WIRTW #266 (the “Reader is dead … long live Feedly” edition)

Today, I’m going to break down the 4th wall. To the outside observer, these weekly Friday roundups appear incredibly time consuming to compile. Often, I’m asked, “How do you track all of the links you post in your Friday wraps, and how long does it take you to write that post?”

The truth is that my “WIRTW” are the easiest posts I write all week. During the week, I use my RSS reader to save all of the blog posts that I find interesting from the blogs to which I subscribe. Then, it’s nothing more than cut, paste, and a little sorting to make the magic happen every Friday.

“What is RSS,” you ask? RSS stands for Really Simple Syndication. It is a web format used to publish frequently updated works—such as blog entries, news headlines, audio, and video. RSS feeds let publisher automatically syndicate content, typically through a feed reader. Users subscribe to a website’s RSS feed, and the site automatically pushes updates to the reader upon publication. In other words, instead of checking hundreds of websites each date, RSS lets me check one (my feed reader), which automatically updates every time a site to which I have subscribed publishes new content.

Up until this week, my RSS app of choice was Google Reader. Heck, I think it was the RSS app of choice of 99% of the blog-reading community. Then, tragedy struck. Google announced that it was closing Reader. My initial thought was how the heck am I going to keep writing “WIRTW” without my trusty Google Reader.

Then, I found Feedly. Feedly should be the go-to blog reading app for anyone who used Google Reader. Since Google announced Reader’s closure, 500,000 users (including me) have flocked to Feedly. Feedly was even so nice as to post an 8-step guide to migrating from Reader.

So, if you receive updated to my blog via RSS, I suggest you jump over to Feedly, import your Google Reader account through its automated process, and keep on reading as if nothing’s changed.

If you are new to the RSS game, give it a try. It will likely revolutionize how you consume Internet content. Or, you can always subscribe the old-fashioned way, via my daily email newsletter.

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

Discrimination

• Can We Be a Christian Company? — from Current Employment
• Man fired over zero-tolerance sexual harassment policy loses appeal — from West Virginia Record
• Dear Evil Skippy: Is It Harassment To Post Pictures Of The New Pope? — from Evil Skippy at Work
• Is rejecting a sexual advance, without reporting it, protected activity? — from The Employer Handbook Blog
• When Bad Things Happen to Good Employers: An Equal Employment Opportunity — from HR Defense Blog
• Can Body Odor Fall Under Religious Protection? — from Evil HR Lady
• Is the EEOC Really Out to Force Employers to Hire Applicants with Criminal Histories? — from The Emplawyerologist
• Survey Says: Criminal Records Aren’t Automatic Disqualifiers for Employers — from EmployeeScreenIQ Blog

Social Media & Workplace Technology

• Don’t Ignore The Risks Of BYOD Programs — from Employment Law Watch
• Court: Hijacking ex-employee’s LinkedIn account violates PA law — from Ars Technica
• More Trouble With Work-Related Social Media Accounts — from Socially Aware Blog
• Ex-BP Engineer Accused Of Deleting Voicemails — from The Huffington Post

HR & Employee Relations

• Non-competes: HR’s version of the Prenup — from Fistful of Talent
• Office Pools in Connecticut: Jump In? Maybe — from Connecticut Employment Law Blog
• Mediating Non-Compete Disputes in the Medical Device Industry — from Non-Compete and Trade Secrets
• Electronic Cigarettes in the Workplace — from Minnesota Employer
• Employees: You Have The Right To Say No — from Screw You Guys, I’m Going Home
• Workplace Investigations: Assessing Witness Credibility from WinWinHR
• Firing for insubordination – the right way — from HR Cafe

Wage & Hour 

• Supreme Court Rejects Plaintiff’s Attempt to De-CAFA-nate Class Action Lawsuit — from The Wage and Hour Litigation Blog
• Court Rules That Third Party Administrators Can Be Held Liable for FMLA-Related — from FMLA Insights

Labor Relations

• Can’t Say You’re Coming in if You’re Going to Strike — from Labor & Employment Law Perspectives
• NLRB Lightens Grip on At-Will Language in Employer Handbooks? — from Labor Relations Institute

How NOT to respond to a harassment complaint

An employee walks into your office and makes the following statement: “During my interview for a promotion, the CEO asked me about Asian massages and happy endings. I didn’t get the promotion, and now I feel that I was sexually harassed.”

What do you do?

1. Launch an immediate investigation into the CEO’s comments, and take the prompt, remedial action necessary to ensure he doesn’t recidivate?
2. Ignore the company’s written harassment policy and trust your “intuition and instinct” to conclude that nothing needs to be done?

If you chose #1, you would have acted prudently and within the law to exercise your responsibilities under Title VII and to protect your company from liability for sexual harassment. If you chose #2, as the employer did in Volland v. Mobile Mini (D. Ariz. 7/16/12), you would cost your company a chance at having the case dismissed on summary judgment, resulting in a costly and risky jury trial, or expensive settlement.

That’s how not to respond to a harassment complaint.

But, do you know what you should do when that complaint lands on your desk? Here are 8 steps you should be taking.

1. If you are not the person in your organization trained to address and investigation these situations, immediately refer the matter to the person who is. If no one is, hire a consultant or attorney who specializes in these issues to do the investigation for you. One word of caution. If you hire an attorney to do the investigation, do not make the mistake of assuming that the investigation will be privileged. It likely won’t be.
2. Separate the complaining employee from the accused harasser. If that means you need to send someone home, with pay, while you complete the investigation, so be it. Better you eat a few days pay than risk the accused making matters worse by harassing again.
3. As soon as possible, interview the complaining employee (or, if someone else made the complaint, the victim), the accused, and any witnesses.
4. Compile and review any pertinent documents. Don’t forget social media accounts, email, and text messages. They are your best friends in these cases.
5. Guard against retaliation, and ensure all employees that their participation will be free of retaliation.
6. Review all information and make a reasoned decision as to the credibility of those involved and what happened.
7. Take prompt and effective remedial action, and communicate your conclusions to the complaining employee.
8. Document the investigation.

Following these steps will go a long way to minimizing your company’s potential liability for harassment claims. Additionally, you will foster a work environment in which your employees know that harassment is not condoned, and misconduct is promptly investigated and resolved.

This post originally appeared on The Legal Workplace Blog.

Accommodating disabled job applicants is no game

When we think of employers’ reasonable accommodation obligations under the ADA, we usually think in terms of accommodating current employees. The ADA, however, equally extends this obligation to job applicants.

A recent lawsuit filed by the EEOC against Toys “R” Us illustrates this issue:

The EEOC charged that Shakirra Thomas, who is deaf, applied for a team member position at the retailer’s Columbia, Md., store in October 2011. Thomas communicates by using American Sign Language, reading lips and through written word. When the company contacted Thomas to attend a group interview, Thomas’s mother advised that Thomas was deaf and requested the company to provide an interpreter for the interview. The retailer refused and said that if Thomas wished to attend a group interview in November 2011, then she would have to provide her own interpreter, the EEOC alleges.

Thomas’s mother interpreted for her during a group interview, but the company refused to hire Thomas despite her qualifications for and ability to perform the team member position, with or without a reasonable accommodation, the EEOC said in its lawsuit.

What is the takeaway for employers? Don’t conflate the need for a job-related accommodation with an interview-related accommodation. If a job applicant need an accommodation to complete the interview process, and it does not impose an undue burden, provide it. If it turns out that someone cannot perform the essential functions of the job even with an accommodation, you are within your rights to deny employment. You cannot make that determination, however, unless you consider them for the job first.

At least we’re not France

I like France. I like French fries, French toast, and French wine (although not necessarily all at the same time). Today, I have another reason to like France. It has provided a fabulous reality check. No matter how bad off we believe labor relations are in this county, at least we don’t have the problems the French do.

From USA Today:

A law working its way through [the French] parliament would grant amnesty to workers who have ransacked their company's offices or threatened their bosses during a labor dispute…. In the next few weeks, the bill will be taken up by parliament's lower house, the National Assembly, where parties on the left have a substantial majority.

The amnesty would apply to people who caused property damage, issued threats or defamed management during a labor or housing dispute over the last six years, and were sentenced to five years in prison or less. Acts that caused physical harm to someone else would not be covered.

I've spilled a lot of digital ink railing against the pro-union agenda of the National Labor Relations Board. I’m not saying I’m going to stop. But, stories like this one at least make me grateful that my clients aren’t French.

See Me, hear me: Upcoming speaking engagements

Every now and then, I like to update everyone where you can see or hear me wax poetically on all things employment law.

Let’s start with tomorrow (March 19), when I’ll make my triumphant return to DriveThruHR, one of the web’s most popular radio shows discussing human resources. You can listen live at  1 pm on Blog Talk Radio or on DriveThruHR.com. You can also follow the conversation on Twitter @drivethruhr and with the hashtag #dthr.

Here’s what else I have planned through the summer:

• On April 11, I’ll be presenting Think Before You Click: Strategies for Managing Social Media in the Workplace for HR.com. It is a free webinar to all registered HR.com members (which itself is free). Registration information is available here.

• On April 23, I’ll in Chicago presenting, Is it Legal? Managing Legal Risks while Working with Legal to Build a Flexible Social Media Policy, at GSMI Social Media Strategies Summit. Information on the conference, including resigstration, is available here.

• On April 25, I’m at the Cleveland Metropolitan Bar Association 13th Annual Northern Ohio Labor & Employment Law Conference. I’ve been tasked with what I consider the Keynote, entitled, Federal and State 2012 Employment Law Update: Is Your Client Ready for This?

• Finally, I’m in NYC on July 31, presenting at the ACI Employment Discrimination Conference as part of a panel entitled, Social Media and Employment Law: Best Practices for Establishing a Social Media Employee Policy and Minimizing Exposure to Employment Litigation Arising from the Use of Social Media.

You can also keep up to date on where I am appearing throughout the year at the Speaking Engagements link at the top of the page. The page also indexes all of my old gigs.

If you are in attendance at any of the live events, please stop by and say hello.

Paying employees for accrued vacation upon termination—Yay or Nay?

One of the questions clients most frequently ask me is whether they have an obligation to pay employees for accrued, unused vacation days at the end of their employment. My default answer always is, “It depends. What does your handbook or vacation policy say?”

Under Ohio law, the default rule is as follows.

• If an employer has no policy under which an employee forfeits unused vacation time or other paid time off at the end of employment, an employer must pay out any unused time.
• If, however, an employer has a clear policy providing that paid vacation time or other paid time off is forfeited on resignation or discharge, then an employer is not obligated to pay out any unused time upon termination.

What does a policy look like that entitles an employer to withhold accrued, unused vacation time or other paid time off as a forfeiture at the end of employment? The employer in Broadstock v. Elmwood at the Springs (Ohio Ct. App. 3/15/13) [pdf] had the following policy:

When a team member leaves Elmwood, all accrued vacation time is paid to the end of the last pay period provided the team member requests the pay; a two (2) week notice is given and fulfilled; an exit conference has been conducted; all items (keys, uniforms, badges) have been returned; and the team member has not been terminated. (Emphasis added.)

According to the court, the employee handbook clearly stated that accrued vacation is forfeited to an employee upon termination. The employee was terminated. Therefore, the court held that the she was not entitled to her accrued vacation time.

To me, however, such as policy is draconian and overbearing. Instead, consider limiting vacation and other paid time off forfeitures to “for cause” terminations. In that case, you won’t benefit employees who lose their jobs because through their own misconduct, but you also won’t be punishing employees who lose their jobs through no fault of their own (i.e., downsizing, restructuring, etc.).

WIRTW #265 (the “Ides of March” edition)

Caesar:
Who is it in the press that calls on me?
I hear a tongue shriller than all the music
Cry “Caesar!” Speak, Caesar is turn’d to hear.

Soothsayer:
Beware the ides of March.

Caesar:
What man is that?

Brutus:
A soothsayer bids you beware the ides of March.

Julius Caesar Act 1, scene 2, 15–19

Today is March 15, the ideas of March. Two years ago, I used this day’s history to provide a lesson to employers of 10 types of problem employees to avoid in your workplaces. It’s worth reviewing.

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

Discrimination

• When Pregnancy Disability Leave Is Not Enough — from Hunton Employment & Labor Law Perspectives™
• Re-Visiting Leave as a Reasonable Accommodation Under the Americans with Disabilities Act — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Dear Evil Skippy: Is A Visit From Ellen’s Underwear Model Workplace Harassment? — from Evil Skippy at Work
• Applications and convictions: A new proposal — from John Holmquist’s Michigan Employment Law Connection
• Background Checks and the EEOC: Navigating the Minefield — from The Emplawyerologist
• “How Not To Handle A Sexual Harassment Charge”—A Case Study Involving The Mayor Of Toronto — from Employment Discrimination Report
• An EEOC complaint is not your free pass to goof off at work — from Eric Meyer’s The Employer Handbook Blog
• 3 Ways to Avoid Employment Discrimination Claims in 2013 — from i-Sight

Social Media & Workplace Technology

• Are You Googling Job Candidates? When You Do, Everyone Loses — from TLNT
• Nuts and Bolts for Terms Commonly Used in Trade Secret Computer Forensic Investigations — from Trading Secrets
• EEOC Sanctioned for Failure to Produce Social-Media Evidence — from Molly DiBianca’s Delaware Employment Law Blog
• When your company wants to hijack your social media accounts — from Ask a Manager
• Productivity and Technology – A Marriage Made in Heaven? Maybe Not from netWORKed Lawyers

HR & Employee Relations

• A Culture of Work or a Culture of Clock? — from Mike Haberman’s Omega HR Solutions
• You Don’t Always Have to Give Two Weeks Notice When Leaving Your Job — from Lifehacker
• More and More Workers Demanding Paid Sick Days — from Workplace Fairness
• Do you allow smoke breaks? — from The Tim Sackett Project

Wage & Hour

• Dog Days (of Winter) are Over: Audits for Worker Misclassification On Increase  — from Dan Schwartz’s Connecticut Employment Law Blog
• The Attack of the Unpaid Interns — from Overtime Advisor
• Are Journalists Exempt From Overtime? — from Donna Ballman’s Screw You Guys, I’m Going Home
• If You Complain To Your Employer About Overtime Pay Violations, Are You Protected From Retaliation? — from Overtime Lawyer Blog
• 5 Things You Need to Know about Hiring Contractors — from Evil HR Lady, Suzanne Lucas
• 20 Years Later, is FMLA Working? — from Stephanie Thomas at Compensation Café

Labor Relations

• NLRB to Seek SCOTUS Review of Noel Canning — from Phil Miles’s Lawffice Space
• NLRB Lightens Grip on At-Will Language in Employer Handbooks — from The National Law Review