Employment Law Blog Carnival: The 007 Edition

“A dry martini,” he said. “One. In a deep champagne goblet.”

“Oui, monsieur.”

“Just a moment. Three measures of Gordon’s, one of vodka, half a measure of Kina Lillet. Shake it very well until it’s ice-cold, then add a large thin slice of lemon peel. Got it?”

“Certainly monsieur.” The barman seemed pleased with the idea.

“Gosh, that’s certainly a drink,” said Leiter.

Bond laughed. “When I’m … er … concentrating,” he explained, “I never have more than one drink before dinner. But I do like that one to be large and very strong and very cold, and very well-made. I hate small portions of anything, particularly when they taste bad. This drink’s my own invention. I’m going to patent it when I think of a good name.”

Ian Flemming, Casino Royale, Ch. 7 (1952).

This month marks the 50th anniversary of the world’s most famous movie spy, James Bond. Since many have compared my suaveness and sophistication with that of 007, celebrating Bond is a fitting topic for my edition of the monthly roundup of the best that the employment law blawgosphere has to offer.

 

007 is always on guard. In fact, it’s how he starts every movie. In 2012, one of the biggest issues from which employers need to be on guard is the National Labor Relations Board. According to John Holmquist’s Michigan Employment Law Connection, this includes keeping track of how employees use corporate email systems. And, according to Heather Bussing at the HR Examiner, employers also need to be on guard against overly broad workplace policies.

 

007 has never gotten anyone pregnant (as far as we know) despite ample opportunities. He did get married once, though, at the end of On Her Majesty’s Secret Service, only to have his arch-nemesis, Ernst Stavro Blofeld, kill his bride a mere hours after ceremony. Her untimely demise prevented the pair from ever procreating. If Bond did have children, however, he’d want to read up on the workplace rights of pregnant women. Two good places to start? No, Seriously - EEOC Targeting Pregnancy Discrimination, from Phil Miles’s Lawffice Space, and Pregnancy Discrimination Continues to Present Hurdle for Women, from Randy Enochs’s Wisconsin Employment & Labor Law Blog.

 

Live and Let Die brought some color to the James Bond series. Its villain, Mr. Big, was known as the Voodoo Baron of Death. The movie took Bond to the jazz joints of Harlem, to New Orleans, to the Everglades, and finally to the Caribbean. It also features one of the first on-screen mixed-race love scenes. (Interesting fact: Entertainment Weekly reports that the scene was edited from the film for its theatrical run in South Africa). If Bond can embrace diversity, shouldn’t we all? See The Benefits of Embracing Diversity in the Workplace, from CPEhr’s Small Biz HR Blog. Or, if the whole voodoo thing freaks you out, I recommend you read Employment Law Made Un-Scary, the ADA, at Mark Toth’s Manpower Employment Blawg, to calm you down.

 

The first 14 James Bond movies featured Lois Maxwell as Miss Moneypenny, the secretary of Bond’s boss and the head of MI6, M. Maybe M needs to read 5 Ways Not to Handle a Sexual Harassment Complaint, from the i-Sight Investigation Software Blog, in case Moneypenny ever gets tired of Bond’s cheesy come-ons and lodges a complaint. Does Bond really have the hots for Moneypenny, or is it just a game to him? Maybe they all need to read If you hire only people you have the hots for, is that sex discrimination?, from Robin Shea’s Employment & Labor Insider. Or, given how many foreign agents Bond has bedded over the years, maybe M should read $$$ reasons to have a second-language anti-harassment policy, from Eric Meyer’s The Employer Handbook Blog.

 

Goldfinger, the most iconic James Bond movie, involves a plot to steal America’s gold supply from Fort Knox. What if, instead, it was about an employee blowing the whistle on someone planning to do something illegal at a bank. Take a look at A New Whistleblower Retaliation Statute Grows Up: Dodd-Frank is the new Sarbanes-Oxley, from Dan Schwartz’s Connecticut Employment Law Blog, before you take action against that whistleblower. Something tells me that in the coming years, as these Dodd-Frank whistleblower claims mature, a lot of employers are going to feel like Bond strapped to that table.

 

No James Bond movie has ever been set in Canada. In fact, only one, The Spy Who Loved Me, even filmed in our neighbor to the North. According to Stuart Rudner, writing at the HR Examiner, Employment is Different in Canada. It looks like spy movies are different up their too.

 

Finally, the opening chase scene in Casino Royale ends with Bond taking on an entire army inside the Nambutu Embassy. If 007 was a U.S. citizen working in a foreign embassy, would he keep his rights under our discrimination laws? According to Robert Fitzpatrick on Employment Law, the answer is yes.

 

The Employment Law Blog Carnival will return… Our gracious curator, Eric Meyer, will host next month’s Employment Law Blog Carnival, at The Employer Handbook Blog, on November 14. If you want to participate, email him a link to your employment-law-related blog post by November 9. If you want to host a future edition of the Carnival, you can also let Eric know.

Because I am hosting this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #247.

Employers or employees: who owns social media accounts?

Courts and businesses are grappling over the issue of who owns a social media account—the company or the employee responsible for maintaining it. The most high-profile case is the ongoing dispute between PhoneDog and Noah Kravitz over the company’s Twitter account (which Kravitz took with him when he resigned).

Last week, Eagle v. Moran [pdf] tossed its hat into the ring on this issue.

During 2008, while Dr. Linda Eagle was president of Edcomm, she established an account on Linkedin, which she used to promote Edcomm’s services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships. A co-worker had access to Eagle’s password and assisted her in maintaining her account. Edcomm, through its CEO, recommended that all employees participate in Linkedin and indicated that employees should list Edcomm as their current employer. Edcomm generally followed the policy that when an employee left the company, the company would “own” the Linkedin account and could “mine” the information and incoming traffic, so long as it did not steal the ex-employee's identity.

On June 20, 2011, Edcomm terminated Eagle, accessed her LinkedIn account and changed her password, and changed the account to display the name and photograph of its new CEO.

The court dismissed Eagle’s federal statutory claims, but refused to dismiss her state law misappropriation claims. Trial is set to begin today.

What are the takeaways for businesses deciding how to deal with the ownership of corporate social media accounts? I have some thoughts, but Eric Meyer, at the Employer Handbook Blog, beat me to it:

1. Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
2. The company should create/register the account. This will indicate that the company has some ownership stake in the account. Also, be sure to consider the terms of use that any social-media company has in place for end users.
3. Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.

More succinctly, I can sum up the one key takeaway for employers and the one key takeaway for employees:

• For employers: If you have employees creating or using a work-related social media account, before you grant the employee access, put in writing who owns the account. Otherwise, you will end up litigating the issue after the fact.
• For employees: For gods sake, exercise some common sense and never give your employer the passwords to your personal social media or other online accounts. This whole mess could have been avoided if Eagle simply kept to herself what is supposed to be private.

On second thought, go ahead and enforce those noncompetes in mergers

Typically, a decision from the Supreme Court establishes the rule of law going forward on the issue specific to that case. Acordia of Ohio, L.L.C. v. Fishel (10/11/12) [pdf], however, is not your typical case. When the pro-business Ohio Chamber of Commerce and the pro-plaintiff Ohio Employment Lawyers’ Association join together on an issue, something is up.

In Acordia I, decided earlier this year, the Ohio Supreme Court held that if a noncompetition agreement does not provide for its transfer to successor and assigns, the company’s merger with another entity terminates the agreement. That decision, however, was not the end. The losing party filed a motion for reconsideration, supported by a whole bunch of business groups (including the aforementioned Ohio Chamber of Commerce and the Ohio Employment Lawyers’ Association).

Last week, the Supremes issued its decision reversing course:

Employee noncompete agreements transfer by operation of law to the surviving company after merger. The language in Acordia I stating that the L.L.C. could not enforce the employees’ noncompete agreements as if it had stepped into the original contracting company’s shoes or that the agreements must contain “successors and assigns” language in order for the L.L.C. to enforce the agreements was erroneous. We hold that the L.L.C. may enforce the noncompete agreements as if it had stepped into the shoes of the original contracting companies, provided that the noncompete agreements are reasonable under the circumstances of this case.

You can now return to your regularly scheduled noncompetition agreements.

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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Also, please remember that if you subscribe to my RSS feed, you need to re-subscribe at this link to ensure that you do not lose your daily updates.

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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?