WIRTW #255 (the “back to the future” edition)

This week’s “WIRTW” is all about looking ahead. On Wednesday, I shared the one New Year’s resolution all employers should make for 2013. This week, some of my blogging brethren also shared their thoughts on resolutions employers should make for the coming year.

• 2013 New Years’ Resolutions for Employers — from Tim Eavenson’s Current Employment
• Countdown to 2013: Five Key Predictions for the Future Workforce — from EmployerBrief
• Evil Skippy’s Workplace Resolutions for 2013 — from Evil Skippy at Work
• The Top 4 Employment Law Concerns for Small Businesses in 2013 — from CPEhr
• HR Predictions for 2013 — from Mike Haberman’s Omega HR Solutions
• Top Five New Year’s Resolutions for Wage/Hour in 2013! — from Wage & Hour Defense Institute
• HR’s 2013 “To Do” List — from China Gorman
• 6 HR tech resolutions for 2013 — from Technology for HR

Here’s the rest of what I read this week (and last week):

Discrimination

• With employers like THIS, it's gonna be a busy 2013 for the lawyers — from Eric Meyer’s The Employer Handbook Blog
• Who Says I’m a Girly Man? Doth Sayeth the EEOC — from Molly DiBianca’s Delaware Employment Law Blog
• Company Fires “An Old Penny That Keeps Coming Back?” — from Employment Discrimination Report
• Bad “Business Judgment” is not Discrimination – Veronese v. Lucasfilm — from California Labor and Employment Defense Blog
• Policy for Requesting Medical Info Runs Afoul of ADA, Says EEOC — from The Proactive Employer Blog
• Critics are Unfairly Attacking the Iowa Supreme Court's Sex Discrimination Ruling in Nelson v. Knight — from Iowa Employment Law Blog
• The EEOC’s Strategic Enforcement Plan for 2013 — from Warren & Associates Blog

Social Media & Workplace Technology

• Should C-suites and Boards of Directors be Exempt from Social Media Training? — from Social Media Today
• BYOD: It’s Way Ahead of the Law, But You Need a Policy — from HR Daily Advisor
• Someone sent a dirty email from my work account — but it wasn’t me! — from Ask a Manager
• Defining who speaks for a company and when important in age of social media — from The Shreveport Times
• Six states outlaw employer snooping on Facebook — from CNET

HR & Employee Relations

• Is There Room for Humanity in HR? — from We Know Next
• President Obama Signs Trade Secrets Clarification Act and House of Representatives Considers Enhancing Economic Espionage Act Penalties — from Trading Secrets
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Part I and Part II — from The Emplawyerologist
• 6 Action Steps When Confronting Employee Theft — from i-Sight Investigation Software Blog

Wage & Hour

• My coworker is working off the clock — from Evil HR Lady, Suzanne Lucas
• 2 Recent Cases Draw Distinction Between Volunteers and Employees — from Overtime Law Blog

Labor Relations

• NLRB Continues to Assert Its Influence Over Non-Union Employees — from Labor Relations Counsel
• National Labor Relations Board Rules Employers Must Bargain With Union Representatives Over Discretionary Discipline — from Labor Relations Today

Lactation rights case teaches valuable lesson on responding to employee complaints

Believing that her employer, Roche Surety & Casualty Co., had deprived her of her right under the Fair Labor Standards Act for a time and place to express breast milk, Danielle Miller put her request in writing via an email to her supervisor. She claimed that the company retaliated against her after she emailed her supervisor with her request. That email stated:

Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.

In Miller v. Roche Surety & Casualty Co. (11th Cir. 12/26/12) [pdf], the appellate court concluded that Miller had not filed a complaint sufficient to raise the protections of the FLSA’s anti-retaliation provision:

Although the filing of a complaint … need not be in the form of an official complaint, … or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance….

Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism. Miller decided to express breast milk in her office without notifying any Roche supervisors. She did not complain or ask for a different location….

This case appears to have been an easy call for the 11th Circuit, since no one could possible interpret Miller’s email as a complaint. Nevertheless, this case teaches employers an important lesson: respond when an employee raises an issue, no matter how silly or trivial it may seem. Although the opinion is vague, it is safe to assume that the genesis of Miller’s lawsuit was a lack of any response to her email. Could this company have staved off a lawsuit by a simple reply to the email? Next time an employee communicates an issue with you, think about whether it is worth the risk to let the concern go un-addressed.

[Hat tip: Wage & Hour Law Update and Joe’s HR & Benefits Blog]

Your New Year’s resolution: draft a social media policy

Recently, Proskauer Rose published the results of its second survey covering social media in the workplace. Social Media in the Workplace Around the World 2.0 [pdf] questioned 250 multinational businesses on their social media policies and practices.

The results?

• 75 percent of businesses reported using social media for business purposes
• 77 percent permit at least some employee to access social media sites at work for non-business purposes,
• 69 percent have a social media policy,
• 46 percent have a social media policy that covers on-duty and off-duty activities.
• 33 percent their employees on the appropriate use of social media.

Employers, here is your New Year’s Resolution for 2013—draft a social media policy and train your employees on what it means.

Social media is still novel. Most of your employees do not understand how their off-duty online activities can impact their jobs. If you want to hold your employees accountable for what they say and do online both at work and outside of work, establish expectations. Put it in writing and explain to your employees what the policy means. That way, if you have to take action against an employee for something he or she says online, no one has any excuses.

According to a recent study, 88 percent of New Year’s resolutions fail. Strive to be among the minority that succeed in keeping their resolutions. Your employees will thank you.

Happy New Year!

Best of 2012: Numbers 2 and 1

The last day of 2012 brings my year-end countdown to a close. Here are my two favorite posts of the past year.

2. How to avoid your organization’s muppet manifesto

1. A letter to the NLRB on its latest position against confidential workplace investigations

Best of 2012: Numbers 4 and 3

Today, numbers 3 and 4 on the countdown.

4. New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

3. NLRB’s position on social media policies remains a bungled mess

Best of 2012: Numbers 6 and 5

My year-end countdown continues with the my number 5 and 6 favorite posts of the year.

6. Even terminations over “genitalia sandwiches” can generate lawsuits

5. Does your social media policy educate about being “profersonal?”

Best of 2012: Numbers 8 and 7

Let’s continue our walk through my favorite posts of the past year.

8. When defending employment cases, chasing attorneys’ fees is a snipe hunt

7. Don’t forget these 5 security issues in your BYOD policy