Friday, March 14, 2014

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:

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

Discrimination

Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour

Thursday, March 13, 2014

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:
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. 

Wednesday, March 12, 2014

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]

Tuesday, March 11, 2014

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.

Monday, March 10, 2014

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.

Friday, March 7, 2014

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

Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations

Thursday, March 6, 2014

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]