WIRTW #247 (the “meet ’n greet” edition)

What does it look like when two behemoths of the blogging world get together in person for the first time?

Dan, hopefully you don’t mind that I cribbed your photo.

As an aside, if you find yourself near Union Square in San Francisco, I recommend Café Claude. Great classically French meal, only outdone by the company. Your mileage may vary on the latter. 

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

Discrimination

• EEOC Cracking Down on Discrimination of Arab and Muslim Workers — from Hiring & Firing
• The Never-Ending Employment Law Case and the Hour-Long Commute — from Dan Schwartz’s Connecticut Employment Law Blog
• Workplace Discrimination Against Pregnant Women Now Being Targeted By The EEOC — from Hunton Employment & Labor Law Perspectives™
• Appeals Court Slams Trial Judge For Not Issuing Injunction Against Egregious Sexual Harasser — from Employment Discrimination Report
• Can Employers Discriminate Against You Because You're Unemployed? Absolutely — from Donna Ballman’s Screw You Guys, I’m Going Home
• Court Dismisses Bachelor Discrimination Suit — from TVLine
• Asperger’s Syndrome in the Workplace — from Workplace Insights

Social Media & Workplace Technology

• Take Your Life Back — from Harvard Business Review
• Six Principles for Reputation Management in a Transparent World — from Social Media Today
• “The Problem with the Internet Is That Nothing Is Temporary” — from Lifehacker
• Fired for “Liking”—Social Media Use at Your Job — from From the Sidebar
• Social Media and Employment: My Name, My Picture, My Info - Why Not My Account!? — from Outten & Golden Employment Law Blog
• An Eye-Opening Termination Of A Former Lingerie Model — from Social Media Employment Law Blog
• Fired for WHAT!? - Jailbait and Creepshots — from Phil Miles’s Lawffice Space
• NY Times social media policy a good model for law firms — from Kevin O’Keefe’s Real Lawyers Have Blogs
• Dear Evil Skippy: What’s The Best Way To Enforce Computer-Use Rules? — from Evil Skippy at Work
• Privacy and Porn on Workplace Computers — from Employment & Human Rights Law In Canada

HR & Employee Relations

• As the Election Nears, Employers Should be Cautious of Politics in the Workplace — from Stoel Rives World of Employment
• Politics at Work: Employer Dos, Don'ts, and Be Very, Very Carefuls — from Robin Shea’s Employment and Labor Insider
• An HR Lesson from the Presidential Debate — from Molly DiBianca’s Delaware Employment Law Blog
• Employment-at-Will: Walking the Fine Line, Part I and Part II — from The Emplawyerologist
• Ohio Background Screening Law Not Perfect, But Deserves Applause — from Nick Fishman’s employeescreenIQ Blog
• Do you know what your references will say? True quotes from reference checks — from Evil HR Lady, Suzanne Lucas
• “Vacation” Rules Around the World — from Compensation Cafe
• Effective Ways to Start and End an Investigatory Interview — from Trade Secret / Noncompete Blog

Wage & Hour

• “No Soup for You!” If An Employee Doesn’t Turn in Medical Certification, FMLA Leave is Not Protected — from Jeff Nowak’s FMLA Insights
• What happens in Vegas, becomes an FMLA claim — from Eric Meyer’s The Employer Handbook Blog
• The DOL’s FMLA Forms Do Not Comply with GINA — from Minnesota Employer
• Changing Workweek to Minimize Overtime Is Not “Evasion” of the FLSA — from Wage & Hour Defense Institute

Labor Relations

• Whiskey Bent and Hellbound: The NLRB May Target Employer Email Systems Next — from Todd Sarver’s Employment Essentials
• Five Actions That Non-Union Employers Should Take to Retain Their Union-Free Status in 2013 — from Management Memo
• Unions Promote State Workplace Anti-Bullying Bills — from Washington D.C. Employment Law Update
• NLRB welcomes “micro-unions” — from Walter Olson’s Overlawyered
• The Real Reason Walmart’s Social Media Policy Survived and Costco’s Didn’t (Hint: It’s Not “Defamation”) — from Augmented Legality

Are you attending the COSE Small Business Convention?

Will you be at Kalahari for the COSE Small Business Convention? If so, I’m speaking at tomorrow—Friday, October 26, at 10:15. My session is entitled, Think Before You Click: Strategies for Managing Social Media in the Workplace.

What will you learn?

• Why discrimination, breaches of confidentiality, and protected concerted activity are the 3 biggest HR risks facing employers via their employees' use of social media.
• Why you are fighting a losing battle if you try to ban your employees from accessing Facebook and other social sites from work for personal reasons.
• How to limit your risk when you search for information on job candidates online.
• What a "pervy wanker" has to do with concepts such as corporate risk tolerance.
• How to account for who owns official corporate social media channels.
• Whether anyone can make any sense out of the NLRB's position on social media posts as protected concerted activity.

Plus, I promise a prize for at least one person who attends my session. How can you pass up my talk?

If you’re at the convention, please stop by and say hello. I love meeting my readers. I hope to see you there.

 

EEOC opines on domestic violence, sexual assault, or stalking as Title VII and ADA violations

There is no federal law that expressly gives workplace rights to employees who find themselves victims of domestic violence, sexual assault, or stalking. That omission, however, does not unchain employers to discriminate against employees who find themselves in these unfortunate circumstances.

Earlier this month, the EEOC issued a Q&A entitled, Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking [pdf].

While Title VII and the ADA do not expressly protect victims from discrimination, they do protect against employers’ use of stereotypes rooted in protected classes (e.g., sex or mental illness) to treat these employees differently.

The EEOC is kind enough to provide some examples of these stereotypes in action:

Title VII—Disparate Treatment Based on Sex

• An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.” 

Title VII—Sexual Harassment

• An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal emails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

ADA—Disparate Treatment Based on Actual or Perceived Disability

• An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

ADA—Denial of Reasonable Accommodation

• An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”

Retaliation

• An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

The Q&A contains many more examples. It is worth reading, and incorporating into your harassment/EEO training so that managers and supervisors are aware of these issues.

Hat tip to the Workplace Prof Blog for brining this to my attention.

Please don’t tell your employees for whom to vote

Have you read the story about a certain presidential candidate telling employers that’s it’s okay to suggest to their employees how to cast their votes in the upcoming election? Here’s the quote, via The Guardian.

I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. And whether you agree with me or you agree with President Obama, or whatever your political view, I hope — I hope you pass those along to your employees. Nothing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.

Governor Romney is correct about one thing—it is not illegal for employers to talk to their employees about the upcoming election and suggest how to vote. Indeed, as Professor Paul Secunda points out at the Yale Law Journal Online, employers may be able to go so far as to “compel their employees to listen to their political views at such meetings on pain of termination.” According to the Proactive Employer Blog, “employers justify their actions countering that rather than controlling or coercing workers, they are simply educating them.”

There are some laws covering this type of conduct. The federal government criminalizes intimidation, threats, or coercion for the purpose of interfering with one’s right to vote one’s choice in a federal election. A few states (Michigan, for example) expressly prohibit employers from discharging or otherwise coercing employees to influence their votes in political elections. Ohio is not one of those states.

Legal or illegal, however, you need to ask yourself whether holding captive audience meetings to discuss political issues, threatening employees’ jobs, or mandating their attendance at political events is a valid business practice. How you answer the question of whether you think it’s okay to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes. I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.

More on telecommuting as a reasonable accommodation

Two months ago, I reported on Core v. Champaign County Board of County Commissioners, which, in denying a motion to dismiss, concluded that the employee’s complaint had sufficiently pleaded the issue of whether the employer’s decision to deny her request to telecommute as a reasonable accommodation violated the ADA.

The case involved an employee with an alleged sensitivity to certain perfumes worn by her co-workers. She claimed that her employer unlawfully denied her request to work from home as an accommodation for her chemical sensitivity. In denying the motion to dismiss and allowing the case to proceed, the court concluded that technological advances may make telecommuting an appropriate accommodation in certain cases.

Last week, that same court decided that this was not the right case to recognize telecommuting as an accommodation, and dismissed the employee’s lawsuit on the employer’s motion for summary judgment. On the specific issue of telecommuting, the court ruled as follows:

With regard to Plaintiff’s request to work from home as an accommodation, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.” The Sixth Circuit also recognizes, however, the possibility of exceptions to the general rule “‘in the unusual case where an employee can effectively perform all work-related duties at home [.]’”

Here, Defendant points to evidence that Plaintiff’s position … required her to meet with non-employee clients regarding services, inspect and certify in-home daycare facilities, conduct and attend training sessions, input data into a state database only accessible at the … facility, and maintain physical files that are to be restricted to the … facility. Defendant also points to Plaintiff’s own admissions that she cannot perform all of the essential functions of her position at home. Plaintiff points to no evidence rebutting these facts. Accordingly, the Court finds that the requested accommodation that Plaintiff be permitted to work from home is not reasonable.

This decision highlights two important points:

1. It does not take much for an employee to survive a motion to dismiss. A motion to dismiss merely tests the legal sufficiency of the complaint. In other words, reading the complaint in a light most favorable to the plaintiff, does it plausibly state a claim upon which a jury could award relief. It is a preliminary motion brought at the earliest stage of the case. In most cases, it is denied. When denied, it is rarely reflects on the merits of the case.

2. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes telecommuting more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider implementing the following three-step process:

• Prepare job descriptions that detail the need for time spent in the office.
• Document the cost of establishing and monitoring an effective telecommuting program.
• If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

The real problem with individual liability

As Senate Bill 383—Ohio’s attempt at comprehensive employment discrimination reform—weaves its way through the legislative process, a lot of blood is going to be spilled. In fact, it started yesterday in the comments to my post discussing the legislation.

One of the key battlegrounds will be the issue of whether Ohio’s discrimination law should provide for liability of managers and supervisors for their own individual acts of discrimination. My friends from the plaintiffs’ bar (and, yes, they are my friends) accuse me of protecting those who should be punished. Nothing could be less accurate.

To put this issue into context, I need to take a step back and explain why individual liability is an issue at all. It is universally accepted that Title VII does not provide for the individual liability of supervisors and managers. Ohio’s counterpart, however, is different. In 1999—in Genaro v. Central Transport—the Ohio Supreme Court held that contrary to federal law, Ohio’s state employment discrimination statute renders supervisors and managers personally liable for their own discriminatory acts.

S.B. 383 eliminates this difference, and brings Ohio’s statute in line with its federal counterpart by eliminating individual liability.

Opponents of this legislation argue that individual liability for managers and supervisors is needed to properly deter discriminatory and harassing behavior and hold accountable those who perpetrate it.

This argument is a fallacy. Employees aggrieved by invidious and intentional discrimination or harassment have claims available against the individual perpetrators—assault, battery, intentional infliction of emotional distress, invasion of privacy, and defamation, to name just a few. These civil remedies are in addition to criminal penalties that one can seek for the most egregious misconduct.

Opponents of this legislation argue that it protects sexual predators.

In addition to being offensive, headline grabbing hyperbole, this argument also is a fallacy. If you believe that the employment discrimination laws should punish predatory behavior, then the availability of a remedy should neither depend on the employment status of the accused, nor the statute under which the suit is brought. Yet, currently, only managers and supervisors can be held liable. One can never sue a non-supervisor or non-managerial co-worker for discrimination, no matter how bad the conduct. Moreover, one can bring suit against a manager or supervisor under state law; federal law provides no such remedy. If we are really concerned about punishing predators, then we shouldn't differentiate between supervisors and non-supervisors, or between state and federal laws.

Opponents of this legislation argue that the only reason employers want to eliminate individual liability is to expand the availability of the removal of cases to federal court.

This argument is also a fallacy. When an Ohio plaintiff sues a non-Ohio company in state court under state law, the employer can take the case to federal court. Adding a local manager or supervisor as a defendant eliminates this possibility. The reality is that if a plaintiff wants to keep a case in state court, he or she will find a cause of action to name a non-diverse individual defendant, whether or not a statutory claim exists against that individual under the employment discrimination statute.

By focusing on the rare example of a workplace sexual predator, opponents of S.B. 383 gloss over the real harm caused by individual liability. Consider this example. Jane Doe, a supervisor for ABC Company, has to fire a poor performing employee. She has counseled the employee repeatedly for the past two years, but his performance has not improved. Unfortunately for Jane Doe, this employee happens to be the only African-American in her department. Five years after the termination, Jane Doe’s doorbell rings at 9 p.m. She answers her apartment door to find a process server, lawsuit in hand. The employee she had terminated five years earlier has sued Jane Doe, in addition to her company, for race discrimination. Ms. Doe had done nothing other than her job. Now, she is forced to defend against allegations of discrimination and bigotry.

This example is much more common than the workplace sexual predator that the opponents of S.B. 383 hold out as the standard bearer. There is little, if any benefit to keeping individual liability as a part of Ohio’s employment discrimination statute, and it is a key facet of this reform that must become part of the law of this state.

Major reform to Ohio’s discrimination laws introduced in state senate

Ohio’s employment discrimination laws leave a lot to be desired. They expose employers to claims for up to 6 years, render managers and supervisors personally liable for discrimination, contain no less than 4 different ways for employees to file age discrimination claims—all with different remedies and filing periods, and require no filing with the state civil rights agency as a prerequisite for filing a civil lawsuit.

Yesterday afternoon, Senate Bill 383 was formally introduced in the Ohio Senate. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Among its key reforms and amendments, S.B. 383:

• Creates a universal 365-day statute of limitations for all employment discrimination claims.

• Clarifies that the inclusion of “religion” as a protected class does not include those working in a ministerial capacity.

• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.

• Requires individuals to elect between filing an administrative charge with the Ohio Civil Rights Commission, or filing a discrimination lawsuit in court, and making clear the the election of one bars the other.

• Prioritizes mediation and conciliation for all charges filed with the OCRC.

• Establishing an affirmative defense to claims not alleging an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.

• Eliminates individual liability for managers and supervisors.

• Caps noneconomic and punitive damages based on the size of the employer.

This bill presents a tangible opportunity to fix a broken law. Ohio’s current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive disadvantage. By paralleling much of the federal employment discrimination statutes, S.B. 383 restores balance and predictability for Ohio employers.

Focusing on the elimination of individual liability for discrimination claims, the Ohio Employment Lawyers Association, a vocal group of plaintiff-side employment lawyers, has already labeled this legislation as “protecting sexual predators.” Nothing could be further from the truth. The legislation leaves intact all common remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, invasion of privacy, and criminal sanctions. S.B. 383 merely brings Ohio in line with federal law and the law of most states on this issue.

Now comes the hard part—getting this bill passed. If you believe S.B. 383 presents the necessary reform of a broken system, call and email your state senator and urge him or her to support this bill. Getting S.B. 383 passed will be an uphill battle, but it is a battle worth fighting to bring meaningful reform to a broken statute.

Employment Law Blog Carnival: The 007 Edition

“A dry martini,” he said. “One. In a deep champagne goblet.”

“Oui, monsieur.”

“Just a moment. Three measures of Gordon’s, one of vodka, half a measure of Kina Lillet. Shake it very well until it’s ice-cold, then add a large thin slice of lemon peel. Got it?”

“Certainly monsieur.” The barman seemed pleased with the idea.

“Gosh, that’s certainly a drink,” said Leiter.

Bond laughed. “When I’m … er … concentrating,” he explained, “I never have more than one drink before dinner. But I do like that one to be large and very strong and very cold, and very well-made. I hate small portions of anything, particularly when they taste bad. This drink’s my own invention. I’m going to patent it when I think of a good name.”

Ian Flemming, Casino Royale, Ch. 7 (1952).

This month marks the 50th anniversary of the world’s most famous movie spy, James Bond. Since many have compared my suaveness and sophistication with that of 007, celebrating Bond is a fitting topic for my edition of the monthly roundup of the best that the employment law blawgosphere has to offer.

 

007 is always on guard. In fact, it’s how he starts every movie. In 2012, one of the biggest issues from which employers need to be on guard is the National Labor Relations Board. According to John Holmquist’s Michigan Employment Law Connection, this includes keeping track of how employees use corporate email systems. And, according to Heather Bussing at the HR Examiner, employers also need to be on guard against overly broad workplace policies.

 

007 has never gotten anyone pregnant (as far as we know) despite ample opportunities. He did get married once, though, at the end of On Her Majesty’s Secret Service, only to have his arch-nemesis, Ernst Stavro Blofeld, kill his bride a mere hours after ceremony. Her untimely demise prevented the pair from ever procreating. If Bond did have children, however, he’d want to read up on the workplace rights of pregnant women. Two good places to start? No, Seriously - EEOC Targeting Pregnancy Discrimination, from Phil Miles’s Lawffice Space, and Pregnancy Discrimination Continues to Present Hurdle for Women, from Randy Enochs’s Wisconsin Employment & Labor Law Blog.

 

Live and Let Die brought some color to the James Bond series. Its villain, Mr. Big, was known as the Voodoo Baron of Death. The movie took Bond to the jazz joints of Harlem, to New Orleans, to the Everglades, and finally to the Caribbean. It also features one of the first on-screen mixed-race love scenes. (Interesting fact: Entertainment Weekly reports that the scene was edited from the film for its theatrical run in South Africa). If Bond can embrace diversity, shouldn’t we all? See The Benefits of Embracing Diversity in the Workplace, from CPEhr’s Small Biz HR Blog. Or, if the whole voodoo thing freaks you out, I recommend you read Employment Law Made Un-Scary, the ADA, at Mark Toth’s Manpower Employment Blawg, to calm you down.

 

The first 14 James Bond movies featured Lois Maxwell as Miss Moneypenny, the secretary of Bond’s boss and the head of MI6, M. Maybe M needs to read 5 Ways Not to Handle a Sexual Harassment Complaint, from the i-Sight Investigation Software Blog, in case Moneypenny ever gets tired of Bond’s cheesy come-ons and lodges a complaint. Does Bond really have the hots for Moneypenny, or is it just a game to him? Maybe they all need to read If you hire only people you have the hots for, is that sex discrimination?, from Robin Shea’s Employment & Labor Insider. Or, given how many foreign agents Bond has bedded over the years, maybe M should read $$$ reasons to have a second-language anti-harassment policy, from Eric Meyer’s The Employer Handbook Blog.

 

Goldfinger, the most iconic James Bond movie, involves a plot to steal America’s gold supply from Fort Knox. What if, instead, it was about an employee blowing the whistle on someone planning to do something illegal at a bank. Take a look at A New Whistleblower Retaliation Statute Grows Up: Dodd-Frank is the new Sarbanes-Oxley, from Dan Schwartz’s Connecticut Employment Law Blog, before you take action against that whistleblower. Something tells me that in the coming years, as these Dodd-Frank whistleblower claims mature, a lot of employers are going to feel like Bond strapped to that table.

 

No James Bond movie has ever been set in Canada. In fact, only one, The Spy Who Loved Me, even filmed in our neighbor to the North. According to Stuart Rudner, writing at the HR Examiner, Employment is Different in Canada. It looks like spy movies are different up their too.

 

Finally, the opening chase scene in Casino Royale ends with Bond taking on an entire army inside the Nambutu Embassy. If 007 was a U.S. citizen working in a foreign embassy, would he keep his rights under our discrimination laws? According to Robert Fitzpatrick on Employment Law, the answer is yes.

 

The Employment Law Blog Carnival will return… Our gracious curator, Eric Meyer, will host next month’s Employment Law Blog Carnival, at The Employer Handbook Blog, on November 14. If you want to participate, email him a link to your employment-law-related blog post by November 9. If you want to host a future edition of the Carnival, you can also let Eric know.

Because I am hosting this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #247.

Employers or employees: who owns social media accounts?

Courts and businesses are grappling over the issue of who owns a social media account—the company or the employee responsible for maintaining it. The most high-profile case is the ongoing dispute between PhoneDog and Noah Kravitz over the company’s Twitter account (which Kravitz took with him when he resigned).

Last week, Eagle v. Moran [pdf] tossed its hat into the ring on this issue.

During 2008, while Dr. Linda Eagle was president of Edcomm, she established an account on Linkedin, which she used to promote Edcomm’s services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships. A co-worker had access to Eagle’s password and assisted her in maintaining her account. Edcomm, through its CEO, recommended that all employees participate in Linkedin and indicated that employees should list Edcomm as their current employer. Edcomm generally followed the policy that when an employee left the company, the company would “own” the Linkedin account and could “mine” the information and incoming traffic, so long as it did not steal the ex-employee's identity.

On June 20, 2011, Edcomm terminated Eagle, accessed her LinkedIn account and changed her password, and changed the account to display the name and photograph of its new CEO.

The court dismissed Eagle’s federal statutory claims, but refused to dismiss her state law misappropriation claims. Trial is set to begin today.

What are the takeaways for businesses deciding how to deal with the ownership of corporate social media accounts? I have some thoughts, but Eric Meyer, at the Employer Handbook Blog, beat me to it:

1. Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
2. The company should create/register the account. This will indicate that the company has some ownership stake in the account. Also, be sure to consider the terms of use that any social-media company has in place for end users.
3. Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.

More succinctly, I can sum up the one key takeaway for employers and the one key takeaway for employees:

• For employers: If you have employees creating or using a work-related social media account, before you grant the employee access, put in writing who owns the account. Otherwise, you will end up litigating the issue after the fact.
• For employees: For gods sake, exercise some common sense and never give your employer the passwords to your personal social media or other online accounts. This whole mess could have been avoided if Eagle simply kept to herself what is supposed to be private.

On second thought, go ahead and enforce those noncompetes in mergers

Typically, a decision from the Supreme Court establishes the rule of law going forward on the issue specific to that case. Acordia of Ohio, L.L.C. v. Fishel (10/11/12) [pdf], however, is not your typical case. When the pro-business Ohio Chamber of Commerce and the pro-plaintiff Ohio Employment Lawyers’ Association join together on an issue, something is up.

In Acordia I, decided earlier this year, the Ohio Supreme Court held that if a noncompetition agreement does not provide for its transfer to successor and assigns, the company’s merger with another entity terminates the agreement. That decision, however, was not the end. The losing party filed a motion for reconsideration, supported by a whole bunch of business groups (including the aforementioned Ohio Chamber of Commerce and the Ohio Employment Lawyers’ Association).

Last week, the Supremes issued its decision reversing course:

Employee noncompete agreements transfer by operation of law to the surviving company after merger. The language in Acordia I stating that the L.L.C. could not enforce the employees’ noncompete agreements as if it had stepped into the original contracting company’s shoes or that the agreements must contain “successors and assigns” language in order for the L.L.C. to enforce the agreements was erroneous. We hold that the L.L.C. may enforce the noncompete agreements as if it had stepped into the shoes of the original contracting companies, provided that the noncompete agreements are reasonable under the circumstances of this case.

You can now return to your regularly scheduled noncompetition agreements.

WIRTW #246 (the “you get what you ask for” edition)

Watch this video, and then let’s talk:

The HR Capitalist, Kris Dunn, shared this video on his blog earlier this week. Believe it or not, the creator of this video, an online videogame company called Kixeye, actually uses this video for recruiting. Kixeye recently fired a manager and three other employees following complaints of racial harassment. Here’s Kris Dunn’s take on the synergy between the video and the harassment, which is 100 percent spot-on:

The question that's fascinating to me is if you can separate the way you market from the values you have as a company related to culture, people, etc. 

What do you think? I think if he needed to fire people, he did the right thing. But the marketing platform suggests that the company doesn't exactly reinforce treating others with respect.

Rock - meet hard place. Pot - meet Kettle.

Folks, if this video is the message you send to employees on their way into the company, it is any surprise that they act like children, or worse, once they’re hired.

No WIRTW next week. In its place, I’m hosting the Employment Law Blog Carnival on Wednesday. There’s still time (but not much) to send me a link if you want your blog included.

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

Discrimination

• Utilityman can't climb utility poles, but has ADA claim against utility company — from Eric Meyer’s The Employer Handbook Blog
• ADA news: Court upholds termination of deaf employee — from Warren & Associates Blog
• ADA Attorney: Agent of Change or Personal Gain? — from Stephanie Thomas’s Proactive Employer Blog
• Telework as a Potential Reasonable Accommodation — from Mike Haberman’s Omega HR Solutions
• Trouble for Employers - The Obesity Based ADA Claim — from Rob Radcliff’s Smooth Transitions
• Slap Happy Celebration of Work Accomplishment Not Severe or Pervasive Enough for Sexual Harassment or Retaliation Claim — from Employer Law Report

Social Media & Workplace Technology

• Is being a former lingerie model grounds for dismissal? — from Workplace Prof Blog
• Password Demand Laws - A Fallen Tree In An Empty Forest — from Social Media Employment Law Blog
• How to Get Fired for Facebook Posts — from Social Media Today

HR & Employee Relations

• Boomers, Stop Yelling at Gen Y to Get Off Your Lawn — from Harvard Business Review
• A Step-by-Step Guide to On-Boarding New-Hires — from ERC Insights Blog
• Synonym showdown: Which word works best? — from Ragan.com
• Employment Law Basics: Coping With the Fair Credit Reporting Act — from TLNT
• That Sniffly, Sneezy Time Of Year: Can You Require Your Employees To Get a Flu Shot? — from Stoel Rives World of Employment
• Enforceability of Noncompete Agreements Post-Merger — from Delaware Employment Law Blog

Wage & Hour

• FMLA Back Pay Includes Overtime — from Phil Miles’s Lawffice Space
• Intermittent Leave for Foster Care & Adoption? Only If Employer Approves — from Dan Schwartz’s Connecticut Employment Law Blog
• Jury charge quiz for Fair Labor Standards Act cases — from Work Matters
• Is Gold's Gym Out Of Shape? Company Hit With Collective Action On Off-the-Clock Time — from Wage & Hour - Development & Highlights

Labor Relations

• Whiskey Bent and Hellbound: The NLRB May Target Employer Email Systems Next — from Employment Essentials
• NLRB is finding ways to implement its Employee Rights Notice posting, in spite of legal challenges. — from Employment Law Matters
• The NLRB Is Screwing Everything Up For Everybody. Seriously. — from Tim Eavenson’s Current Employment

What is main reason to limit access to social media profiles in hiring? EEO information, of course.

In Neiman v. Grange Mutual Casualty Co. (C.D. Ill. 4/26/12), the plaintiff claimed that he was not hired for a position because of his age. The employer argued that it could not have considered the plaintiff’s age because it had no idea how old he was when it made its decision. The plaintiff, however, argued that the employer must have been aware of his age because he included the year he graduated from college on his LinkedIn profile.

According to the court, that allegation was enough to get the plaintiff past the employer’s motion to dismiss:

Plaintiff alleges … that during telephone interviews, Heindel [the Vice President of Human Resources] did inquire about and confirm the year that Plaintiff and the candidate who was selected for the position each earned their degrees. According to the Complaint, the Plaintiff’s interview was conducted in February 2010. It is not difficult to determine that someone who graduated from college in 1989 probably was over the age of 40 in 2010. This is enough to place Integrity on notice that he is subject to the protection of the laws against age discrimination.

Businesses need to understand that without appropriate controls in place, reviewing Google, Facebook, LinkedIn, or any other publicly available online information before making a hiring decision is a risky proposition. These online searches could reveal all sorts of protected EEO information that no employer would want to discover as part of the hiring process.

Assume, for example, that the search revealed that a candidate belonged to a group for breast cancer survivors. You can imagine the potential problems (ADA and GINA, to name two) that could arise if the employer passes over this candidate. You would never ask an interviewee if she is a breast cancer survivor, but the unfettered searches of candidates’ online profiles could put you in the same untenable position as if you had asked.

I see three possible solutions to this potential risk. You should adopt one of these if you are searching applicants online profiles.

1. Don’t do online searches. The easiest way to avoid these potential EEO traps is simply not to conduct online searches. That omission from your screening process, however, will deprive you of valuable information you could learn about a candidate, such as whether s/he presents professionally or matches your corporate culture, how s/he communicates, or if s/he has ever trashed a former company or divulged confidential information. In other words, given the wealth of information you can learn, I think you are doing your organization’s hiring process a disservice by skipping online searches.

2. Outsource the process. Companies are popping up that will conduct these searches for you and return scrubbed reports clean of any potential EEO pitfalls. Of course, because these companies are external to your organization, they add cost to your hiring process.

3. Train someone internally. Alternatively, you can train someone within your organization, but extern to the hiring process, to do the same thing that the third-party vendors are doing—conduct the searches and return a scrubbed report to the hiring manager. Your organization will save the cost of retaining an outside company, but gain the benefit of the person making the hiring decision not coming into contact with protected EEO information.

Please indulge me while I shill (about my new book) for a second

I try not to shill too often. Sure, I let you know when and where you can see me speak (October 16 at the HR Compliance Conference / October 26 at the COSE Small Business Convention … please stop by and say hi). More often than not, though, I try to give a healthy dose of employment law news and information without any hard sells.

Today, however, is different. Yesterday, I completed my draft of The Employer Bill of Rights (of which I am extremely proud).

Here’s the description, courtesy of Amazon:

The Employer Bill of Rights: A Manager’s Guide to Workplace Law is a practical handbook designed to help managers and business owners navigate the ever-changing maze of labor and employment laws, rules, and regulations….

The Employer Bill of Rights: A Manager’s Guide to Workplace Law aids employers in navigating choppy personnel waters. It instructs employers on the ins and outs of the various laws. It provides employers with the confidence to make hiring, firing, and other personnel decisions free from the fear of litigation. No personnel decision or policy is litigation-proof, but The Employer Bill of Rights: A Manager’s Guide to Workplace Law will help businesses make informed decisions to hedge against the biggest blunders and errors that too often result in expensive and time-consuming lawsuits….

The Employer Bill of Rights: A Manager’s Guide to Workplace Law targets the owners of small to mid-size businesses and the managers that work in them. These businesses usually lack a dedicated in-house counsel responsible for, or knowledgeable in, labor and employment law. They often may also lack a human resources department. Without these internal resources, such businesses often shoot from the hip when making hiring, firing, pay, and other personnel decisions. Because of the intricacies and nuances of the ever-changing world of labor and employment law, these decisions can lead to costly mistakes. This book ensures that each personnel decision is made with the law—and the company’s best interests—in mind.

I’ll have a lot more to say about the book when (fingers crossed) it’s officially released on November 21, including some well-deserved thanks to my publisher, who has been invaluable as I navigated the writing process, and my partners, who provide me the freedom to chase these white rabbits down the hole.

For now, however, if you want to purchase some early holiday gifts, the book is on a pre-order sale at Amazon. I can’t think of a better stocking stuffer for that special HR person in your life.

Tomorrow, we’re back to your regularly scheduled employment law info.

Some social media stats to chew on

Last week, Facebook announced that there are more than 1 billion people using Facebook actively each month. Think about that number for a second. It means that 1 out of every 7 people on Earth are active on Facebook. When you consider the vastness of our planet and the diversity of its social-economics, that number is staggering.

Of course, a number is nothing more than a number. What does that number mean to you, as an employer? It means that most of your employees are on Facebook (and Twitter, and LinkedIn, and YouTube, and Pinterest, and blogs, and, well, you get the point).

It also means that a lot of your employees will get themselves in trouble on social media. IIndeed, according to a recent survey published by Blogging4Jobs, 46% of company leaders believe that their employees will misuse social media and other workplace technology.

Some companies will react to this statistic by turning off the switch in their businesses—blocking social media websites and issuing policies prohibiting their access by employees at work. If you are inclined to go that route, consider these statistics, which come, via TLNT, from the SilkRoad Social Media and Workplace 2012 Report:

• Only 43 percent of employees responding to the survey report working in companies in which social media access was completely open in the workplace.
• Yet, 60 percent say that they check social media multiple times throughout the day on their mobile devices, with 75 percent checking it at least once a day or more.

In other words, unless you require that your employees check their mobile devices at the door (and suffer the anarchy that would likely ensue) it is impossible to prohibit employees from accessing personal social media accounts during the workday. And, if its impossible to monitor or enforce a policy, why have it in the first place?

Heads Up: My RSS feed has changed

For those of you who follow the Ohio Employer’s Law Blog via RSS. I have changed the RSS feed for the sight.

If you have no idea what I’m talking about, you can skip the rest of this post. If you receive your daily updates via email, you can also skip the rest of this post; you’ve already been moved over, and, except for a new look to the daily email update, you won’t notice any difference and shouldn’t miss any updates.

If, however, you subscribe to the RSS feed, and read updates in a reader such as Google Reader, then please read on.

Historically, I used FeedBurner to provide the site’s feed. Google acquired FeedBurner a few years ago. Many believe that Google will soon shut FeedBurner down. In fact, last week Google shut down one major piece of FeedBurner, with only one day’s notice.

I cannot sit around and wait for Google to do the same with the entire FeedBurner service. So, I’ve migrated the feed from FeedBurner to FeedBlitz. For now, you should not see any interruptions. However, if FeedBurner shuts down, you will stop getting updates unless you re-subscribe to the new feed.

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So that you do not miss any updates, please take a moment and re-subscribe to the new feed address: http://www.ohioemployerlawblog.com/feeds/posts/default

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I know that a lot of you read my content via RSS. Please know that I’ve done my best to minimize disruptions, and accept my apology in the unlikely event you experience any inconvenience from the change.

The right way to use subjective criteria in layoffs

Reductions-in-force present a unique issue for an employer defending its decision in a subsequent discrimination case. The employer already has its legitimate, non-discriminatory reason baked into the termination—the economics of a layoff, which often causes qualified employees to lose their jobs. For this reason, reduction-in-force cases are often singularly focused on the issue of pretext.

In Beck v. Buckeye Pipeline Services Co. (6th Cir. 9/28/12) [pdf], the plaintiff claimed that the employer’s use of subjective criteria to select her for inclusion in the layoff created an inference that the employer singled her out because of her age or gender.

While agreeing the subjective decision-making can prove problematic in some cases, the court disagreed that its use is per se discriminatory.

Subjective criteria, it is true, sometimes make it difficult to distinguish between lawful and unlawful employment actions, and they deserve careful scrutiny…. When all is said and done, the use of subjective evaluation criteria does not by itself show discrimination, particularly in a reduction in force case. 

What factors did the court rely upon to conclude that this employer’s use of subjective criteria in this layoff did not create an inference of discrimination?

• There was no evidence that a disproportionately high rate of women or older workers were included in the layoff.
• There was no evidence that the employer’s use of subjective evaluation procedures was a deviation from its normal decision-making process.
• There was no evidence of dishonesty in the subjective decision-making process.

What lessons does this case teach hold for employers considering the use of subjective criteria in determining which employees to include in a workforce reduction?

1. What do your workforce demographics look like before and after the RIF, company-wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria.
2. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm, an explanation that may be enough for the employee to survive summary judgment and get his or her case to a jury.
3. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Are their objective criteria (sales numbers, for example) that could contradict a subjective evaluation? 

WIRTW #245 (the “bald IS beautiful” edition)

According to the ABA Journal, “balding men who want to advance in their careers might want to consider shaving their heads.” The ABA Journal cites an article in the Wall Street Journal discussing a recent study out of the University of Pennsylvania's Wharton School, which concluded, “Men with shaved heads are perceived to be more masculine, dominant and, in some cases, to have greater leadership potential than those with longer locks or with thinning hair.”

Hot damn! I love being masculine and dominant, with great leadership potential.

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

Discrimination

• Religious Frustration — from Smelling Some Roses
• Believe it or Not – White Male Proves Discrimination — from Texas Employer Handbook
• The Four Corners Of An EEOC Charge Can Make All The Difference In A Nationwide Employment Discrimination Class Action — from Workplace Class Action Litigation
• Nooses And The “N Word” Are In The Employment News These Days — from Employment Discrimination Report
• $$$ reasons to have a second-language anti-harassment policy — from Eric Meyer’s The Employer Handbook Blog
• A Bill to Make Employers Less Mean to Pregnant Women — from Workplace Fairness
• No, Seriously - EEOC Targeting Pregnancy Discrimination — from Phil Miles’s Lawffice Space
• 10th Circuit Finds Transferring Disabled Employee to Different Geographical Location for Better Access to Medical Care is Reasonable Accommodation — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• California’s Comprehensive Social Media Privacy Law — from Social Media, Esq.™
• Survey: 75% of Workers Are Accessing Social Media While on the Job — from TLNT
• Social Media Workplace Freedom a Hot Button for College Students and the NLRB — from Social Media Today
• Instagram surpasses Twitter in daily active mobile users in U.S. — from Boy Genius Report
• One billion people now “actively using” Facebook — from The Verge

HR & Employee Relations

• Fighting Back: Bullies and Obesity — from Molly DiBianca’s Delaware Employment Law Blog
• The Benefits of Criminal Background Screening for Your Company — from From the Sidebar
• Survey Says … 50% of Employers Have Hired People with Criminal Records — from Nick Fishman’s employeescreenIQ Blog
• Checking Your Background Check: Is Your Authorization in Compliance with the FCRA? — from LE Blog
• Here’s Your New Motivational Script to Use When Firing Someone — Or to Those Who Dare Fire You … — from The HR Capitalist, Kris Dunn
• 6 Tips to Lower Risk in High-Risk Employee Terminations — from i-Sight Investigation Software Blog
• Workplace Investigation Tip: Outside Investigators are not Tainted by Internal Politics — from Strategic HR Lawyer
• The 3 best ways to stop employee rumors — from Ragan.com
• Laughter in the Workplace Increases Productivity and Job Satisfaction — from Workplace Insights
• Trade Secret Misappropriation - $taggering Numbers For Employers to Consider — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Six Steps to Having an Unpaid Intern — from Blogging4Jobs
• ABCs of the ACA for Employers — from Stephanie Thomas’s The Proactive Employer Blog
• Take Care When Applying the Outside Sales Exemption — from HR Defense Blog
• Employer Burned for Failing to Return Employee to Equivalent Position After FMLA Ended — from Jeff Nowak’s LA Insights

Labor Relations

• NLRB Keeps Doing What It Always Does. Why Is Anyone Surprised? — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Condones Sexual Harassment — from Mike Haberman’s Omega HR Solutions
• Employee Flare: I Will Have a Venti, Half-Caf., Cappuccino - Hold the Union Propaganda — from The Labor and Employment Law Blog

New pregnancy discrimination legislation is unneeded, redux

On September 19, the Pregnant Workers Fairness Act [pdf] was introduced in the Senate. It is identical to the bill by the same name introduced in the House back in May. The bill would amend Title VII to to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. At the time, I critiqued the bill as unnecessary:

The Pregnancy Discrimination Act [already] requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

Last Friday, HuffPost Live ran a story on the re-introduction of this legislation. The host, Nancy Redd, cited my May blog post as support for the argument that this bill is unneeded. Some on the panel took issue with those that argue against the need for this legislation.

So that my position is crystal clear, I am not saying that pregnant women should be discriminated against. What I am saying, however, is that because the law requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition, Title VII already guarantees the rights laid out in the Pregnant Workers Fairness Act.

In other words, we do not need legislation to duplicate rights that already exist. If employers are not granting these rights, and pregnant workers are not receiving the accommodations they need and are requesting, then pregnant workers should be filing discrimination lawsuits. The answer lies in educating employers on their obligations under existing laws, not passing new, duplicative ones.

EEOC goes nuts as its fiscal year closes

How do you know that last Friday marked the end of the EEOC’s fiscal year? Because it filed over two dozen lawsuits that week. The filings provide a glimpse into the agencies enforcement priorities:

• 14 of the cases allege disability discrimination
• 5 allege race discrimination
• 3 allege retaliation
• 3 allege pregnancy discrimination
• 2 allege sexual harassment
• 2 allege racial harassment
• 1 alleges age discrimination

What’s more interesting than the flurry of filings, however, is the fact that only 6 allege systemic discrimination—discrimination against a group of employees based on a common policy or practice. Earlier in September, the EEOC published its draft strategic enforcement plan for the next 5 years. Its number 1 claimed priority is “eliminating systemic barriers in recruitment and hiring.” Yet, only approximately 20 percent of its flurry of filings strike at these systemic barriers.

What does this activity by the EEOC mean for employers?

• You have to remain vigilant in your efforts to rid your workplaces of all kinds of discrimination. The EEOC is watching, and, where the facts warrant, will litigate on behalf of an aggrieved individual.
• Disability discrimination is a prime enforcement target. Invest some time and money (i.e., training) to ensure that your managers and supervisors understand their obligations under the ADA to reasonably accommodate disabled employees. Review your policies to ensure that they do not single-out disabled employees or operate to deny them reasonable accommodations.

[Hat tip: Dan Schwartz]

Pay attention: NLRB issues its second social media decision in a month (Knauz BMW)

Late last week, the NLRB issued its second decision in a case involving employee use of social media. In Karl Knauz BMW, the Board concluded that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. For the background on this case, please go here to read my post from a year ago discussing the Administrative Law Judge’s earlier decision.

The case hinged on whether Knauz BMW terminated a salesperson for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event, or for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership. The NLRB concluded that it was the latter, which did not invoke the Act’s safeguards for protected concerted activity:

It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

This case, however, is not a total victory for employers. In addition to ruling on the legality of the termination, the NLRB also ruled on the illegality of the employer’s “Courtesy” rule, which stated:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

As was the case in the Costco case decided last month, the NLRB took issue with a facially neutral workplace policy that, if taken to its illogical extreme, could potentially chill employees’ conversation about workplace conditions:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements … that object to their working conditions and seek the support of others in improving them…. A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work.

As was the case in Costco, Member Hayes dissented. He criticized the majority for making a stretched and tortured interpretation of the work rule at-issue. He instead called for a reasoned reading of the rule as a whole:

Reasonably construed and read as a whole, the rule is nothing more than a common-sense behavioral guideline for employees…. Nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages); rather the rule concerns the tenor of any conversation. In short, by its “Courtesy” rule the Respondent sought to promote civility and decorum in the workplace and prevent conduct that injures the dealership’s reputation—purposes that would have been patently obvious to Respondent’s employees, who depend on the dealership’s image for their livelihoods.

Unfortunately for employers, Member Hayes was out-voted 2 – 1.

What now for employers, as we are starting to receive some clarity on these issues from actual Board decisions instead of advice memoranda?

• Unfortunately, the rationale of these decision on the legality of workplace communication policies is as strained as that suggested by the Office of General Counsel earlier this year. For now, the best course of action is to tread cautiously when dealing with these issues (and hope that November’s election brings some relief to the American business community from activist federal agencies).
• In the meantime, however, employers need to pay careful and diligent attention to this issue. Social media and other employee communication policies remain on the forefront of the NLRB’s hit parade. No matter how this issue ultimately shakes out, and no matter how ludicrous this result seems, this case, Costco, and Fresenius USA Manufacturing (giving employees a right to make vulgar, offensive, or threatening statements, and then lie about them to their employer) deserve the attention of every company doing business in America.

[Hat tip: Workplace Prof Blog]

Now the NLRB says employers can’t regulate threatening or offensive speech (this is getting ridiculous)

Hopefully you’re not getting tired of me railing against the National Labor Relations Board for its parade of opinions designed to undermine the rights of employers to regulate the workplace. As long as the NLRB keeps pumping out these opinions under the generic umbrella of “protected concerted activity,” I feel a moral obligation to continue writing about them.

The latest victim is Fresenius USA Manufacturing [pdf], which concluded that an employer cannot discipline or terminate employees who make vulgar, offensive, or threatening statements.

In this case, an open and active supporter of the union, employee Kevin Grosso, anonymously scribbled vulgar, offensive, and threatening statements on several union newsletters left in an employee breakroom. The anonymous notes included “Dear Pussies, Please Read!” and “Warehouse workers, RIP.” No one disputed that Grosso was attempting to encourage his fellow employees to support the union in an upcoming decertification election.

In a good-faith response to female employees’ complaints about those statements, Fresenius investigated the statements. The investigation included questioning Grosso, during which he lied about writing the statements. Upon confirming Grosso’s authorship, the company suspended and discharged him for making the statements and lying about writing them.

The NLRB concluded that the employer was within its rights to investigate the statements and question Grosso, but could not suspend or discharge him as a result.

[A]lthough we find that Fresenius did not violate the Act by investigating and questioning Grosso, we find … that Fresenius did violate the Act by suspending and discharging him…. Grosso’s handwritten comments encouraged warehouse employees to support the Union in the decertification election. We therefore conclude that, in writing them, Grosso was engaged in protected union activity…. Fresenius discharged Grosso for writing those comments.

You might be thinking to yourself, why can’t we circumvent all this nonsense with a simple conclusion that the employer was within its rights to terminate Grosso for his dishonesty? Well, the NLRB has an answer to that question, too … and you’re not going to like it either:

Fresenius’ discharge letter to Grosso also cited his false denial of responsibility for the comments, but Fresenius could not lawfully discipline him on that ground…. Fresenius’ questioning of Grosso put him in the position of having to reveal his protected activity, which Board precedent holds an employee may not be required to do where, as here, the inquiry is unrelated to the employee’s job performance or the employer’s ability to operate its business…. As a result, although Fresenius had a legitimate interest in questioning Grosso and lawfully did so, Grosso had a Sec. 7 right not to respond truthfully.

Do you read that quote the same way I do? Did the NLRB really say that investigating complaints of harassment, consistent with an employer’s obligations under Title VII, is “unrelated to the employee’s job performance or the employer’s ability to operate its business.”

Perhaps the dissenting opinion put it best:

Notwithstanding their disavowals, my colleagues thereby impermissibly fetter the ability of employers to comply with the requirements of other labor laws and to maintain civility and order in their workplace by maintaining and enforcing rules nondiscriminatorily prohibiting abusive and profane language, sexual harassment, and verbal, mental, and physical abuse.

The business community needs to pay careful attention to cases such as Fresenius USA Manufacturing. The NLRB continues to dangerously regulate employers rights to control and remedy workplace misconduct, all in the name of “protected concerted activity.” Forcing employers into a Hobson’s Choice between the NLRA and Title VII is just plain silly. If the NLRB continues its path, employers will be left with little recourse against misbehaving employees, and at-will employment may become an historical relic.

WIRTW #244 (the recap edition)

All week, I’ve be posting the one question I’d ask each of the Presidential and Vice Presidential candidates during the upcoming debates:

• President Obama: protections for working families
• Mitt Romney: LGBT civil rights
• Vice President Biden: union rights and the National Labor Relations Act
• Paul Ryan: Ayn Rand and fiscal conservatism

I’m not the only one who has been posting these questions this week. My fellow employment law bloggers have also been chipping in: Dan Schwartz (who came up with the idea at his Connecticut Employment Law Blog), Eric Meyer (The Employer Handbook Blog), Robin Shea (Employment and Labor Insider), and Donna Ballman (offering a perspective from the plaintiffs’ bar at Screw You Guys, I’m Going Home).

If nothing else, we’ve been consistent with our themes:

• Family Leave Rights: Eric’s question to Mitt Romney
• Paycheck fairness and pay equity: Donna’s question to Barack Obama, Eric’s question to Joe Biden, Eric’s question to Barack Obama
• LGBT Rights: Robin’s questions to Joe Biden; Dan’s question to Barack Obama; Dan’s question to Paul Ryan
• Union issues: Dan’s question to Joe Biden, Eric’s question to Paul Ryan, Donna’s question to Joe Biden, Robin’s question to Paul Ryan

Suffice it to say that these four issues comprise some of the biggest issues facing employers now and for the next four years. Let’s hope we get some clarity on these from the candidates as we get closer to November 6.

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

Discrimination

• Changing Attitudes: Why Employers Need to End Pregnancy Discrimination — from TLNT
• Employer’s “Shockingly Thin” Response to Anonymous Harassment = $3.5 Million in Punitive Damages — from Lorene Schaefer’s WinWinHR
• EEOC Announces Plan for Class Warfare — from Molly DiBianca’s Delaware Employment Law Blog
• EEOC’s Multifaceted Effort To Aggressively Target Employer Policies Potentially Having “Disparate Impact”  — from Stoel Rives World of Employment
• Rhode Island bans discrimination against homeless persons — from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• 13 Things That Will Disappear From the Workplace In Five Years — from Workplace Diva
• Law and Order: Human Resources Unit — from HR idiot
• Time for the Right Discussion About Social Media in the Office — from Social Media Today
• Will Gen Y Have Professional Regret for Embedding Facebook? — from The HR Capitalist, Kris Dunn
• Read My Hips: Is the Trade Secret Litigator Waffling on a Key Provision of the Protecting American Trade Secrets and Innovation Act of 2012? — from Trade Secret Litigator Blog
• Pondering damages under the federal Computer Fraud and Abuse Act — from Work Matters
• “Reply All” Claims Another Victim — from Phil Miles’s Lawffice Space
• Social Media Training [infographic] — from Sharlyn Lauby’s hr bartender

HR & Employee Relations

• Mindy Kaling on Chronicling the American Workplace — from Harvard Business Review
• Background Checks That Don’t Invite Employment Litigation — from i-Sight Investigation Software Blog
• Employers: Meet members of the next generation of your workforce — from John Holmquist’s Michigan Employment Law Connection
• What can I do about a coworker who never wears a bra? — from Ask a Manager
• What Do You Say To A Naked Co-Worker? — from Evil Skippy at Work
• Politickin’ in the World of HR — from HR Schoolhouse

Wage & Hour

• Beware Draconian USDOL Settlement Terms — from Wage and Hour Laws Blog
• 7 Paycheck No-No’s the Department of Labor is Focusing On — from Wisconsin Employment & Labor Law Blog

Labor Relations

• Replacement employees: how not to do it — from Andrew Scott-Howman’s WorkFace
• Telling An Employee “Don’t Discuss It” Can Be Illegal — from Troutman Sanders HR Law Matters
• NLRB Finally Delivers Knockout Blow to Broad Employer Social Media Policies — from Jason Shinn’s Michigan Employment Law Advisor

My one question for Paul Ryan: Are you a real fiscal conservative?

Today ends my series of debate questions for the Presidential and Vice-Presidential candidates. On the hot seat is Paul Ryan. Here's my question:

You cite Ayn Rand as your inspiration for getting involved in politics. You even gave copies of her novel Atlas Shrugged as Christmas gifts to your staff. Among other philosophies, Atlas Shrugged endorses the belief that a society's best hope rests on adopting a system of pure laissez-faire government. Philosophically, you would seem opposed to government economic intrusions, yet you voted in favor of both the TARP bank bailout and the auto industry bailout. How do you reconcile your claim to be a fiscal conservative with your pro-regulatory Congressional votes on these two key federal bailouts?

Tomorrow I'll wrap up this series by discussing the posts of my fellow blawgers: Dan Schwartz, Eric Meyer, Robin Shea, and Donna Ballman.

My one question for Joe Biden: labor unions and the NLRB

Today, I continue my series on the one debate question I would ask each of the Presidential and Vice-Presidential candidates. Today’s target—Vice President Joe Biden. Here’s my one question:

Mr. Vice President, Governor Romney has accused your administration of supporting a partisan, pro union National Labor Relations Board. Historically, you have been outspoken of your support of the Employee Free Choice Act, which would provide employees the right to form a labor union without the benefit of a secret ballot election. At a Labor Day rally in Detroit earlier this month, you publicly stated that organized labor is one of the reasons why American is recovering. The American business community would not-so-respectfully disagree with you, and believe that activist federal agencies and labor unions are dangerously holding us back.

What would you say to business owners of all sizes who believe that your administration’s labor policies have stifled their ability to operate in today’s economic climate?

My one question for Mitt Romney: civil rights

Today, I continue my series on the one debate question I would ask each of the Presidential and Vice-Presidential candidates. Today’s target—Mitt Romney. Here’s my one question:

You are on record opposing the Employment Non-Discrimination Act, a bill that would make it illegal under federal law for employers to discriminate on the basis of sexual orientation or gender identity. Yet, you have also publicly stated that you support anti-discrimination and equal rights for all.

Which is it? Are you in favor of equal rights for all, or you do believe that it permissible for employers to deny rights to individuals based on their sexual orientation or their gender identity? And, if the Employment Non-Discrimination Act came across your desk in the Oval Office, would you sign it or veto it?