Workplace social media policies must account for generational issues

Cisco recently interviewed 3,600 Gen Y College students and workers between the ages of 18 and 30. The purpose of the survey was to gauge the influence of social media, mobile devices, and the Internet on that generation’s job choices. The results (via Gen Y Hub) say a lot about how companies should be managing the divergent expectations of different generations in the workplace.

• 2 out of every 3 college students will ask a prospective employer about its social media policy during a job interview.
• If a company bans the access of social media in the workplace, 56 percent either will not accept a job or will ignore the policy.
• 1 out of every 3 value social media freedom over salary.
• Approximately 70 percent believe that corporate devices should also be used to access personal social media accounts.

Generational issues might be the most important interpersonal aspect of managing social media in the workplace. Yet, this issue is rarely discussed. Each generation has a very different idea both about the role of technology in their daily lives, and the impact of technology on their concepts of personal privacy. A policy that only recognizes the interests of one generation will chase away the others. Take the time to craft a workplace technology program that properly accounts for the divergent ideas of Boomers, X-ers, and Y-ers.

This post originally appeared on The Legal Workplace Blog.

The revolution WILL be televised … Shore up your social media before a termination

Last week, music retailer HMV laid off 190 employees. One of the affected, a former HR employee, hijacked the company's Twitter account and live-tweeted what he described as the “Mass execution, of loyal employees who love the brand. #hmvXFactorFiring ”

In addition to everything else companies have to worry about when terminating employees (lawsuits, sabotage, theft of confidential information, low morale), companies now also have to worry about the maintenance of their public image via social media.

We live in a world in which the walls of privacy are not-so-slowly eroding. Nothing can damage a company’s reputation more quickly than a viral campaign. We no longer have to worry about employees merely discussing the nitty-gritty of a termination. Today, we have to worry about our employees broadcasting it to the entire world in 140 character insta-bursts. And, there’s not much you can do about it after the fact. Once the information is out, it’s out. HMV deleted the tweets, but all it took was one person to “print screen,” and the next thing you know bloggers around the world are republishing the information it tried to hide.

While there is not much you do after the fact, there is one thing you can do before the fact. If you are concerned about employees live-tweeting a termination or a mass layoff, disable their access to your social media channels before you tell them. Change their passwords. Remove their logins. Is there a chance they’ll figure out something is afoot before you officially communicate the termination? Absolutely. Does the harm to your business from that risk pale in comparison to the viral harm you will suffer if said employees hijack your official social media channels? You bet.

DOL: Employers find it easy to comply with the FMLA. What?!?! [poll]

Twenty year ago today, President Clinton signed the Family and Medical Leave Act into law. To commemorate this anniversary, the Department of Labor has released the results of a survey of employers on the status of this law.

According to the DOL:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale.

Did I read that right? Does the DOL really conclude that “employers generally find it easy to comply with the” FMLA? I started practicing law in 1997; I’ve spent my entire career advising employers on the FMLA. I am not aware of any company that finds it “easy to comply with” the FMLA. In fact, most companies whom I have counseled would tell you that FMLA administration is among the most complicated of all HR functions.

Either the DOL found the only 1,649 employers (91 percent of the 1,812 worksites surveyed) who “find it easy to comply with” the FMLA, the DOL is putting some major spin on its survey results, or my read on FMLA administration is way off.

To find out for sure, I’m running my own poll, which asks the question, How difficult has it been for your company to comply with the FMLA?

[Hat tip: Eric Welter]

How do you fight invisible discrimination?

With what seemed like most of Cleveland's western ‘burbs, I spent part of my Sunday afternoon shopping at Costco. My trip not only included the expected bulk items, but also some unexpected bigotry.

Near the samples of mozzarella and pita grilled cheese (delicious), I crossed paths with a family—a father and his two sons—of what appeared to be Arabic descent . The older of the two boys, around age 10, turned to his dad and said:

I got back at that lady who cut me off;
she looked Jewish.

Needless to say, I was stunned, and decided that I couldn’t let the comment go answered. I quietly told the family that I couldn’t stop them from thinking what they want, but they should be careful when and where they express their feelings. They walked away.

In a decade or two, that boy will join the workforce. He could be one of your employees, or, worse, one your managers or supervisors. How do you root out this kind of hatred before it outs itself out in a harassment complaint or discrimination lawsuit? There is no easy answer to this difficult question. Perhaps all we can do is recognize that everyone carries baggage. Some is harmless, and some is hateful. If we foster a workplace of openness and inclusion, when that hatred exposes itself employees will understand that it belongs to a rogue and not your company ,and hopefully, choose not to hold you accountable (provided you respond quickly and decisively when brought to your attention).

WIRTW #259 (the “luddite” edition)

Mozy recently published a list of the 50 Things We Don’t Do Anymore Because of Technological Advancements. It’s weird to think that my kids will never use an encyclopedia to write a last-minute term paper, scour the ground for payphone change because they forget to leave the house with a trusty dime, or dial *69 to figure out which of their friends is pranking us.

Scanning the list, though, I’m proud to say that I’m still a luddite in some key areas:

• Print photographs
• Go into the bank to conduct business
• Remember phone numbers
• Watch DVDs
• Fax documents
• Have a CD collection
• Watch TV shows at the time they are shown
• Try on shoes at the mall
• Buy flowers at a florist
• Buy newspapers

By my count, I’m 20 percent luddite. How do you rank?

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

Discrimination

• Jujitsu in EEOC v. Kaplan — from LaborRelated (and congrats on your new edition)
• The EEOC’s top three of 2012: retaliation, discrimination, and harassment — from Warren & Associates Blog
• 5 Things You Need To Know About Retaliation — from Employment Discrimination Report
• When single employees are “discriminated” against — from Employment Law Bits
• The EEOC on Transgender Employees and Sex Discrimination — from Workplace Prof Blog
• Gender Inequality Claims Make Headlines in Case and in New Study — from Dan Schwartz’s Connecticut Employment Law Blog
• 3d Cir. Issues a Bitchin' Constructive Discharge Decision — from Molly DiBianca’s Delaware Employment Law Blog

Social Media & Workplace Technology

• Do Your Employees BYOD? Here’s How to Reduce the Hassles… — from Hiring & Firing
• Who owns your Twitter followers? — from Evil HR Lady, Suzanne Lucas
• Employee posts “I wish I could get fired” on Facebook. Guess what happened? — from Eric Meyer’s The Employer Handbook Blog
• Should you monitor workers’ electronic communications? — from Technology for HR
• FaceWash Makes Sure Your Facebook Profile Is Clean and Interview-Ready — from Lifehacker

HR & Employee Relations

• Smoking Discrimination — from Texas Employer Handbook
• Employee Takes Too Many Bathroom Breaks — from hr bartender
• Psst… This Is What Your Co-Worker Is Paid — from Rachel Emma Silverman at the Wall Street Journal

Wage & Hour

• Employer’s Bane: Unpredictable FMLA leave. Is there a solution? — from Robin Shea’s Employment and Labor Insider
• Why Must Employers Train Their Managers About the FMLA? Here are 1.2 Million Reasons Why — from Jeff Nowak’s FMLA Insights
• What You Need To Know About RIght-To-Know — from Stephanie Thomas at Compensation Café
• Tell Us How You Misclassify Employees — from Mike Haberman’s Omega HR Solutions
• Former Athletics Department Intern Throws Flag On Hamilton College's Pay Practices — from The Wage and Hour Litigation Blog
• The Dirty Dozen Widely-Believed Myths of Wage/Hour — from HR Daily Advisor
• What Do You Mean I Have To Pay My Nanny Overtime?! — from Wage & Hour Insights

Labor Relations

• The Debate Continues: Recent Eighth Circuit Decision Adds to the Growing Tension between Federal Courts and the NLRB Regarding the Enforceability of Class Action Waivers in Arbitration Agreements — from Employment Class Action Blog
• Remember When “Recess” Meant Fun and Games? The Impact of Canning v. NLRB, and What Employers Need to Know While We Wait and See if the Decision Will Remain Intact — from Employer Law Report
• The NLRB is out of business … maybe — from Blogging4Jobs
• Circuit Court Invalidates President Obama's Purported Recess Appointments to National Labor Relations Board, Finds Lack of Quorum — from Seth Borden’s Labor Relations Today
• Court ruling may nullify rules against firing workers for complaining about their jobs on Facebook — from Boy Genius Report
• Obama Risked Executive Power To Give Labor Its Payback — from LaborPains
• Nonunion employers in the crosshairs — from Idaho Business Review

photo credit: Tony Fischer Photography via photopin cc

What can go wrong when employees date?

Since Valentine’s Day will be fast upon us, I thought I’d take a new look at a popular issue this time of year—the office romance.

Gerald v. University of Puerto Rico (1st Cir. 1/28/13) [pdf] is textbook example of the parade of horribles that can happen when an office romance sours.

During at at out-of-town conference, Dr. Melissa Gerald had a week-long sexual relationship with her supervisor, Dr. Edmundo Kraiselburd. According to Gerald, the affair embarrassed her and she rebuffed Kraiselburd’s pursuits after their return home. Two years passed without incident, after which Gerald alleges three separate incidents of harassment occurred, all within two months of each other: (1) Kraiselburd propositioned Gerald for sex, (2) Kraiselburd grabbed her breast, and (3) Kraiselburd asked her, “What will it take for you to f**k me?”.

The hospital defended against Gerald’s sexual harassment claim by arguing that Gerald often engaged in sexual and off-color banter with Kraiselburd, and therefore invited whatever she received in kind. In reversing the district court’s dismissal of Gerald’s lawsuit, the court of appeals shut down any argument that Gerald had “asked for” the harassment:

We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. Instead the evidence here was enough, at the very least, to raise a factual question as to whether Kraiselburd’s conduct was unwelcome….

Pointing to the fact that Gerald and Kraiselburd often engaged in off-color banter, the University says the supposed harassment was not severe. We disagree and think a jury could have seen things otherwise. Gerald says Kraiselburd grabbed her breasts, sexually propositioned her, and crassly asked in front of others why she would not have sex with him. The University is not denying these occurrences for summary judgment purposes. These offensive incidents, which involved sexual propositioning and uninvited touching, can reasonably be viewed as severe; and, in the case of the breast grabbing incident, physically threatening (not to mention criminal). Like we have said, it is clear that "behavior like fondling, come-ons, and lewd remarks is often the stuff of hostile work environment claims….”

While this case shows what can go wrong when employees become sexually involved, it is not a reason to ban office romances or trysts. I believe that employees’ business is their business. We expect employees to commit long hours to their jobs, and it is often the case that their only opportunity to socialize is at work. The heart goes where it wants to go, and no workplace rule or policy will stop employees from getting involved with each other.

Instead of banning office romances, companies should reinforce appropriate workplace behavior during harassment avoidance and response training.

• Tell employees that office romances are not prohibited, but that the company expects professional behavior regardless of the personal relationship (past or present) between employees.
• Offer examples, such as the Gerald case, of how to not to behave following a break-up.
• Advise employees that unprofessional behavior following an office relationship is not tolerated, and will lead to discipline, up to and including termination.

Following these simple steps will put you in a position to present the best defense possible to a harassment lawsuit stemming from an office dalliance. It also means that you won’t have to fall back on the “she asked for it” defense, which, as Gerald illustrates, rarely works.

Are employers screwing up the FLSA’s lactation mandate? Probably not.

At Business Insurance, Judy Greenwald quotes an attorney who believes that employers are doing an inadequate job of accommodating employees’ lactation requests. The article discusses a recent Freedom of Information Act request, in which the Department of Labor disclosed that it has conducted 54 investigations into claims of inadequate lactation accommodations between the date the Patient Protection and Affordable Care Act took effect, March 23, 2010, and June 11, 2012. Those investigations, in turn, uncovered 36 violations of the law. Based on that data, the article concludes that “the Labor Department is paying attention to and is prepared to enforce” the FLSA’s lactation mandate, and that “employers either are not aware of their obligations, or do not fully understand them.”

I wholeheartedly disagree. A little more than a year ago, I ran a post on this same issue. At that time, I pointed out that the DOL had only cited 23 companies, or 0.023 percent of all companies with 100 or more employees. Now, with an additional six months of data, the number of citations has jumped by 13, from 23 to 36.

By comparison, according to the EEOC’s recently updated charge filing statistics, individuals filed 99,412 separate discrimination charges during fiscal year 2012. In other words, discrimination complaints with the EEOC in the last year outpaced lactation complaints with the DOL in the last two and a quarter years by a factor of 1,841.

What is the reasonable explanation for this small number of lactation-rights complaints? Companies are not denying new moms the right to lactate in the workplace. Anecdotally, I have never come across the issue with a client in my 15+ years of practice, and I know of no colleague who has either. You would think that if this problem exists, someone would have dealt with it.

Nevertheless, if you are on the fence about your obligations under this provision of the Patient Protection and Affordable Care Act, here is what you should know:

• If you have 50 or more employees, you are required to provide a reasonable break time for an employee to pump breast milk. If you have fewer than 50 employees, you can deny the break time, but only if would pose an undue hardship, which the DOL considers to be a significant difficulty or expense.

• Employers are not required to compensate nursing mothers for breaks taken to expressing milk. The FLSA’s normal rules that govern unpaid versus paid breaks still apply. Thus, a break should be paid if it lasts 20 minutes or less and falls during an employer’s customary break time.

• In addition to adequate break time, an employer must also provide an appropriate lactation space. The space doesn’t have to be permanent. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, if the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom.

If you know of a company that has denied an employee the right to lactate, please either leave a comment below, or tweet me. I would like to know if there is any anecdotal support for the idea that companies are dropping the ball on this issue.