Yesterday, I made a spectacular dive.

Unfortunately, it was not in a pool. It was in the middle of the street.

But it’s what happened AFTER that unfortunate fall, that I find most compelling.

Let me first say, however, that I’m FINE. Really, I’m fine. I’ve said that over and over the last 24 hours but really, well, you get the point.

The incident itself was a classic case of just a plain old accident. I was crossing the street on my way to lunch and didn’t happen to notice the pothole, ditch, depression, or whatever you want to call it in the street.

My ankle turned, I lost my balance, thought I regained it, then realized I hadn’t, and came crashing down mostly (and thankfully) on my hand, shoulder and knee.

End result: A scratched up hand, a bruised shoulder, broken glasses, wrecked suit.  But fortunately no broken bones or anything of the sort. No need for ambulances, hospitals, or taxi-rides home.

It happened to be right outside my work so I got up to get out of the road, took quick stock of myself, and walked (limped?) back inside to find the first aid kit.

In a bit of luck, I also ran into one of our office staff who mobilized our internal first aid health/safety team. Turns out, they are always ready for this.

Within minutes, I had an ice pack, bandages, and a chair.  Someone else offered to return a call for me for an upcoming appointment.  And 30 minutes later, there were still others who stopped by to see how I was doing and encouraged me to recuperate at home. (Advice taken.)

Here’s what I didn’t have: Endless questions about whether this was a “work-related” injury or what the “policy” was on these types of injuries.

Was it on a lunch break? Was it work-related? Those questions don’t really matter in the moment.

Indeed, this wasn’t the first time I’ve seen our health and safety team in action; a year ago, a colleague was choking on some food on my floor. The alerts came fast and furious and they sprung into action — without thinking.

And so, out of a spectacular dive comes your employment law tip of the day:

Your policies are important.

But the way you treat your employees and how your employees treat each other are even more important.  Train those employees to do the “right thing” in the moment and you’ll get glowing returns in spades.  Having a health/safety team for these types of matters is a crucial, and overlooked part of your company.

Policies are helpful in dealing with the unknowns.  But building your company’s culture so that your employees act instinctively, is far more important in the long run.

Your company will have someone like me who just trips and falls, or maybe they’ll be choking, or perhaps something even worse; what you do next will be important to who you are as a company.

And so today, I’m back at work, a little sore, a little bandaged up on my hand.

But thankful, I work at a place that puts its people first.

roadIf you had a million dollars (or more) to investigate your culture, what would you find out? (Music fans may appreciate the classic “If I Had a Million Dollars” song from the Barenaked Ladies. You’re welcome.)

Well, Uber engaged a lawfirm, Covington & Burling, and the former Attorney General Eric Holder to do just that — interviews with over 200 people, reviews of over 3 million documents — and discovered a lot.  It isn’t pretty.

Thankfully, the firm released its recommendations for all the world to see. In doing so, the report actually can serve as a bit of a road map of what to do at your company if you have some similar issues.  All for free.

You can and should review the report here.  There are some specifics that won’t be helpful — like allocating the responsibilities of the CEO.  But there are many others which show what the best practices are at companies in 2017.  Here are a few to get you started:

  • Use Performance Reviews to Hold Senior Leaders Accountable.  This recommendation is straightforward, but suggests that companies should have metrics that are tied to “improving diversity, responsiveness to employee complaints, employee satisfaction, and compliance.”  If you don’t hold senior leaders accountable, things will fall through the cracks.
  • Increase the Profile of [] Head of Diversity and the Efforts of His Organization.   This recommendation suggests something that may come as a surprise to some companies but reflects a growing shift in corporate culture, that is, that an “empowered senior leader who is responsible for diversity and inclusion is key to the integrity of” a company’s efforts.  Note the dual emphasis. As the report later explains, “It is equally important that the role address both diversity and inclusion. Diversity is generally viewed as focusing on the presence of diverse employees based on religion, race, age, sexual orientation, gender, and culture. Inclusion, on the other hand, focuses not just on the presence of diverse employees, but on the inclusion and engagement of such employees in all aspects of an organization’s operations.”
  • Human Resources Record-Keeping.  With the buzz about data, this recommendation reflections the growing wisdom that a company should have “appropriate tools, including complaint tracking software, to keep better track of complaints, personnel records and employee data.”  More than that, a company should “emphasize the importance of record-keeping to all Human Resources staff, and impose consequences for failure to adhere to record-keeping requirements.”  In other words, no longer should HR be viewed as secondary to a company’s mission. It’s front and center.
  • Training, Training, and Training.  I’m cheating a bit on this one because the report actually breaks down training at various levels, but the need for training is emphasized for senior leaders, HR staff, and managers.  And more than that, the company should also “require employees who routinely interview candidates…to undergo training on interviewing skills, conducting inclusive interviews and unconscious bias.”

There’s much more to the report, including additional suggestions specifically on diversity and inclusion efforts.   It’s a helpful roadmap for all companies.

 

snapchat1I recently gave a presentation on social media to a local non-profit and had the opportunity to review some of the latest statistics when it comes to the use of social media.

Frankly, I knew that there has been a shift away from Facebook for some younger people but even I was surprised by the trendlines.   It’s happening much quicker and in bigger numbers than you might think.

And even more surprising, the big winner is: Snapchat.

Yep, the little app that I talked about in 2013.  (Think about how quickly and rapidly the technology has changed in less than four years.) Put another way, the disappearing social media sites that were just getting started are now big.

How huge? According to a new study of what social media sites college students use first, fifty-eight percent of college students said they open Snapchat first, compared with 27 percent who chose Instagram, 13 percent who said Facebook and the 2 percent who opt for LinkedIn.

Another recent survey by Pew Internet found that 56 percent of smartphone users between 18-29 years old use auto-delete apps like Snapchat. That is more than four times the share of users between 30-49 years told.

(Teen usage is even higher with Facebook as the fourth most popular app, behind Snapchat, Instagram & Twitter, according to a Piper Jaffray Fall 2016 study.)

Let’s not, however, write off Facebook just yet.  A whopping 79 percent of online users are still on Facebook.  But these overall statistics show that Facebook has lost it’s exclusive hold on younger online users.

From an employment law context, this continues to cause all sorts of headaches.

With disappearing snaps, for example, it can be difficult for employers to track down and monitor harassment in the workplace. (The fact that some Silicon Valley companies are under scrutiny is perhaps not that surprising, if still disappointing.)

And when it comes to document retention, in the case of a lawsuit, apps like Snapchat are a challenge as an employer tries to preserve relevant information.

For employers, I think it’s important to recognize that we’re in the next generation of social media apps.  If you’ve just caught up to Facebook, you’re already behind the curve.

What may be next? That’s hard to predict.  Some teens I know are using apps like Musical.ly to share content.    (Never heard of it? Well, over 100M users are on it.)

Other types of live broadcasting apps, building off of Facebook Live, continue to grow as well.

Employers would be wise to expand their horizons. A broad social media use policy defining proper use when it comes to the workplace is still a key component.  While you may be on Facebook, the generation entering your workplace just isn’t on Facebook as much anymore.

starrMy colleague Gary Starr returns today with a story worth reading about the need for employers to secure confidential information.  Although it is based on Massachusetts, the concepts it covers may have some carryover to employers elsewhere as well.  

Employers that maintain records of their employees and customers and allow employees have access to confidential information have long needed policies that not only secure the information, but ensure that employees who have been granted access to such information are complying with the corporate policies and are trustworthy.

An insurance agency in Massachusetts thought it had done everything right, but was sued for negligence in its retention of an employee that it thought was trustworthy, but was not.

An employee used her computer to access confidential information that she then gave to her boyfriend about the identity of a witness to a car accident in which the boyfriend had been involved with her car.  The boyfriend used that information to contact and threaten the witness.  The witness reported the threat to the police and ultimately the boyfriend and the employee pleaded guilty to witness intimidation and conspiracy.  After the police visited the employer to obtain information about the threat, which was traced back to the employee, the employer fired the employee.

That, however, did not end the tale.

The witness then sued the employer for failing to safeguard personal information, and for negligent retention and negligent supervision.  While the trial court dismissed the case, the appellate court has determined that the facts alleged are sufficient to go to trial.

Where did the employer go wrong?  The company had adopted a data security plan and policy that prohibited employees from accessing or using personal information for personal purposes.  The computer software even required employees, who wished to access the data base with confidential information, to agree to use the information for one of four limited purposes, all of which were business related.

Those were positive steps.

The problem arose because the unrestricted access did not stop the employee from reviewing information that had an impact on her personally.  The second failure had to do with an inadequate investigation of the employee’s background and simply taking the employees word about a weapons arrest that occurred during her employment in another state.

The employee told her boss that the arrest was a misunderstanding, that she was clearing it up, and subsequently said it was resolved.  The employer simply took her word for it.

What he would have discovered with a very simple inquiry was that there were serious issues with her honesty and fitness for accessing other people’s personal information.  The company could have learned that she was traveling with her boyfriend when they were stopped for speeding and that she was arrested for having two semi-automatic guns concealed in her purse, one had the serial numbers filed off and the other was stolen.  She also had a half-mask and police scanner.  After her arrest, she told the company that there had been a misunderstanding as the weapons belonged to her boyfriend, that she didn’t know anything about them and that she was exonerated.

Her story was not true, but her account itself should have raised questions about her having access to personal information.

The court said that the company had a duty to protect the confidential information and that it was foreseeable that the employee could access information and use it for personal gain.  The company had an obligation to investigate the employee’s continuing fitness after the arrest.  The court said that a jury could decide that the failure to take action under these circumstances was unreasonable as the company knew about the weapons charge and could have learned of her lies and her willingness to commit a crime with her boyfriend.  The company did not take sufficient steps to limit the risk of harm to those whose personal information its employees could access.

There are steps to take to avoid this problem.  After an employee is hired, that does not end the need to be vigilant about their fitness for the job.  When information comes to light that may raise questions about the actions of an employee, an employer cannot simply take his/her word for what occurred.  It must take affirmative steps to explore what the underlying issue is, analyze the employee’s story, and assess the risk the employee poses if access to confidential information is abused or if other employees and the public may be put at risk.

 

Lucan_J_WebMy colleague Jarad Lucan returns today with an update on a post regarding the impact that recent labor law decisions are having on colleges and universities.

Two years ago, my colleagues and I reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the right to unionize.

The Regional Director in that case determined that the players were employees under the National Labor Relations Act (the “NLRA”) and therefore could vote to be represented by a Union in connections with negotiating terms and conditions of employment with the University.

Ultimately, the Board refused to exercise jurisdiction over the players  and therefore left open whether they are employees under the NLRA or not.

At the time we reported on the case,  we discussed some of the impacts of the decision beyond the ability of players to unionize, including that the Board may scrutinize the University’s policies to see if those policies complied with the NLRA.

More specifically, whether the policies were written in a way that would either expressly or implicitly prevent the players from engaging in protected concerted activity.

Apparently, someone did challenge the “Football Handbook” and on September 22, 2016, The Board’s Office for the General Counsel issued an advice memorandum related to that charge advising against the issuance of a complaint.

The memorandum assumed that the football players were employees, and indicated that:

[i]t would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.

According to the memorandum, Northwestern modified its handbook pertaining to social media use striking portions of the rules, in most cases replacing with new language.

In particular, Northwestern took out language barring student-athletes from posting things online that “could embarrass you, your family, your team, the Athletics Department or Northwestern University.”

The new text is more specific, telling the athletes not to post things that “contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.”

The memorandum also pointed to changes with the University’s rules on disclosing injury information, which had told players to “[n]ever discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone” saying the “team is a family and what takes place on the field, in meetings or in the locker room stays within this family.”

The new rule says football players should not reveal injuries because of “the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes” but says the rule does not “prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.”

According to the memorandum, “[t]hat modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.”

The memorandum further noted that the school eliminated a dispute resolution policy for student-athletes to bring a “complaint or grievance concerning personal rights and relationships to the athletic program,” which required the players to first bring such issues to the director of football operations.

So if the memorandum advised against an issuance of a complaint, why should you care about it?

Well, as was recently reported, in the Columbia University case, the Board held that student teaching assistants were employees covered by the NLRA.  These employees not only have the right to unionize, but also have the right to engage in protected concerted activity even if they do not unionize.  Any handbook or policies, therefore, governing the terms and conditions of the relationship between the teaching assistants and the college or university will likely come under the NLRB’s scrutiny.

So, employers beware (again): You should review, or have your attorney review, your current policies and handbooks to ensure compliance with the NLRA.

Last month, I had the opportunity to speak to the American Law Institute for a CLE program on the latest guidance from the NLRB on various employee handbook policies.

When I first wrote about it in March, I had expected to followup shortly thereafter with another recap. But in the meantime, I found that much of what was contained in the reports was already discussed in other blog posts. As such, it seemed kind of silly to just write a “me too” blog post.

The best of these articles was written by Eric Meyer – who actually is a partner of one of my CLE presenters from last month.  In it, he provides a detailed summary of the policies that the NLRB found objectionable and, just as importantly, those that the NLRB has blessed.

Another longstanding blog, “World of Employment”, also recaps the report as well and notes that it is important for both union and non-union employers alike:

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.

But as another blog pointed out, even the most innocuous policies can be struck down by the NLRB.  A recent case involving T-Mobile struck down a policy like this:

 This Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.

Why? Because its being deemed as “chilling” free speech.

So, for employers, it’s yet another reminder – maintaining the status quo on employee handbooks may not be good enough anymore.

If you’d like to learn more, feel free to listen to the webinar on ALI’s website.

From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz
From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz

As I talked in yesterday’s post, I moderated a community forum on Religion and the Workplace at my firm. We had a terrific crowd and I’m grateful to all the speakers for making time out of their busy days to come.

I have posted on this blog before about some of things we talked about at the presentation — like how to provide accommodations to employees or addressing what is a “sincerely held” belief.

But Cheryl Sharp, Deputy Director of the CHRO, emphasized one point several times that I think is important for employers to understand.

Too often, she said, employers have policies that are not followed by their managers and employees.  Indeed, she said that when she gives training to companies, she is always surprised that employees tell her that they probably know only 10 percent of what the employee manual says!

While that’s an unscientific study of handbooks, Ms. Sharp’s point is that employers cannot simply have policies that sit on a shelf (or in a computer) anymore. Training your employees and educating them on what your policies say is critical.

Why?

Because Ms. Sharp said that inconsistency of application of a neutral employer policy can lead to discrimination.  And whether you or not you agree with that hypothesis is beside the point. The CHRO — the agency charged with investigating complaints of discrimination — is going to make that same conclusion.

If, for example, you have a policy that you are not to ask job applicants about accommodations until after a job offer is made — and your supervisor asks an applicant in a wheelchair that question before the offer is made — you’re going to have some explaining to do with the agency.

So, what’s the takeaway for employers?

Review your policies and make sure that the policy tracks the practice of your workplace. If it does, make sure to continue to provide training and education to your employees on those policies every year or two.  If it doesn’t, then you either need to modify your policy or your practice.

For more on handbooks, see my prior posts here and here.

Bans on taking photos at work are addressed in the NLRB report.
Bans on taking photos at work are addressed in the NLRB report.

The NLRB’s General Counsel’s office today released a lengthy report “concerning recent employer rule” cases.

That sounds generic. It’s not.

Rather, the NLRB is now outlining its views on otherwise-neutral employer policies and whether they could be deemed to violate federal labor law.  While part of the report is a recap of existing caselaw, this is probably the most comprehensive approach I’ve seen in a while. And more importantly, it provides policies that were approved by the NLRB in a recent settlement with Wendy’s.

This is an issue I’ve talked about before, whether policies on photos and videos, or social media, or confidentiality.

There’s a lot to take in but this should provide employers with guidance should they wish to avoid the NLRB’s steely gaze.

The “model” policies it approves of may not be your preferred language (and indeed, in one area, it would seem to almost encourage union-related activities), but employers who want to stay well within the limits of the law will certainly want to use this as a guide.

I’ll have more on this in an upcoming post after a more comprehensive review.

Hat tip: Jon Hyman.

I sound like a broken record, but once again, the NLRB is striking down reasonable rules as unreasonable. 

My colleague, Gary Starr (as always, read his bio here), today shares a recent case from the NLRB that found that a “Values and Standards of Behavior Policy” of one employer — something that you might think is entirely devoid of labor law implications — is indeed in violation of federal labor law. 

And so, if you “value” compliance with labor laws, you’ll want to be sure to read on….

Suppose your office is more like “The Office” television show — filled with inter-department back-biting and general lack of cooperation.

Besides realizing that hiring Michael Scott to run the place isn’t the best idea, what do you do?

Hills and Dales General Hospital decided it had to change its culture. It set out to develop standards of behavior that all employees would embrace. It solicited the opinions of all employees on customer service, respect, teamwork, attitude, continuous improvement, and fun.

Once its new Values and Standards of Behavior Policy was completed, every employee was given a copy and it was posted in the main lobby.

And it seemed to be working.

The Hospital began to see an improvement in how employees treated each other, how patients were treated and how departments worked with each other.

And they lived happily ever after, right?

Well, not exactly.  Then an unfair labor practice was filed challenging three of the more than 21 provisions of the Values Policy. Those provisions were:

  • Teamwork – 11. “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”
  • Teamwork -16. “We will represent the Hospital in the community in a positive and professional manner in every opportunity.”
  • Attitude – 21. “We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.”

The National Labor Relations Board (“Board”) earlier this month found that the prohibitions on “negative comments” in Section 11 and reference to “negativity” in Section 21 were unlawful because these rules could prohibit employees from discussing their terms and conditions of employment or sharing their complaints about their supervisors with their co-workers.

The Board found that Sections 11 and 21 of the Values Policy would have a chilling impact on employees and discourage them from exercising their rights as the implicit threat of discipline for being critical of management violates the law.

The effort to present the Hospital in the community in a positive and professional manner did not fare any better.

Despite its effort to improve its reputation and have employees exhibit high standards of professionalism in their dealings with “customers” at every opportunity, the Board viewed Section 16 as overbroad and ambiguous.  The Board found that this section could proscribe employees from making public statements that might not be seen as positive.

For example the language could be seen as prohibiting public protests over any Hospitalviolation of labor laws or could bar employees from making statements protesting their wages, benefits or working conditions.

As a result, the Hospital was ordered to retract these sections of the Values Policy and must delete them from all sources. The Hospital and other employers seeking to address internal conflicts among employees and departments and public perceptions of their business are left to create new behavior standards with more details or with clear statements that their policies are not intended to violate employee rights under the National Labor Relations Act.

Because Connecticut protects its free speech in both public and private work places, employers must be careful not to infringe those rights as well.

Perhaps it’s time to to revise my grandmother’s admonition that if you don’t have anything nice to say do not say anything at all to include “except as protected by law.”

The NLRB has been making it clear of late that enforcing workplace harmony and requiring employees to present the employer in a positive and professional light infringes employee rights. Thus if you want change your company’s culture, you need to navigate around these pitfalls and make clear that such efforts are not intended to infringe employee rights.

Oh, what would Michael Scott think of this!

I’ll admit something that might seem a little unusual and ironic:  I’ve grown a bit tired about writing about the NLRB and social media. 

Perhaps, it’s because I’ve seen too many law firms and lawyers issuing newsletters, blog posts, and alerts each time the NLRB says something, anything, about social media. 

Hearing Too Many “Alerts” on the NLRB?

Because people on social media love WRITING about social media, decisions on the subject keep getting a disproportionate share of coverage.  Frankly, it’s like drivers that use their horns too much. After a while, it’s just noise.

With some notable exceptions, what’s missing from the coverage is perspective.  

Take the latest decision by the NLRB in the Knauz BMW case this month. Yes, it’s one of the first times the Board (as opposed to an administrative law judge) has upheld the legitimacy of a firing that was based on some inappropriate photos posted by the employee Facebook page. 

But that really wasn’t a big issue for the Board because the ALJ’s decision on this topic was affirmed without comment.  Indeed, there was nothing to indicate that the Facebook post was “protected and concerted” — i.e. discussing the terms and conditions of employment with co-workers. 

As the Workplace Prof blog correctly noted, the Knauz BMW cases is just one of a series of “largely run-of-the-mill concerted and protected cases….” 

Of course, as the NLRB has said they would do, the Board has also been issuing decisions that attack what appear to be  facially neutral employment policies and finding that these policies violate the employees’ rights to engage in protected activity.  (Jon Hyman, of the Ohio Employer’s Law Blog, recaps three of them.)  On first glance, this too, has seemed somewhat important to follow.

But its important to recognize that this “trend” is not new.  For example, back in 1998 (and in several other cases beforehand as well), the NLRB issued a decision in Lafayette Park Hotel that attacked bans on “derogatory” statements or policies that prohibited the disclosure of “confidential” information if it prevented employees from discussing wage & benefit information. 

The larger view is that the NLRB is doing, unfortunately, what is always does — which is change policies and logic based on which party controls the White House. It has done it before under the Clinton and Bush years, and the latest decisions merely continues that trend. 

Should anyone really be surprised that the NLRB’s rulings are reverting back to a perspective that we had under the Clinton White House?

So, where does that leave employers? Resist the urge to act (and overreact) based on each decision or pronouncement from the NLRB.  Yes, the law is developing, and yes, its important to make sure that you are compliant with the law, but the overall principles have been in play and in flux for years. 

Review your policies. Check to be sure that they’re not so one-sided that they could be interpreted as chilling protected concerted activity. And seek counsel when terminating employees for social media activity. 

Ultimately, resist the urge to obsess over each decision from the NLRB.  Becuase it just may change again before you know it.