WIRTW #295 (the “flu” edition)

Flu season is upon us. Do you know, that according to the Walgreens Flu Impact Report [pdf], U.S. adults missed 230 million work days during last year’s flu season? Some additional findings of note:

• In 2012 – 2013, the flu cost U.S. employers $30.4 billion
• Employees missed, on average, three days of work because of the flu
• Three out of four respondents indicated they were personally impacted by the flu last year

What can you do about this? You likely can require your employees to receive flu shots, unless an ADA disability or sincerely held religious belief precludes one from receiving the vaccine. Better yet, offer vaccinations free of charge to your employees, right in your workplace. The cost of the vaccines and a nurse to administer them will pay for itself if it keeps even one employee from missing work.

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

Discrimination

• Dear Evil Skippy: An Employee Says She Will Sue If We Observe “Satan’s Halloween” — from Evil Skippy at Work
• Don't Forget About Religious Discrimination When Throwing Your Office Halloween Party — from Workplace Fairness
• Target Wants to Hire More Ex-Offenders? Minnesota-based Company is Banning the Box — from employeescreenIQ Blog
• How not to respond when an employee complains about sexual harassment — from Eric Meyer’s The Employer Handbook Blog
• Deaf Applicant’s Rights Violated, EEOC Says in Announcing ADA Settlement With Toys “R” Us — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• On our wearable technological future workplace — from Steve Boese’s HR Technology
• Your Employees Are (Still) Stealing Your Data — from Molly DiBianca’s Delaware Employment Law Blog
• Anonymous Tweets Result in High Profile Termination — from netWORKed Lawyers
• What is the right social media policy for your company? — from Ragan.com
• This Map Shows State-by-State Penalties for Texting While Driving — from Lifehacker
• Ohio Teacher Goes On Racist Facebook Halloween Rant — from from Gawker

HR & Employee Relations

• “Yes, It’s Legal.” But Is It a Good Idea? — from Dan Schwartz’s Connecticut Employment Law Blog
• Motel-sex injury doesn’t merit workers’ compensation, Australian high court rules — from ABA Journal Daily News
• 8 HR Policies Every Startup Should Have in Place — from MonsterThinking
• 5 hiring practices you should stop today — from Ask a Manager
• Workplace “boo”-boos – when Halloween in the office gets scary — from HR idiot
• Enforceable Noncompete Agreement Key to $2 Million Judgment Against Former Employee — from Michigan Employment Law Advisor
• Trade Secret Protection: Tips for Protecting Your Company’s “Secret Sauce” — from In-house ACCess

Wage & Hour

• Indefinite Leave — from Work Place Coach Blog News
• Obamacare Individual Mandate Extension — from Phil Miles’s Lawffice Space
• FLSA Investigations Result In Criminal Convictions — from Wage and Hour Laws Blog

Labor Relations

• Rule Against Non-Union Workplace “Disruptions” Can Run Afoul of NLRA — from Currents: Hot Topics in Employment Law
• Employees with Smartphones: An Employer’s Nightmare; the NLRB’s Dream — from Matt Austin Labor Law

How to avoid turning your costume party into an HR nightmare

Today is Halloween. Truth be told, Halloween is one of my least favorite holidays. It always has been and always will be. I never liked it, even as a kid. Sure, all the candy was fun, but I just never got into the whole dress-up thing. As an adult, I like it even less. Not to be a Halloween scrooge, but I can’t even get into the holiday for my kids (this year, going as Mike Wazowski and a rock star), although I trudge though it for them.

A lot of people are into Halloween, and some are really into Halloween. It’s the holiday on which we spend more than any holiday other than Christmas. And, a lot of your workplaces will be having Halloween parties. Some of the parties will request that you dress up for the occasion. If you happen to work in one of the workplaces, you have my sympathies. You also have my top 5 tips to avoid turning your innocent costume party into an HR horror show.

1. Be appropriate. Racist costumes have no roll anywhere, especially in the workplace.

2. Be appropriate (number 2). If the name of your costume starts with “Slutty” or “Naughty” or some other similar adjective, pick another costume. Costumes like “Carlos Danger” (aka sexting Anthony Weiner), or anything else overtly sexual, are also really bad ideas.

3. Can you work in your costume? It may be really cute or clever dressing up as an iPhone, but if it hinders your ability to do even the simplest of tasks (like sitting at your desk), then it’s probably not the right costume for work. Make-up and masks, while impressive and scary, are probably best left at home.

4. Avoid dangerous costumes. No, I’m not talking about Leatherface with a real chainsaw (although that’s also a bad idea). I’m talking about long wigs, feather boas, or other materials that could get caught in dangerous equipment, for example.

5. Are you thinking about dressing up like a coworker or your boss? Does that individual have a good sense of humor? Are they going to take it the right way? You better be 100 percent sure before you don that mimicry.

Do you employ minors? Then read this sexual harassment case.

R.W., age 16, worked at Land of Illusion, a haunted theme park. She reported to Brett Oakley—48 years old—the park’s owner and a friend of her dad. R.W. claimed that while at work one night, Oakley began discussing with her whether she uses birth control, feigned shock that she was still a virgin, and offered to take her to a hotel in Kentucky “for the experience of a lifetime,” to “show her what real sex is like.” Ick.

In Ward v. Oakley (Butler Ct. App. 10/28/13) [pdf], the court of appeals reversed the trial court’s grant of summary judgment to the employer. Even though the court concluded that the alleged harassment constituted one single incident, it was sufficiently severe such that a jury could conclude that it constituted a hostile work environment.

The lack of multiple incidents must be balanced against the objective severity of Oakley's alleged conduct. Here, viewing the evidence in a light most favorable to Ward, a 16-year-old girl was subjected to a thinly veiled solicitation for sex by a long-time, close family friend who was 32 years her senior…. As Oakley was the owner of the company, there was no one for R.W. to turn to for redress. Oakley placed R.W. in the untenable position of choosing between continued exposure to Oakley or jeopardizing her employment at Land of Illusion and that of Ward and her stepmother. This conduct eclipses the threshold of severity required to defeat summary judgment.

Do you employee teens in your workplace? If so, consider these nine tips from the EEOC on how to combat sexual harassment facing our youngest workers:

1. Encourage open, positive and respectful interactions with young workers.
2. Remember that awareness, through early education and communication, is the key to prevention.
3. Establish a strong corporate policy for handling complaints.
4. Provide alternate avenues to report complaints and identify appropriate staff to contact.
5. Encourage young workers to come forward with concerns and protect from retaliation employees who report problems or otherwise participate in EEO investigations.
6. Post company policies on discrimination and complaint processing in visible locations, such as near the time clock or break area, or include the information in a young worker’s first paycheck.
7. Clearly communicate, update, and reinforce discrimination policies and procedures in a language and manner young workers can understand.
8. Provide early training to managers and employees, especially front-line supervisors.
9. Consider hosting an information seminar for the parents or guardians of teens working for the organization.

Halting the tide of religious-discrimination claims

According to the Wall Street Journal, religious-discrimination claims are on the rise.

Companies big and small are being affected by the complex intermixing of work and faith. The trend toward a seven-day workweek sometimes treads on the Sabbath. Religious garb and grooming clash with dress codes. Job duties that intersect with changing public policies—for instance, issuing a marriage license to a gay couple—test some workers’ adherence to their religious beliefs.

While religious-discrimination claims only comprise a small portion of all charges filed with the EEOC, they have more than doubled over the past 15 years, growing at a rate faster than race or sex claims.

These claims are not going away. Indeed, a recent survey by the Tanenbaum Center for Interreligious Understanding, entitled,  “What American Workers Really Think About Religion,” concluded that religious discrimination is rampant in the American workplace.

Some the survey’s more eye-opening findings include:

• Nearly half of non-Christians surveyed (49%) believe that their employers are ignoring their religious needs.
• Employees in companies without religious diversity policies are almost twice as likely to be searching for another job as their counterparts in companies with policies.
• Among American workers at companies where religious bias had been reported to managers or human resources, nearly one-third of workers report that the company took no actions to stop the bias.
• Nearly six out of ten atheists (59%) believe that people look down on their beliefs, as do nearly one-third of non-Christian religious workers (31%) and white evangelical Protestants (32%).
• Atheists (55%) are substantially more likely than workers in any other group to report that they themselves face a lot of discrimination today. Unlike white evangelical Protestants, however, atheists are also more likely than workers overall to believe that Muslims (66%), gay and lesbian people (63%), Hispanics (50%), and women (39%) experience a lot of discrimination.

What can you do to make your workplace religiously diverse and tolerant, so that you are not a target for these claims (also via the Tanenbaum Center)?

1. Ask: When an employee comes to work in a turban, find out if this is due to a sincerely held religious belief. If so, you should try to accommodate (unless it causes too big of a burden).

2. Respect Differences: Americans don’t know much about others’ religions. Tensions often arise around religious difference because of a lack of information or misinformation. If your employees need information to understand different faiths and to make co-workers feel welcome, make it available.

3. Communicate: Do you have written policy on religious accommodation. The Tanenbaum Center suggests that the mere existence of a written policy on religion, in itself, reduces the perception of bias in the workplace. Of course, merely having a policy is never enough. You must communicate it to your employees and enforce it when the need arises.

4. Think Outside the Box: When an employee requests a religious accommodation, think creatively about how to meet the needs of the employee and the needs of the company. Communication and compromise are key. Unless you talk, you cannot know what your employee needs and your employee cannot know what you’re willing to offer. Is these circumstances, lack of communication (and not intentional discrimination) is the root cause of most lawsuits.

Yes, it’s legal… (10 more things companies can do without breaking the law) #yesitslegal

Every now and then, I come across a blog post that I wish I had written. Last Friday, I read one of those posts.

Suzanne Lucas (aka, the Evil HR Lady) and Alison Green (aka, Ask A Manager) jointly wrote a post entitled, Yes, it’s legal … queries from a combined 13 years of blogging about the workplace. The post lists 62 different things—some commonplace (“It’s legal to require overtime.”), and some unusual (“It’s legal for your manager to make you clean up rat poo.”).

I loved the post so much, I thought I’d add 10 of my own (shamelessly built around the themes from the 10 chapters in my book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law).

1. It’s legal to refuse to hire a felon.

2. It’s legal to refuse to let you bring a representative into your disciplinary meeting (as long as it’s a non-union shop).

3. It’s legal to close our business.

4. It’s legal to change our handbook as often as we want (and hold you to the new policies).

5. It’s legal to impose a punishment less than termination on a perpetrator of harassment.

6. It’s legal to fire you if you work unauthorized overtime.

7. It’s legal to tell you why we don’t like labor unions.

8. It’s legal to replace you while you're on a leave of absence (as long as the leave isn’t FMLA-protected).

9. It‘s legal to refuse to hire someone who won’t sign a non-compete.

10. It’s legal to oppose your claim for unemployment.

How about you? What would you add to the list? Leave your thoughts in the comments below, or tweet it with the hashtag, #yesitslegal.

WIRTW #294 (the “all I want” edition)

Satellite radio has so overplayed Kodaline’s All I Want that, even though I like the song, I instinctively switch channels any time it comes on.

Then, I saw the video:

The lesson for employers and employees to take to heart? What defines a person is one’s actions, not one’s appearance. (And, apparently, that sexual harassment laws are much different in Ireland that here in the States. I’d love to hear from an Irish employment lawyer on this point.)

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

Discrimination

• “Derailers” and Employment Liability: Or, How to Get Out of the Way Before the Train Jumps its Tracks — from Intown Employer
• Going to the press with an employment dispute = “retaliation”? — from Walter Olson’s Overlawyered
• Triggering the Duty of Accommodating Religion — from Workplace Prof Blog
• Timely Attendance Isn’t An Essential Job Function?!? — from Currents: Hot Topics in Employment Law

Social Media & Workplace Technology

• Strong Computer Usage Policy Strengthen Claims Against Former Employees — from All in a Day’s Work
• How Did the White House Unmask Its Internal Twitter Critic? — from Shear on Social Media Law
• 11th Cir. Upholds Facebook Discipline of Police Officer — from Molly DiBianca’s Delaware Employment Law Blog
• Nearly half of employers investigate job applicants online — from Eric Meyer’s The Employer Handbook Blog
• Fired worker loses smartphone privileges for 3 years for hacking into law firm’s server — from ABA Journal Daily News
• Privacy Suit Over Hidden Cameras in Workplace Bathrooms Reinstated — from Law.com

HR & Employee Relations

• Mandatory Flu Shots for Employees in Connecticut: Fact vs. Fiction — from Dan Schwartz’s Connecticut Employment Law Blog
• The SCOTUS Case That Could Give Voice to More Whistleblowers — from Harvard Business Review
• 5 Ways Your Workplace Bully May Be Breaking The Law — from Screw You Guys, I’m Going Home
• Dress Codes and Grooming Codes in the Workplace — from Blogging4Jobs
• The 5 Biggest Lies In HR — from The HR Capitalist, Kris Dunn
• Work-life balance: workplace flexibility is trending in the US — from Employment Intelligence
• Sexual abuse: Getting your employees to do the right thing — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Preview of future overtime lawsuits? — from EmployerLINC
• Are Your Non-Exempt Employees Properly Compensated for All of Their Work Time? — from Labor & Employment Law Perspectives
• With FMLA audits on the rise – How do US employers stay prepared? — from Employment Intelligence

Labor Relations

• Why Some Companies Want a Unionized Workforce — from Matt Austin Labor Law
• Federal Shutdown Ended, National Labor Relations Board to Resume Full Operations Today — from Labor Relations Today

The legal reason why you shouldn’t force employees to turn over social media passwords

There has been a lot of ink spilled out on the supposed practice of employers requiring employees to provide access to their private social media accounts. I’ve long espoused both that this practice is not occurring with sufficient regularity to justify a legislative fix (despite New Jersey just becoming the 12th state to enact a legislative ban), and that employers should nevertheless avoid this practice because it erodes the trust that is necessary to build a workable employer/employee relationship.

Ehling v. Monmouth-Ocean Hospital Service Corp. (D.N.J. 8/20/13) provides further legal justification for employers to avoid this practice.

Deborah Ehling worked as a registered nurse and paramedic for MONOC beginning in 2004. Beginning in 2008, Ehling maintained a Facebook account with approximately 300 “friends.” She chose restrictive privacy settings on that account so that only her Facebook friend could see her wall posts. While Ehling had no MONOC managers as Facebook friends, she did add many coworkers, including a paramedic named Tim Ronco. Unbeknownst to Ehling, Ronco was taking screenshots of her Facebook wall and printing them or emailing them to MONOC manager Andrew Caruso. Caruso never asked Ronco for information about Ehling, and never requested that Ronco share Ehling’s Facebook activity. Nevertheless, once Caruso received copies of the Facebook posts, he passed them on to MONOC’s Executive Director of Administration.

On June 8, 2009, Ehling posted the following statement to her Facebook wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.

After MONOC management learned of the post, it temporarily suspended Ehling with pay. After MONOC fired Ehling for unrelated attendance issues, she sued, and claimed, among other things, that MONOC’s access of her private Facebook wall violated the Stored Communications Act and her common law right to privacy.

The SCA covers (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. The Court had little issue concluding that the SCA covers non-public Facebook wall posts.

The SCA, however, has an exception for “authorized users.” This exception applies where (1) access to the communication was “authorized,” without coercion or pressure, (2) “by a user of that service,” (3) “with respect to a communication … intended for that user.” Ehling had no evidence to support her claim that MONOC’s access of her Facebook page was unauthorized. To the contrary, the evidence showed that Ronco voluntarily shared the information with Caruso, and, therefore, was “authorized” under the SCA. Thus, no violation of the SCA occurred via MONOC’s possession of wall posts from Ehling’s private Facebook page.

The Court disposed of Ehling’s invasion of privacy claim on similar grounds. In doing so, however, the Court made the following interesting observation:

The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook. Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else … This may have been a violation of trust, but it was not a violation of privacy.

In other words, the Court may have found a privacy invasion if the employer had used surreptitious or coercive means to gain access to its employee’s Facebook page. Thus, whether or not a statute specifically prohibits employers from requiring the disclosure of social media account information, this court makes it clear that an employer’s demand of such information is nevertheless illegal. Or, to put it another way, please don’t ask your employees to turn over their online passwords.

This post originally appeared on The Legal Workplace Blog.