It’s a Blawg 100 Three-Peat

Edward James Olmos once said, “I didn’t get into this business to get awards.” And while that may be true, it certainly is nice to be recognized.

Yesterday afternoon, the ABA Journal announced its annual list of the top 100 legal blogs, which it calls the Blawg 100. I was fortunate enough to be part of this list in 2010 and 2011, and equally fortunate that the ABA Journal recognized me again this year as part of its 6th annual list.

The labor & employment blawgosphere is among the richest, and I am pleased that I am sharing this honor with five fellow bloggers, each of whom I consider a friend.

• Dan Schwartz’s Connecticut Employment Law Blog
• Molly DiBianca’s Delaware Employment Law Blog
• Phil Miles’s Lawffice Space
• Jeff Nowak’s FMLA Insights
• Donna Ballman’s Screw You Guys, I’m Going Home (which wins for the best title among the group, hands down)

(For what it’s worth, this list is short by two. Next year, I hope that Eric Meyer’s The Employer Handbook Blog and Robin Shea’s Employment & Labor Insider join the list.)

Now comes the part where I graciously and unapologetically ask for your help. Between now and December 21, you have the opportunity to vote for your favorite blawg. All you need to do is go to www.abajournal.com/blawg100, register, and vote. You’ll find my blog under the “Labor & Employment” category. Thank you for your support.

Congratulations to all of the winners, and thank you to the ABA Journal for, once again, deeming my little project worthy of your recognition. It is much appreciated.

Tomorrow, I start my march toward a four-peat, with a post on the Supreme Court’s oral argument in Vance v. Ball State Univ., which will (maybe) answer the important question of who qualifies as a supervisor under Title VII.

When is confidential medical information NOT confidential?

The ADA requires that employers treat employee medical information obtained from "medical examinations and inquiries … as a confidential medical record." In EEOC v. Thrivent Financial for Lutherans, the 7th Circuit recently decided the extent to which that confidentiality requirements applies when an employee volunteers medical information to an employer.

Gary Messier worked for Trivent as a business analyst, and during his first four months of employment developed a reputation for letting his employer know when he would be absent from work. When he failed to report to work one day, his supervisor emailed looking for a report and explanation. In response, Messier sent an email detailing his long battle with migraine headaches.

Messier quit one month later, but had trouble finding a new job. Whe three jobs fell through after a reference check, he hired a company to conduct a fake reference check for him. In response, his former supervisor at Trivent said that Messier "has medical conditions where he gets migraines."


Based on that statement, the EEOC brought suit on Messier's behalf for a violation of the ADA's confidentiality requirements.

In affirming the district court's dismissal of the lawsuit, the 7th Circuit examined the plain language of the ADA.

The EEOC argued that the ADA's confidentiality provisions protect all employee medical information revealed through "job-related" inquiries.

The 7th Circuit disagreed:

The subject matter discussed in the body of section (d) confirms that the word "inquiries" does not refer to all generalized inquiries, but instead refers only to medical inquiries. The entire section is devoted to a discussion of a disabled employee's "medical record," "medical condition or history," "medical files," and medical "treatment."

Instead, the Court concluded that the ADA's confidentiality requirements only apply to medical information provided by an employee in response to a medical examination (not an issue in this case) or a medical inquiry.

Because Trivent had not made a medical inquiry before Messier sent his email detailing his migraines, any disclosure it made did not violate the ADA.

[P]revious courts have required—at minimum—that the employer already knew something was wrong with the employee before initiating the interaction in order for that interaction to constitute a [protected] inquiry. There is no evidence in the record suggesting that Thrivent … should have inferred that Messier's absence on November 1, 2006 was due to a medical condition. There is no evidence in the record that Messier had been sickly during his first four months of employment. There is no evidence that Messier had experienced a headache at work during his first four months. For all Thrivent … knew, Messier's absence was just as likely due to a non-medical condition as it was due to a medical condition. Indeed, as Thrivent pointed out to the district court, "Messier could have had transportation problems, marital problems, weather-related problems, housing problems, criminal problems, motivational problems, a car or home accident, or perhaps he simply decided to quit his job…."

Thus, Thrivent was not required to treat the medical information that Messier sent in response to the email as a confidential medical record. Accordingly, Thrivent did not violate (and could not have violated) the ADA by revealing Messier's migraine condition to anyone, including to prospective employers.

While this case is a great holding for employers, businesses should still tread carefully when dealing with employee medical information. This area of the law remains risky waters in which companies swim.

Another reason not to ban social media on company time (hint … it’s the NLRB)

I’ve written before about the practical problems employers face when trying to ban employees from accessing social media at work.

Last week, an NLRB administrative law judge provided us another reason for employers not to implement workplace bans on social media—such a ban might be an unlawful infringement on employees’ rights to engage in protected concerted activity.

In Dish Network [pdf], the ALJ considered the following policy in the company’s employee handbook:

Unless you are specifically authorized to do so, you may not … Participate in these activities [Social Media—blogs, forums, wikis, social and professional networks] with DISH Network resources and/or on Company time.

The ALJ struck down the policy as an unreasonable restraint on the right of employees to engage in protected concerted activity:

The Social Media policy is unlawful…. [T]he policy banned employees from engaging in negative electronic discussion during “Company time.” The Board has found that equivalent rules, which ban union activities during “Company time” are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.I’ve written before about the logistical problems of workplace social media bans.

If you are going to consider banning social media in your workplace, the practical reasons far outweigh the legal issues (Dish Network notwithstanding). I call it the iPhone-ification of the American workforce. If most of your employees can take their smartphones out of their pockets to circumvent your policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce?

Instead of legislating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the Internet, then address the performance problem. A slacking employee will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off.

When dealing with employment concerns, there are legal issues and there are business issues. Decisions cannot be made without considering both, and sometimes one must trump the other. In this case the legal issue and the business issue happen to jive. The legal issue, however, remains in flux, as the NLRB continues to grapple with the role of technology in the 21st century workplace. The business issue, though, dictates the employers think long and hard about implementing a policy they will struggle to enforce.

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The blog is taking the rest of the week off. I’ll be back on Monday with fresh content. In the meantime, enjoy your holiday, and take a moment to say thank you to that and those for which you are grateful.

If you put up with bullies in your workplace, stop (before someone else makes you)

I came across an article on TLNT last week entitled, The 7 Ways Organizations Justify Bullying in The Workplace. According to the article, these are the seven most popular excuses companies make for workplace bullies:

• He just goes off from time to time; he means no harm.
• OK, I will ask him to apologize again.
• Ron’s skills are so valuable we can’t afford to lose him.
• I just had “another” conversation with Ron. He will be OK.
• It’s easier to keep him than to find a replacement.
• That’s just how Ron is. He is just passionate.
• He doesn’t mean any harm; he’s just under a lot of stress.

If you find yourself making these excuses for anyone in your organization, it’s to reevaluate the type of workplace you want to be.

And, it’s not because bullying is illegal. In fact, in many cases, it’s not. Unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin…) bullying is probably lawful. As the U.S. Supreme Court has famously said, our workplace discrimination laws are not meant to be a “general civility code” for the American workforce. In layman’s terms, our laws allow people to be jerks to each other at work.

The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace. If you want state legislatures to pass workplace bullying legislation, then continue to ignore the issue in your business. If you want to be sued by every employee who is looked at funny or at whose direction a harsh word is uttered, then continue to tolerate abusive employees. If you want to lose well-performing, productive workers, then allow them to be pushed out the door by intolerable co-workers.

The reality is that if companies do not take this issue seriously, state legislators will. What can you do now to protect your workplace from a future of anti-bullying legislation?

1. Review current policies. Most handbooks already have policies and procedures in place that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

2. Take complaints seriously. These policies are only as good as how they are enforced. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

In other words, take seriously bullying in your workplace. If you don’t state legislatures will, and you won’t like the results.

WIRTW #250 (the “Tickle Me Petraeus” edition)

What does Elmo have in common with a former four-star general? They both need refresher courses on the proper use of email.

• Former CIA chief David Petraeus resigned his post after an email chain revealed an extra-marital affair. Petraeus and his paramour are claimed to have set up Gmail accounts to communicate with each other.

• Kevin Clash, the voice of Elmo, is taking a leave of absence from Sesame Street amid now-retracted allegations that he engaged in a relationship with an underage teen. According to the Sesame Workshop, an investigation revealed that Clash “violated company policy regarding internet usage.” One of the offending work-sent emails: “I’m sorry that I keep talking about sex with you, it’s driving me insane.”

The lesson should be obvious, but apparently needs repeating—Think Before You Click. (Hey, that’s a good name for a book … or a Sesame Street skit).

For some other thoughts on these stories-of-the-week:

• Lessons from the David Petraeus scandal — from Work Matters
• General David Petraeus Not Very Good At Cyber Defense — from Kashmir Hill’s The Not-So Private Parts
• How CIA Director David Petraeus's Emails Were Traced (and How to Protect Yourself) — from Lifehacker
• David Petraeus, Mike Leach and the Art of the Investigation — from YourHRGuy

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

Discrimination

• What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred? — from Dan Schwartz’s Connecticut Employment Law Blog
• Two Pregnant Employee Terminations in Two Months Too Coincidental for Southern District of Ohio — from Employer Law Report
• EEOC scores another big hit against inflexible leave policies — from Employer Legal Advocate
• Transgender Bathroom Battles—Coming Soon to Your Workplace — from HR Daily Advisor
• Frequent Use Of The “N-Word” Does Not Create A Hostile Environment If Only Made In “Jest” — from Employment Discrimination Report
• Time For Your Sexual Holiday Party — from Social Media Employment Law Blog
• Word to the wise: Centralize ADA accommodations decision-making — from Warren & Associates Blog

Social Media & Workplace Technology

• Obama's re-election evokes ugly Facebook-racism from some employees — from Eric Meyer’s The Employer Handbook Blog
• Facebook Party Pics Doom FMLA Claim — from Phil Miles’s Lawffice Space
• Court Orders Broad Discovery of Class Members' Social Media, Text Messages & Email — from Electronic Discovery Law

HR & Employee Relations

• Why Ms. X Is Leaving BigLaw: Busy Mom Details Untenable Schedule in Departure Memo — from the ABA Journal
• An Overwhelmed Mother’s Departure Memo — from the New York Times Motherlode blog
• Today Show Report Highlights Room for Improvement — from Nick Fishman’s employeescreenIQ Blog
• Workplace Investigations: The Employee’s Lawyer’s Perspective — from WinWinHR
• My boss doesn’t understand that I have kids — from Evil HR Lady, Suzanne Lucas
• Employees Love It, But Does a 4-Day Workweek Work For Your Business? — from TLNT
• Smoking in the Boys’ Room: You’re Fired! — from Blogging4Jobs

Wage & Hour

• Independent Contractor Misclassification Should Remain Key Area of Concern for Employers — from Wage & Hour Defense Blog
• Starbucks Gets a Triple Shot of Damages as $14.1 Million Wage-and-Hour Award Upheld — from Smart HR Manager
• Are Employers Required to Compensate Employees for On-Call Time? — from Minnesota Employer
• 6th Cir. Affirms Dismissal of FLSA Gotcha Litigation — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Pictures of Employee Socializing at Local Festival Drown Her FMLA Claims — from Jeff Nowak’s FMLA Insights

Labor Relations

• The NLRB will be active in the non union workplace and more visible to the public — from John Holmquist’s Michigan Employment Law Connection
• Mandatory Employment Arbitration Clauses: Clearing the Hurdles, Part II — from The Emplawyerologist

Until next week:

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]