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April,
2011 |
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Photo by Lisa Cee
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Hello Friends:
I hope you all enjoyed these past Springtime holidays – Passover and Easter. These two holidays always
bring to my mind a new beginning, reflection on the past and hope for the future. Since they are both so
late in the year, it is also marking the rapid approach of summer and anticipation of rest and relaxation. I
hope you will take time to enjoy the Spring, stop to smell the flowers, and bask in the warm sunshine.
While you take time to enjoy Spring, don’t let our stories this month discourage you. While they remind us
that the rules and courts heavily impact how we run our businesses, there is hope – there are ways to keep
informed, people we can trust and turn to for guidance.
MJMS is in your corner and ready to answer your questions and provide support when you need it. Don’t
hesitate to contact us.
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Here is a listing of this month's articles with direct links
to each.
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"Facebook
Firing" Case Resolved:
What Does it Mean for HR? |
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In another example of the complex interplay between social media and HR, the National Labor Relations Board (NLRB) last month reached a settlement in the closely watched “Facebook Firing” case.
The message for employers: Think twice before you try to restrict or punish employees for trashing their bosses (or the organization) on Facebook or other social networking sites. Employees now have more power to claim that such criticisms are “protected activity” under federal law.
The controversy began last year when a Connecticut ambulance company fired a worker who complained about her supervisor on Facebook. Other co-workers joined the boss-bashing. The company fired the woman, pointing to its policy that prohibits employees from depicting the company “in any way” on social media sites.
The NLRB stepped in and filed an unfair labor practice complaint against the company. It was the first case in which the NLRB argued that workers’ criticisms on social networking sites are “protected concerted activity.”
Why protected? The National Labor Relations Act gives employees—both union and nonunion—the legal right to discuss pay, benefits and other working conditions with one another. It doesn’t matter, the NLRB says, whether those discussions occur in-person or online. The NLRB also argued that the company’s restrictions on social media were “overly broad.”
This week’s settlement “sends a message about what the NLRB views the law to be,” said the NLRB regional director who approved the settlement. (NLRB, Case 34-CA-12576, Region 34)
Translation: Review your social media policies to make sure they only restrict communications about things you can legitimately restrict, like disclosure of confidential information. If your policies are overly broad, you may be liable for interfering with employees’ rights to engage in concerted protected activity in violation of the
NLRA.
Source: Business Management
Daily
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Regulating
Social Networking At Work |
In light of our previous story about the Facebook case, here are some things to think about
as you ponder creating a policy addressing social networking by
employees at work.
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Regulating
Social Networking At Work |
| Thinking about establishing or revising a policy on social networking at work? Keeping in mind that more and more employers find there’s marketing value in social media such as Facebook and Twitter, consider these questions: |
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How
closely do you want to regulate social networking?
It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking. Further, a blanket ban is also hard to monitor and enforce. |
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If you limit social networking, how will you monitor it? Turning off Internet access, installing software to block certain sites or monitoring employees’ use and disciplining offenders are all possibilities. Do you want to go there? |
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If you permit social networking, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return. |
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How do you define “appropriate business behavior"? Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. If they are posting from work, anything in cyberspace can be used as grounds to discipline an employee. |
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How will social networking intersect with other policies on harassment, technology and confidentiality? Employment policies do not work in a vacuum. Employees’ online presence—depending on what they are posting—can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update and fine-tune other policies. |
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OUR
APRIL QUIZ! Test Your
FMLA Knowledge!
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If any employee requests intermittent FMLA leave because of an employee's or covered family member's own serious health condition: |
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The leave must be medically necessary due to the serious health condition. |
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If the employer requests, the employee must tell the employer why the intermittent leave schedule is necessary and any schedule for treatment. |
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The employee and employer must attempt to work out a schedule for leave that meets the employee's needs without unduly disrupting the employer's operations, subject to the approval of the healthcare provider. |
| D. |
All of the above. |
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On
to our feature article ....
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5
Ways Employers Make
Plaintiffs' Lawyers Very, Very Happy |
 John Gallagher, a plaintiffs' lawyer, had a good posting last week on TLNT entitled "Can an Employee Be Terminated for Simply Surfing the Internet?"
The point of the article was that, although this seems to be a legitimate ground for termination on its face, it really isn't because everybody surfs the internet at work. Therefore, terminations for this reason makes John very happy because he can argue that his client was singled out for a discriminatory or retaliatory reason.
I have to admit that I've never heard of a real-life employer who terminated an employee simply for surfing the internet. In my experience, what they get terminated for is looking at porn on the internet, or gambling on the internet, or doing illegal downloads on the internet -- in other words, they are engaged in some type of "aggravated" internet misconduct that not everyone else does.
Be that as it may. John's post got me thinking about the things that employers do that bring joy to the hearts of plaintiffs' attorneys. I'm going to avoid the blatantly obvious ones, like "telling your subordinate to sleep with you or be fired," because this is a blog for grown-ups. Here are five mistakes that even good employers sometimes make:
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1.
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| Having "zero tolerance" for anything.
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Since I'm going in no particular order, I might as well start by riffing on John's post. You have a "zero-tolerance" rule against internet surfing at work. What, are you kidding? Even the CEO surfs the internet to check his stock prices or to see whether the weather will allow him to take his yacht out this weekend at Martha's Vineyard.
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A more prudent policy would be to ban excessive, immoral, or illegal use of the internet at work. "Zero tolerance" policies always result in injustices, which in turn result in lawsuits and big jury verdicts or, at least, humiliating news stories. (Remember those little kindergarten boys who got suspended or even expelled for "sexual harassment" when they kissed little girls? Do you want to be the butt of everyone's jokes like those schools were?)
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One might say that I have zero tolerance for zero tolerance policies. Tee-hee.
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2. |
| Telling an employee you're "eliminating her job" when you're really firing her.
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I blogged about this a couple of weeks ago. First, it's wrong because it's dishonest and cowardly. Although you don't have to give her every gory detail about why she doesn't have a job any more, you owe her at least a brief explanation that is true. But even if you don't care about doing the right thing (and I know you do), you should care because plaintiff's lawyers will be all over you if you lie.
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Once you get caught in a lie like this, the door is open for the plaintiff's attorney to claim that your real motive was an illegal one . . . even if the termination was perfectly legitimate and you lied only to avoid hurting her feelings.
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PS - It's ok to call a firing a "job elimination" if you and the employee agree in writing that this is what you are both going to call it. But you still need to give her the true reason.
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3. |
Assuming you're complying with the wage and hour laws because you pay your folks just like everyone else, and you've done it this way for years.
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Noooooooooooo . . . First, the law in this area is so complex that the chances are very good that your peers are violating it. That means you're in trouble if you're just doing whatever they do. Second, the chances are even better that whatever you've been doing "for years" is at least partly wrong. It's no news that class and collective action litigation under state wage and hour laws and the Fair Labor Standards Act has been smokin' hot.
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It's definitely a good idea to have a wage and hour audit so that you can fix any mistakes (and, believe me, there will be mistakes) before you become the target of a lawsuit or government investigation.
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And, by the way, your chances of being targeted have increased dramatically now that the American Bar Association and the U.S. Department of Labor have formed a diabolical strategic alliance in which the ABA finds plaintiffs' lawyers who will take on the wage-hour cases that the DOL doesn't want to pursue.
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4. |
Engaging in blatant reverse discrimination.
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Most employers know that "regular" discrimination is illegal and wrong, and they work very hard to avoid it. But what about the opposite? Not nearly as good, because many employers don't even know this is against the law. In fact, many believe they are required to sometimes discriminate against whites and males to satisfy their affirmative action obligations.
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Admittedly, the law on reverse discrimination is confusing. The current Supreme Court standard in Ricci is convoluted and difficult to apply. That said, unless your company is under a consent decree to correct past discrimination, your best "legal" bet is actually to choose the most qualified person for the job (or terminate the least qualified), regardless of race, sex, national origin, color, religion, age, disability, etc. Who'da thought?
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5. |
Er, um, like, letting your training slip through the cracks.
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Foregoing training in areas like harassment or discrimination has never been a good idea, but with the Supreme Court's recent "cat's paw" decision, it just got worse.
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Now employers can be liable for employment decisions that were influenced by a lower-level manager with a discriminatory motive. This decision makes it essential that all levels of management understand their legal obligations.
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Make sure your "paws" know the laws.
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These are my five -- you probably have some of your own. Please add to my list!
Posted by Robin E. Shea
Source: Employment and Labor Insider
Constangy, Brooks & Smith, LLP |
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| Answers
to our quiz: |
ANSWER: D is Correct - All of the above. |
Explanation:
Intermittent leave or leave on a reduced leave schedule must be medically necessary due to a serious health condition or a serious injury or illness (for military service member caregiver leave). If the employer requests, an employee must tell the employer why the intermittent/reduced leave schedule is necessary and any schedule for treatment.
The employee and employer must attempt to work out a schedule for leave that meets the employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the healthcare provider. The 2009 FMLA regulations state that employees who take intermittent leave for planned medical treatment have an obligation to make a reasonable effort to schedule such treatment so as to not disrupt unduly the employer’s operations.
An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child, or after the placement of a healthy child for adoption or foster care only if the employer agrees. (Note, however, that the employer’s agreement is not required for intermittent leave required by the serious health condition of the mother or newborn
child). |
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Don't Forget To Access Our
WebForms.
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Manage Your Day-to-Day Non-Profit or Small Business Organize All Necessary Human Resource Information Promote Legal Compliance Within Your Organization.
Click Here To Know More!
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| ABOUT
MJMS, INC. |
President and Principal Consultant: Margaret Jacoby, SPHR
Margaret Jacoby has more than 25 years of Human Resources and professional management experience in a variety of industries. She has designed human resources infrastructure and implemented systems to ensure compliance with state and federal employment laws. She has directed high quality human resources functions for small and emerging businesses, and served as an external consultant to a wide range of erse organizations, including non-profits.
Her work has included:
Conducting H.R. Needs Assessments Drafting employee handbooks and policy manuals Conducting job analysis and developing position descriptions Conducting on-site compliance audits Counseling management on progressive discipline
Drafting and review of employee disciplinary actions Providing mediation in employee/employee conflict
Training employees/supervisors/managers in the implementation of human resources systems and policies such as Sexual Harassment Conducting workshops for business owners on H.R. compliance issues.
Ms. Jacoby has earned the nationally-recognized certification of Senior Professional in Human Resources
(SPHR) from the HR Certification Institute, Society for Human Resource Management
(SHRM).
Ms.
Jacoby’s professional affiliations include: Professionals in Human Resources Association (PIHRA) Society for Human Resource Management (SHRM) National Association of Women Business Owners (NAWBO), Los Angeles and Phoenix California Chamber of Commerce Arizona Small Business Association (ASBA) Long Beach Community Business Network (LBCBN) Institute for Management Consultants
(IMC)
The information contained in this newsletter is provided as general information and is not a substitute for legal or professional advice. The information is provided by MJ Management Solutions, Inc. and while we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the newsletter or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk. |
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Phone: 480-924-6101 and 310-798-4569
Fax: 408-452-1429
margaret@mjms.net • MJ Management Solutions, Inc.
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