Should you block social media at work?

One of my summer television addictions is NY Med, which follows surgeons around some of the New York metro area’s busiest hospitals. One this summer’s episodes focused on a man who had been hit by a subway train. An ER nurse Instagrammed a photo of the empty trauma room, along with the caption “#Man vs 6 train”. Later that day, the hospital fired her. According to ABC News, she was fired for being “insensitive,” not for posting any protected patient information or for violating any hospital policy.

I thought of this story as, over the weekend, I read an article on The Next Web entitled, Productivity vs. Distraction: Should you block social media at work? The answer to this question is a resounding “no.” Here’s why, in my opinion.

Like it or not, we live in a social world. People are living their lives on Facebook, Twitter, and Instagram. Take Facebook. It has 1.28 billion users, 59% of whom visit the site every day. 68% of all time spent on Facebook is done via its mobile app. Twitter is even higher, at 86%. These stats show that it you are trying to ban employee social media access at work, you are fighting a battle you cannot win. If an employee wants to check Facebook at work, or post a Tweet, or show off that fancy filtered sunset on Instagram, they will simply take their iPhone out of their pocket and post away.

So what is a company to do? Embrace the fact that employees will access their social media accounts from work. So, how do you balance on-the-job productivity against the social media’s distractions? TNW offers four great tips:

1. Draft a policy. I was troubled when I read that the nurse on NY Med had not violated any policy by posting on Instagram a photo of the inside of a trauma room. Given the vast number of your employees who are on social media, it is irresponsible not to have a social media policy. Just make sure it will pass muster with the draconian agenda being put forth by the NLRB.
2. Invest in the idea that employees represent your company. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal: the inherent intertwining of our personal and professional personas online. You can read more on my thoughts on this important issue here. Suffice it to say, however, that employees need to realize that anything they say online can impact their professional persona, and that it is our job as employers to help educate our employees about living in a “profersonal” world.
3. Training, training, training. Teaching employees about the meaning of “profersonalism” is just one part of the training puzzle. The best way to limit employee social media problems is to invest some time and money into training your employees about these issues. Having a policy is step one in this process, but training your employees on what that policy means is steps two through ten (at least).
4. Allow for brain breaks. We ask an awful lot of our employees. It’s rare to find a nine-to-five job these days. If your employees are working 45, 50, or 50-plus hours per week, what’s the harm if they spend a few minutes during the day checking Facebook. Workplace social media is not a technology problem, it’s a performance problem. Thus, technological solutions will not work. You need to treat social media abuse as a performance problem. If an employee is spending so much time on Facebook that he or she cannot complete the job, then provide counseling or discipline. If an employee posts something that harms the business, counsel, discipline, or fire. Treating the problem by shutting off the technology will not cure the problem; it will just take if off your network. 

Facebook might not be Facebook in five years. But, rest assured, something else will take its place. Social media is not going anywhere. Employers need to embrace this reality, or face a workforce they do not understand and cannot hope to control.

WIRTW #328 (the “fore!” edition)

It was a lovely day for golf yesterday at the annual KJK golf outing. If only my swing agreed.

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On Wednesday, I’m hosting the July edition of the Employment Law Blog Carnival. Please send my way any post you’d like featured.

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

Discrimination

• Podcast: “Discrimination Law in an Overlawyered America” — from Walter Olson’s Overlawyered
• Pay Careful Attention to Pregnancy Accommodation Requests as EEOC Plans New Enforcement Guidance — from Employment Matters Blog
• Brave Men Take Paternity Leave — from Harvard Business Review
• SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case — from Phil Miles’s Lawffice Space
• Walmart on Hook for $180K in EEOC Suit Alleging ADA Violation From Firing of Diabetic Employee — from Joe’s HR and Benefits Blog
• Your Religion Shouldn’t Be on Your Résumé (Unless You’re Jewish) — from Evil HR Lady, Suzanne Lucas
• Are 9 Sexual Harassment Cases And A Naked Dancing Video Cause For Firing? Maybe Not — from Donna Ballman’s Screw You Guys, I’m Going Home
• Age Discrimination in the Tech Industry — from Workplace Prof Blog

Social Media & Workplace Technology

• Six degrees of Kevin Bacon, err, social media and the workplace — from Eric Meyer’s The Employer Handbook Blog
• The Cost of Continuously Checking Email — from Harvard Business Review
• Can Employers Discipline Employees Who Post False Claims Of Harassment On Facebook? Yes, But Beware Of The Pitfalls — from Employment Law Lookout
• Court holds employers not liable for employee defamatory online speech made using employer computers. Plaintiffs can’t take the money and run! — from Employer Law Report
• Employees’ social media use: a refresher — from Technology for HR

HR & Employee Relations

• Adventures in employment agreements — from Walter Olson’s Overlawyered
• Employers Should Dot Their I’s and Cross Their T’s When Using Consumer Reporting Information — from Texas Employment Law Update
• Naked and Afraid HR — from The Tim Sackett Project
• Can neuroscience give us an accurate lie detector for employment disputes? — from Minding the Workplace
• The Moral of Workplace Morale — from Next Blog
• Do’s and Don’ts of Accepting Offers of Employment - NBA DRAFT VERSION — from The HR Capitalist, Kris Dunn

Wage & Hour

• DOL audits: What to expect when you’re expecting one — from Business Management Daily
• Wage and Hour Lawsuits More Prevalent in 2014 — from Overtime Lawyer Blog
• Why “Working Time” FLSA Lawsuit Settlement Irritates Me — from Wage & Hour - Development & Highlights
• When is a Commute Not a Commute? In a Company Car (Well, Maybe)! — from Wage & Hour Insights
• Six reasons why Hobby Lobby does not spell “doom” for women — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Why calling the boss a “f**king a**hole” may be protected activity — from Mike Haberman’s Omega HR Solutions
• You Be The “Judge”: Is Swearing at Work Protected by Federal Law? — from Dan Schwartz’s Connecticut Employment Law Blog
• Latest No-Solicitation Policy to be Struck Down by the NLRB — from Matt Austin Labor Law
• Staying One Step Ahead of Norma Rae — Tips for Staying Union Free — from Labor & Employment Law Perspectives
• Employer’s Social Media Policy Found Not To Violate Employees’ Rights — from Michigan Employment Law Advisor
• GC To Board: Adopt New Joint Employer Standard — from Labor Relations Today
• How the NLRB Is Like Charlie Brown — from Minnesota Employer

Time after time: temporal proximity and retaliation

Marla Montell reported an allegation of sexual harassment against her supervisor, Austin Day, to human resources  at Diversified Clinical Services. The HR rep contacted Day almost immediately. The next day, Day called Montell and told her that she should resign or would be fired. Chose the former, and then sued the company for retaliation. 

The only evidence Montell presented in support of her retaliation claim was the timing of her termination in relation to her internal harassment complaint. For its part, the company claimed that Day was motivated by Montell’s performance history, which included a PIP, a documented oral counseling and development plan, a Final Warning, and an Amended Final Warning. The Amended Final Warning, issued on May 3, 2011, provided Montell until June 2 to improve her performance or be fired. She resigned in lieu of termination on May 20.

In Montell v. Diversified Clinical Servs. (6/27/14), the 6th Circuit was faced with the question of whether the mere timing of Montell’s resignation was sufficient to support her retaliation claim under Title VII. Following its own precedent, and that of the Supreme Court, the 6th Circuit concluded that Montell’s retaliation claim should go to a jury to determine whether there existed a nexus between her protected activity and her forced resignation:

[E]mployees who are about to be fired should not abuse the civil-rights protections by filing frivolous harassment complaints. However, it cannot be open season for supervisors to sexually harass poorly performing employees. Such employees must still be provided with their legal protections.… [W]e must analyze the evidence of how and when the adverse employment action occurred to determine whether it squares with the action previously contemplated. If it does, then temporal proximity is not evidence of causality, but if the adverse employment action is unlike the action previously contemplated or does not occur on the schedule previously laid out, then the temporal proximity of the adverse action to the protected conduct is certainly evidence of causation.

In other words, was the decision to terminate Montell a mere continuation of her performance history, or a reaction to her protected activity? In this case, because Montell faced termination before the June 2 date contemplated by the Amended Final Warning, the court concluded that the adverse action sufficiently deviated from the performance history to create a jury issue over the timing of the termination.

If you are going to terminate an employee on the heels of protected activity, you best have all of your ducks in a row. If Montell’s performance objectively had not improved by June 2, I suspect this case would have come out differently. Because the employer jumped the gun on the termination, it called into question the employer’s motivation, especially within 24 hours of a harassment complaint.

Employees who complain about harassment or discrimination aren’t bulletproof. But, you better be damn sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on a timeline such as that in Montell.

Hear me on The CYA Report discussing Hobby Lobby

Today we’re going to try something a little different. Usually, you get to read my thoughts on the employment law issues of the day. Today, you get to hear my voice, waxing philosophical on the Supreme Court’s Hobby Lobby decision.

Last week, Kris Dunn (old friend, and proprietor of, among other things, The HR Capitalist) asked if I’d appear on his podcast, The CYA Report, to discuss the case.

Kris and I discussed: What does Hobby Lobby mean? Are corporations people? And, what employment law areas can we expect its holding to challenge?

Take a listen here.

What does the ADA say about employee medical information and social media?

The ADA protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court—in Shoun v. Best Formed Plastics—began sketching an answer. 

George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” 

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.

All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.

Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information—workers’ compensation claims, FMLA claims, reasonable accommodation requests, and other medical information related to the performance of the job—is off-limits for discussion. 

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, training—on this issue could save you from a disability discrimination lawsuit down the road.

EEOC transforms a $1.39 bag of chips into a $180,000 settlement

Nearly three years ago, I reported on a disability-discrimination lawsuit filed by the EEOC against Walgreens. The agency had filed suit of behalf of a diabetic employee who, without permission, took a bag of chips off the shelf to stabilize her blood sugar level during a hypoglycemic attack. Walgreens considered it shoplifting and fired the employee. The EEOC considered the termination a failure to reasonably accommodate the employee’s disability and filed suit.

Last week, Walgreens settled the lawsuit, agreeing to pay the ex-employee $180,000, in addition to agreeing to implement revised policies and training.

Whether you think this is a fair settlement, or that Walgreens overpaid, depends on whether you view the termination an unfair discrimination against an employee trying to stop a medical episode, or a reasonable enforcement of a retailer’s anti-shoplifting policy. In denying the employer’s motion for summary judgment earlier this year, a federal judge strongly hinted it was the former:

Here, the misconduct alleged by Walgreens that formed the basis of her termination was the taking of the chips without paying for them first, an act Hernandez claims was caused by her disability. Walgreens has failed to allege any misconduct that is unrelated to her disability.

In announcing the settlement, the EEOC also recognized the dichotomy between discrimination and theft-prevention:

People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.

As for me, I don’t believe either interest trumps in this case. I firmly believe that employers like retailers (or casinos) must do everything they can to prevent and deter employee theft. These measures include terminations that, under other circumstances, might seem overly harsh. Yet, in this case, the company knew about this long-term employee’s medical history, and refused to let the employee pay for the chips after her recovery. This does not appear to be the case of an employee nefariously grazing on unpaid goods. Instead, it appears to be a case of employee making a snap judgment in response to a medical condition, and trying to make good on it after the fact. Given these facts, this case seems like an odd one for this employer to litigate for three years. It could have cut its losses, settled early, and saved itself three years of legal fees. Yet, I also see the import of the employer’s “zero tolerance” stance.

This case illustrates how difficult reasonable accommodate cases are. When the accommodation is so trivial (a $1.39 bag of chips, for example), employers should strongly consider making the accommodation for an employee’s medical situation regardless of the scenario. It is difficult to justify a claim of hardship based on a economically trivial accommodation. Even when the interest the employer is trying to protect is as strong as deterring theft, the cost of defending that interest may to be too high, especially in light of the uncertainty related to the potential outcome of very fact-specific litigation.

Why I Write: Reflections on the Ohio Employer’s Law Blog

Earlier this week, I was tagged in a “blog hop.” “What is a blog hop,” you ask? it is a blog-to-blog chain letter built around a common theme. The theme of this blog hop is writing. My good friend, and author of the Connecticut Employment Law Blog, Dan Schwartz, tagged me in his blog hop. Given that he called me a blogging “rock,” and “great person,” how could I not take up his challenge and continue the chain (especially since Dan and I started our respective blogs within a few months of each all the way back in 2007, and I respect him as much as anyone else in the legal blogosphere).

What am I working on?

The Ohio Employer’s Law Blog (of course). I started my blog in 2007 to fill a niche. There were only a few lawyers blogging in the Cleveland area, and none on labor and employment law. “What a great way to differentiate myself,” I thought. I also love the creative aspect of writing, a love which my blog lets me sate in spades. Let’s face it, no lawyer ever won a prize for the most creative opposition brief. The blog has also let me spread my wings. Workforce.com cross-publishes every post I write on a blog it calls The Practical Employer. I also write a monthly column for Workforce Magazine, and serve on its editorial advisory board. My blog has also allowed me to publish a couple of books (The Employer Bill of Rights and Think Before You Click). In short, the blog has opened up opportunities for me that nothing else could have, and for that I am grateful.

How does my writing differ from others of its genre?

Legal writing is, well, boring and impersonal. I try to break that stereotype. For one, I write about my personal life. I believe that you cannot understand one’s take on an issue unless you under that which influences that person’s life view. So, I’ve written about my wife, my daughter, my son, and even my dog. I’ve also written about vacations (with the kids and without), concerts, and German daughters. Each of these posts provides a glimpse into who I am when I’m not a lawyer, which, in turn, influences who I am as a lawyer. I also try to have fun. I love it when someone emails or tweets their appreciation for a punny title or song reference.

Why do I write what I write?

I write what I write out of love. I know that sounds trite, but I love to write. The Internet is a junk yard of discarded blogs. I am proud that I’ve posted every work day for more than seven years. But, you cannot do that if you write for any reason other than love. I have a passion for labor-and-employment law and a passion for writing. This blog lets me combine the two in a way that I hope is unique and different for my readers.

How does my process work?

The question I am most often asked is some variation of, “Geez, you must spend a lot of time blogging. How do you find the time to blog and practice law?” The reality is that after seven years, it’s not as time intensive as it looks. I consume a ton of information, mostly from Twitter and Feedly. I bookmark those stories or cases that look blog-worthy. I do most of my writing early in the morning or late at night. The speed at which I can post is helped by the fact that I’m not writing law review articles or case briefs. I try to give the quick summary of the issue, and then make a practical point or two for businesses to take away. My audience isn’t necessarily lawyers, so I don’t feel the need to give deep, searing legal analysis. Instead, I try to focus on the practical.

Please check out my blogging friends

Every Friday, I share a list of what I’ve read that week. Weekly, each of the following usually makes an appearance, so the fact that I am tagging them to continue this blog hop shouldn’t surprise them or you:

• Molly DiBianca, author of the Delaware Employment Law Blog, who’s been doing the blogging thing almost as long as I have, has a unique voice that is always worth reading.
  
• Eric Meyer, author of the Employer Handbook Blog, like me writes every business day. His posts are worth checking out for no other reason than to see his song of the day, which is always creatively tied in to the day’s employment law topic.
  
• Phil Miles, author of Lawffice Space, who is usually first to post about breaking news such as a hot-off-the-presses Supreme Court decision.

As for me, I’m taking an extended holiday weekend. Enjoy your 4th, and I’ll see everyone back on Monday morning.