pokemonRecently, I had the opportunity to revisit a social media policy I had reviewed several years ago.  (Check back to this post from 2008 to see how far we’ve really come.) In doing so, I was reminded — once again — how quickly the tech world is changing and how policies need to continually adapt.  It seemed so quaint — with references to MySpace, Foursquare, and even LiveJournal.  No mention of Snapchat, Instagram, or Vine.

And then I thought of the technology news from the last week demonstrating the dramatic rise and use of Facebook Live and Pokemon Go.

Facebook Live is a capability to broadcast — live — from anywhere (at least with a cell phone connection) at any time.  It was used in dramatic effect in the shootings in both Minnesota and Dallas.

Pokemon Go is something different.  It is a brand-new mobile game app with social media capabilities (you can join a “team”) where users search the real world for virtual monsters that appear on your cell phone in an augmented reality way.  In just a week, it has nearly as many users as Twitter.

Both are going to cause employers big headaches in the months ahead — for differing reasons of course.

There’s no doubt that the rise of livesteaming apps is something new and revolutionary.  And your social media policy should definitely be updated to reflect that. Imagine your workforce broadcasting live from your office — all under the guise of engaging in “protected concerted activity”.  How should the employer react when such events are occurring in real-time?

A policy can help to provide some answers but it’s the exercise of thinking about what your response will be that can be just as helpful.

And then there’s apps like “Pokemon Go” — which are nearly unparalleled in their adoption.  We’ve already had our first firing related to Pokemon Go and that’s no doubt the beginning.  Forbes reports that employers are “nonplussed” with it.

But the response to this app is a bit easier.  If it interferes with an employee’s workplace productivity or is a drain on your resources, it’s appropriate to limit it.

If your policy hasn’t been updated in a few years, use the rise of new apps as an excuse to bring it up to speed.  You can’t keep up with everything but that doesn’t mean you should ignore them either.

And now, if you’ll excuse me, I need to go look for Drowzee.

(Photo credit: Imgur.)

Beware the Beatles.
Beware the Beatles.

For years, I’ve been “warning” about the upcoming holiday of Valentine’s Day.

Back in 2011, I recapped several cases where employees’ inappropriate behavior on this day of love, led to lawsuits.

Apparently, there were some people who didn’t read the blog, because just a few years after that, I recapped a few more cases where Valentine’s Day led to a few more lawsuits.

My friend, Jon Hyman, this week cited a few of the same cases in his reminder that he hates Valentine’s Day.

Now, I could use this post to rehash the same worn reminders that sexual harassment is bad and that romantic relationships between employees can be even worse.  (Wait, see what I did there?)

But harassment cases still occur.

So, let me try a new approach this year; let’s try the opposite and Let Love Rule The Workplace!

Who am I to tell others who to love? Who am I to stand in the way in Cupid’s arrow?  Here are three “tips” on how to add love to the workplace:

  • First, be sure when you have a crush on someone to play favorites towards him or her.  And if they turn away your advances? Let them know your displeasure by giving work elsewhere. That will remind them that love should rule the workplace.
  • Second, why establish a policy regarding sexual harassment? Who needs rules regarding love? And what should you do if your company has such a policy? Well, then just ignore it! Let love set the rules of the workplace.
  • Third, if you hear of “love” going on in the workplace, just turn a blind eye.  Love needs no witnesses and true love will work itself out eventually. And if it doesn’t, well, the workplace is no place for the broken-hearted.

And here’s a bonus tip: Be sure to have your lawyer on speed-dial.  Because if you follow these tips, you could pretend you’re a hopeless romantic, but you’re most likely to be found liable of sexual harassment.  You may need something more than love to survive in the workplace.

(P.S. If you can’t figure out that the above tips are SATIRE, you should give me a call. Chances are you’re doing something else wrong too and I’d love to help.)

 

 

I’ve talked many times before about the importance of a well-drafted disclaimer in your employee handbook (here and here, for example).

This is not a new thing and in Connecticut dates back to an important case back in 1995 .

Without such disclaimers, employers can be subject to a breach of contract claim by your employees.

Yesterday, a federal judge in Connecticut was the latest to reinforce this message by allowing a breach of contract claim to proceed based on the employer allegedly failing to comply with its own anti-harassment policy, even though the federal legal claim of harassment was time-barred.

You can download the decision denying the employer’s motion for summary judgment on this issue in Mariani v. Costco Wholesale Corp. here.

One important note at the outset. This decision does not mean Costco is liable for a breach of contract; all the court decided is that the employee’s claim can proceed to a trial.  (In doing so, the court threw out many other claims of the employee.)

The facts on this issue seem straightforward. Costco seemingly has an employee handbook that it titles “Employee Agreement”.  It requires the employees to acknowledge receipt.  Costco conceded to the court that this “Agreement” could create a contractual obligation to its employees.

But, according to the court, Costco’s anti-harassment policy created an additional contractual responsibility that it did not disclaim. In other words,  the court said that while the employer was under no obligation to have tougher anti-harassment policies than state or federal law — having said it would abide by stronger language, it must follow that or face a breach of contract claim.

The court’s “money” quote is this:

The Employment Agreement does not contain any disclaimer language to the effect that its “super” anti-harassment provisions do not create legally enforceable protections beyond the protections of background law. Today’s corporate employers compete not only on grounds of their raw ability to make, deliver, and sell goods and services at a low or reasonable cost but also on grounds of their corporate self-image as “good” corporate citizens. They likewise compete on grounds of their ability to attract employees by means of promises of innovative management practices that foster dynamic workplaces that are comfortable and safe. This is not to fault the fact that Costco has adopted progressive anti-harassment policies but only to make clear that these policies, as framed without disclaimer, may give rise to legally independent and enforceable obligations for the benefit of employees that rely on them

How can Connecticut employers avoid this same result?

This case should be yet another reminder of the importance of a disclaimer in any company handbook that these policies.  Remind employees that no provision of the handbook creates an employment contract or any other obligation in regard to employment.  And consider using this language in the acknowledgment of receipt.

And, without stating the obvious, consider calling your employee handbook, well, a handbook instead of an “agreement”.  If you call it an agreement, a court isn’t going to disagree with you.

With the year coming to a close, this is the perfect time to have your handbook reviewed by an attorney.  Otherwise, you could be facing an employment law claim that you created yourself.

 

Costco Contract Claim

This post is not going to discuss, in my view, the NFL’s inadequate response over the years to domestic violence incidents by players in the league.  (If you want to listen to a full take down of the NFL, I recommend Slate’s The Gist podcast from yesterday.)

Rather, I want to talk today about how Connecticut employers can address domestic violence when such incidents have an impact on work.

  • As I talked about in August, the ABA adopted a Model Workplace Policy in Employer Responses to Domestic Violence.  It worth a look at for most employers. An “employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.”\
  • Beyond that though, employers should have updated their policies to provide for the state-mandated domestic violence leave.  The law, which has been in place since 2010, provides for several items including the following: “It requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary for the following reasons: 1.seek medical care or counseling for physical or psychological injury or disability, 2.obtain services from a victim services organization, 3.relocate due to the family violence, or 4.participate in any civil or criminal proceeding related to or resulting from such family violence.”  Unpaid leave is limited to 12 days per calendar year.
  • There are also plenty of online resources as well, including a toolkit designed to help address these issues further.  While such online resources need to be tailored to your workplace, it is a good place to start if you’re seeking more information.

Domestic violence isn’t just an issue for football players. It has an impact on employers all across the United States.  For employers that want to do something more, these resources are a good place to start.

Chief Justice Roberts also addressed ABA to discuss the Magna Carta’s 800th anniversary

One of the roles that I relish is being a member of the American Bar Assocation’s House of Delegates for several terms now.   The ABA adopts certain policies at its Annual Meeting and uses its bully-pulpit to try to get such policies enacted at the federal, state or local level.At this year’s meeting, which took place in Boston over the last few days, the House considered Resolution 112A. The resolution itself is fairly short but stated the following:

RESOLVED, That the American Bar Association adopts the Model Workplace Policy on Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking (“Model Policy”), dated August 2014.

FURTHER RESOLVED, That the American Bar Association encourages all employers, public  and private, including governments, law schools and the legal profession, to enact formal policies on the workplace responses to domestic violence, dating violence, sexual violence, and/or stalking violence which address prevention and remedies, provide assistance to employees who experience violence, and which hold accountable employees who perpetrate violence.

In plain English, the ABA adopted a Model Workplace Policy that has been developed by several groups for use in workplaces.  You can find it here.

So why should employers care? Well, for one, Connecticut already has a law that requires all employers to provide for domestic violence leave.  Adopting a policy like the type advocated by the ABA, can help achieve compliance with that law and also further the employer’s interests of making sure employees return to work quickly and are productive while theer.

Is the policy required? No.  And there is no civil liability that is attached to either having or not having the policy.  But an employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.

The policy itself is long and can certainly be modified to fit a particular employer.   I would not advocate a wholesale adoption of it, particularly if employers cannot meet all of its particulars — whether through staff size or other conditions.  Small employers in particular may have different needs as well. And notably, Connecticut employers should consider this in conjunction with any policy on domestic violence leave.

But the model policy is an important step in raising awareness of the issue to employers and I applaud the ABA for being a leader in this area.

If you’re interested in the policy itself, again you can find it at the third page of this link. 

So last month we talked about how an employer may, in some circumstances, need to give additional leave as an accommodation above and beyond the Family and Medical Leave Act.  Today, my colleague Clarisse Thomas shows how the law in this area really is still developing.  She highlights a new case that comes to a different conclusion.  For employers, this uncertainty is definitely something to keep an eye on. 

Just last week, the Tenth Circuit Court of Appeals in Hwang v. Kansas State Univ.  held that an employer was not required to extend its 6-month leave policy as a reasonable accommodation to an employee.

In doing so, the Court also held that the employer’s “inflexible” leave policy did not violate the Rehabilitation Act. Similar to the Americans with Disabilities Act (“ADA”), the Rehabilitation Act also prohibits employers from discriminating on the basis of disability.

The employee in Hwang relied on EEOC Enforcement Guidance concerning the ADA to argue, albeit unsuccessfully, that her employer should have extended her leave as a reasonable accommodation after her leave period expired.

That Guidance provides that an employer must modify its “no-fault” or “inflexible” leave policy to provide an employee with additional unpaid leave as a reasonable accommodation, unless the employer can show that:

  1. There is another effective accommodation that would enable the person to perform the essential functions of his/her position; or
  2. granting additional leave would cause an undue hardship.

Rather than extend its leave policy, the employer in Hwang arranged for the employee to receive long-term disability benefits after her leave period expired — an act which the employee complained constituted termination of her employment, and thus a violation of the law.

The Court, however, was not persuaded. It explained that the purpose of a reasonable accommodation is to “permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.” As such, the Court interpreted the EEOC Guidance to mean that only after it is determined that modification of a leave policy is a reasonable accommodation necessary to enable an employee to perform the essential functions of his/her job, is modification then required.

The problem in Hwang was that the employee admitted she could not perform any essential job junctions, even with a reasonable accommodation. Thus, the employer did not have to modify its “inflexible” leave policy by granting her extended leave.

Herein lies the rub. Although employers are not required to hold a job open indefinitely, simply because an employee’s leave has expired before s/he is able to return to work does not automatically mean that s/he is no longer qualified to perform the essential functions of the job.

While the case is from a different jurisdiction, the lessons learned from that case can be applied to other employers as well.  So, what should Connecticut employers consider to avoid challenges to their “inflexible” leave policies (besides, of course, consulting with their preferred local counsel)?

Here are a few general tips:

  • Don’t just rely on the terms of your leave policy when making employment decisions. Instead, engage in an interactive process with the employee to determine whether s/he can perform the essential functions of the job with a reasonable accommodation, such as a short extension of leave.
  • If modification of a leave policy is not a reasonable accommodation, the employer’s inquiry should not end there, as other reasonable accommodations may be available, such as allowing the employee to work from home for a brief period before returning to the office full time.
  • “No-fault” leave policies should be consistently and uniformly enforced. Requests for extensions of such leave policies should not be granted for some employees but denied as to others.

If your policy hasn’t been reviewed in the last 5-10 years, consider taking another look at it. The law in this area has been shifting subtly.

Last Thursday, I had the opportunity to speak at the Tri-State SHRM Conference held at Foxwoods Resort Casino.  The session was led by Marc Kroll of Comp360 and I thank him publicly for both the invitation and the coordination. But a post about the great work that HR consultants like Marc do is a topic for another post.

If there was a phrase that I’m sure HR personnel never thought they’d hear discussed at a Human Resources conference it would’ve been “data privacy”.  After all, shouldn’t that be something for a Information Technology summit?

But in presenting the topic: “Pirates of the Data Stream: HR’s Role In Securing Corporate Information” to a full room,  it confirmed what I had been seeing anecdotally — that HR personnel have an increasing role in making sure company data remains private.  I was approached aftewards by several people who appreciated the focus on the topic.

There were several suggestions we talked about in detail at the conference.  I’ll highlight just a few things we discussed:

  • Have a policy. Yes, it’s a cliche. But you still need one.  And make sure it’s workable.   Your policy is no good if no one follows it.
  • Train and educate your workforce (with particular emphasis on your senior executives) on the need to take reasonable steps to protect confidential company data.  This can’t just be for new employees, but needs to be an ongoing effort.
  • Audit yourself to determine where your data leakage is coming from. And don’t just focus on the electronic data; your personnel files in paper format still need to be secured as well.  Consider hiring a third-party to help find the holes in your data storage.
  • Use agreements with restrictive covenants that prohibit employee use of confidential data not only when the employee is working for you, but also when the employee leaves.

And lest you think that this is mere scaremongering, the headlines from this morning illustrate that this issue is continuing to move to the mainstream: Target’s CEO stepped down because of a massive data breach last fall.

Human Resources has a significant role to play in preserving company and employee data.  It’s time to begin the discussion at your company if you haven’t already.   If you need assistance in that endeavor, consult your lawyer or your favorite HR consultant.

Today, my colleague Christopher Engler, takes a crack at explaining what happens with FMLA leave when an employee takes works at another job while on FMLA leave.  As Chris explains, not everything about the statute is “common sense.” 

Picture this:

In one scenario, a maintenance worker takes an FMLA leave for “mental distress” but continues to deliver oil through his family business.

In the second, an employee of a travel agency goes out on FMLA leave due to his “extreme fatigue” and is caught working at a local restaurant. Both men are fired.

Is there an FMLA violation?

The federal and Connecticut FMLA both limit employers’ ability to fire workers on FMLA. But if the employer has a policy forbidding outside employment, that may, in some instances, allow an employer to do so.

But employers need to be cautious: The policy must be uniformly applied and the ban must be express. Otherwise, the employer runs afoul of the FMLA if it fires an employee for simply working while on leave.

While the cases and regulations aren’t new, many employers take it for granted that employees can’t work another job while on leave. But the courts are reminding us of what happens when you assume.

In the above scenarios, taken from real cases, both of the employers won because they had clear policies.

Even so, there is a silver lining on this cloud.

If an employer has a policy, it only needs an honest and reasonable belief that a worker violated it to fire the worker. In other words, the courts tend to cut employers slack in investigating FMLA abuse. The Connecticut DOL agrees, “[e]ven if the [employer’s] investigation was poorly done.”

Of course, this doesn’t mean that employers can get complacent or sloppy with their investigations. The point is that courts and agencies prioritize the existence of the policy in these cases.

For that reason, your company should think about adding this type of policy to their handbooks and manuals. Your preferred legal counsel should be able to assist.

With the FMLA, employers shouldn’t take anything for granted — even on something as “common sense” as this approach.

Have you heard of Justine Sacco?

If you’re on social media, it was hard to avoid over the weekend. She was the public relations professional who posted an offensive tweet on Friday before boarding a plane to South Africa.

Never mind that she had only 200 or so followers when she made the tweet.  By the time she got off the plane, a firestorm had erupted on Twitter that was arguably unlike anything that we’ve seen in some time.

Boing Boing has a detailed account here, but in case you missed the story, here’s the basic outline:

As she embarked upon a long flight to Africa, PR staffer Justine Sacco issued this tweet. At best a darkly ironic self-deprecation that could never fit into 140 characters, it resulted, within bare minutes, in an internet-wide scandal. Even as the plane is still in the air–Sacco presumably oblivious–there [was] a hashtag, #HasJustineLandedYet, a parody account, @LOLJustineSacco, a fake movie poster, and, God help her, a whole entire New York Times article, replete with a stunned disavowal from her corporate employers.

The meme was incredible and fueled by the fact that she was on a long flight — with no internet. By Saturday, Sacco was fired.

Continue Reading Offensive Tweets and Twitter Justice: The Tale of Justine Sacco for Employers

Interested in social media for business but wondering how to deal with a policy to manage it?

Central Connecticut State University’s Institute for Technology & Business Development is sponsoring an executive breakfast series seminar on October 3, 2013 from 7:30-9:30 a.m. on Social Media Policy.

I will be among the panel of speakers discussing the subject.  Along with me, will be:

  • Jessica Rich, Director of Operations and Employee Services at The Walker Group;
  • Suzi Craig, Director of Opportunity & Engagement at Fathom;
  • Rob McGuiness, Manager of E-Communications at Pratt & Whitney

In this presentation, we will be covering both the legal aspects of social media policy but also best practices for you and your company to follow.

The executive breakfast program is just $25 and open to the public.  My thanks to CCSU for the invite and TD Bank for its sponsorship of this event.

It will be held at the ITBD headquarters at 185 Main Street, New Britain, CT.  You can RSVP here to attend.  Hope to see you all there.

For additonal background on social media policy, see some of my recent social media policy posts here and here.