WIRTW #311 (the “bossy” edition)

Earlier this week Facebook COO Sheryl Sandberg launched BanBossy.com. She believes that “bossy” is to aspiring female leaders as the n-word is to African-Americans. Sandberg argues that banning people from calling young women bossy will help give them the confidence to lead when they are older.

What a bunch of bunk. You know what will give young women the confidence to lead? Providing them opportunities to lead. How about we focus more on the percentage of female leaders at Fortune 500 companies (a paltry 16.9% of corporate board members, 14.6% of Executive Officer positions, and 4.6% of CEOs) instead of the words we choose to call those who might some day aspire to bridge that gap?

Words are just words. Banning them, no matter how offensive they might be, doesn’t change the underlying thoughts and the resulting behavior. Do you know what happens when you ban a word like “nigger?” People who are inclined to say it think it instead. Banning a word doesn’t end bigotry, it just takes it underground. Banning “bossy” won’t increase opportunities for women just like banning the N-word won’t end racism.

We should all agree that increasing opportunities for women in the workplace is a worthy goal. We are kidding ourselves, however, if we believe that banning a word will help achieve it.

For more critiques of Sandberg’s “Ban Bossy” campaign, see:

• Sheryl Sandberg Is Bossy. So What? — from CareerDiva
• Sheryl Sandberg wrong on “bossy” ban — from CNN
• Recline, don’t “Lean In” (Why I hate Sheryl Sandberg) — from The Washington Post’s She The People

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

Discrimination

• The dilemma of writing your own EEOC position statement — from HR Hero Line
• The EEOC and the FTC Publish Documents Related to Background Checks — from All in a Day’s Work
• EEOC and FTC Tips on Background Checks — from Phil Miles’s Lawffice Space
• Sex Workers Can Sue Their Bosses For Sexual Harassment: An Exchange — from Employment Discrimination Report
• Protecting the Unemployed — from The L•E•Jer
• Beard discrimination? Not really. — from Michigan Employment Law Connection
• Amazing Race Contestants File Employment Discrimination Lawsuit — from Atlanta Employment Lawyer Blog
• Is Sexual Harassment Against Contract Employees Legal? — from Donna Ballman’s Screw You Guys, I’m Going Home

Social Media & Workplace Technology

• On the 25th anniversary of the web, let’s keep it free and open — from The Official Google Blog
• Game On! Are You Ready To Have Fun At Work? — from Employment Essentials
• So, you want to adopt BYOD? — from TiPb
• Your Next Job Application Could Be Via Smartphone — from Mashable
• Should You Separate “Personal Life” on Your Enterprise Network? — from Blogging4Jobs
• EMPLOYEES: Keeping your settlement confidential is easy, so do it! — from Robin Shea’s Employment & Labor Insider

HR & Employee Relations

• Can I Be Funny at Work Without Ruining My Reputation? — from Lifehacker
• Can we ask applicants about their driving records? — from Business Management Daily
• 5 essential steps for vetting job candidates’ credentials — from MonsterThinking
• Additional Restrictions on Employer’s Use of Criminal History Checks — from The Labor and Employment Law Blog
• Creating a Loving Workplace — from Joe’s HR and Benefits Blog
• Why You Should Eliminate Your Paid Time Off Policies — from Fistful of Talent
• Workplace investigation alert: Don’t interrogate your employees — from Warren & Associates Blog
• New York Times Article on Employer Interrogations of Employees — from Wisconsin Employment & Labor Law Blog

Wage & Hour

• Obama Proposes Changes to White Collar Overtime Exemptions — from Dan Schwartz’s Connecticut Employment Law Blog
• Overtime Expansion Coming? — from Manpower Employment Blawg
• In-House Counsel: Review Your Company’s Security Check Process — from In House
• Telecommuting: Good for Morale, Bad for Legal Exposure — from Corporate Counsel
• Hi Ho Hi Ho, it’s Off to Work We Go. — from Michigan Employment Law
• The DOL, Law Students, and Internships — from Workplace Prof Blog
• FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave — from Eric Meyer’s The Employer Handbook Blog
• 12-Month Period Under FMLA — from Workplace Insights

Labor Relations

• Union Faces NLRB Charge for Alleged Rape Threat — from LaborPains.org
• NLRB General Counsel Makes it Clear: He Has an Aggressive Agenda — from TLNT
• UAW’s Election Objections At VW Take An Interesting Turn — from Vorys on Labor
• Volkswagen v. Auto Workers Round 2 — from Labor Relations Institute

EEOC holds public meeting on social media in the workplace #socialEEOC

Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline A. Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

.#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC
— EEOC.gov (@EEOCNews) March 12, 2014

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

• Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
• Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.

The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.

How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws. 

Don't Bieber your deposition

Three years ago, I wrote a post entitled, 10 tips for preparing for your deposition, in which I offered some ideas for how to best prepare to give a deposition in case in which you are a witness. The tips includes the common sense (tell the truth), to the more esoteric (beware leading questions).

Today, I’m updating that top-10 list with an 11th tip: Don’t be a Bieber. Earlier this week, TMZ leaked the video of the highlights (or lowlights, depending on your perspective) of the deposition Justin Bieber gave in a case in which a photographer claims Bieber ordered his bodyguard to attack him. This deposition might go down as the worst performance ever given under oath.


It is rare that you will win a case during your deposition. The person asking the questions is not your friend. The inquisitor is looking for opportunities to trip you up, put words in your mouth, and make you look bad. Yet, while you can’t win a case during your deposition, you certainly can lose it. You can make admissions that you don’t need to make, or you can come off looking like Bieber did in his video—like an a-hole.

The video is entertaining, but it’s also instructive. If you are being deposed, don’t play games. Don’t feign fake ignorance. Don’t get smart or act smarmy. Yes, it’s an unpleasant experience to be under oath. Don’t make it worse by giving a Bieber-like performance.

So, thank Biebs. You provided me the perfect instructional tool for me to show my witnesses before they are deposed, so they don’t act like you.

[Hat tip: Eric Meyer and Phil Miles]

EEOC issues new guidance on religious dress and grooming in the workplace

Law.com, one of the best websites for legal information, recently relaunched. Its relaunch features posts by well-known bloggers, including yours truly.

My first post at Law.com discusses the EEOC’s recently published Q&A on reasonable accommodation of religious dress and grooming in the workplace. Please click over to check out the revamped Law.com, and my first contribution.

Gender equality is dead; long live gender equality!

http://flic.kr/p/dLGTi8

I rarely write about active cases I’m handling. In fact, I can only think of one other time that I was mad enough to do so. Today marks time number two. Each involves a galling lack of professional courtesy.

I’m currently in the middle of a contentious piece of litigation in western Pennsylvania. The witnesses, however, are scattered all of the country, including two in Dallas, who I had to go to court to defeat a motion to compel their attendance in PA for their depositions. On Friday, I received a phone call from plaintiff’s counsel (who is in his mid to upper 70s), in which he told me he intended to take their depositions in Dallas this coming Wednesday and Thursday. I responded that even if they could be available on such short notice (they can’t be), I’m unavailable because my wife is traveling those two days for her job and one of us needs to be home with the kids.

His response floored me. He says, “You’re a lawyer. It’s unprofessional for you to plan your schedule around your wife. She should be at home taking care of the kids.”

We don’t live in an Ozzie & Harriet world anymore. Long gone are the days when a wife would be waiting at home to greet her husband with a pair of slipper and a martini while she put dinner on the table. Women work. My wife (who, by the way, gave up her career for 6 years to stay at home with our children) has restarted her career. Her job requires her to travel, which means we share a travel calendar. To make sure that our kids are never abandoned, we clear all travel with the other’s out-of-town schedule before making our own business arrangements.

Readers, please don’t carry this attitude into your business. There is only one unhappy ending to telling one of your employees that his wife, or she, belongs at home with the children. It starts with law- and ends with -suit. Women have the right to work, and neither they, nor their spouses, should be punished for exercising that right, regardless of their chosen profession.

As for which one of us in my tale was acting unprofessionally, I leave that decision up to you.

WIRTW #310 (the “suck it” edition)

Have you heard the one about the daughter who posted on her Facebook page about her dad’s age discrimination settlement with his old company? As it turns out, writing, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT,” violated the confidentiality language in Papa Snay’s settlement agreement, causing him to forfeit an $80,000 settlement payment. Oops.

The following blogs have more on this very interesting story:

• Daughter’s Facebook post costs dad $80k employment settlement — from Eric Meyer’s Employer Handbook Blog
• Facebook “SUCK IT” Costs Dad $80,000 — from Lowering the Bar
• Daughter’s Facebook Post Costs Dad his Settlement — from Phil Miles’s Lawffice Space
• Daughter’s Facebook post costs dad $80,000 — from Internet Cases
• Facebook and confidentiality agreements do not mix — from Michigan Employment Law Connection
• Daughter’s Facebook Post Sink’s Father’s Settlement — from All in a Day’s Work
• Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreements — from Employer Law Report

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

Discrimination

• U.S. Civil Rights Commissioners Take EEOC to Task on Background Checks — from employeescreenIQ Blog
• The A, B, C’s of EEOC — from The Labor Dish
• A $26 million verdict reminds us that ageism is as illegal as the other “isms” — from Sindy Warren
• Employers Be Warned- Look at the Big Picture When Considering Harassment Allegations — from Currents: Hot Topics in Employment Law
• Employer’s quick action bars racial harassment claim — from EmployerLINC
• Employee Who Fails to Return from Vacation Has No Claim of Discriminatory Termination — from The Employment Brief
• Bullying Debate: “Do We Need To Wait For A Law?” — from Employment Discrimination Report
• EEOC: Employer Agrees to Improve Process of Designating Worker as Safety Threat Under ADA — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Privacy is Going to be a Major Employee Concern for the Future — from Blogging4Jobs
• Social Media and Its Impact on the Workplace: What Every Employer Needs To Consider — from Trading Secrets
• The Problem With Corporate Webmail — from The Not-So-So Private Parts
• Before You Send That Scathing Email, Remember the Tale of the Job Bank House Mother — from Evil HR Lady, Suzanne Lucas
• Make BYOD Work: 9 Key Considerations — from InformationWeek

HR & Employee Relations

• Manage Your Work, Manage Your Life — from Harvard Business Review
• Who’s working at home, and is home the proper place? — from Technology for HR
• The Joys of Telecommuting, according to telecommuters — from Families and Work Institute Blog
• Six Rules for terminations: Firing Fast does not mean firing Stupidly! — from Mike Haberman’s Omega HR Solutions
• Becoming Employers of Choice — from SHRM Blog
• Should Background Checks Be On Your New Employee Checklist? — from HR Defense Blog
• Your Job Search and the Fair Credit Reporting Act (FCRA) — from hr bartender

Wage & Hour

• Employer’s Wage Issues with Students on J-1 Visas — from Wage & Hour - Development & Highlights
• Answers to AOL Jobs Reader Questions On Wages and Overtime — from Donna Ballman’s Screw You Guys, I’m Going Home
• FMLA Win for Employers – Employees Can Affirmatively Decline FMLA Leave & Thus FMLA Protections — from The Labor and Employment Law Blog
• Family and Medical Leave, Doctor’s Notes, and Employee Preferences — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Lawyers Look To Unionize At Bloomberg Law — from Above the Law
• UAW to NLRB: Tell Politicians to Stay Out of Our Elections — from Labor & Employment Law Perspectives
• NLRB’s Expedited Election Rule: “A Solution in Search of a Problem” — from TLNT

Read this post before you access your employee’s social media accounts

Susan Fredman Design Group employed Jill Maremont as its Director of Marketing, Public Relations, and E-Commerce. In that capacity, she used her own personal Twitter account and Facebook page to promote SFDG’s business. To keep track of the various social media campaigns she was conducting for SFDG, Maremont created an electronic spreadsheet, on SFDG’s computer and saved on SFDG’s server, in which she stored the passwords for her accounts. It appears that Maremont provided access to, or copies of, the spreadsheet to other SFDG employees to assist in her social media posts on behalf of the company.

Maremont suffered injuries in a serious car accident that kept her out of work. During that time, she claimed that SFDG employees, without her permission, accessed her Facebook and Twitter accounts and posted on her behalf.

In the ensuing lawsuit—Maremont v. Susan Fredman Design Group (N.D. Ill. 3/4/14)—Maremont alleged violations of the Lanham Act (that SFDG unlawfully passed itself off as Maremont), and the Stored Communications Act (that SFDG unlawfully accessed her electronic accounts without her permission). The district court dismissed the Lanham Act claim, but permitted the Stored Communications Act claim to proceed to trial.

Legal intricacies aside, the case is both instructive and troubling.

This case is instructive because it shows the danger when a company fails to brings its social media accounts in-house. Maremont used her personal Facebook and Twitter accounts for her employer. When she was out of the office for an extended period of time, instead of letting its social media presence falter, SFDG used Maremont’s account information to continue posting. How could SFDG have avoided these potential legal traps and an expensive lawsuit? Either by requiring that Maremont use its own social media accounts for official company business, or by having a written agreement with her that it had the right to access her mixed-use personal accounts. The former is cleaner and less risky, but the latter would have still likely kept it out of court, even if mixed-use accounts are harder to untangle at the end of employment.

This case is troubling because it sets the precedent that an employer to which an employee provides passwords to the employee’s social media accounts cannot access those accounts for business purposes. By all appearances, Maremont provided her account information and passwords to her coworkers. SFDG could not have foreseen that it would violate federal law by using them to continue Maremont’s work while she was incapacitated. Yet, that is exactly what happened.

What’s the main takeaway here? If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact.

[Hat tip: Internet Cases]