Has social media created too much workplace transparency?

I have two confessions to make: 1) I don’t read much anymore, at least not for pleasure. 2) I can’t do work on airplanes.

“How are these related,” you ask? I used to read a lot. Now, though, I do all my reading at work. After a long day of reading briefs, and motions, and cases, the last thing I want to do at night is read more. The only time I read is when I fly. I don’t enjoy business travel, but I do enjoy the few hours of solitude with a good book (unless the guy sitting next to me knocks back 4 vodka-OJs in the first 10 minutes of the flight and then falls asleep on my shoulder while he continuously passes wind — true story).

On Monday I was in Houston on an injunction hearing attempting to enforce a non-compete, which meant that on Sunday night and Monday evening, I had dedicated airplane-pleasure-reading time. My book of choice was The Circle, by Dave Eggers. It tells the story of a Bay-area company that has cornered the market on social media and e-commerce, through the eyes of one of its new superstar employees, Mae.

Early in Mae’s employment, she gets called into HR because she failed to respond to a co-worker’s online request that she attend his Portugal-themed party. Mae had, years earlier, posted pictures of a trip to Lisbon on her Circle page, which led this co-worker to believe that she liked all things Portuguese, which, in turn, caused his turmoil when she ignored his party invite.

I tell this part of the story in response to an article I came across yesterday on Philly.com, entitled, How social media has changed the way co-workers bond (hat tip Eric Meyer). The article hypothesizes:

Social networking has made it easier to form personal relationships with co-workers. On sites such as Facebook and Instagram, where people share their likes and dislikes, family photos and new hobbies, people gain insight into colleagues that could provide the basis for forging stronger workplace bonds.

Which is true. But, with transparency comes responsibility. What had previously been a trivial interpersonal matter (a declined invite) becomes a potential HR matter. How much you permit your employees to connect on social media sites will, in part, depend in how much of their personal lives you want leaking into your workplace, balanced against the ease of connectivity and relationship formation.

Nevertheless, today’s ignored invitation could be tomorrow’s harassment complaint. There is no right or wrong answer to this question. It is a decision guided by corporate culture and risk tolerance. What is important, however, is to make the decision and communicate it to your employees in your social media policy, so that everyone understands your culture and its impact on your social media expectations and limitations.

Oh, and go read The Circle. It’s fabulous.

Why we put plaintiffs to their proof

Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14), however, is much ado about nothing, but nevertheless reminds us of the importance of the process of litigation to the outcome of litigation.

John Vollene, a press room operator at World Color and member of his union’s bargaining committee, made several posts on his personal Facebook page critical of his employer. Vollene was Facebook friends with several co-workers, including his shift supervisor, Arvil Bingham. Shortly after Vollene’s posts, World Color’s employees voted to decertify the union. Shortly thereafter, the company reassigned Vollene as part of a restructuring of its pressroom operators. When Vollene asked Bingham why he was being reassigned, Bingham implied that management knew about his Facebook posts.

The NLRB concluded that Vollene had not proven that he had not been reassigned in retaliation for his Facebook posts, which could have constituted protected concerted activity:

However, the record here does not include a printout of Vollene’s posts, and it provides scant evidence regarding their nature. It reveals neither that the posts concerned terms and conditions of employment, nor that the posts were intended for, or in response to, Vollene’s coworkers. The testimony indicates only that Vollene posted unspecified criticisms of the Respondent and unspecified comments about the Union over a period of 5 or 6 months, and that he responded to another person’s initial post. The record does not identify that individual either by name or as a coworker. Based on this limited evidence, we will not infer that Vollene’s posts amounted to protected concerted activity. That Bingham’s statement implied that the Respondent had reacted adversely to critical posts is insufficient to bridge the evidentiary gap here.

Do not read too much into this decision. An employee’s Facebook posts critical of his or her employer can constitute concerted activity protected by section 7 of the NLRA. In this case, however, the NLRB concluded that because there was no evidence presented of the specific posts at-issue, or how Vollene’s co-workers responded to them. Thus, Vollene had not proven his case.

I have little doubt that if Vollene had put on evidence of the specific posts, and his co-workers reaction to them, this case could have turned out differently. This case serves as a good reminder of why we, as employers and their lawyers, put plaintiffs to their proof. A lawsuit is merely a collection of unproven facts. No law has been violated until a plaintiff  proves those facts through evidence. If the plaintiff doesn’t have the evidence to support the alleged facts, the plaintiff loses. That’s what happened here, which illustrates the importance of the litigation process to the outcome of cases.

Mind your internal emails to avoid discrimination issues

Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a “sex-plus” theory of discrimination to save a plaintiff’s race discrimination and sex discrimination claims from the summary-judgment scrap heap. “Sex-plus” recognizes that race and sex are not mutually exclusive, and protects African-American woman as a class of their own. I commend Shazor to your reading list for its interesting narrative on this issue.

I want to discuss, however, the other interesting aspect of Shazor—the evidence the plaintiff used to avoid summary judgment. She submitted various emails between two corporate executives, in which they unflatteringly referred to her as a “prima donna,” “disloyal, disrespectful,” and a “hellava bitch.” Shazor successfully argued that these emails were code for “angry black woman” or “uppity black woman.” The court used these emails as prima-facie evidence of discrimination in support of her “sex-plus” claim.

Emails is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

“I have a solution,” you say. “What about apps like Confide, which erases a text message as soon as the recipient reads it.”

While these apps seem like a perfect way to communicate under the radar, their use for business purposes gives me great pause. The intent of this class of apps is to delete communications. I could very easily see a court, confronted with evidence that people have this app on their iPhones and use it for business communications, have willfully destroyed evidence. Spoliation and evidence destruction discovery sanctions would result. For this reason, I believe that company mobile-device policies should police the use of apps like Confide, Snapchat, and their message erasing ilk. And, while your reviewing your policies, mix in some training for your employees about the responsible use of electronic communications.

Is obesity the same as a green mohawk?

It’s been a few months since I’ve written about the growing trend of plaintiffs trying to shoehorn obestity-discrimination claims under the Americans with Disabilities Act. At his Employer Handbook Blog, Eric Meyer brings us the story of Powell v. Gentiva Health Services, in which a 5’ 3”, 230 pound woman claimed that she was fired because her employer perceived her as disabled on account of her morbid obestiy.

The district court did not buy her argument, likening one’s obestity to a green mohawk:

Plaintiff’s argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an “undesirable” physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a “physical or mental impairment” within any rational definition of the phrase. 

The court continued, however, by envisioning a scenario in which weight could be an ADA-protected disability:

Of course, … an employer may perceive an employee’s overweight status to constitute a physical impairment. For example, suppose an employer believes that an overweight job applicant cannot climb a ladder, or walk across a parking lot, or climb flights of stairs, and therefore does not hire the overweight individual for a job that requires such activities. That might give rise to “regarded-as” status for an ADA claim in the post-ADAAA world. But that is not what we have here.… Powell points to not a shred of evidence that Gentiva viewed her weight as a physiological disorder that affected any of her body systems.  

Here’s where I think this court got this issue wrong. If making sales is an esential function of the job (and, given that Powell was a salesperson, it’s safe to assume that makes sales was an essential function of her job), then I don’t see how making sales is any different than climbing a ladder, at least as far as the ADA’s “regarded-as” scheme is concerned.

Powell did not lose her claim because the ADA does not protect obesity. Powell lost her claim because she had absolutely no evidence that her employer considered her obese, let alone considered her weight in making its decision to fire her.

Whether or not the ADA protects obesity as a disability is an issue that the courts will debate for years. While there is no clear answer, given the breadth of the ADA’s coverage, employers take a big risk when firing an overweight employee because of his or her weight. So, what’s the easy answer on how to handle this issue? Don’t take appearance into account when making employment decisions. Hiring and firing should be image-blind, performance-only decisions. If you stick to that principle, the obesity-as-disability debate should never enter your workplace.

WIRTW #308a (the “big block of cheese” edition)

Tomorrow marks the 177th anniversary of President Andrew Jackson opening the White House doors to the public to share his 1,400 pound block of cheese. You read that correctly. The President of the United States, (1) owned a 1,400 block of cheese; (2) which he kept in the White House; (3) the doors of which he opened to 10,000 Washingtonians; (4) who took all of two hours to devour it whole. Mental Floss has the entire story, which includes Old Hickory’s apparent love of all things cheddar.

Try to wrap your 2014 brain around that.

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

Discrimination

• Scales (Of Justice) Tip In Favor Of Employer On Overweight Employee’s ADA Claims — from The Employment Brief
• Gender-Neutral Employee Called “Miss” and “Lady” Files Lawsuit — from Phil Miles’s Lawffice Space
• What Can the ADA Do For You? Court “Delivers” Blow To UPS By Allowing EEOC’s Challenge To Its Leave Policy — from EEOC Year-End Countdown
• Prompt Handling Of Sex Harassment Complaint Keeps Safeway Safe — from The Employment Brief
• Does the EEOC Try To Intimidate Employers? — from Employment Discrimination Report
• She Looks Nice... Let’s Hire Her! — from Compensation Café
• 8th Circuit Holds "Stressed Out" Employee's Disability Discrimination Claims Fail When Nature of Job — from Wisconsin Employment & Labor Law Blog
• What’s a “sex-plus” claim? — from Warren & Associates Blog
• Am I Being Targeted For Layoff Due To My Age? — from Donna Ballman at AOL Jobs

HR & Employee Relations

• Miami Dolphins Investigation Good Example of Well-Done Internal Workplace Investigation — from WinWinHR
• Documents, documents, documents: What to keep, what to shred — from HR Hero Line
• There Were No Mice Available? Testing Noncompetes and Motivation in Settings That Don’t Sound Much Like Employment — from Currents: Hot Topics in Employment Law
• Waffle House Shows Atlanta How to Handle a Snowstorm — from You’re the Boss Blog
• Statistics Say We Should Take Friday Off From Work. All The Fridays, Forever And Ever. — from Upworthy

Wage & Hour

• What Happens At Home When Your Employee Takes FMLA Leave in Vegas? — from Dan Schwartz’s Connecticut Employment Law Blog
• Chefs and Employment Law: A Valentine’s Day Post — from Molly DiBianca’s Delaware Employment Law Blog
• 3 minor leaguers claim Major League Baseball violated the Fair Labor Standards Act — from Eric Meyer’s Employer Handbook Blog
• Donning and Doffing, Oh My. — from Michigan Employment Law
• Withholding Pay for Employees Who are Absent During Inclement Weather — from i-Sight Investigation Software Blog
• What does it mean to be salaried? — from Evil HR Lady, Suzanne Lucas
• If They’re Not On Your Payroll Do You Still Have to Pay Them Overtime??? — from The Emplawyerologist

Labor Relations

• Non-union employers should pay attention to the NLRB – here’s why — from Robin Shea’s Employment and Labor Insider
• Political Dirty Tricks Thwart Effort to Unionize Tennessee VW Plant — from Chris McKinney’s Texas Employment Law Blog
• Is a “new unionism” emerging in TN? — from The Human Race Horses
• Union THUGs Face the Fuzz — from LaborPains.org
• New NLRB rules coming, protests on the rise — from Mike Haberman’s Omega HR Solutions
• Past Practices: Usually Not an Employer’s Friend — from Matt Austin Labor Law

Do you know? OSHA protects employees from retaliation for reporting injuries

Like many states, Ohio has a statute that protects workers from retaliation for filing a workers’ compensation claim. But that statute is not the only one that protects the rights of employees injured on the job. OSHA also protects employees from retaliation for reporting workplace injuries.

Case in point: the U.S. Department of Labor recently filed suit against Ohio Bell, claiming that it wrongfully suspended 13 employees who had reported workplace injuries to their employer, according to the Cleveland Plain Dealer.

And, these cases are only becoming more prevalent. According to the Wall Street Journal, in the last decade the number of workplace injuries has decreased by 31 percent, while the number of retaliation claims stemming from workplace injuries has doubled. In other words, employees are getting hurt less, but claiming retaliation more.

The Plain Dealer article quotes Dr. David Michaels, assistant secretary of labor for occupational safety and health, “It is against the law for employers to discipline or suspend employees for reporting injuries.” I think we can agree with Dr. Michael that this type of retaliation is illegal and shouldn’t happen.

Let’s suppose, however, that this employer wasn’t disciplining employees for suffering on-the-job injuries, but instead was disciplining employees for violating established safety rules. Doesn’t an employer have a legitimate interest in enforcing its safety rules to deter future violations and create a safer workplace, even if it results in discipline or termination? How does an employer walk this line without arousing the DOL’s ire?

• For starters, you can treat all employees the same, based on the severity of the safety violation, and regardless of whether the injured employee self-reported the injury or not. Thus, you can start to build a case that safety, and not retaliation, guided your decision-making.

• And, you should make safety a priority. Have clear written safety rules for employees to follow. Train your employees on your rules and others safe-workplace principles. Institute regular safety meetings. Creating a workplace built around safety is not only better for your employees, but it will help you show that you prioritize safety, not retaliation, if an injured employee (or the government) brings suit.

In the meantime, know that the DOL is watching this issue, these types of claims are increasing, and you take a risk of a retaliation claim if you terminate an employee who reported a workplace injury.

Is there such a thing as online picket lines? Not according to the NLRB

When is a picket line not a picket line? Apparently when the protests take place online, at least according to the NLRB’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14) [pdf].

In the case, certain employees took to their union’s Facebook page to post threatened comments to co-workers who refused to participate in the union’s strike against their employer.

• Prior to the strike starting, one of the posts threatened, “THINKING of crossing the line. THINK AGAIN!” Sixteen people commented on that post, included one that wrote, “If u cross … you will lose your eyesight … from the 2 black eyes.”
• On the second day of the strike, another employee posted on the union’s Facebook page: “We found them!! We found out where they are housing the scabs.  We will be setting up lines at the hotel tomorrow.” Thirteen people comments on that post, including one that asked, “Can we bring the Molotov Cocktails this time?”

The employees argued that the union violated the National Labor Relations Act by not deleting or otherwise disavowing the statements posted on its Facebook page. The NLRB, however disagreed:

Respondent’s Facebook page is in no way “an electronic extension” of its picket line…. A picket line serves a purpose quite distinct from that of the Facebook page. A picket line proclaims to the public, in a highly visible way, that the striking union has a dispute with the employer, and thus seeks to enlist the public in its effort to place economic pressure on the employer….

In contrast, Respondent’s Facebook page does not serve to communicate a message to the public. To the contrary, it is private….

Unlike a website in cyberspace, an actual picket line confronts employees reporting for work with a stark and unavoidable choice: To cross or not to cross. Should someone acting as a union’s agent make a threat while on the picket line, the coercive effect is immediate and unattenuated because it falls on the ears of an employee who, at that very moment, must make a decision concerning the exercise of his Section 7 rights….

This decision displays a fundamental misunderstanding about social media. Nothing about social media is private. Is is public, interactive, and immediate. Even if the page on which the employees were posting was a “private” page or group, nothing stops employees from sharing the content via prints or screen caps. I am concerned that the agency that has taken such an active public stance regulating social media in the workplace appears to have such a fundamental misunderstanding about how this media operates.