuit: Employer's "Wellness" Program Did Not Violate the ADA — from The Personnel Files
• Working from home may be ADA right — from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• Bad Decisions Make for Great Stories — from Jessica Miller-Merrell’s Blogging4Jobs
• $4.5 Million Reasons for Employers and Individuals to Balance Social Media Use & Risks — from Jason Shinn’s Michigan Employment Law Advisor
• Protecting Social Media Information When an Employee Leaves — from SchwabeBlog: Employment Update
• Naked Twister, Orgies, and Facebook — from Phil Miles’s Lawffice Space
• A New Source of Business: TMI — from Michael Fox’s Jottings By An Employer’s Lawyer
• Public Company Use of Social Media — from Augmented Legality
• Most Employers Unlikely To Have a Mobile Device Usage Policy — from EmployerBrief
• Federal Courts Join State Counterparts in Issuing Jury Instructions on Social Media — from Court News Ohio
• 10 Incredibly Simple Things You Should Be Doing To Protect Your Privacy — from Kashmir Hill at Forbes

HR & Employee Relations

• When Should Employers Make Exceptions to Their HR Policies? — from Troutman Sanders HR Law Matters
• Questions to draw out the truth during interviews — from Work Matters
• Gordon Ramsay, A Hotel, and a Hen House — from Molly DiBianca’s Delaware Employment Law Blog
• Top Termination Troubles — from Mark Toth’s Manpower Employment Blawg
• At-Will Employment Is A Big Deal — from California Employment Law
• Class of 2016 – The Same But Different — from Fistful of Talent

Wage & Hour

• A VERY EXPENSIVE Lesson in NOT Following the Rules — from Mike Haberman’s Omega HR Solutions
• When “Casual Conversations” Become FMLA Notice — from Smart HR Manager
• FMLA & ADA: Never the twain shall meet? (Part I) — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• “First, Do No Harm” – A Call For NLRB and EEOC Guidance — from Lorene Schaefer’s Win-Win HR
• Is Your Employer’s Investigation Gag Order Illegal? Why Investigations Might Not Be Confidential Anymore — from Donna Ballman’s Screw You Guys, I’m Going Home
• Boilerplate Language In NLRB Settlement Agreement Leads To Default Judgment — from Labor Relations Update
• Employer's Email System May Become Tool for Union Organizing — from Employment Law Watch

Counseling as an ADA-protected medical examination

The Americans with Disabilities Act prohibits employers from “requir[ing] a medical examination” or “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability … unless such examination or inquiry is shown to be job-related and consistent with business necessity.” For this reason, an employer can only compel a current employee to undergo a medical examination in limited circumstances, confined by job-relatedness and business necessity.

The scope of what qualifies as a “medical examination” lies at the heart of Kroll v. White Lake Ambulance Authority (6th Cir. 8/22/12) [pdf]. When Emily Kroll, an EMT, showed on-the-job distress over an affair with a married co-worker, which included several outbursts at work, her employer tried to do something about it—compelling her to obtain psychological counseling, on her own terms and with any counselor she wished. Kroll refused, never returned to work, and sued for disability discrimination.

In concluding that counseling qualifies as medical examination under the ADA, the Sixth Circuit principally relied on the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees. That Guidance defines a “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The Court focused on the employer’s intent in requiring the counseling:

[T]he fact that an employer’s intentions are disability neutral does not save from falling within [the ADA]’s purview a test routinely used and administered by psychologists to uncover mental illness….

[W]e conclude that Kroll has presented sufficient evidence such that a reasonable jury could conclude that the “psychological counseling” Kroll was instructed to attend did constitute a “medical examination” under the ADA. We reach this conclusion … because the “psychological counseling” in question was likely to probe and explore whether Kroll suffered from a mental-health disability, regardless of whether this was WLAA’s intention.

The dissenting opinion, however, believes that intent is irrelevant, instead focusing on the issue of who chose the nature and type of the counseling:

By any definition, compelled counseling does not compel a medical examination. As the EEOC guidelines recognize, some “psychological tests” amount to medical examinations, and others do not…. No evidence shows that White Lake Ambulance insisted that Kroll’s psychological counseling involve one type of test or another. No evidence, indeed, shows that the ambulance service insisted she submit to any test while obtaining counseling….

The breadth of services encompassed by a psychological-counseling requirement resolves this claim. For it means that Kroll, not the company, controlled her destiny—controlled in other words whether she sought counseling that included a medical examination or did not. No doubt, she might meet this requirement by seeing a psychologist or psychiatrist who used a medical examination. But, if so, that was her choice, not the company’s. If a trying boss insists that an employee arrive at work by eight o’clock the next morning, it is not the boss’s fault if the employee opts to meet the requirement by staying overnight in the office. So it is here. Kroll had the right to meet this counseling requirement on her own terms, some of which could lead to a medical examination and others of which would not.

While I believe the dissent has the better of the argument, the fact remains that, for now, counseling is a medical examination covered by the ADA. Employers cannot compel employees to undergo counseling unless it is job-related and consistent with business necessity.

Thus, if counseling qualifies as a covered medical exam, then employers, like WLAA, will have to rely on the statute’s defense of job-relatedness and business necessity if an employee needs counseling. What is the best practice for employers going forward? Create of record of job-relatedness and business necessity. If an employee is acting erratically, document the behavior. Take photographs. Obtain statements from co-workers. Explain, in writing, how the employee’s behavior is impacting your business. Otherwise, you will have a difficult time demonstrating that a specific employee’s needs meet the statute’s requirements for a permissible medical examination.