WIRTW #263 (the “never go to work” edition)

I’m writing this week’s recap from the comfort of my home study, a fact that strongly suggests my opinion on Yahoo’s recent mandate prohibiting its employees from telecommuting. What do some other bloggers think?

• THE GREAT REMOTE WORKER DEBATE: The Only Two Things That Matter… — from The HR Capitalist, Kris Dunn
• Yahoo is making a Mistake Using Telework as the Scapegoat — from Mike Haberman’s Omega HR Solutions
• Marissa Mayer Is No Fool — from Harvard Business Review
• Get Real: Working From Home Does Not Destroy Productivity — from Evil HR Lady, Suzanne Lucas
• Yahoo! has a new no-telecommuting rule. Here's why it may be unlawful — from Eric Meyer’s The Employer Handbook Blog
• No, I Don’t Care if Yahoo Lets Their Employees Work From Home or Not — from YourHRGuy
• Yahoo in “damage control” after leak of memo banning telecommuting — from Ragan.com
• Telecommuting: Should You Allow It? — from ERC Insights Blog
• Do You Work From Home? — from Lifehacker

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

Discrimination

• The March Toward a Bullying Cause of Action Continues — from Michael Fox’s Jottings By An Employer’s Lawyer
• FMLA, Title VII and Male Caregiver Discrimination — from i-Sight Investigation Software Blog
• I’ll be darned! Court finds that random alcohol tests don't always violate the ADA — from Robin Shea’s Employment and Labor Insider
• You’re Damned if You or Your Managers Have Sex with Your Employees. — from damnedif

Social Media & Workplace Technology

• Facebook Password “Privacy” Bill Is An Answer In Search of a Problem — from Dan Schwartz’s Connecticut Employment Law Blog
• iPhone search warrant shows just how much information is on a cellphone — from The Verge
• BYOD Part 4: Developing a BYOD Program — from Employment & Human Rights Law In Canada

HR & Employee Relations

• My boss isn’t compassionate about my sick leave — from Ask a Manager
• Work Hard, Play Hard: Your PTO Policy — from GMS Blog
• 5M Settlement for Background Check Claims: Employers, Listen Up! — from employeescreenIQ Blog
• Is Pre-Employment Screening (Slowly?) Being “Outlawed”? — from The Emplawyerologist
• Sex, Relationships & Romance at Work Are Awkward & Inappropriate — from Jessica Miller-Merrell’s Blogging4Jobs
• Do your employees understand at-will employment? — from Warren & Associates Blog

Wage & Hour

• “Everybody Is Doing It” Is Not a Valid Defense Under the FLSA — from Molly DiBianca’s Delaware Employment Law Blog
• Think You Need an Intern? Think Hard Before Signing One Up… — from Hiring & Firing
• DOL Seeks Comments On Independent Contractor Misclassification — from Laconic Law Blog
• Texas Federal Court Agrees With Employer: Gate Attendants Are Independent Contractors Within the Meaning of FLSA — from Wage and Hour Law Update
• What to Do When a Wage Hour Investigation Team Arrives to Start Auditing — from Wage & Hour Defense Blog
• Are liquidated damages discretionary in a retaliation case under the FLSA? — from Work Matters

Labor Relations

• The NLRB brings Goldilocks to the HR table — from John Holmquist’s Michigan Employment Law Connection
• Union Bailout Update — from Labor Relations Institute
• Confidentiality of witness statements no longer assured under new NLRB decision — from EmployerLINC

Until next week…

New FMLA forms, posters, coming next week

If you are an FMLA-covered business, you need to know that FMLA posters and forms you use are about to change.

The U.S. Department of Labor (DOL) recently issued new FMLA regulations. The substance of these new regulations, which go into place March 8, relate to the FMLA's military leave provisions and airline flight crew personnel. For your convenience, the DOL has prepared a side-by-side comparison of the old and new regulations.

Importantly, the regulations require covered employers to post a new, updated FMLA poster no later than March 8, 2013. The new poster is available for download at the DOL's website:

http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf 

Finally, the FMLA has also made available new certification, eligibility, and designation forms, which are also available for download on its website:

http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm

How long is too long for an unpaid medical leave of absence? Not two weeks and a day.

Unpaid medical leaves of absence are the bane of many employers. There should be little doubt that employers must consider an unpaid leave as a possible reasonable accommodation for an employee’s disability. Thus, when considering unpaid leaves, the key question typically isn’t if the leave should be granted, but, instead, for how long.

I don’t have an answer to the question, “For how long,” other than long enough to provide the employee a reasonable opportunity to return to work, and not forever. The answer depends on the facts and circumstances of each employee, each leave request, and each company. One answer I can provide with certainty, however, is that when an employee asks for “one more day” of unpaid leave, most often an employer will act unreasonably (and in violation of the ADA) by denying the request.

Such was the case with a recent settlement between the EEOC and a Maryland medical practice. Per the EEOC,

Doneen King, a medical practice representative whose duties included answering phone calls and scheduling appointments, was unable to work for two weeks while undergoing medical treatment for her disability, Crohn’s disease, including two emergency room visits and a hospitalization…. [W]hen King requested an additional day of unpaid leave as a reasonable accommodation, the medical practice instead terminated her.

University of Maryland Faculty Physicians, Inc.’ lateness and attendance policy violated the [ADA] because it did not provide for exceptions or modifications to the attendance policy as a reasonable accommodation for individuals with disabilities.

The medical practice paid $92,500 to the terminated employee. It also agreed to a three-year consent decree that prohibits it from violating the ADA, requires it to revise its attendance policy to permit disability-related accommodations, mandates management training on the ADA and reasonable accommodations, and obligates the employer to report to the EEOC on its compliance with the consent decree.

Spencer H. Lewis, Jr., district director of the EEOC’s Philadelphia District Office, provides the takeaway for employers: “It is not only a good business practice to provide reasonable and inexpensive accommodations that allow employees with disabilities to remain employed, it is required by federal law.” In other words, think long and hard before you deny a request for unpaid time off for an employee’s medical issue, and, when in doubt, call your employment counsel for a sanity check.

photo credit: Derek Bridges via photopin cc

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.