Ohio attempts to ban employers from seeking social media passwords (take 2)

Last week, seven Ohio democratic senators introduced Senate Bill 45, which would prohibit employers “from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.” It is identical to last year’s S.B. 351, which never made it out of committee. I have a feeling this year’s S.B. 45 will meet a similar fate, which is a good thing. For an analysis of what this bill says, you can read last year’s blog post on S.B. 351.

This bill has lots wrong with it.

1. It attempts to add to Ohio’s protected classes. It would elevate asking an employee for a social media login or password to the same level of importance  as discrimination based on race, sex, religious, national origin, age, disability, and military status. For a practice in which few, if any, employers engage, such protections are over reaching and beyond ridiculous.

2. It contains no exceptions for internal investigations. Suppose, for example, Jane Doe reports that a co-worker is sending her sexually explicit messages via Facebook. You have an absolute duty under both Title VII and Ohio’s employment discrimination statute to investigate and take whatever remedial action is necessary to ensure that any misconduct ends. Yet, this bill would prohibit you from even asking the accused to provide access to his Facebook account as part of your investigation.

3. It contains no exceptions for regulated industries. For example, registered representatives have special rules that dictate what they can or cannot say to clients and prospective clients via social media. FINRA requires employers to track and maintain records of the communications between registered reps and the public. Yet, this bill would prohibit a securities firm from requiring its registered reps to turn over these communications. It would also prohibit the firm from even asking for access to a rep’s social media account to investigate a customer complaint or regulatory issue.

4. Check out the penalties. In addition to civil fines, violations bring into play the full panoply of damages available under Ohio’s civil rights statute, including compensatory damages, pain and suffering, emotional distress, and punitive damages.

Just because something is a bad HR practice does not mean we need a law to regulate it. Nevertheless, the solution proposed by S.B. 45 has so many problems that, as proposed, it presents an unworkable and dangerous solution to an illusory problem.

photo credit: totumweb via photopin cc

Does social media change the meaning of “solicitation?”

Consider the following scenario. Your company uses sales representatives to sell its products. To protect your company’s relationship with its other employees, you require all sales reps to sign a no-solicitation agreement as a condition of their employment. Under the agreement reps cannot “directly or indirectly solicit, entice, persuade or induce any … employee … of the Company … to terminate or refrain from renewing or extending his or her employment, association or membership with the Company … or to become employed by or enter into a contractual relationship” with the employee executing the no-solicitation agreement.

If an employee connects with co-workers on Facebook or any other social network, and then leaves your company, has he violated the no-solicitation agreement by maintaining the connections?

According to the court in Pre-Paid Legal Services, Inc. v. Cahill (E.D. Okla. 1/22/13), the answer is, “No.”

In this case, PPLSI complains that Facebook posts that tout generally the benefits of Nerium as a product and Defendant's professional satisfaction with Nerium constitute solicitations presumably because some of Defendant's Facebook “friends” are also PPLSI sales associates and may view Defendant’s posts….

PPLSI has not shown any intent on Defendant’s part to solicit current PPLSI associates…. There was no evidence presented that Defendant’s Facebook posts have resulted in the departure of a single PPLSI associate, nor was there any evidence indicating that Defendant is targeting PPLSI sales associates by posting directly on their walls or through private messaging.

In other words, because the employer could not demonstrate any intent on the part of the departed employee to solicit other employees via Facebook, the mere fact that they are Facebook friends is not enough to violate the no-solicitation covenant. Presumably, the same logic would hold true if the no-solicitation covenant applied to customers instead of employees.

One case does not equal dogma (although Cahill did discuss and agree with another similar case from an Indiana appellate court). These cases are highly fact specific and depend as much on the court's perception of the parties’ equities as they do on the language of the challenged agreements.

If, however, you are concerned about ex-employees using Facebook, Twitter, LinkedIn, and other social networks to lure employees or customers, why not include language in your no-solicitation agreement to cover such a possibility?

“Solicitation” includes, but is not limited to, offering to make, accepting an offer to make, or continuing an already existing online relationship via a Social Media Site. “Social Media Site” means all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, in addition to any other form of electronic communication.

By defining “solicitation” to include passive social media connections and activities, you are at least putting yourself into a position to have a court consider shutting down an ex-employee for maintaining online relationships.

WIRTW #262 (the “what would you do” edition)

By now you’ve probably heard about the man who slapped crying toddler on an airplane after dropping an n-bomb on the child. In addition to facing criminal charges, the accused slapper, Joe Rickey Hundley, is out of a job. Prior to the incident, he worked as an executive for AGC Aerospace & Defense. Within days of the story going viral, AGC fired Hundley, and issued a statement by its CEO decrying Hundley’s behavior as “embarrassing” and “not in any way reflect[ing] the patriotic character of the men and women of diverse backgrounds who work tirelessly in our business.” (side note: would anyone have thought that the company was in favor of n-bombs and baby slapping if it did not issue a public statement?)

Here’s my question for you, dear readers. If Hundley worked for you, would you have fired him? Did Joe Rickey Hundley deserve to lose his job?

Answer in the comments below, or tweet me @jonhyman.

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

Discrimination

• EEOC sues law firm over 75-lb. lifting requirement — from Walter Olson’s Overlawyered
• Lawful Discrimination and Off-Duty Conduct — from Molly DiBianca’s Delaware Employment Law Blog
• Beginning a Racist Request with “please” does not make it any less Racist or Discriminatory Even if Asked for the Benefit of an Employer’s Customer — from Jason Shinn’s Michigan Employment Law Advisor
• Severance Agreements and the Older Workers Benefits Protection Act — from The Emplawyerologist
• EEOC statistics confirm the ADAAA’s impact — from Warren & Associates Blog
• You Cannot Fire A Pregnant Employee Because “The Baby Is Taking Its Toll On You” — from Employment Discrimination Report

Social Media & Workplace Technology

• Can a Court Force Me to Disclose My Facebook Password? — from Augmented Legality
• Right To Privacy Will Be Protected By The Social Networking Online Protection Act — from Shear on Social Media Law
• “Too much information” can get you fired! — from Robin Shea’s Employment and Labor Insider
• Stalked By Supervisor on Facebook and Then Fired — from Work Place Coach Blog
• The “savings clause” for employer social media policies — from Technology for HR
• 10 things you can do to boost your BYOD security — from Consumerization Blog
• How do you Respond to the Legal Risks of BYOD? — from netWORKed Lawyers

HR & Employee Relations

• Want Higher Productivity? Stop Treating Your Employees Like Children — from Evil HR Lady, Suzanne Lucas
• White House announces new strategy to fight theft of intellectual property — from The Verge
• Dear Evil Skippy: One Of My Employees Always Smells Like Dog — from Evil Skippy at Work
• From Red Flags in Employee Handbooks to Django Unchained — from TLNT
• Drafting: No defendant left behind — from John Holmquist’s Michigan Employment Law Connection
• Work-Life Isn’t A Women’s Issue — from Eve Tahmincioglu’s CareerDiva
• Is Hiring More Felons Good for Business? — from Nick Fishman’s employeescreenIQ Blog

Wage & Hour

• New FMLA Forms! — from Phil Miles’s Lawffice Space
• ABA's Summary of 2012 FMLA Cases a Valuable Resource for Employers, Attorneys — from Jeff Nowak’s FMLA Insights
• Employee’s Facebook Fumble Dooms Her FMLA Claims — from Trade Secret / Noncompete Blog
• Supreme Court to determine what “clothes” are under the FLSA. — from Eric Meyer’s The Employer Handbook Blog
• Employee Who Performed Work Afterhours for Employer Through His Separate Company Held to be Independent Contractor for Afterhours Work — from Overtime Law Blog

Labor Relations

• Non-union? Not a problem for NLRB — from HR idiot
• Employers are not always the Bad Guys — from Mike Haberman’s Omega HR Solutions
• You Have The Right To Discuss Salary With Coworkers — from Donna Ballman’s Screw You Guys, I’m Going Home

 

It’s your last chance … to avoid retaliation

Last month, the EEOC announced a half-million dollar settlement with BASF Corporation. The agency alleged that BASF retaliated against a poor performing employee by insisting, as part of a “last-chance agreement”, that the employee not file any charges of discrimination with the EEOC. Concerned about the agreement’s effect on his civil rights, the employee refused to sign; the company fired him.

Agreements are wonderful tools to use with our employees. They come in all shapes and sizes—employment agreements, severance agreements, settlement agreements, and last-chance agreements, to name a few. One benefit from an agreement is that it can limit an employee’s ability to bring suit against an employer. For example, many employment agreements contain clauses that waive one’s right to ask for a jury trial. Severance agreements customarily contain releases of claims, waivers of rights, and covenants not to sue.

No matter the agreement, however, there is one clause that it cannot contain—a covenant by the employee waiving his or her right to file a charge of discrimination with the EEOC. Employees have an absolute right to seek vindication of their rights with the EEOC, and a requirement that an employee waive that right is retaliation. You can require that the employee waive his or her right to collect any money as a result of any charge filed with, or lawsuit filed by, the EEOC. Once you cross the line and mandate a waiver of the right to file a charge, you have retaliated.

In this case, this lesson cost BASF $500,000. The EEOC and I do not always see eye to eye. The lesson for employers to take away from this case, however, is valuable, and comes courtesy of the agency:

“The EEOC has an inherent, institutional interest in maintaining open lines of communication with people who believe they may be victims of discrimination,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “That is why employers who attempt to break that line of communication by dissuading employees from filing EEOC charges are breaking the law.  Courts get that, and with this case, we hope more employers will as well.”

The EEOC’s Chicago District Director John Rowe, added, “Cognis presented the victims in this case with a terrible, illegal choice: lose your job or lose your civil rights. Under the law, no worker has to make that kind of choice. Employers would be better served by working to ensure that their employees are free from discrimination, rather than threatening their workers with termination in an effort to make sure that employees don’t complain.”

This post originally appeared on The Legal Workplace Blog.

Customer preference does not protect employers from race discrimination claims

CNN reports that a Flint, Michigan, nurse is suing her hospitalbecause it kowtowed to a man’s request that no African-American employees care for his baby. The lawsuit [pdf] outlines her key allegations:

     11. The father told the Charge Nurse that he did not want any African Americans taking care of his baby. While telling the Charge Nurse, he pulled up his sleeve and showed some type of tattoo which was believed to be a swastika of some kind.

     12. After the father made the discriminatory request to not allow African Americans to take care of his baby, instead of flatly denying the request, the Charge Nurse called the Nurse Manager, Defendant Osika.

     13. Defendant Osika told the Charge Nurse, Herholz, to re-assign the baby to another nurse and to advise Plaintiff that Defendant Osika, would speak to her supervisor and take care of it the next day.

     14. Plaintiff was re-assigned on or about October 31, 2012 because she is African American….

     19. When Plaintiff reported to her work, she learned that during that day there was a note prominently posted on the assignment clipboard that read as follows: “NO AFRICAN AMERICAN NURSE TO TAKE CARE OF BABY.” Plaintiff was shown a picture of the note.

Let’s make this as clear as possible. Adhering to the request of a customer is not a defense to a race discrimination claim. As one court succinctly stated : “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” (Note that the same might not hold true for a customer preference based on gender, because employers can claim a bona fide occupational qualification as a defense to a sex discrimination claim).

If you find yourself in a position of having to face down a customer making such a request, take a stand. Tell the customer, “We don’t treat our employees like that, and if you can’t deal, we don’t need your business.” Be the better corporate citizen. It’s not just the legal way to act, it’s the moral way to act.

Of storks and honesty—avoid shifting reasons when defending an employment decision

“Norah doesn’t want to have babies when she’s older because she doesn’t want them cut out of her belly.” This is what my wife reports our six-year-old daughter told her a few weeks ago.

“I told her,” my wife continues,” that they don’t always have to cut them out of your belly. Sometimes, babies come out through your private parts.” Then she tells my daughter to leave it at that until she’s older. Norah,  curiosity apparently sated, hasn’t brought it up since.

My response: “What’s wrong with the stork?”

“I don’t want to lie to her,” my wife retorts.

“Santa Claus, Easter Bunny, Tooth Fairy … Stork. We lie to her all the time about these things. What’s wrong with the stork?!”

As it turns out, my wife is right (don’t let her read this; I’ll never hear the end of it). When we are caught in a lie, we lose credibility. And when we lose credibility, we are not trusted on the important stuff.

Case in point—Jones & Carter, Inc., which the National Labor Relations Board decided earlier this month. In that case, the Board found that the charged employer had unlawfully fired an employee for discussing salaries with coworkers. In and of itself, this case is not newsworthy. As the November 26, 2012, opinion of the Administrative Law Judge in the same case [pdf] pointed out in ruling for the terminated employee:

The Board has long held that an employer cannot lawfully prohibit employees from discussing matters such as their pay raises, rates of pay, and perceived inequities. Accordingly, when an employer forbids employees from discussing their wages among themselves without establishing a substantial and legitimate business justification for its policy, the employer violates the Act.

Pay attention, however, to why the ALJ and the NLRB ruled in the employee’s favor. They ruled for the employee because the employer lied about the reason for the termination:

Williams [the HR manager] and Cotton [the chief operating officer] gave markedly different testimony at the [unemployment] hearing as compared to their testimony in these proceedings. During the hearing before the Board, both Williams and Cotton maintained that Teare was terminated for harassing Janik rather than for discussing salary information. During the [unemployment] hearing, however, both Williams and Cotton asserted that Teare’s discharge resulted from her violation of Respondent’s confidentiality policy…. [A]n employer’s shifting reasons for discharge may provide evidence of an unlawful motivation.

It’s trite to say honesty is the best policy. But, when defending an employment case, honesty and consistency are essential. And, if you can’t be honest because the honest reason is illegal, then maybe you should consider biting the bullet and settling.

photo credit: Enokson via photopin cc

Obsessing (compulsively) over reasonable accommodations

I grew up with a guy who really liked the Presidents of the United States (the actual Presidents, not the 90s alt-rock band). He was so fond of them, in fact, that he had a complete collection of presidential figurines in his bedroom. He kept them in chronological order, in perfectly straight rows, on his dresser. And he instinctively knew if you moved one out of line. He’d swoop in and fix it almost as quickly as one could say “John Adams.”

As far as I know, this person did not have obsessive-compulsive disorder. But, what if he did, and he what if he worked for you? Would you have to accommodate this employee’s OCD, and if so, how?

The first question is the easy one to answer. Under the ADA’s liberal definition of disability, OCD is almost certainly a covered mental disability.

The second question, however, is trickier. If the OCD inhibits the employee’s ability to perform the essential functions or his or her job, then, yes, you have to make a reasonable accommodation, but only if you can do so in way that will enable the employee to perform those affected essential functions.

In other words, it depends. Consider these two examples—

• In Earl v. Mervyns, Inc. (11th Cir. 2000), the plaintiff, a retail manager, claimed that his OCD prevented him from arriving to work on time in the morning. The court agreed with the employer that punctuality was an essential function of his position, and concluded that no accommodation would meet the needs of his OCD. Thus, the court deemed the plaintiff “not qualified” under the ADA and upheld the dismissal of his disability discrimination claim.

• Yet, in Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001), the court concluded that the employer failed to consider whether either a leave of absence or telecommuting arrangement would have enabled the plaintiff, a medical records transcriber, to perform her job with her OCD.

The lesson here is not so much about accommodating OCD as an ADA-covered disability, but a broader lesson about handling any disability in the workplace. You need to have a dialogue with an employee about reasonable accommodations. Without opening the channels of communication, you will never know what is feasible. More importantly, without the dialogue, you probably have not satisfied your obligations under the ADA. As the court in Humphrey correctly pointed out:

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations…. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees…. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible….

Moreover, … the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.

In other words, talk with the employee. You’d be surprised how many employment problems you could head off with an earnest and open conversation.

Until tomorrow…