WIRTW #243 (the “SAHM no more” edition)

Over the years, I’ve used this space to share some things about my family and me. I figure it helps you better understand me as a person, which, in turn, helps you understand what forms my beliefs and positions on the various issues on which I write. I’ve written about my wedding story, the birth of my son, and my daughter’s first day of kindergarten. I’ve posted on my son’s trials and triumphs during his three-week hospital stay. I’ve shared the loss of old friends and the acquisition of new ones. I’ve drawn lessons from some of our family vacations. And I’ve written about my childhood, growing up in Philadelphia, and some of the summer jobs that helped form my early views about the workplace.

Today, I’m sharing something new.

On Monday, my wife re-joins the workforce, after more than 6 years at home. Thank you to my wife. She made a very difficult decision in May 2006 to stay at home, sacrificing her career to give our kids the gift of her time and attention. Our kids and I are forever grateful. Thank you also to companies that are willing to hire stay at home moms re-entering the workforce. The difficulty of the decision to give up one’s career is exacerbated by the uncertainty of whether you’ll be able to jump back in when ready. Companies should be commended for realizing that a parent’s choice to leave the workforce does not undermine that parent’s capability as an employee upon their return.

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

Discrimination

• Hospital To Pay Nearly $1 Million To Settle Workplace Language Lawsuit — from TLNT
• That moment right before the pain begins: an EEOC subpoena — from Eric Meyer’s The Employer Handbook Blog
• Realistically Compare Your Employment Fact Finders — from Litigation PostScript. Persuasion Strategies for Litigators
• It’s Depressing That We Need Legislation To Provide Reasonable Accommodations For Pregnant Workers — from Mommyish (my thoughts on this issue are here)

Social Media & Workplace Technology

• Court Finds Broad Requests for Social Media Content Fail to Uphold Rule 34(b)(1)(A)’s “Reasonable Particularity” Requirement, Denies Motion to Compel (in part) — from Electronic Discovery Law
• Fired for WHAT!? - Saints Fan on Facebook — from Phil Miles’s Lawffice Space
• Delaware Court of Chancery on Workday Distractions — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Unemployment is a Larger Barrier to Employment Than Criminal Record — from Nick Fishman’s employeescreenIQ Blog
• My former employer can't prevent me from working, right? Dissecting the Enforceability of a Noncompete Agreement — from Jason Shinn’s Michigan Employment Law Advisor
• Unfair Competition Basics… Boundless Noncompete Restrictions — from Fair Competition Law

Wage & Hour

• Pay Attention Managers: You have to track time ACTUALLY WORKED! — from Mike Haberman’s Omega HR Solutions
• Red Lobster: We Sea FLSA Differently — from The Proactive Employer Blog
• The Sixth Circuit Gives Employers a “Twofer”: An Employer’s Automatic Pay Deduction Policy Does Not Automatically Violate the FLSA and a Class Plaintiff Must “Commence” Suit — from Employer Law Report

Labor Relations

• National Labor Relations Board Issues First Decision Striking Down Employer's Social Media Policy — from Seth Borden’s Labor Relations Today
• Employer Social-Media Policies in NLRB's Cross-Hairs — from Outten & Golden Employment Law Blog
• The NLRB Takes Its Own Advice — from Social Media Employment Law Blog
• In light of NLRB ethics probe, is Walmart social media policy still ok? — from Robin Shea’s Employment and Labor Insider

Employers are increasingly worried about social media and workplace technology

What policy will cause employers to lose the most sleep in the coming year? According to a recent survey conducted by BLR, social media will be the most formidable challenge for businesses in 2013.

The complete answers to the question of which policy presents the biggest challenge to employers:

• social media: 47.1%
• cell phone use and distracted driving: 21.6%
• attendance and punctuality: 17.4%
• computer and Internet: 15.9%
• FMLA: 15.9%

Perhaps what’s more interesting, however, is that if you look at these issues more broadly, they fall into two main categories: technology and attendance. Amazingly, technology trumps attendance by more than 2.5 to 1 margin. You may not be convinced that workplace technology (which includes social media and mobile devices) is not the key issue currently facing employer. This survey, however, says otherwise.

Do your employees know what “loyalty” means?

In almost all states (Ohio included) all employees owe their employer a “duty of loyalty,” which, in the words of one court, means “a duty to act in the utmost good faith and loyalty toward his [or her] employer.” According to another court, “[A]n … employee is prohibited from acting in a manner inconsistent with his … employment and is bound to exercise the utmost good faith and loyalty in performance of his obligations.” Examples of employee misconduct that courts have found to be in breach of this duty of loyalty include acting in competition against one’s employer, giving away company property, using company funds as one’s own, taking bribes or kickbacks, and reaping secret profits.

A story I read yesterday serves as a good reminder that employees owe a responsibility to those who sign their paychecks not only to avoid breaches of this duty of loyalty, but also to avoid placing themselves in circumstances that could call their loyalty into question. While appearing on a local sports radio station yesterday, Philadelphia Eagles running back LeSean McCoy said the following about the replacement referees working in place of the locked-out regular officials: “One of the refs was talking about his fantasy team, like ‘McCoy, come on, I need you for my fantasy.’”

It is highly doubtful, even laughable, that an NFL referee would change a call to help his fantasy football team. Yet, this official exercised very poor judgment in cracking this joke. Employees must avoid even the appearance of a breach of their loyalty to their employer. Should this official lose his job or suffer some other discipline for this lapse in judgment? Probably not. Should the NFL talk to him and remind him of the importance of these issues? Absolutely.

Do your employees understand this issue? When you conduct training of your employees, you might want to consider tossing a discussion of these concepts into the materials.

No call, no show, no FMLA

Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer’s attendance policies. According to section 825.302(d) the FMLA’s regulations:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer’s policy to contact a specific individual…. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

This means that if you have a policy requiring employees to call-in if they are going to be late or absent, you can enforce that policy to the detriment of a non-compliant employee taking FLMA leave.

For example, in Ritenour v. Tenn. Dep’t of Human Servs. (6th Cir. 8/29/12), the employee, who mistakenly believed she had been approved for intermittent FMLA to care for her mentally ill son, did not comply with employer’s job abandonment or absenteeism policies, which required the employee to provide appropriate notice to avoid the accrual of unexcused absences. Because the employer terminated Ritenour because of her violation of the policy, her FMLA claims failed:

Even assuming that Ritenour was entitled to take FMLA leave and that TDHS interfered with Ritenour’s FMLA rights, TDHS has provided a legitimate reason for Ritenour’s dismissal that is not related to her request for FMLA leave—because Ritenour did not call in, in violation of the job abandonment policy….

Ritenour knew that the absenteeism policy required that absent employees call-in their absences in order to give their supervisor appropriate notice to make alternative work assignment arrangements. TDHS’s job abandonment policy applies to all employees who are absent from duty without approval. The enforcement of that policy against Ritenour was not related to Ritenour’s request for FMLA leave because the policy applies to employees who are absent from work without approval for any reason.

While it sometimes seems as if employees hold all the high cards in the FMLA poker game, as Ritenour makes clear, employers are within their rights to enforce neutral attendance policies against employees who fail to follow their rules. Now, go check your policies to make sure they contain these types of notice and call-in rules.

NLRB continues to attack facially neutral employment policies

The NLRB continues its assault on garden-variety employment policies, issuing three decisions over the last 10 days, each of which concluded that facially neutral employment policies violated employees’ rights to engage in protected concerted activity. The cases are Flex Frac Logistics, LLC [pdf], TT&W Farm Products, Inc. [pdf], and Costco Wholesale Corp. [pdf].

To place this issue within a legal context (and for the uninitiated), the National Labor Relations Act grants all private-sector employees (union and non-union) the absolute right to engage in protected concerted activity, which includes, among other things, the right to discuss, between and among themselves, their wages, hours, benefits, and other terms and conditions of their employment. An employer cannot maintain a work rule that reasonably tends to chill employees in the exercise of that right.

The NLRB used this doctrine to invalidate the following neutral work rules:

• A rule prohibiting employees from using the employer’s electronic systems to “defame any individual or damage any person’s reputation.”
• A rule prohibiting employees from going AWOL during their shifts, either by walking off the job, or leaving company premises, without management permission.
• A confidentiality policy which defines “confidential information” to include “personnel information and documents.”

Perhaps most telling is the Board’s explanation, in Costco, of its decision invalidating a rule against defamatory language:

In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications…. [T]he Respondent’s rule does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to—among other things—certain protected concerted activities, such as communications that are critical of the Respondent’s treatment of its employees.

In her analysis of the Costco decision, Molly DiBianca hit the nail on head insofar as the dangerous course charted by the NLRB:

If there’s one thing I’d give the NLRB, it’s consistency. If a workplace rule attempts to regulate employees’ online activities, it’s a safe bet that the Board is going to be skeptical of it, at the least. Even if the rule prohibits employees from harming their employer, the Board may find it to violate the NLRA. Harm away, employee. Harm away.

Under the guise of “protected concerted activity,” the NLRB is making it next to impossible for employers to maintain any work rules that regulate what employees cannot say or do. If I apply a tortured interpretation to any work rule, I can reach some far-fetched conclusion that it could deter employees from engaging in protected concerted activity. The NLRA only is supposed to concern itself with work rules that reasonably tends to chill employees. Yet, these tortured interpretations go well beyond the realm of what is reasonable.

Employers, I wish I could whisk up a magical elixir to solve this problem. Alas, at least for the time being, we are stuck with the NLRB’s intrusiveness into the world of work rules, and the grave uncertainty that comes along for the ride.

WIRTW #242 (the “on the road again” edition)

On Monday, I’ll be in Dayton, Ohio, at the LexisNexis campus, recording two video CLEs for its corporate legal curriculum:

• It’s Five O’Clock; Do You Know What Your Employees are Saying About You? — discussing my favorite topic, social media in the workplace
• Legal Issues in Labor and Employment: Leaves of Absence — discussing the various laws the require employers to grant leaves of absence to employees (FMLA, ADA, USERRA, and Title VII)

I will share clips with you after Lexis provides them to me. I’m also coming home with a cool video biography that I’ll be adding to the “About Me” section above.

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

Discrimination

• The EEOC Strategic Enforcement Plan Infographic — from Stephanie R. Thomas’s The Proactive Employer Blog
• Wal-Mart Settles EEOC Lawsuit on Refusal to Return Employee to Work Without Full Release — from Employer's Law Blog
• Another Case Involving Associational Discrimination and Employee Caregivers — from Employment Discrimination Report
• Rising Caregiver Responsibilities Fuel Push for Extra Worker Protections — from Dan Cafaro at Smart HR Manager

Social Media & Workplace Technology

• Five Years Later, The Biggest Impact on Employment Law Is… — from Dan Schwartz’s Connecticut Employment Law Blog
• Infographic: The biggest reason employees waste time at work — from Ragan.com
• More than half of all mobile subscribers in the U.S. own a smartphone — from Boy Genius Report
• Help - My employee spends all their time playing Fantasy Football — from Rob Radcliff’s Smooth Transitions
• Do You Know Who is Using Your Email at Work? — from Blogging4Jobs
• Employee privacy: How to avoid invading it — from HR Cafe
• Everything’s amazing, nothing’s perfect: exploring the limits of consumer technology — from The Verge

HR & Employee Relations

• Are Pretty People Better Employees? — from Fistful of Talent
• Civility in the Workplace: Can We Remember the Lessons from 9/11? — from TLNT
• Effort in harassment investigations is IMPORTANT — from Mike Haberman’s Omega HR Solutions
• Your employees’ freedom of speech — from WorkFace
• How to Work with Legal — from HR Examiner
• One word on political discussions at work: Shhh — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Is “casual conversation” of a parent's health enough to trigger FMLA? — from The Employer Handbook Blog
• Intermittent Leave—Handling Nine Tricky Aspects — from HR Daily Advisor
• The Rise of the New Contract Worker — from Harvard Business Review

Labor Relations

• Sticks ‘n Stones May Break Your Bones, But Workers Can Defame You — from Molly DiBianca’s Delaware Employment Law Blog
• Lookout Corner – unions@yourcompany.com? — from HR idiot
• “NLRB Goes Back to the ‘80s To Justify A Union-Notice Rule” — from Walter Olson’s Overlawyered

The 5 little words that will cause your company a huge headache

“Tell me how you’re paid.” The biggest wage and hour case I ever defended started with those five little words. A very disgruntled, and justifiably fired, ex-employee went to see a plaintiff’s employment lawyer about filing a wrongful discharge lawsuit. The lawyer correctly told him that that he had no case over his termination. Then, the lawyer uttered those five words. And, we were off to the races in a multi-million dollar wage and hour derby.

I was reminded of this story by a post I read earlier this week on EmployerLINC, entitled, Trolling for employees to sue their employers. The reality is that while discrimination cases remain the bread-and-butter of the plaintiffs’ bar, every plaintiff-side employment lawyer worth his or her salt is on the lookout for the huge payday of a juicy wage and hour class or collective action. While the Supreme Court has taken away some of their luster, the wage and hour class action remains the holy grail of cases.

I can almost guarantee that if one of your employees sits down with a lawyer to talk about filing a claim against your company, part of that lawyer’s intake will be asking the question, “Tell me how you’re paid.”

My opinion on this issue hasn’t changed since I first gave it almost five ago:

The question is not whether companies need to audit their workforces for wage and hour compliance, but whether they properly prioritize doing so before someone calls them on it. According to the BusinessWeek article: “While violations appear widespread, employees themselves rarely think to make wage and hour claims. Instead, they usually have it suggested to them by lawyers.”

It is immeasurably less expensive to get out in front of a potential problem and audit on the front-end instead of settling a claim on the back-end. The time for companies to get their hands around these confusing issues is now, not when employees or their representatives start asking the difficult questions about how employees are classified and who is paid what.