New anonymous workplace app raises big workplace issue

Have you heard about Memo? It an iPhone app that allows individuals to post anonymous comments, both positive and negative, about their employers to a specific group page about the company. As you could imagine, it’s the negative posts that will get the lion’s share of attention.

Here’s what a typical company-bashing comment on Memo looks like.

According to Quartz.com, Memo has already “received two cease-and-desist letters, two companies have blocked emails from Memo hitting their servers, and three companies have written memos to employees about the app.”

I want to address the latter—companies that, via policy, fiat, or otherwise, try to stop their employees from using Memo.

As you should know, federal labor law gives employees the right to engage in protected, concerted activity—that is, discussions between or among employees about wages, hours, and other terms and conditions of employment. Employees’ discussions, for example, about an open-door policy, would be a textbook example of protected concerted activity.

Federal labor law prohibits employers from retaliating against employees for engaging in protected concerted activity. Retaliation isn’t Memo’s biggest risk because its posts are (supposedly) anonymous. However, federal labor law also prohibits employers from maintaining or enforcing policies that could chill employees’ right to speak about terms and conditions of employment.

Thus, if you think you can legislate Memo (or other similar apps) out of your workplace, you might want to think again. The NLRB will likely hold a very different opinion about the rights of your employees to talk about your company, anonymously or otherwise.

Old laws meet new technology: sexual harassment via social media

Last week, the EEOC held a public meeting on workplace harassment. The most interesting testimony was provided by Jane Kow, of HR Law Consultants, who spoke about the impact of harassment on the modern workplace. One of the key areas she covered was the intersection of workplace harassment and social media:

The ease and speed of posting or responding to the proliferation of messages and images on social media—sometimes by employees at the 11th hour, right before bed, in 140 characters or less, and oftentimes without aforethought—has spawned employee complaints of harassment, defamation, violation of a right to privacy and a host of other claims. None of this was even imaginable in 1964 when Title VII was enacted (or in 1991 when it was amended). But employers must now interpret an EEOC guidance that was written and cas es that were decided by courts in the old millennia to determine how to apply these rules to regulate conduct in the new workplace of the present and future, transformed by these technological advances. 

Employers are now grappling with how to lawfully regulate employees’ text messages, blogs, and social media activity in the face of potential complaints from co-workers about harassing comments posted or images shared publicly.  

What does this mean for your business. The workplace's boundaries no longer begin a 9 and stop at 5. Technology connects employees to each other 24/7. This added connectivity creates opportunities for greater employee engagement and stronger workplace communities. It also creates opportunities for bad actors to do bad things, like harassment. It's important for employers to keep in mind that agencies and courts will apply the same rules to Facebook harassment as they would to face-to-face harassment. If they aren't treating any differently, neither should you.

A few from the archives for MLK Day

Today is Martin Luther King Jr. Day.

Race relations have been particularly scrutinized over the past few months, with Ferguson and its fall out around the country. Thus, it is more important than ever to pause and think about Dr. King, and the lessons of inclusion and respect to be learned from his life and untimely death.

In this regard, here is what I’ve had to say to mark this day over the past few years.

• Something Different for MLK Day
• What Dr. King fought for … and what he didn’t
• MLK Day calls for reflection about how far race relations have come, and how far we have left to go
• Some words to ponder on MLK Day

WIRTW #351 (the “conciliation” edition)

We’re supposed to assume complete good faith on the government’s part and complete bad faith on the part of employers?

Chief Justice John Roberts asked this question of Assistant Solicitor General Nicole Saharsky during oral argument earlier this week in Mach Mining v. Equal Employment Opportunity Commission, a case that will test the limits of how far the EEOC has to go to try to conciliate a charge of discrimination prior to filing an enforcement action in court.

The oral argument did not go so well for the EEOC. Irin Carmon at MSNBC, Jess Bravin at the Wall Street Journal, and Julie Goldscheid at SCOTUSblog have the details.

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

Discrimination

• Are punitive damages recoverable in a Title VII discrimination case? — via Employment Law Bits
• Fitness for Duty Release Did Not Undermine Legitimate Reasons for Termination — via Laconic Law Blog
• Year-Starting Stumbles: The EEOC’s Aggressive Tactics Shot Down Twice In The First Week Of 2015 — via EEOC Year-End Countdown
• Employer Fails to Provide Leave of Absence to Probationary Employee, Pays the Price — via Jeff Nowak’s FMLA Insights
• 7th Circuit Finds Employer That Included Employee's EEOC Complaint in SEC Filings Enough to Show Retaliation — via Wisconsin Employment & Labor Law Blog
• Recent 404(b) “Other Acts” Cases In Title VII Employment Context — via David Neel’s Cleveland Employment Law Blog

Social Media & Workplace Technology

• Should You Be Performing Facebook Background Checks? — via ERC Insights Blog
• Facebook at Work tackles office communication with familiar tools — via Engadget Mobile
• Lawsuits, Discovery, and the Right to Privacy In the Context of Social Media — via Molly DiBianca’s Delaware Employment Law Blog
• BYOD and Employee Habits—Employer Concerns — via HR Daily Advisor

HR & Employee Relations

• Is Your Organization Ready for Another Northeast Ohio Winter? — via ERC Blog
• Workers may be temporary, but OSHA is forever: clarifying employer duties — via HR Hero Line
• My Employee Jokes About Strangling Difficult Customers — via Evil Skippy at Work
• HR 101: To Background Check or NOT to Background Check — via TLNT
• 8 New Year's Resolutions for HR — via Next Blog
• Is Policy The Enemy of Trust? — via Next Blog

Wage & Hour

• Since You Asked: A Modest Wage & Hour Law Proposal — via Dan Schwartz’s Connecticut Employment Law Blog
• President Obama to push for paid sick leave for American workers — via Eric Meyer’s Employer Handbook Blog
• Converting employees into contractors? Prepare for expensive, protracted litigation — via Business Management Daily
• Make sure smartphones mean smart business: Beware of wage-hour hazards — via Technology for HR
• Workers Are Bad at Filling Out Timesheets, and It Costs Billions a Day — via Harvard Business Review
• Can My Boss Dock My Pay For Mistakes? — via Donna Ballman at AOL Jobs

Labor Relations

• Can Companies Fire Workers Who Blab About How Much Money the Boss Makes? — via Matt Austin Labor Law
• U.S. Chamber Files Suit to Block NLRB’s New Election Rule Which Would Speed Up Elections — via Wyatt Employment Law Report
• New Year, New Rules, New Union-Avoidance Strategies — via Employment Law Watch
• Want to Be Happy? Join a Union — via The New York Times

Why retaliation claims should keep you up at night

In early 2009, Aker Plant Services terminated the employment of Tommy Sharp as part of workforce reduction. When Sharp asked his supervisor why the company chose him, as opposed to his less experienced, less senior co-workers, the supervisor replied that the company decided to keep younger employees who could stay with the company longer. Sharp then sued for age discrimination.

While Sharp’s age discrimination lawsuit was pending, a staffing agency attempted to place him for a temporary position at Aker. The company, however, immediately rejected Sharp’s candidacy,  notifying the staffing agency, via email, as follows:

Yes, we do know Tom. He does acceptable work as a designer, but he violated a DuPont mandate on the use of electronic recording devices on company property when last employed here. There are combustible materials in the plant that can potentially be ignited by the use of cell phones, recorders, cameras, etc… [sic] DuPont maintains a zero-tolerance approach to safety violations on its property so, unfortunately, we will not be able to consider Mr. Sharp for this role.

Sharp then brought a second suit, this time for retaliation. The district court dismissed the retaliation claim, concluding that the 15-month gap between Sharp’s initial notification of an intent to sue for age discrimination and the email to the staffing agency severed any potential causal connection between the two events.

The 6th Circuit, however, in Sharp v. Aker Plant Services Group (6th Cir. 1/13/15) [pdf], disagreed:

Considering the evidence in the light most favorable to Sharp, one could reasonably infer that Aker declined to rehire Sharp in retaliation for his then-pending discrimination action. Yes, it was fifteen months later…. Aker terminated Sharp before he filed his age-discrimination lawsuit, and therefore could not retaliate against him in any manner until he returned seeking temporary employment a year and a half later. Evidence showing that an employer had no opportunity to retaliate sooner supports a finding of temporal proximity.

Retaliation are the most dangerous claims that employers face. This employer likely felt safe refusing Aker’s placement because of the 15-month gap. That time gap, however, was tempered by the fact that the company no longer employed Aker, and its next interaction with him was the claimed act of retaliation. When an employee engages in protected activity, you must treat that employee with added care, as any act that could dissuade an employee from engaging in protected activity could give rise to a retaliation claim.

Beware the pregnancy accommodation claim

On Monday I published my list of the five biggest issues employers need to watch and manage in 2015. I listed “pregnancy leave rights” as number five. In reality, though, that issue could easily have been number one.

Consider that earlier this week, USA Today told the story of a North Carolina nursing assistant, who claims that she was forced to resign from her job after her employer refused to provide light duty to accommodate the medical complications of her pregnancy. According to the story, “The nursing home regularly provided ‘light duty’ to workers unable to lift, Cole says in the complaint. On light duty, nurse assistants can feed and clean residents and assist with oxygen tubing and nebulizers, she added.

This issue is not going away. Charges filed with the EEOC alleging pregnancy discrimination have increased by nearly 50% over the past 15 years. Moreover, women comprise nearly half of the workforce, and 75% of them will become pregnant at some point. Couple those stats with the fact that 40% households with children have mothers who are either the sole or primary source of income for the family, and you can see why this issue is so critical to the American worker (and, consequently, the American employer).

Yet, this should be a non-issue for most employers. Just this past summer, the EEOC issued enforcement guidance that affirmed my long-held belief that employers may have to provide light duty for pregnant workers, and must provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions. This rule will impose a light-duty obligation on most employers.

Ask yourself—

• Have I ever provided light duty to expedite the return-to-work of an employee with a work-comp claim?
• Have I ever provided light duty to an employee as an ADA reasonable accommodation?

If you answer “yes” to either of these questions (and most employers will), then you cannot deny the same light duty to a pregnant worker.

“Buyer’s regret” as an adverse employment action

Nearly a year ago, in Deleon v. City of Kalamazoo, the 6th Circuit decided that an employee could claim discrimination when he was “involuntarily” transferred into a position for which he had earlier voluntarily applied. 

At the time, I thought it was one of the worst decisions I had ever read.

Yesterday, the Supreme Court decline to review the Deleon case. Typically, these denials are unceremonious affairs, with nary a word other than “denied” pronounced. Justice Alito, however, apparently agreeing with my assessment of the 6th Circuit’s decision, took the rare occasion to draft a dissent to the denial (pdf here). This is what he wrote:

An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.

No termination is perfectly insured against a lawsuit. Some are more high risk than others (and those should be accompanied by an offer a severance package in exchange for a release of claims). Even the easiest decisions, however, carry some amount of risk. On any given day, any judge or jury could agree with the employee and decide against you. You job as an employer is to balance the risk of a lawsuit against the risk of keeping an employee employed and make a reasoned, informed decision about whether to retain, fire, or fire with a severance offer. And, please, don’t have buyer’s regret.

[Hat tip: Phil Miles’s Lawffice Space]