How flexible are our modern workplaces?

As I type, I’m 30,000 feet above Pennsylvania, flying to see my dad, who’s waiting in the hospital for surgery. As you read, i’m probably sitting somewhere on the campus of the Hosptial of the University of Pennsylvania. I share these facts not for well wishes, but because today’s post happens to be about workplace flexibility. 

Last week the Families and Work Institute and the Society for Human Resource Management published the results of their National Study of Employers, which revealed three interesting facts about the role of flexibility in the modern workplace.

1. The smaller the employer, the greater the flexibility. Employers with between 50 and 99 employees are more likely than employers with 1,000 or more employees to offer the following work-flex benefits:

• Change starting and quitting times within an accepted range of hours (33% versus 20%)
• Work regular paid hours at home occasionally (11% versus 4%)
• Control over when to take breaks (66% versus 52%)
• Return to work gradually after childbirth or adoption (53% versus 37%)
• Take time off during the workday to attend to important family or personal needs without loss of pay (52% versus 36%)

2. Telecommuting is on the rise. More employers are providing occasional telecommuting (67%) for at least some employees than in 2008 (50%).

3. Flexibility, child care, and elder care lead to increased employee retention. Thirty-five percent of employers cite “retention” as the key reason for providing flexibility, along with child and elder care assistance. 

Two weeks ago, I wrote on telecommuting as a reasonable accommodation under the ADA. The more I think about the impact of mobile technology on the workplace, the more I am convinced that the 6th Circuit got it right. There is no excuse for an employer to be inflexible with those of its employees for whom it is feasible to work remotely. If an employee is performing, then it doesn’t matter where the employee performs. If the employee isn’t performing, treat it as an indictment of that employee, not an indictment on telecommuting as a practice or standard. 

Potty mouthed employees

Most non-union employees are at-will, which means you can fire them for any reason, good, bad, or for no reason at all (as long as some other law, such as discrimination laws, doesn’t trump). So, if an employee has a potty mouth, you can fire her, right? Not so fast, says an unemployment hearing officer in Iowa.

Wellma “Tootie” Shafer worked for 18 months as a cashier at the Last Chance Market in Russell, Iowa. The market sells the following products:

• “Wake the F— Up” coffee
• “The Hottest F—in’ Nuts”
• “The Hottest F—in’ Sauce,” which is labeled as having an “ass-burning” quality

The store also boasts a metal sign by the entrance that reads, “Shirts and shoes are required, but bras and panties are optional.”

It seems that Tootie liked to talk to some of customers about “dirty, adult situations.” After some eavesdropping customers complained, her boss, Rick Braaksma, fired her. At the unemployment hearing, the hearing office took Braaksma to task for his apparent double standard. From The Des Moines Register:

After Braaksma testified that he doesn’t tolerate dirty jokes in his store, Administrative Law Judge Beth Scheetz asked him, “So why don’t you remove these articles from your shelves?” 

“Because we sell them,” he said. 

“They are dirty jokes on your shelves, basically,” Scheetz said. 

“No, they’re bottles of hot sauce,” Braaksma responded. “It’s all right to have dirty words on the premises because the farmers come in there and eat lunch all the time and that’s just, uh, kind of —” 

“So dirty words are OK,” Scheetz said. 

“Yeah,” Braaksma said, “but there’s a time and a place for it.”

I can make a really good argument that once a customer complains about an employee’s potty mouth, the game changes (even if the store sells f’n coffee). If someone complains about harassment, an employer should investigate, and, if necessary, reasonably remediate. In this case, the employer decided to terminate. This judge, in this context (an unemployment claim), saw it differently. 

The NLRB is looking to overturn email solicitation rules

In Register Guard, the NLRB held that an employer’s solicitation or other communication policy can lawfully bar employees’ non-work related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the NLRA, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era Board. Now, it’s 2014, and the current Obama-era Board is taking a look at Register Guard. 

The Board has posted a notice [pdf] asking advocates to submit position briefs covering each of the following five issues:

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The notice is in response to an ALJ’s decision in Purple Communications, Inc., holding that an employer did not violate the Act by prohibiting use of its electronic equipment and email systems for activity unrelated to its business purposes. 

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard, and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it to restrict employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers and bears monitoring as this important issue weaves its way through the NLRB. 

WIRTW #319 (the “photocopier” edition)

Do you want to lose credibility, either as a lawyer or a witness? Spend seven minutes during a deposition arguing over the meaning of “photocopier.” Watch this video from The New York Times, which is a dramatic retelling of a deposition from a case decided by the Ohio Supreme Court in 2012.

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

Discrimination

• Sixth Circuit and Essential Functions — from Workplace Prof Blog
• Do you have a Donald Sterling in your midst? — from Next Blog
• The EEOC’s $2 Million Same Sex Workplace Decision — from Blogging4Jobs
• Telecommuting as reasonable accommodation? Sure, but not in this case — from Robin Shea’s Employment and Labor Insider
• Michigan Employers Must Consider Telecommuting as a Reasonable Accommodation — from Michigan Employment Law Advisor
• EEOC v. Ford Accelerates Telecommuting Issues — from Corporate Counsel
• Employee Allergic To Service Dog At Work: Rights In Conflict — from Employment Discrimination Report

Social Media & Workplace Technology

• Dumb Bosses and Camera Phones - Not a Good Mix for your Company — from Michigan Employment Law Advisor
• 7 Ways Twitter has Changed Over the Years — from Social Media Strategies Summit Blog
• Job hunting? Take a closer look at your Facebook page — from Evil HR Lady
• How Private is Private Browsing? — from Ride The Lightning
• Jurors’ Private Social Media Is Off Limits, ABA Tells Lawyers — from WSJ.com: Law Blog

HR & Employee Relations

• Employee committed firing offense? Terminate ASAP–or else prepare for court — from Business Management Daily
• Swift Investigation of Sterling-Clippers Discrimination Incident Well Played — from i-Sight Investigation Software Blog
• 7 signs it’s time to hire in-house HR — from MonsterThinking
• Apple and Google will settle no-poaching conspiracy lawsuit — from Boy Genius Report
• Are FCRA Class Actions A New Form Of Wage & Hour Lawsuits? — from Workplace Class Action Litigation

Wage & Hour

• Why a Quarter of Americans Don’t Trust Their Employers — from Harvard Business Review
• Senate Confirms Controversial New Wage and Hour Administrator — from TLNT
• My Salaried Employee Has No PTO But Needs Time Off—What Can I Do? — from HR Daily Advisor
• Buffalo Jills Boo Bosses but Lawsuit Raises Question: Are NFL Cheerleaders “Employees” Protected by Minimum Wage Laws? — from Suits by Suits
• I’m an Executive, You’re an Executive, We’re All Executives! 8th Circuit Lowers the Bar for FLSA “Executive” Exemption — from Wage & Hour Insights
• Exotic Dancers - Employees or Independent Contractors? — from Phil Miles’s Lawffice Space

Labor Relations

• Social Media Policies — ALJ Disregards Guidance From NLRB General Counsel — from HR Defense Blog
• NLRB Will Consider the Northwestern Football Player Ruling — from All in a Day’s Work
• What employees say on social media may be protected speech — from MonsterThinking
• ALJ strikes social media policy disclaimer for work-related speech — from Eric Meyer’s The Employer Handbook Blog

With workplace social media, don’t be like Nero

Legend tells us that Nero sat and played his fiddle while Rome, the capital of his empire, burned. Sadly, according to a recent survey, Social Media in the Workplace Around the World 3.0 [pdf], many employers are taking the same approach with their employees’ use of social media.

81% of employers surveyed report that they foresee the misuse of social media by employees becoming more of any issue in the future. Yet, only 53% have updated their social media policies in the past year, and only 37.5% provide employees any training on the appropriate use of social media. Meanwhile, 71% report having to take disciplinary action against employees for social-media misuse (more than double the number from 2012).

What do these numbers mean? Employers are not proactively getting out in front of a known problem.

Social media changes with the blink of an eye. Two years ago, many had never even heard of Twitter; now it boasts more than a billion registrants. New social sites debut at a lightning pace. Employers need flexible, changeable policies to adapt to these evolving technologies. Moreover, a policy is not worth the paper on which it’s printed unless you also provide meaningful, common-sense training to your employees.

It’s great news that employers perceive social media as a workplace problem that’s not going away. It’s disheartening, however, that so many are choosing to do nothing about it.

Your corporate message against discrimination must start at the top

By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

This story teaches an important lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render it safe. You need to decide what kind of company you want to be, and set the tone all the time. Then, when any employee (including the CEO or owner) is accused of racism, sexism, or any other illegal -ism, employees will have confidence that your company will arrest the offending behavior quickly and severely.

Kudos to the NBA for taking swift action against Sterling. Your business likely does not require the same type of pubic response made by the NBA. However, the NBA’s swift and decisive action tells all of its employees that racism has no place in its league.

What does an appropriate corporate response to this level of intolerance look like? Here are some of the comments of NBA Commissioner Adam Silver (via USA Today):

The views expressed by Mr. Sterling are deeply offensive and harmful; that they came from an NBA owner only heightens the damage and my personal outrage.

Sentiments of this kind are contrary to the principles of inclusion and respect that form the foundation of our diverse, multicultural and multiethnic league.

I am personally distraught that the views expressed by Mr. Sterling came from within an institution that has historically taken such a leadership role in matters of race relations and caused current and former players, coaches, fans and partners of the NBA to question their very association with the league.

To them, and pioneers of the game like Earl Lloyd, Chuck Cooper, Sweetwater Clifton, the great Bill Russell, and particularly Magic Johnson, I apologize.… This has been a painful moment for all members of the NBA family. I appreciate the support and understanding of our players during this process, and I am particularly grateful for the leadership shown by Coach Doc Rivers, Union President Chris Paul and Mayor Kevin Johnson of Sacramento, who has been acting as the players’ representative in this matter.

We stand together in condemning Mr. Sterling’s views. They simply have no place in the NBA.

No good comes from asking medical-related questions during interviews

Sjöstrand v. The Ohio St. Univ. (6th Cir. 4/28/14) [pdf] is an ADA case, but not an employment case. It involves a graduate school applicant claiming that OSU denied her admission because of her Crohn’s disease. In support of her claim, Sjöstrand pointed to her admission interview, during which she claimed each interviewer spent about half of their time discussing her Crohn’s disease. She claimed that because she tied for the highest GPA in the applicant pool, and her GRE scores exceeded the school’s requirements, her disability was the only rational explanation for her rejection.

The 6th Circuit reversed the trial court’s dismissal of Sjöstrand’s ADA claim:

Yet according to Sjöstrand’s testimony … neither of her interviewers even mentioned any of the putative reasons why her application was rejected, and each interviewer instead devoted about half the interview to a discussion of her Crohn’s disease. The resulting inference is that the interviewers’ real concern—and thus the reason they rejected Sjöstrand’s application—was her Crohn’s disease.

OSU could have perfectly legal reasons for rejecting Sjöstrand’s application. In fact, the school listed five different reasons. However, as this case demonstrates, the questioning about her medical condition during the interview tainted the entire process.

In the employment context, it is per se illegal to make any disability-related inquiries before you make a conditional job offer. If you ask medical questions during a job interview, you have violated the ADA whether or not you ultimately hire the individual. If you don’t hire the individual, those illegal questions will likely taint your hiring process beyond the point of no recovery.

It behooves you to communicate this message to anyone who interviews for you. Even though Sjöstrand is not an employment case, it’s a great illustration of what can go wrong when an employer interjects an applicant’s medical issues into the interview process.