WIRTW #253 (the “words to live by” edition)

The Greenhouse Tavern is my favorite restaurant, anywhere. If you live in Cleveland and have not paid it a visit, do your palate a favor and get yourself to E. 4th Street to sample its amazing food (do not miss the confit-fried chicken wings). And, if you don’t live in Cleveland but find yourself visiting my fine town, put the Greenhouse at the top of your list of restaurants at which to dine.

It’s not just the amazing food that makes the Greenhouse so memorable. Its chef/owner, Jonathon Sawyer, is one of the most gracious small business owners in Cleveland. I had the pleasure of meeting Chef Sawyer several years ago at Hopkins Airport while both of our families were waiting to board a flight to Disney World. He and his wife treated my wife and me like royalty on our subsequent visit to his restaurant. As good as his food is (and it really is that good), it tastes that much better when the business is run by someone who pays such acute attention to his patrons.

For that reason, I paid special attention to a recent Washington Post Q&A column, entitled, On Small Business, which asked several small business owners, including Chef Sawyer, the following question: “Have you found any simple, inexpensive methods to make your workspace more employee-friendly? What tricks have you used to make sure your staff is happy with your office?” This was part of Chef Sawyer’s answer: “It starts from the top — employees must want to work with you, not for you. We’ve found the most success in this mutual respect….” You cannot go wrong following this advice in your own business and with your own employees.

[Hat tip: Steve Suttell]

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Have you voted yet for the ABA Journal Blawg 100. Polls close next Friday, Dec. 21.

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

Discrimination

• EEOC: Requiring Old Medical Documentation Violated ADA — from Joe’s HR and Benefits Blog
• Testimony for U.S. Civil Rights Commission Hearing on Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Criminal Background Checks: Good in Theory, Problems in Practice — from LP Magazine
• EEOC Plans to Heavily Attack Pregnancy Discrimination in the Workplace — from Wisconsin Employment & Labor Law Blog
• Dear Evil Skippy: Is It Religious Discrimination To Have Christmas Trees At Work? — from Evil Skippy at Work
• Employers, don't let that "protected" employee hold you hostage — from Robin Shea’s Employment and Labor Insider
• When Dads do “Mom work,” how much accommodation is required? — from HR Cafe

Social Media & Workplace Technology

• Who Owns Your Company’s Social Media? Are You Sure? — from Dan Schwartz’s Connecticut Employment Law Blog
• Big Brother Can’t Ask For Access To Your “Personal” Social Media Accounts Either … More Social Media Legislation Proposed In California — from Trading Secrets
• Proposed Michigan Social Media Law Banning Employer Access to Employee Passwords - Not Something to “Like” — from Jason Shinn’s Michigan Employment Law Advisor
• Social Media Horror Stories: More to Come In 2013 — from Alabama Employment Law Report
• MATH: How Much Would Banning "Reply All" Save Your Company? — from The HR Capitalist, Kris Dunn

HR & Employee Relations

• Santa Fired For Telling A 3-Year-Old The Maple Leafs Suck — from Deadspin
• Keys For A Successful Holiday Party – Infographic — from Stephanie Thomas’s The Proactive Employer Blog
• Rudeness at Work: What's Your Story? — from Harvard Business Review
• The Trade Secret Litigator's 7 Deadly Sins of Former Employers in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store? Part II — from The Emplawyerologist
• More Thoughts on Arbitrating Non-Competes — from Rob Radcliff’s Smooth Transitions
• Slack To The Future: The 50 Best Places To Work In 2013 — from Workplace Diva
• 10 terrible holiday gifts from bosses — from Evil HR Lady, Suzanne Lucas

Wage & Hour

• FMLA Leave for Same-Sex Couples to be Clarified by Supreme Court's DOMA Decision? — from Jeff Nowak’s FMLA Insights
• Fact or Fiction: Breaks/lunch taken at work may qualify for FMLA — from Eric Meyer’s The Employer Handbook Blog
• Employers Provide Too Little Leave Time — from Blogging4Jobs
• Tis the Season of Holiday Hiring — from DOL's Work in Progress
• What Deductions Are Allowed From an Exempt Employee’s Salary Under the FLSA? — from Minnesota Employer
• A Crash-Course in Paid Vacation and Holiday Policies — from CPEhr
• Man Fired After Complaining About Clocking In May Maintain Lawsuit For Retaliation — from Overtime Lawyer Blog

Labor Relations

• Great moments in labor arbitration — from Walter Olson’s Overlawyered
• Would You Buy THIS Union Made Product? — from Mike Haberman’s Omega HR Solutions
• Labor and the “Union” Name: Is a Rebrand Really the Answer? — from LaborPains.org

Holiday parties say a lot to about your workplace culture … for good and for bad

Last week I shared my thoughts on avoiding liability during your workplace holiday parties. Among the 7 tips I shared was:

Normal work rules and standards apply to holiday parties. As a subtle reminder, consider holding an anti-harassment refresher in anticipation of the party.

Shiner v. State Univ. of N.Y. (W.D.N.Y. 11/2/12) illustrates what can happen when a company ignores this advice and allows an office party to get out of hand.

Lesley Shiner worked as a clerk at the University at Buffalo Dental School. Dr. Jude Fabiano was the school’s Associate Dean and Steve Colombo its Director of Clinical Operations. Each year the school holds an annual Christmas party. Shiner attended the 2010 party despite her reservations about sexually inappropriate conduct and sexually explicit comments made by Colombo and Fabiano during the 2008 and 2009 parties.
As it turned out, Shiner should have listening to her inner voice and stayed home. In her lawsuit, she alleged that during the party Fabiano:

• Fondled her breasts.
• Inserted his tongue in her ear.
• Chased her around a table.
• Grabbed her by her neck and bent her over a table.
• Pushed her face together with that of another female employee and told them to kiss, stated that he wanted some “girl on girl” action, and asked for the three of them to be together sexually.
• Puller her on his lap and asked her to meet him somewhere after the party.
• Pinched and squeezed her ribs when she resisted his advances.

Colombo encouraged and cheered Fabiano’s behavior. At one point during the party, Colombo grabbed Shiner’s hand and pulled her onto his lap, stating to Fabiano “you might be the boss, but I have her now.”

All you need to know about the Shiner case is that, unsurprisingly, the court denied the school’s motion to dismiss.

This case, however, holds a deeper lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render your holiday parties (or any workday, for that matter) safe. You need to decide what kind of company you want to be, and set the tone year-round. Then, when it comes time for the annual holiday party, you do not have to worry about an employee being bent over a table or asked for a threesome. And, if it happens, your employees will have confidence that your company will arrest the offending behavior quickly and severely.

12 is the magic number: 12 thoughts for your workplace

Today is 12/12/12. The number 12 holds a lot of historical significance. There are 12 tribes of Israel, 12 months in the Gregorian calendar, 12 signs of the zodiac, 12 days of Christmas, and 12 original studio albums released by the Beatles (in the UK).

Since today won’t come around for another 100 years, I thought I’d honor its unique date with 12 thoughts to help better your workplace.

1. Review your employee handbooks and other personnel policies (annually is preferred).

2. If you don’t have policies addressing social media and the other roles technology plays in your workplace, draft one(and train your employees on them).

3. Hold company-wide harassment training (least once every two years, if not every year).

4. Make it a point to rid your workplace of bullies (even though there is no law against it).

5. Even if your business is not a jurisdiction that bans sexual orientation discrimination, adopt a policy outlawing it anyway.

6. Audit your wage and hour practices.

7. Document all discipline and performance problems.

8. Do not make promises to your employees that you cannot keep.

9. Make hiring and firing decisions based on performance.

10. Be more understanding of your employees’ family responsibilities outside of the office.

11. Employ the golden rule — treat your employees as you would want to be treated.

12. Have fun (but not too much fun).

What are right-to-work laws, and should you care?

Michigan is poised to become the 24th state to enact a right-to-work law. These laws prohibit agreements between labor unions and employers that require employees to pay union dues as a condition of their employment, whether or not the employees are members of the union.

These laws are a creature of 1947’s Taft-Hartley Act. Before 1947, it was legal for unions and employers to agree, via their collective bargaining agreement, to maintain what is known as a “closed shop.” In a closed shop, unions and employers could require that employees join the union as a condition of employment. The Taft–Hartley Act outlawed closed shops, making it illegal for any employer to force an employee to join a union.

The Taft-Hartley Act, however, did not outlaw “agency shops,” in which employees do not have to join the union, but can be required to pay the union their share of union dues. Right-to-work laws were born out of an exception in the Taft-Hartley Act, under which individual states can pass laws outlawing agency shops.

Ohio is not a right-to-work state. Yet, this map (courtesy of National Right to Work Legal Defense Foundation), illustrates why every employer in every state should care about the right-to-work movement:

The map of right-to-work states bears a striking resemblance to the electoral maps in recent presidential elections. In other words, regardless of whether your state is, or is not, a right-to-work state, the state of these laws around the country says a lot about our current polarized (and polarizing) political system.

Moreover, with Republicans controlling Ohio’s governor’s office and both houses of Ohio’s legislature, do not be surprised when a strong push is made for this legislation in our own state. If so, it will make for a fierce battle between business interests—who argue these laws are necessary to attract companies—and unions—who argue that these laws are nothing more than a move to curb the power of labor and reduce its influence.

EEOC rejects staffing company’s “just following orders” defense

The EEOC recently announced that it filed a disability discrimination lawsuit on behalf of an employee fired because of her prosthetic leg. It not only brought the lawsuit against the company on whose behalf she had been performing work, but also the staffing agency that had placed her there.

The staffing agency had told the employee it was removing her from the warehouse position because the company did not want anyone bumping into her.

The EEOC, however, did not put any stock into the staffing company’s “we-were-just-following-orders” defense. From the EEOC’s news release:

“Staffing agencies cannot avoid liability for discrimination by saying they were just following an employer-client’s orders, nor can employers avoid liability by saying the victim was ‘really employed’ by their staffing agency,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “It’s a pretty good bet that a worker with a prosthetic leg is always going to be protected by the ADA, and an equally good bet that flat-out firing the worker for that reason is going to violate the law. This scenario should not be all that difficult for employers to avoid. If they don’t, the EEOC will be there to make things right.”

For businesses, this story is a good reminder that staffing agencies and the employers that use their services often share liability under the various EEOC laws. If you are a staffing company, consider writing indemnification clauses into your agreements to help insure against liability when the company for whom you are staffing discriminates. Otherwise, there is a good chance that the law will not protect you from your customer’s discrimination.

WIRTW #252 (the “eat, drink, and be merry … and safe” edition)

The end of the year is here, which means that it’s time for the office holiday party. Deep from the archives, here are 7 tips for a safe workplace holiday party, a post which is as pertinent now as when I first wrote it two years ago.

As an added bonus, consider these tips on workplace holiday parties from some other bloggers:

• Horror Stories From the Workplace Christmas & Holiday Party — from Mike Haberman at Blogging4Jobs
• 10-Step Company Holiday Party Planning Checklist — from ERC Insights Blog
• Evil Skippy’s Ten Essential Office Party Tips — from Evil Skippy at Work
• Holiday Parties In The Social Media Age - You Never Know Who Is Watching! — from HR Defense Blog
• Employer’s Holiday Guide — from Heather Bussing at HR Examiner with John Sumser

As another added bonus, here are two exceedingly clever wrap-ups of the year in labor and employment law:

• Once “Moore” With Feeling: ‘Twas the Month of December – Again! — from Employment Essentials
• 2012 Employment Law Year In Review — from Labor Letter

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Don’t forget to cast your votes for the ABA Journal Blawg 100.

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

Discrimination

• 10 rules of etiquette that will save you from a pregnancy discrimination suit — from Robin Shea’s Employment and Labor Insider
• Attempted Suicide and the ADA — from Molly DiBianca’s Delaware Employment Law Blog
• Have Faith in Your Religious Accommodations — from Tim Eavenson’s Current Employment
• Hangman's Nooses And the “N-Word” — from Employment Discrimination Report
• “Younger people are the future” comment creates age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• You’re Damned if You Fall Into the Retaliation Trap — from damnedif

Social Media & Workplace Technology

• This Is How Much Time You Spend on Facebook, Twitter, Tumblr — from Mashable
• @noahkravitz and PhoneDog Settle Twitter Follower Lawsuit — from Social Media for Law Firms
• Employee/Ex-Employer Lawsuit Over Twitter Account Settles — from Eric Goldman
• Which Side Are You On? Employers and Employees Battle Over Ownership of Social Media Accounts — from Socially Aware Blog
• Massachusetts Court Rules That Facebook Posting of New Job Does Not Violate Non-Competition Covenant — from Trading Secrets
• Criminal Facebooking — from Workplace Prof Blog
• How to Respond to an Inappropriate Request for Access to Personal Social Media — from HR Gazette
• The Importance of a Bring Your Own Device to Work Policy — from InhouseBlog
• Obsessed With Checking Your Phone? You’re Not Alone — from ABC News

HR & Employee Relations

• No flu shot? No job! — from EmployerLINC
• No Flu Shot? That's a Firing — from Donna Ballman’s Screw You Guys, I’m Going Home
• Are You a Bad Boss? — from The Sociable Lawyer Blog
• Management Lessons from the NFL: Avoiding Monday Morning Quarterbacking of Your Termination Decisions — from Jason Shinn’s Michigan Employment Law Advisor
• Favoritism at Work: How to Respond When Unequal Treatment Impacts Your Productivity and Satisfaction — from Workplace Fairness
• Should Employers Arbitrate Non-Compete Claims? — from Rob Radcliff’s Smooth Transitions
• The Ugly Side of Employee Complaints — from Elevated HR
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store? Part I — from The Emplawyerologist

Wage & Hour

• Is It Ever OK For Employers to “Round” an Employee’s Worktime? — from TLNT
• Lawsuits by Restaurant Employees Keep on Coming — from Overtime Advisor
• Sixth Circuit Awards Employer Over $55,000 in Costs in FLSA Collective Action — from Employer Law Report

The Internet is today’s employee complaint box

In Amalgamated Transit Union Local 1433 [pdf], an NLRB administrative law judge ruled that a union did not violate federal labor law by failing to disavow threatening posts made by employees on the union’s Facebook. While the legal nuances of the opinion are interesting, this case raises an issue of deeper import for employers. Labor unions are using social media, and using it effectively, to disseminate information to members and to reach potential members during organizing drives.

It is not just labor unions that are using social media and the Internet to engage employees collectively. Employees are using these tools outside the organizational outreach of labor unions.

Case in point—the recent launch of coworker.org. “What is coworker.org,” you’re asking yourself? “I’ve never heard of it.” I never had either until I read a post yesterday on the Workplace Prof Blog. Coworker.org, describes itself as a website that allows employees to start, run, and win campaigns to change their workplaces. Employees accomplish this mission on the website by starting online petitions.

To date, coworker.org only has one active campaign. It’s against Wal-Mart, seeking the reinstatement of an employee allegedly fired for speaking out against having to work on Black Friday.

I’ll be watching coworker.org to see if it gains any traction. Employers should be watching this site too, but not for the reason you think. Retaliation against any employees who post on the site would be illegal under the National Labor Relations Act, as employees have a right to engage in protected concerted activity.

Instead, employers should pay attention to coworker.org for the same reason they should pay attention to the Amalgamated Transit Union Local 1433 case, Facebook, Twitter, and the blogosphere. Employees are online, talking about what is happening in your workplace. The Internet is today’s complaint box. If you want to fix problems before they get out of control, you need only turn to social media sites and sites like coworker.org and Glassdoor. If your employees are online complaining about you, should you be paying attention?