It’s the final countdown: How the government shutdown affects labor and employment law

In case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.

For example, the Equal Employment Opportunity Commission:

1. Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
2. Will not conduct any investigations.
3. Will not mediate any charges.
4. Will not have staff available to answer questions or respond to correspondence.
5. Will not litigate, unless a court denies a request for extension of time.
6. Will not process any FOIA requests.

The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.

Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.

Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.

While it difficult to predict how long this shutdown will last. The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.

For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.

photo credit: G0SUB via photopin cc

What Kanye West can teach you about employee relations

Ragan.com recently asked this question: “When should you fire an employee for his tweets?”

As a management-side employment lawyer you’d think I’d tell you that private-sector employees have no privacy rights in what they post online, and that an employer has the right to fire any employee, at any time, for anything posted on a social network (with a big caveat under the National Labor Relations Act). More or less, that statement is legally correct.

But just because something is legally correct doesn’t make it practically prudent. Firing an employee for what they say online ignores the risk of harm to a business if the firing goes viral.

Case in point? Consider last week’s dust-up between Kanye West and Jimmy Kimmel. In case you’re not up on the latest gossip, Kanye gave the BBC a very (even for Kanye’s standards) self-aggrandizing interview, which Jimmy Kimmel mocked by having a little kid reenact the interview on his late-night talk show. Had it stopped there, the story would have likely died. But, Kanye took the story to his nearly 10 million Twitter followers, trashing Jimmy Kimmel in a series of progressively offensive tweets, which led to Kimmel devoting an entire monologue to eviscerating Kanye. (By the way, Kanye, 1) you’re not going to win a battle of wits with a stand-up comic, and 2) deleting all of your tweets does not erase them from every news outlet that’s already posted screen caps.)

The lesson here? Social media has the ability to turn a forgotten event into a viral nightmare. Certainly there are instances when you will have no choice but to fire someone for something posted online—for example, racist, sexist, or other inappropriate conduct, or breaches of confidentiality.

Take a look at Twitter, however, and realize how fast a tweet can disappear from a stream. Now, consider your employee, who likely has 5 or 10 followers, or even a few hundred Facebook friends. Given this limited reach, how likely is it that something an employee posts will hurt your business? If the answer is not-very-likely, then give serious consideration to ignoring it. Instead of firing an employee over some marginally inappropriate or improper post, consider providing all of your employees some training on responsible posting and other online activities. Turn a potentially viral and destructive situation into a positive learning experience.

WIRTW #290 (the “magnificent seven” edition)

I’m not going to lie; it’s nice when an organization recognizes my blog. The ABA Journal has honored me for the last three years by including me in its preeminent list of lawyer blogs, the Blawg 100. LexisNexis has also honored this blog, as have several others.

With that, I want to say thank you to Paralegal 411, which has compiled its own list of the Top 25 Employment Law Blogs, based on “website popularity metrics including the number of websites linking to them, Google Page Rank, website authority, and Twitter followers.” I came in at number 7. The other 24, many of whom are friends, are worth your time checking out.

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

Discrimination

• Association Is Not A Protected Category or Is It? — from Blogging4Jobs
• Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits — from EEOC Year-End Countdown
• Does the ADA mandate transfer preferences for disabled employees? — from Eric Meyer’s Employer Handbook Blog
• Is body odor a real disability? — from Business Management Daily
• Parties Petition SCOTUS to Hear Corporate Free Exercise Issue — from Phil Miles’s Lawffice Space
• What??? Even Informal, Oral Complaints Can Support an Employee’s Retaliation Claim??!! — from The Emplawyerologist
• Does Paramour Favoritism Constitute Discrimination? — from Minnesota Employer

Social Media & Workplace Technology

• Why Employers Should Love, Not Loathe, Social Media — from Molly DiBianca’s Delaware Employment Law Blog
• “Liking” on Facebook – The Internet Equivalent of a Yard Sign — from netWORKed Lawyers
• Step Right Up to the Paperless Law Office — from Attorney at Work
• Building a Secure Corporate Culture from the Top Down — from i-Sight Investigation Software Blog

HR & Employee Relations

• Dear Evil Skippy: Should I Hire The Cocktail Waitress? — from Evil Skippy at Work
• Should I Give a Bad Coworker a Reference? — from Lifehacker
• Mr. Forthright’s Tips On How To Pretend To Work At Work — from The Huffington Post
• The 3 Common Hiring Practices That Are Completely and Totally Wrong — from TLNT
• A Background Check is More Than a Price Tag: 3 Methods for Valuable Criminal Background Checks — from employeescreenIQ Blog

Wage & Hour

• Holiday pay - five things you should know when calculating holiday pay — from Employment Law Watch
• DOL Issues ERISA Guidance on Same-Sex Marriage; Is FMLA Guidance Next? — from Jeff Nowak’s FMLA Insights
• Law firms need not pay student interns for pro bono work — from Ross Runkel Report
• FMLA Certifications: What Do With an Incomplete or Insufficient Certification — from Employer Defense Law Blog

Labor Relations

• NLRAA (the extra A stands for app) — from HR idiot
• “Minority Unionism” Targets Employee Rights — from LaborPains.org
• Authorization Cards are Awfully Tricky — from Matt Austin Labor Law
• HR: Be sure your dress codes don’t violate the NLRA — from Warren & Associates Blog

Creating alternate avenues for employees to complain key to harassment prevention

In a story that reads more like an un-filmed script from The Office instead of an actual workplace, the EEOC announced that it has settled a sexual harassment lawsuit against an Atlanta-area cargo and freight transportation company. The female manager on whose behalf the EEOC filed suit alleged that the company’s owner and CEO subjected her to the following:

The harassment included a barrage of lewd sexual comments, gestures, and e-mails about the employee’s breasts, many of which were sent to other employees in the office. The CEO also kept a pair of rubber breasts on his desk along with a jar of Vaseline, visible to all employees and customers who visited the company facility.

As is often the case when an allegation of harassment involves a senior executive at a company, she claimed that management ignored her complaints.

This story illustrates two important and related points about an effective harassment-prevention program:

1. A effective anti-harassment policy must provide multiple avenues for an aggrieved employee to complain. Otherwise, an employee will feel powerless if the person to whom a policy directs her to complain also happens to be the alleged harasser. At a minimum, a policy should state that an employee can complain to HR, or to any supervisor, manager, or executive. In an ideal world, a company should also provide a telephone hotline and email account into which an employee can send complaint.

2. No amount of avenues to complain will make any difference if a company has a culture of covering up complaints levied against members of senior management. A company must take all harassment complaints seriously. It cannot ignore a complaint just because the alleged harasser also happens to be the company’s CEO.

Ensuring that your harassment-prevention program incorporates these two ideas will position your organization to deter and investigate all levels of harassment in your workplace, even that which starts at the very top.

The biggest pitfall of social recruiting

Jobvite recently the results of its 2013 Social Recruiting Survey. According to Jobvite, almost all recruiters are using some form of social networking to source candidates for jobs. Ninety-four percent of recruiters use, or plan to use, social media to recruit, and 78 percent have hired via social media.

Yet, as more companies use social media information to source job candidates, more companies expose themselves to legal risk from those same hiring decisions.

Case in point—according to Jobvite, 28 percent of recruiters report that they would react negatively to overly religious posts or tweets on a candidate’s social media profile.

Here’s the problem. It’s illegal—under Title VII and myriad parallel state civil rights laws—for a company to make an employment decision based on one’s religion. Thus, if a recruiter passes on a candidate because of the religious nature of a Facebook post or Tweet, that recruiter has exposed the employer to potential liability under Title VII’s religious protections.

Yet, as the chart above reveals, there is lots of good information to glean from an applicant’s social trail: references to illegal drug use, sexual posts, profanity, and poor communication skills. Thus, the dilemma for employers is how to avoid the risk of exposure to protected information, while allowing valuable, lawful information to filter through to the decision makers?

The answer? Don’t let anyone in the chain of hiring view candidates’ social media profiles. Train an employee who is insulated from the hiring process to do your social media searches, scrub all protected information, and provide a sanitized report to those responsible for making the hiring decision. That way, no one can argue that protected information posted on a social network illegally influenced a hiring decision.

[Hat tip: Lorene Schaefer’s Win-Win HR]

Is this legal? Employee fired for Instagramming paycheck

Wade Groom, a salesperson at Lacoste’s Midtown NYC store, posted this photo of his paycheck to his Instagram account. Included with the photo was the following caption:

Paycheck. Still silly to me. Ever since I was a kid I’ve thought it was completely insane that we have to work all our lives. I still feel that way. Especially when it’s only enough to live in a third world apartment with [sh**ty] everything. Which for some reason in NYC is ok. Anywhere else only trailer trash live this way. I’m done with it.

Despite the account being market “private,” a copy of the photo made its way to the corporate office. According to a report at metro.us, Groom was then summoned to meet with an HR manager, who fired him for breaking the company’s “confidentiality contract.”

I have two takeaways to share from this story.

1. Employees have an absolute right under the National Labor Relations Act to discuss with each other how much they make. It is violation of federal labor law to have a policy that prohibits wage discussions, or to fire an employee for engaging in such discussions. If Mr. Groom has any co-workers who follow him on Instagram (and it’s a safe bet that he does, since someone gave the private photo to management), then the company might have a big legal problem. Regardless of whether the termination is legal, a “confidentiality” policy that prohibits wage discussions violates the NLRA. Either way, Lacoste should be calling its labor counsel.

2. Nothing on social media in ever “private.” No matter how secure you believe your social media profiles are, all it takes is for one person to grab a screencap of something you think is private for it to become permanently public. If you don’t want your employer to see something, don’t post it.

Over the summer, I wrote how photo and video sites—like Instagram and Vine—could create huge headaches for employers with the NLRB. This story illustrates the risk employers take by ignoring these evolving technologies and their intersection with traditional labor and employment laws.

Can an employee assume the risk of harassment?

For the uninitiated, the Insane Clown Posse are rappers. They wear clown makeup, and perform songs titled, “Santa’s a Fat B**ch,” “Cherry Pie (I Need A Freak),” and “F**k the World.” It is an understatement to characterize their songs as violent and misogynistic. Don’t believe me? Then check out these lyrics, or this video (both decidedly NSFW).

So, here’s my question. What kind of workplace did Andrea Pellegrini think she would be getting when she took a job as attorney and publicist for ICP’s Psychopathic Records? According to her recently filed sexual harassment lawsuit, her bosses fired her after she complained, among other things, about being exposed to dildos and “vagina tighteners” in the workplace.

I believe that every employee has the right to a workplace free from harassment of any nature, including exposure to sexually explicit material. However, couldn’t Ms. Pellegrini have seen this coming before she accepted her job? Didn’t she know what she getting herself into? Her bosses are famous for writing and performing these lyrics:

F**k Celine Dion and f**k Dionne Warwick, you both make me sick, suck my d**k.

What did she expect!? Those who chose to work on a Quentin Tarantino movie should give up the right to complain about the language. Those who choose to work for Snoop Dog should give up the right to complain about second-hand smoke. And those who choose to work for Shaggy 2 Dope, Violent J, and Dirty Dan should give up the right to be free from sexually explicit content.

No employee should have to put up with a sexually harassing workplace. However, to succeed on a claim of sexual harassment, one must prove that she subjectively perceived the workplace as hostile. The trier of fact in this case should take a long, hard look at whether Ms. Pellegrini was really offended by this workplace, or whether she is taking advantage of a situation to file a lawsuit. Assumption of the risk is not a defense to a hostile work environment. Yet, maybe in this case it should be.

[Hat tip: Donna Ballman]