Facebook foible foils FMLA fight

Wendy Barnett worked as a nurse in the psychiatric unit at Aultman Hospital. When her boss, for whom she did not care, was fired, Barnett sent the following email through Facebook to at 14 people, including 9 present or former coworkers:

Lisa got officially ax (sic) today! I am singing DING DONG THE WITCH IS DEAD THE WICKED WITCH, DING DONG THE WICKED WITCH IS DEAD.

How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endured what that souless (sic) bitch put me through for 4 years...including turning me into the board...God does grind a fine mill when revenge is taken on by him...back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!

Love and fuzzies, Wendy

The hospital undertook a full investigation upon learning of the email, which Barnett initially denied writing. When one of the hospital’s vice presidents contacted Barnett for a meeting, Barnett, sensing that her termination was on the horizon, called in sick and asked for a medical leave. Despite receiving a medical certification from Barnett’s doctor, the hospital proceeded with the termination.

The trial court rejected Barnett’s FMLA claim, both because it made its decision to terminate before she had ever requested a medical leave, and because she lied about being the author of the email rant during the hospital’s investigation.

As the Sixth Circuit said … bluntly, “[A]n employee may not insulate [herself] from a pending dismissal by opportunistically invoking the FMLA.” … In this case Defendant has put forth uncontroverted evidence that Plaintiff lied repeatedly to her superiors regarding her conduct, and that she was terminated for her dishonesty…. The uncontroverted evidence in the case is that her lying was the motivation for her termination.

Yesterday, I made the point that even though people like to treat social media as the new kid on the block, it is really nothing more than a communication tool, to which all of the old rules of the workplace apply. This case helps illustrate that point. The hospital fired Barnett not because of her email rant, but because when confronted with the email, she compounded her problems by lying about the authorship of the email.

Old rules + new technology = same result.

In compelling discovery, court likens social media account to “Everything About Me” folder

Courts are all over the map on whether to order the disclosure of an employee’s social media accounts during discovery in employment cases. The seminal case—EEOC v. Simply Storage Management, decide more than two and a half year ago—ordered the broad discovery of an employee’s social media accounts when the case alleges something more than “garden-variety” emotional distress. Since Simply Storage Management, however, some courts have begun to retract from that broad position, finding that despite the non-private nature of most social media, employees nevertheless enjoy some right not to have their personal lives ripped apart without some showing of relevancy to the issues in the case.

This month, however, brings us EEOC v. The Original Honeybaked Ham Co. (D. Col. 11/7/12) [pdf], which presents one of the most liberal views of the discovery of employees’ social media accounts since Simply Storage Management.

Honeybaked Ham involves allegations of sexual harassment brought by the EEOC on behalf of a class of two dozen female employees. The employer sought discovery of “numerous categories of documents” related to the class members’ emotional and financial damages, credibility, and bias, including the contents of their social media accounts.

The court concluded that there was “no question” that the company had established that “the documents it seeks contain discoverable information.” The court went on to make the following broad-based comment about the role of social media accounts in discovery:

If all of this information was contained on pages filed in the “Everything About Me” folder, it would need to be produced. Should the outcome be different because it is on one’s Facebook account? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.

This case is but one in the evolving landscape of social media discovery in employment cases. Part of the struggle we face in seeking discovery of employees’ social media accounts is educating the judges who decide the motions to compel. The reality, however, upon which the Honeybaked Ham court seized, is that while the medium of communication might be different, the rules of the road are same. Discoverable information is discoverable information, whether it’s a paper record or an electronic diary.

The image of an “Everything About Me” folder is a powerful one. I love that analogy, and I am certain I will be using it in future motions to compel to help educate as to why a Facebook or other social media accounts should be discoverable.

[Hat tip: Electronic Discovery Law]

Must an employer accommodate an employee for a family member’s disability?

A little more than year after Mindy Adams began working for Servpro, her husband was diagnosed with cancer. One week after Servpro approved Adams’s FMLA leave, it fired her for insubordination, relying on statements from customers and co-workers that she had been disrespectful, exhibited a poor attitude, and failed to perform her job properly. Believing that the real reason for her termination was the need for time off to care for her ill husband, Adams sued for disability discrimination.

In Adams v. Valega’s Professional Home Cleaning (N.D. Ohio 11/2/12), the court dismissed her claims, concluding that employers are not required to provide reasonable accommodations to employees associated to those with a disability.

In addition to protecting disabled employees, the ADA also protects employees from discrimination based on the “known disability of an individual with whom the qualified individual is known to have a relationship or association.” Yet, at least in the 6th Circuit, “employers are not required to provide reasonable accommodations to non-disabled workers under this section of the Act.”

The Adams court illustrates this rule:

For example, an employee may be fired under a neutral policy concerning attendance or tardiness, even if the reason for the absence or tardiness is to care for the disabled spouse. There is a distinction between firing an employee because of a relative’s disability, and firing an employee because of the need to take time off to care for the relative.

The court recognized and discussed the fine line between firing an employee because of a relative’s disability and firing an employee because of the need to take time off to care for that same relative (quoting the ADA’s legislative history):

“[A]ssume, for example that an applicant applies for a job and discloses to the employer that his or her spouse has a disability. The employer believes the applicant is qualified for the job. The employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order to care for his or her spouse, declines to hire the individual for such reasons. Such a refusal is prohibited….

“In contrast, assume that the employer hires the applicant. If he or she violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the spouse. The employer need not provide any accommodation to the nondisabled employee. The individuals covered under this section are any individuals who are discriminated against because of their known association with an individual with a disability.”

There are two points to make about this case:

1. A refusal to grant time off as an accommodation for the disability of an employee’s family member will only pass muster for employers too small to be covered by the FMLA or employees who did not work long enough to be eligible for FMLA leave. If you are an FMLA-covered employee, and an employee is FMLA eligible, then he or she is entitled to 12 annual weeks of leave, which includes leave for the serious health condition of a close family member. The court concluded that Servpro was too small to be covered by the FMLA, and dismissed Adams’s FMLA claim. You must analyze both statues—the ADA and the FMLA—before you can conclude that you don’t have any obligation to provide time off.

2. I cannot over-state enough how fine a line it is between lawfully terminating an employee because of the need to take time off to care for an ill relative, and unlawfully terminating an employee because of a relative’s disability. These decisions are risky, and need to be made carefully. Nine times out of 10, firing an employee who recently asked for time off to care for an ill family member will result in litigation. You need to decide whether you can swallow that risk before you make the termination decision.

Some workplace social media stats to start your week

Northeast Ohio’s Employers Resource Council recently published the results of its 2012 Social Media in the Workplace Survey [pdf]. Some of the results are eye-popping (and not necessarily in a good way):

For example, I find it hard to believe that only 47% of organizations have a social media policy in place.

It’s also hard to believe that only 27% of organizations in Northeast Ohio are using social media for recruiting. Some surveys peg the national number at closer to 90%. Is it possible that our region is that far behind the curve on this issue?

Consider these numbers on the prohibition on the use of social media in the workplace:

• 55% prohibit employee use of social media during work hours on a company-issued computer
• 43% prohibit employee use of social media during work hours on a company-issued mobile device
• 32% prohibit employee use of social media during work hours on a personal mobile device

How about the percentage of companies that block access to various social media sites on company computers:

• 26% block employee access to Facebook
• 18% block YouTube
• 17% block Twitter
• 11% block blogs and wikis
• 9% block photo-sharing sites
• 7% block LinkedIn (Who is blocking LinkedIn, and why?)

With most employees keeping iPhones or Androids in their pockets, it is simply not feasible to prohibit the use of social media in the workplace, or block access to sites. The work-around via a mobile phone is just too easy for an employee to accomplish and too difficult for a company to police.

I also found enlightening the answers to this question—of organizations with a social media policy, what percentage contain these provisions:

• Guidelines for employees professional social media use — 43%
• Disclosure that social media use may be monitored — 35%
• Guidelines for employees personal social media use — 32%
• Guidelines for photo/video postings — 19%
• Guidelines for disclosing sponsorships and affiliations — 18%
• Guidelines over supervisor-employee social media interaction— 5%

If you are one of the 53% of companies that has a social media policy, and yet that policy is missing any of these key provisions, what is left for it to say?

Reading the results of this survey make it clear to me that businesses have a lot to learn about the intersection between social media and the workplace. Yet, companies are not necessarily at fault for being behind the 8-ball on these issues. The reality is that the technology is evolving more quickly than businesses can keep up with the resulting issues. After all, companies have issues on their plates other than employees’ Facebook pages. Yet, the more you fall behind, the harder it becomes to catch up. The pace of these issues will not slow in the coming years. In other words, companies need to get their arms around these issues now, or risk falling off the workplace social media precipice.

WIRTW #249 (the “four more years” edition)

Meet the new boss, same as the old boss. POTUS 44 is still POTUS 44. What does the next four years of President Obama mean for labor and employment law? Some of my fellow bloggers share their thoughts:

• A Look Back at Obama’s (First?) Four Years and Employment Law and Four Potential Employment Law Impacts of Obama’s Next Four Years — from Dan Schwartz’s Connecticut Employment Law Blog
• How will the 2012 Presidential election affect federal employment and labor law? — from David Yamada’s Minding the Workplace
• Obama’s Next Four Years: What It Means for HR and Employment Law — from Stephanie Thomas’s Proactive Employer Blog
• What Obama’s re-election means for HR and employment issues — from BLR HR Daily Advisor
• Future Shock: What the Election Results Mean For the U.S. Workplace — from Workplace Diva
• Obama Wins, Senate Democrats Keep Majority - What Will it Mean for Employers? — from Washington D.C. Employment Law Update

---

Please remember — 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.

---

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

Discrimination

• Harassment Prevention: It's All Fun and Games … Until It's Not — from Molly DiBianca’s Delaware Employment Law Blog
• Supervisor Stating I’m “Going To See To It” That Worker Retires When He’s 62 May Be Direct Evidence Of Age Discrimination — from Atlanta Employment Lawyer Blog
• Maintaining a “Good Ol’ Boys” Environment Is A Sure Way To Get Sued — from Employment Discrimination Report
• I was fired while undergoing medical treatment: Is it legal? — from Evil HR Lady, Suzanne Lucas

Social Media & Workplace Technology

• Emerging Issues in Social Media – The Status of Social Media Password Legislation — from netWORKed Lawyers
• Is Technology Making You More (or Less) of a Jerk? — from Harvard Business Review
• LinkedIn Now Has 187 Million Members — from Mashable
• Do “sexting” and “mash-up” belong in the dictionary? — from Lawyerist

HR & Employee Relations

• Four Tips to Remember When Documenting — from Workplace Insights
• What the Questions in Job Related Personality Tests Really Mean — from Lifehacker
• The Cost of Obesity — from Rob Radcliff’s Smooth Transitions
• No Bathroom Breaks For You! — from Donna Ballman’s Screw You Guys, I’m Going Home
• Madison Square Garden Company Strong-Arms Employees Into Using Vacation Days Post-Sandy — from Deadspin
• Playbook for Protecting Trade Secrets Begins with Protecting Your Home Turf — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Paying banana boxes of food as OT is not an a-peeling option — from Eric Meyer’s The Employer Handbook Blog
• Three Myths about Holiday Pay Under the FLSA — from Blogging4Jobs
• De Minimis Exception Applies Only in Cases Where There is a “Practical Administrative Difficulty in Recording Time” — from Overtime Law Blog
• The 40 Hour Workweek is Alive and Well… — from China Gorman
• Handling Intermittent Leave (and Not Intermittently Losing Your Mind) — from Mark Toth at TLNT
• Transfer to Lesser Sales Territory Was Okay under FMLA, Court Says — from Smart HR Manager

System for employees to report unpaid time insulates company from wage and hour claim, says 6th Circuit

In White v. Baptist Memorial Hosp. (6th Cir. 11/6/12) [pdf], the 6th Circuit answers one of the more difficult questions that faces employers under our wage and hour laws—what is an employer’s responsibility to pay an employee for off-the-clock work?

The employer in White maintained a policy under which all employees received a daily, automatic unpaid meal break. The policy also provided, however, that if an employee worked through a meal break, or had a meal break interrupted for a work related reason, the employee would be compensated for the time worked. The policy instructed employees to record all time spent working during meal breaks in an “exception log,” from which the employer calculated any off-the-clock pay owed.

The plaintiff, Margaret White, testified that she usually was paid when she reported a missed meal break in the exception log. She also testified that there were occasions when she missed meal breaks and was not compensated. When there were payroll errors, White stated that she reported the mistake to a nurse manager, and the problem were “handled immediately.” White testified that while she told supervisors and the HR department that she had missed meal breaks, she never told them that she had not been paid for them.

Eventually, White stopped reporting her missed meal breaks in the exception log, and stopped reporting payroll errors to a nurse manager. Instead, she brought suit under the Fair Labor Standards Act for failing to compensate her for working during meal breaks.

The 6th Circuit concluded that White’s case was properly dismissed. It focused its analysis on this issue—whether the employer knew, or had reason to know, it was not compensating White for working during her meal breaks. Because White had failed to follow the hospital’s procedures for reporting unpaid time, the employer was not at fault:

Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process. When the employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee and thwarts the employer’s ability to comply with the FLSA….

Baptist established a system to compensate its workers for time worked during meal breaks. When White utilized the system she was compensated and when she failed to use the system she was not compensated. Without evidence that Baptist prevented White from utilizing the system to report either entirely or partially missed meal breaks, White cannot recover damages from Baptist under the FLSA.

What is the lesson for employers to take away from White? Have a reasonable process for employees to report uncompensated work time. Under the FLSA, it is the employee’s burden to show that he or she was working during non-working time. A policy that underscores that burden by requiring employees to document times during which they are working “off-the-clock” can only help an employer defend against an employee’s claim for compensation for unreported, off-the-clock time.

It just doesn’t matter (who’s the President of the United States)

By the time you’re reading this, we’ll either have the same President, or a new President, or, they’ll still be counting Ohio’s provisional and absentee ballots, and we’ll have no idea who the next President will be. (Update: Ohio was nowhere near as close as anyone thought it might be.)

The President has a large impact on labor and employment policy in this country. If one candidate wins we’ll have universal health care and activist federal agencies. If the other candidate wins we may not (or may) have universal health care, and we will have less activist federal agencies. Who wins also impact who is appointed to the federal bench, including the Supreme Court, which may be any President’s most lasting legacy.

And yet, whether we have President Obama or President Romney for the next four years shouldn’t make a lick of difference on how you manage your employees. You should still follow the golden rule. You should still treat employees with dignity and respect. You should still pay employees for all the hours they work. You should still avoid discrimination, and harassment, and retaliation.

Each President will offer his own agenda. The next four years under President Obama will look very different to businesses than the next four year under President Romney. Be good to your people, and the rest, more often than not, falls into place.

In other words, if you manage your employees reasonably, pragmatically, and with decency, it just doesn’t matter, from a day to day perspective, who the President is.