WIRTW #345 (the “earworm” edition)

Ever since my wife and I went to see Rhett Miller a couple of weeks ago, Lost Without You has been stuck in an unending loop in our collective head. Now, it is my gift to you.

For earworms, you could do a whole lot worse. At least Lost Without You is a good song. It could be It’s A Small World.

Here’s what I read this week:

Discrimination

• Despite Employment Discrimination Training, “Human Nature Often Rears Its Ugly Head” — via Employment Discrimination Report
• Seed and Fertilizer Providers to Pay $187,500 for Genetic Information and Disability Discrimination — via EEOC News Releases
• Obesity: Grounds for Unlawful Discrimination in Europe? — via LE Blog
• Is your wellness program illegal according to the EEOC? — via Omega HR Solutions
• 3 Tips for Harassment Investigations — via Molly DiBianca’s Delaware Employment Law Blog
• Sexting, flirting, but no sexual harassment here — via Eric Meyer’s The Employer Handbook Blog

Social Media & Workplace Technology

• Home Depot switches execs to iPhones, MacBooks as it blames Windows for massive breach — via TiPb
• Harvard secretly installed cameras in lecture halls to monitor student attendance — via The Verge

HR & Employee Relations

• Tuesday’s GOP “shellacking” may not change much for employers — via Robin Shea’s Employment & Labor Insider
• The Workplace Issues That Keep HR Professionals Up at Night — via TLNT
• Everything You Need to Know About Paid Sick Leave — via Evil HR Lady, Suzanne Lucas
• The Right Way to do an Exit Interview — via Blogging4Jobs
• Study: Men value work flexibility, too — via Business Management Daily
• Background Check Settlements Still Costing Employers Big Dollars — via Dan Schwartz’s Connecticut Employment Law Blog

Wage & Hour

• Why a 40-Hour Worker Means More to Small Businesses — via WSJ.com: Small Business
• A Labor and Employment Audit of Santa’s Workshop — via New York Labor and Employment Law Report
• Intern-Employee FLSA Case Dismissed Because Clinical Experience Is Not “Work” — via Wage & Hour - Development & Highlights
• Put Up or Shut Up: 8th Circuit Shuts Down Overtime Claim Because Plaintiff’s Guestimates of His Hours Worked Are Insufficient — via The Wage and Hour Litigation Blog
• Gentlemen’s Club Cannot Strip Dancers of Employee Status — via Labor & Employment Law Perspectives
• Wage & Hour Litigation Insurance: A Viable Option for Employers Wishing to Mitigate Risk? — via Washington Workplace Law

Labor Relations

• In Murphy Oil, NLRB Reaffirms Its Stance on Class Action Waivers — via In House
• Obama Withdraws NLRB nominee — via The Hill’s Briefing Room

Are you doing enough to protect your trade secrets from theft in the cloud?

Do your employees use Dropbox (or Google Drive, or Box, or iCloud, etc.) to store work documents? The appeal of these cloud services is easy to see. Because they provide the ability to store electronic files and access them across multiple devices linked to the same account (i.e., one’s office PC, home computer, iPhone, and iPad), they have exponentially increased the work-life balance of employees who need to work beyond the traditional 9-5. With that benefit, however, comes significant risk to employers.

You may think Dropbox and other cloud services don’t present a risk. After you, your employees are loyal and trustworthy. But, it only takes one layoff to turn a loyal employee into a desperate job seeker looking to provide value to turn a prospective employer into a new job. In that instance, the trade secret cat is out of the bag, and you are spending, and spending, and spending, to try to wrangle it back in.

I’ve seen two cases in which a company alleged that an employee absconded with trade secrets or other confidential information by storing them remotely on a cloud service.

• In a lawsuit filed last week, Lyft accused its former COO of snatching thousands of sensitive documents when he left to work for its chief competitor, Uber. The mode of theft? The downloading of emails and documents to his personal Dropbox account in the months leading up to his defection.
• Last year, Zynga settled a lawsuit it had filed against a former manager whom it alleged had used Dropbox to steal its trade secrets upon leaving for a rival startup.

What can an employer do to minimize risk of trade-secret misappropriation or other breach of confidentiality, short of filing expensive and protracted litigation? Consider these 8 steps, courtesy of the ABA Section of Litigation’s Intellectual Property Committee:

1. Limit access to trade-secrets on a need-to-know basis. The fewer people with access to trade secrets, the more likely the information will remain secret.
2. Limit access to cloud-based solutions on company computers and prohibit any use of personal cloud solutions for company materials. Consider installing software to limit access to any cloud solutions that are not approved by the company.
3. Implement policies and train employees about the use (or non-use) of cloud solutions and, more generally, about the protection of confidential information. Employee handbooks, new-employee orientations, posted company policies, and annual employee training sessions all provide opportunities to address these issues.
4. Monitor when files are accessed or downloaded, and by whom. This will allow the company to take immediate action in the event it discovers suspicious activity.
5. Require employees to sign NDAs. All employees should sign NDAs prohibiting them from taking or using company information for any purpose other than their work for the company. These obligations should extend beyond termination.
6. Conduct exit interviews. This will allow the company to explore whether the employee retained any confidential information and to instruct him or her that any such information should be immediately returned or destroyed.
7. Collect and secure computers used by terminated employees. By examining the computer of a former employee, a company can often determine if any information was taken before the employee’s departure and what that information was.
8. Label or name files containing trade secrets as “Confidential” or “Trade Secret.” While this probably will not prevent unauthorized use or access, it may help a company to persuade a court that any misappropriated information still qualifies for trade-secret protection. This is because confidentiality labels help show that the company took reasonable steps to maintain secrecy by notifying the employee as to the sensitivity of the information.

You cannot absolutely protect against the use of the cloud by your employees. All an employee has to do is email a file to a personal email account, and your control over that file is gone. Implementing these 8 measures, however, will place your business in the best position possible to limit your risk, and secure against theft of sensitive information by exiting or otherwise disgruntled employees.

Recap of #hrintelchat on pregnancy discrimination

Yesterday afternoon, Jeff Nowak and I had a lively tête-à-tête on Twitter—aka the #hrintelchat—on all things pregnancy discrimination. In case you missed it (and given the numbers of folks tweeting along, I’m going to guess that you did), below is a neat little summary of the hour-long tweetfest. The rights of pregnant workers is an important issue that will only get more important and dual-income families and single moms are the rule and not the exception.

Thanks to Thompson HR for the invitation and for hosting. I enjoyed my hour of tweeting (even if my wrists and fingers did not).

#hrintelchat Tweets

Putting paternity leave on equal footing with maternity leave, #hrintelchat

This afternoon, from 3 – 4 pm, EST, I, along with my friend, Jeff Nowak, will be hosting a TweetChat for Thompson Information Services on the “Evolving Rights of Pregnant Employees in the Workplace.” Follow us on Twitter at #hrintelchat, and tweet your questions or comments to @ThompsonHR, @jeffreysnowak, and @JonHyman. We’ll be discussing workplace right and accommodations of pregnant employees. More information is available here.

While our TweetChat will focus on the rights of pregnant women, females aren’t the only ones that have workplace rights when it comes to new babies. According to the New York Times, even though many men have the same right to paternity leave that their female counterparts have to maternity leave, few exercise that right out of fear and stigmatization.

Paternity leave is perhaps the clearest example of how things are changing — and how they are not. Though the Family and Medical Leave Act of 1993 requires companies with more than 50 employees to provide 12 weeks of unpaid leave for new parents, it requires no paid leave. The 14 percent of companies that do offer pay … do so by choice. Twenty percent of companies that are supposed to comply with the law, meanwhile, still don’t offer paternity leave…. And almost half the workers in the United States work at smaller companies that are not required to offer any leave at all.

Even when there is a policy on the books, unwritten workplace norms can discourage men from taking leave. Whether or not they are eligible for paid leave, most men take only about a week, if they take any time at all. For working-class men, the chances of taking leave are even slimmer.

Here are a few “don’ts” to keep in mind in managing new dads in your workplace.

• Don’t forget the men in your workplace when you’re crafting leave policies.
• Don’t deny leaves to new dads doling out post-childbirth leaves of absence.
• Don’t punish those that use those policies and leaves, such as limiting promotions, opportunities, or raises.
• Don’t apply unconscious stereotypes about the dedication or loyalty of men who take leaves of absence for familial responsibilities.

Directing the delicate union decertification dance

It was one of the most tense moments of my career. One for the union, one for the employer. That’s how the folded pieces of paper lifted out of the previously sealed box. I sat in the conference room of my client, a company saddled with a labor union it did not want, and a group of employees, who, feeling the same way, filed a decertification petition with the NLRB. One for the union, one of the employer, all the way to 16 – 16. We all held our breath as the board agent lifted the 33rd piece of paper out of the box, unfolded it, and announced that by a margin of one, my client’s employees were no longer represented by a labor union.

I thought of this story over the weekend as I read in the New York Times that the NLRB had issued a complaint against Cablevision, accusing it of threatening to deny a group of employees a pay raise unless they voted to quit their union, and further accusing it of illegally sponsoring a nonbinding poll to determine those same employees wanted to leave their union.

Decertification is a tricky dance. An employer cannot solicit, support, or assist in the initiation, signing, or filing of a decertification petition by its employees. It can, however, provide “ministerial aid” to its employees in response to their own efforts. The test is whether the specific conduct had “the tendency … to interfere with the free exercise of the rights guaranteed to employees under the Act.” Thus, an employer cannot poll its employees to determine whether they support decertification, nor can it help employees circulate the decert petition. It likely can, however, direct employees to their local NLRB office in response to a question about decertification.

What does an employer’s unlawful assistance of a decertification campaign look like? McKesson Corp. [pdf], decided last week by an NLRB Administrative Law Judge, shows us. In that case, the employer assisted a group of employees (to whom it referred as the “magnificent seven”) to circulate a decertification petition. According to the ALJ:

The credited evidence establishes that these individuals did not act on their own but rather on behalf of management and with management’s assistance…. I find that the respondent had embarked on a plot to rid itself of the union and that the seven individuals collecting signatures were part of the plot.

Employers need to be mindful of the distinction between unlawful solicitation, support, or assistance, versus lawful ministerial aid. Critically, employers cannot interject in a decertification campaign. If you have any doubt on where the line is in your case, consult with your labor counsel to avoid a costly error.

WIRTW #344 (the “potty police” edition)

Do you know what rights your employees have to use the bathroom at work? Earlier this morning, Adrienne Mitchell and I discussed that very issue on Marketwatch Radio. You can listen here: When nature calls, does your boss answer?

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On November 11, from 3 – 4 pm, Jeff Nowak and I will be hosting a TweetChat on the evolving rights of pregnant employees in the workplace. Follow along and participate with the hashtag, #hrintelchat. We’ll talk to you then.

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

Discrimination

• Do Accused Harassers Have a Right to Be Heard? — via Employment Discrimination Report
• EEOC: trolling for plaintiffs — via HR Hero Line
• Employer to Forego Inflexible Leave Policy in Settlement of ADA Lawsuit, EEOC Announces — via Joe’s HR and Benefits Blog
• Employee Retaliation Claims Continue to Rise — via Southwest Florida HR Law & Solutions
• EEOC Targeting Wellness Programs — via Workplace Prof Blog
• EEOC Part of Increasing Focus On LGBT Issues — via The National Law Forum
• Knowledge and consistency—Keys to following the prohibitions of Title VII — via InsideCounsel
• Under the ADA, is talking an essential job function for an HR Specialist? — via Eric Meyer’s The Employer Handbook Blog
• Racial talk at work? Beware of reverse discrimination. — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Social Media, The Workplace and the Enforcement Agencies Circus — via Next Blog
• Following Conditional Certification, Court Permits Notice Via Social Media — via Overtime Law Blog
• How to stay anonymous online — via Boy Genius Report
• How Many Policies Can a Worker Violate with One Selfie? — via HR Daily Advisor
• Social media at work: concerns, implications, and best practices — via Technology for HR
• The Internet of Things and Employee Management — via Blogging4Jobs
• Your Workplace Is Going Viral #AlexfromTarget — via Dan Schwartz’s Connecticut Employment Law Blog
• Three Tips for Protecting Your Electronically Stored Confidential Information — via Molly DiBianca’s

HR & Employee Relations

• What HR Will Never Tell You — via The Boss Show (with guest Suzanne Lucas, the “Evil HR Lady”)
• Engaging Your Older Workers — via Harvard Business Review
• How And Why You Should Bring Kids Into The Workplace — via Fast Company
• Businesses must adapt to multigenerational workforce — via The Tennessean
• A Millennial Twist: LinkedIn Pushing Bring Your Parents to Work Day — via TLNT
• The FCRA is the new FLSA — via Employer Law Report
• Future Friday: Monitoring employee well-being by testing their sweat — via Mike Haberman’s Omega HR Solutions
• Should Employers Require Intellectual Property Agreements? — via Evil Skippy at Work

Wage & Hour

• Morgan & Morgan: For The Overtime — via Walter Olson’s Overlawyered
• Motion To Dismiss FLSA Collective Action On Pleadings Fails: An Interesting Tactic — via Wage & Hour - Development & Highlights
• Eleventh Circuit Upholds District Court’s Rejection of Challenge to Employer Records — via Wage and Hour Law Update
• Employee Wins Cross-Country Wage War Against CEO — via Suits by Suits
• Reducing Intermittent FMLA Leave at Work — via Employment Law Bits
• When an Employee Requests FMLA Leave for a Workplace Injury, Is the Employer Required to Report it as an OSHA Event? — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB’s Murphy Oil Decision Reaffirms Board’s Position on Class or Collective Action Waivers Despite Rejection by Federal Courts — via Employer Defense Law Blog
• Has the National Labor Relations Board opened “Pandora's Box”? — via msnbc.com
• NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity — via Labor Relations Update
• Facebook Posts too Insubordinate, Lose NLRA Protection — via Phil Miles’s Lawffice Space
• Another Established Labor Rule Bites the Dust — via Matt Austin Labor Law
• NLRB Revisits the Definition of an Independent Contractor — via TLNT
• NLRB Attempts to Make an End Run Around Courts Invalidating its Rulings on Arbitration Agreements — via Stoel Rives World of Employment

Not all speech on social media is protected

I’ve spilled a ton of ink over the past few years warning employers about the risks and pitfalls that lurk in attempting to act against an employee for work-related comments on social media. Not all online speech, however, is protected, as two recent cases illustrate.

In Ames v. Ohio Department of Rehabilitation & Correction (Ohio Ct. App. 10/28/14), a parole office posted the following on her personal Facebook page:

I’ll gimp into work tomorrow. I guess I could just shoot them all ... lol!

Yo! Thanks neighbor. I’ll gimp into work tomorrow. I guess I could just shoot them all … ARE YOU KIDDING ME? ‘MEANING I CAN’T CHASE THEM!’ OH MY GOD! YOU PEOPLE REALLY DO NEED A LIFE! LIKE NO LAW ENFORCEMENT OFFICER ‘EVER’ MADE THAT TYPE OF COMMENT. YOU MAKE ME LAUGH OUT LOUD!

Troubled by these comments, the ODRC sent Ames for three different independent medical examination, and ultimately terminated her. The appellate court dismissed her disability discrimination claim, concluding that: 1) the mere fact that an employer sends an employee for an IME does not mean that the employer regarded the employee as disabled; and 2) regardless, “posting a vulgar, threatening statement toward a co-worker under her supervision” is a legitimate, non-discriminatory reason to terminate.

Richmond District Neighborhood Center (NLRB 10/28/14) [pdf] concerned the following Facebook exchange between two teen center employees:

Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like bein their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money…. They dont appreciate shit. Thats why this year all I wanna do is shit on my own. have parties all year and not get the office people involved….

hahaha! Fuck em. field trips all the time to wherever the fuck we want!

When a co-worker sent screenshots of the conversation (which included a student), the teen center rescinded its re-employment offers to the two employees. The NLRB had little trouble concluding that these posts were unprotected insubordination, not protected concerted activity:

Callaghan and Moore’s lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail. We are not presented here with brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation. The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.

From these two examples, we glean that, indeed, there exists a line between protected online speech and unprotected threats, harassment, or insubordination. The difficult task is figuring out where that line is, an issue that will continue to develop, and bears watching, as more employees take to the social-sphere to air workplace grievances.