WIRTW #246 (the “you get what you ask for” edition)

Watch this video, and then let’s talk:

The HR Capitalist, Kris Dunn, shared this video on his blog earlier this week. Believe it or not, the creator of this video, an online videogame company called Kixeye, actually uses this video for recruiting. Kixeye recently fired a manager and three other employees following complaints of racial harassment. Here’s Kris Dunn’s take on the synergy between the video and the harassment, which is 100 percent spot-on:

The question that's fascinating to me is if you can separate the way you market from the values you have as a company related to culture, people, etc. 

What do you think? I think if he needed to fire people, he did the right thing. But the marketing platform suggests that the company doesn't exactly reinforce treating others with respect.

Rock - meet hard place. Pot - meet Kettle.

Folks, if this video is the message you send to employees on their way into the company, it is any surprise that they act like children, or worse, once they’re hired.

No WIRTW next week. In its place, I’m hosting the Employment Law Blog Carnival on Wednesday. There’s still time (but not much) to send me a link if you want your blog included.

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

Discrimination

• Utilityman can't climb utility poles, but has ADA claim against utility company — from Eric Meyer’s The Employer Handbook Blog
• ADA news: Court upholds termination of deaf employee — from Warren & Associates Blog
• ADA Attorney: Agent of Change or Personal Gain? — from Stephanie Thomas’s Proactive Employer Blog
• Telework as a Potential Reasonable Accommodation — from Mike Haberman’s Omega HR Solutions
• Trouble for Employers - The Obesity Based ADA Claim — from Rob Radcliff’s Smooth Transitions
• Slap Happy Celebration of Work Accomplishment Not Severe or Pervasive Enough for Sexual Harassment or Retaliation Claim — from Employer Law Report

Social Media & Workplace Technology

• Is being a former lingerie model grounds for dismissal? — from Workplace Prof Blog
• Password Demand Laws - A Fallen Tree In An Empty Forest — from Social Media Employment Law Blog
• How to Get Fired for Facebook Posts — from Social Media Today

HR & Employee Relations

• Boomers, Stop Yelling at Gen Y to Get Off Your Lawn — from Harvard Business Review
• A Step-by-Step Guide to On-Boarding New-Hires — from ERC Insights Blog
• Synonym showdown: Which word works best? — from Ragan.com
• Employment Law Basics: Coping With the Fair Credit Reporting Act — from TLNT
• That Sniffly, Sneezy Time Of Year: Can You Require Your Employees To Get a Flu Shot? — from Stoel Rives World of Employment
• Enforceability of Noncompete Agreements Post-Merger — from Delaware Employment Law Blog

Wage & Hour

• FMLA Back Pay Includes Overtime — from Phil Miles’s Lawffice Space
• Intermittent Leave for Foster Care & Adoption? Only If Employer Approves — from Dan Schwartz’s Connecticut Employment Law Blog
• Jury charge quiz for Fair Labor Standards Act cases — from Work Matters
• Is Gold's Gym Out Of Shape? Company Hit With Collective Action On Off-the-Clock Time — from Wage & Hour - Development & Highlights

Labor Relations

• Whiskey Bent and Hellbound: The NLRB May Target Employer Email Systems Next — from Employment Essentials
• NLRB is finding ways to implement its Employee Rights Notice posting, in spite of legal challenges. — from Employment Law Matters
• The NLRB Is Screwing Everything Up For Everybody. Seriously. — from Tim Eavenson’s Current Employment

What is main reason to limit access to social media profiles in hiring? EEO information, of course.

In Neiman v. Grange Mutual Casualty Co. (C.D. Ill. 4/26/12), the plaintiff claimed that he was not hired for a position because of his age. The employer argued that it could not have considered the plaintiff’s age because it had no idea how old he was when it made its decision. The plaintiff, however, argued that the employer must have been aware of his age because he included the year he graduated from college on his LinkedIn profile.

According to the court, that allegation was enough to get the plaintiff past the employer’s motion to dismiss:

Plaintiff alleges … that during telephone interviews, Heindel [the Vice President of Human Resources] did inquire about and confirm the year that Plaintiff and the candidate who was selected for the position each earned their degrees. According to the Complaint, the Plaintiff’s interview was conducted in February 2010. It is not difficult to determine that someone who graduated from college in 1989 probably was over the age of 40 in 2010. This is enough to place Integrity on notice that he is subject to the protection of the laws against age discrimination.

Businesses need to understand that without appropriate controls in place, reviewing Google, Facebook, LinkedIn, or any other publicly available online information before making a hiring decision is a risky proposition. These online searches could reveal all sorts of protected EEO information that no employer would want to discover as part of the hiring process.

Assume, for example, that the search revealed that a candidate belonged to a group for breast cancer survivors. You can imagine the potential problems (ADA and GINA, to name two) that could arise if the employer passes over this candidate. You would never ask an interviewee if she is a breast cancer survivor, but the unfettered searches of candidates’ online profiles could put you in the same untenable position as if you had asked.

I see three possible solutions to this potential risk. You should adopt one of these if you are searching applicants online profiles.

1. Don’t do online searches. The easiest way to avoid these potential EEO traps is simply not to conduct online searches. That omission from your screening process, however, will deprive you of valuable information you could learn about a candidate, such as whether s/he presents professionally or matches your corporate culture, how s/he communicates, or if s/he has ever trashed a former company or divulged confidential information. In other words, given the wealth of information you can learn, I think you are doing your organization’s hiring process a disservice by skipping online searches.

2. Outsource the process. Companies are popping up that will conduct these searches for you and return scrubbed reports clean of any potential EEO pitfalls. Of course, because these companies are external to your organization, they add cost to your hiring process.

3. Train someone internally. Alternatively, you can train someone within your organization, but extern to the hiring process, to do the same thing that the third-party vendors are doing—conduct the searches and return a scrubbed report to the hiring manager. Your organization will save the cost of retaining an outside company, but gain the benefit of the person making the hiring decision not coming into contact with protected EEO information.

Please indulge me while I shill (about my new book) for a second

I try not to shill too often. Sure, I let you know when and where you can see me speak (October 16 at the HR Compliance Conference / October 26 at the COSE Small Business Convention … please stop by and say hi). More often than not, though, I try to give a healthy dose of employment law news and information without any hard sells.

Today, however, is different. Yesterday, I completed my draft of The Employer Bill of Rights (of which I am extremely proud).

Here’s the description, courtesy of Amazon:

The Employer Bill of Rights: A Manager’s Guide to Workplace Law is a practical handbook designed to help managers and business owners navigate the ever-changing maze of labor and employment laws, rules, and regulations….

The Employer Bill of Rights: A Manager’s Guide to Workplace Law aids employers in navigating choppy personnel waters. It instructs employers on the ins and outs of the various laws. It provides employers with the confidence to make hiring, firing, and other personnel decisions free from the fear of litigation. No personnel decision or policy is litigation-proof, but The Employer Bill of Rights: A Manager’s Guide to Workplace Law will help businesses make informed decisions to hedge against the biggest blunders and errors that too often result in expensive and time-consuming lawsuits….

The Employer Bill of Rights: A Manager’s Guide to Workplace Law targets the owners of small to mid-size businesses and the managers that work in them. These businesses usually lack a dedicated in-house counsel responsible for, or knowledgeable in, labor and employment law. They often may also lack a human resources department. Without these internal resources, such businesses often shoot from the hip when making hiring, firing, pay, and other personnel decisions. Because of the intricacies and nuances of the ever-changing world of labor and employment law, these decisions can lead to costly mistakes. This book ensures that each personnel decision is made with the law—and the company’s best interests—in mind.

I’ll have a lot more to say about the book when (fingers crossed) it’s officially released on November 21, including some well-deserved thanks to my publisher, who has been invaluable as I navigated the writing process, and my partners, who provide me the freedom to chase these white rabbits down the hole.

For now, however, if you want to purchase some early holiday gifts, the book is on a pre-order sale at Amazon. I can’t think of a better stocking stuffer for that special HR person in your life.

Tomorrow, we’re back to your regularly scheduled employment law info.

Some social media stats to chew on

Last week, Facebook announced that there are more than 1 billion people using Facebook actively each month. Think about that number for a second. It means that 1 out of every 7 people on Earth are active on Facebook. When you consider the vastness of our planet and the diversity of its social-economics, that number is staggering.

Of course, a number is nothing more than a number. What does that number mean to you, as an employer? It means that most of your employees are on Facebook (and Twitter, and LinkedIn, and YouTube, and Pinterest, and blogs, and, well, you get the point).

It also means that a lot of your employees will get themselves in trouble on social media. IIndeed, according to a recent survey published by Blogging4Jobs, 46% of company leaders believe that their employees will misuse social media and other workplace technology.

Some companies will react to this statistic by turning off the switch in their businesses—blocking social media websites and issuing policies prohibiting their access by employees at work. If you are inclined to go that route, consider these statistics, which come, via TLNT, from the SilkRoad Social Media and Workplace 2012 Report:

• Only 43 percent of employees responding to the survey report working in companies in which social media access was completely open in the workplace.
• Yet, 60 percent say that they check social media multiple times throughout the day on their mobile devices, with 75 percent checking it at least once a day or more.

In other words, unless you require that your employees check their mobile devices at the door (and suffer the anarchy that would likely ensue) it is impossible to prohibit employees from accessing personal social media accounts during the workday. And, if its impossible to monitor or enforce a policy, why have it in the first place?

Heads Up: My RSS feed has changed

For those of you who follow the Ohio Employer’s Law Blog via RSS. I have changed the RSS feed for the sight.

If you have no idea what I’m talking about, you can skip the rest of this post. If you receive your daily updates via email, you can also skip the rest of this post; you’ve already been moved over, and, except for a new look to the daily email update, you won’t notice any difference and shouldn’t miss any updates.

If, however, you subscribe to the RSS feed, and read updates in a reader such as Google Reader, then please read on.

Historically, I used FeedBurner to provide the site’s feed. Google acquired FeedBurner a few years ago. Many believe that Google will soon shut FeedBurner down. In fact, last week Google shut down one major piece of FeedBurner, with only one day’s notice.

I cannot sit around and wait for Google to do the same with the entire FeedBurner service. So, I’ve migrated the feed from FeedBurner to FeedBlitz. For now, you should not see any interruptions. However, if FeedBurner shuts down, you will stop getting updates unless you re-subscribe to the new feed.

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So that you do not miss any updates, please take a moment and re-subscribe to the new feed address: http://www.ohioemployerlawblog.com/feeds/posts/default

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I know that a lot of you read my content via RSS. Please know that I’ve done my best to minimize disruptions, and accept my apology in the unlikely event you experience any inconvenience from the change.

The right way to use subjective criteria in layoffs

Reductions-in-force present a unique issue for an employer defending its decision in a subsequent discrimination case. The employer already has its legitimate, non-discriminatory reason baked into the termination—the economics of a layoff, which often causes qualified employees to lose their jobs. For this reason, reduction-in-force cases are often singularly focused on the issue of pretext.

In Beck v. Buckeye Pipeline Services Co. (6th Cir. 9/28/12) [pdf], the plaintiff claimed that the employer’s use of subjective criteria to select her for inclusion in the layoff created an inference that the employer singled her out because of her age or gender.

While agreeing the subjective decision-making can prove problematic in some cases, the court disagreed that its use is per se discriminatory.

Subjective criteria, it is true, sometimes make it difficult to distinguish between lawful and unlawful employment actions, and they deserve careful scrutiny…. When all is said and done, the use of subjective evaluation criteria does not by itself show discrimination, particularly in a reduction in force case. 

What factors did the court rely upon to conclude that this employer’s use of subjective criteria in this layoff did not create an inference of discrimination?

• There was no evidence that a disproportionately high rate of women or older workers were included in the layoff.
• There was no evidence that the employer’s use of subjective evaluation procedures was a deviation from its normal decision-making process.
• There was no evidence of dishonesty in the subjective decision-making process.

What lessons does this case teach hold for employers considering the use of subjective criteria in determining which employees to include in a workforce reduction?

1. What do your workforce demographics look like before and after the RIF, company-wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria.
2. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm, an explanation that may be enough for the employee to survive summary judgment and get his or her case to a jury.
3. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Are their objective criteria (sales numbers, for example) that could contradict a subjective evaluation? 

WIRTW #245 (the “bald IS beautiful” edition)

According to the ABA Journal, “balding men who want to advance in their careers might want to consider shaving their heads.” The ABA Journal cites an article in the Wall Street Journal discussing a recent study out of the University of Pennsylvania's Wharton School, which concluded, “Men with shaved heads are perceived to be more masculine, dominant and, in some cases, to have greater leadership potential than those with longer locks or with thinning hair.”

Hot damn! I love being masculine and dominant, with great leadership potential.

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

Discrimination

• Religious Frustration — from Smelling Some Roses
• Believe it or Not – White Male Proves Discrimination — from Texas Employer Handbook
• The Four Corners Of An EEOC Charge Can Make All The Difference In A Nationwide Employment Discrimination Class Action — from Workplace Class Action Litigation
• Nooses And The “N Word” Are In The Employment News These Days — from Employment Discrimination Report
• $$$ reasons to have a second-language anti-harassment policy — from Eric Meyer’s The Employer Handbook Blog
• A Bill to Make Employers Less Mean to Pregnant Women — from Workplace Fairness
• No, Seriously - EEOC Targeting Pregnancy Discrimination — from Phil Miles’s Lawffice Space
• 10th Circuit Finds Transferring Disabled Employee to Different Geographical Location for Better Access to Medical Care is Reasonable Accommodation — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• California’s Comprehensive Social Media Privacy Law — from Social Media, Esq.™
• Survey: 75% of Workers Are Accessing Social Media While on the Job — from TLNT
• Social Media Workplace Freedom a Hot Button for College Students and the NLRB — from Social Media Today
• Instagram surpasses Twitter in daily active mobile users in U.S. — from Boy Genius Report
• One billion people now “actively using” Facebook — from The Verge

HR & Employee Relations

• Fighting Back: Bullies and Obesity — from Molly DiBianca’s Delaware Employment Law Blog
• The Benefits of Criminal Background Screening for Your Company — from From the Sidebar
• Survey Says … 50% of Employers Have Hired People with Criminal Records — from Nick Fishman’s employeescreenIQ Blog
• Checking Your Background Check: Is Your Authorization in Compliance with the FCRA? — from LE Blog
• Here’s Your New Motivational Script to Use When Firing Someone — Or to Those Who Dare Fire You … — from The HR Capitalist, Kris Dunn
• 6 Tips to Lower Risk in High-Risk Employee Terminations — from i-Sight Investigation Software Blog
• Workplace Investigation Tip: Outside Investigators are not Tainted by Internal Politics — from Strategic HR Lawyer
• The 3 best ways to stop employee rumors — from Ragan.com
• Laughter in the Workplace Increases Productivity and Job Satisfaction — from Workplace Insights
• Trade Secret Misappropriation - $taggering Numbers For Employers to Consider — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Six Steps to Having an Unpaid Intern — from Blogging4Jobs
• ABCs of the ACA for Employers — from Stephanie Thomas’s The Proactive Employer Blog
• Take Care When Applying the Outside Sales Exemption — from HR Defense Blog
• Employer Burned for Failing to Return Employee to Equivalent Position After FMLA Ended — from Jeff Nowak’s LA Insights

Labor Relations

• NLRB Keeps Doing What It Always Does. Why Is Anyone Surprised? — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Condones Sexual Harassment — from Mike Haberman’s Omega HR Solutions
• Employee Flare: I Will Have a Venti, Half-Caf., Cappuccino - Hold the Union Propaganda — from The Labor and Employment Law Blog