As I highlighted last month, Vine — a new video-sharing app — is quickly infiltrating the workplace.  Since my original post, I’ve been keeping tabs on what people are doing on it.

And it isn’t pretty.  Videos seem to be increasing with people using hashtags like “#work” or “#worksucks” daily.  They are also using hashtags like “#fml”; if you’re not familiar with the shorthand, the Urban Dictionary has the details.  Hint: It doesn’t mean Fix My Lighthouse anymore.

The Wall Street Journal Law Blog wrote about it in a post today (welcome WSJ readers!). 

But I remain amazed at the lack of discretion some employees have. Take this employee who smokes weed IN HIS COMPANY UNIFORM (Vine app required).  Insert your “hashtag” joke here.  (Actually, search for “#tokedaily” or “#wakeandbake” on Vine — you’ll be shocked.)

Or this employee who posts from a popular fast-food restaurant using the hashtags “#hatework” and “#bored”.

Or this employee who seems to work at a popular clothing store and used the hashtag “#hatework”…along with the name of her employer. 

A firewall isn’t going to stop employees from doing this anymore. Instead, some policies and guidelines, and some training is your first line of defense.  

Those who are also quick to attack Vine (much like people derided Facebook) are shooting the messenger. Employees will use whatever seems easy to them; Vine is just the latest example.  It’s up to employers to provide the guidance to employees about what is appropriate. 

Until then, Vine will remain the newest front-line in the ever-increasing use of smartphones in the workplace.

Writing a blog can be a lonely endeavor at times with the question of "Will anyone read this?" popping up from time to time. 

And while the blog had its 400,000th (!) visitor earlier this month, it’s always nice to get some additional encouragement.  

So, a tip of my hat to Above the Law and Point of Law forum for their references to my blog over the last 36 hours.

And a short while ago, I discovered that the blog was discussed in the Wall St. Journal’s "Best of the Web" column, and it should be in Saturday’s print editions.  (You can get the online version here). A special thanks to the WSJ for the reference.

And to those readers visiting for the first time, feel free to stay awhile. While this may be a "specialized" blog (in the words of the WSJ), there’s plenty of things of interest, particularly for employers in Connecticut. 

Thanks for visiting and thanks for reading.   Feel free to e-mail me with questions, topics or comments you might have about the blog.

"Get Rid of Performance Reviews!" proclaims a UCLA professor in this morning’s edition of the Wall Street Journal:

To my way of thinking, a one-side-accountable, boss-administered review is little more than a dysfunctional pretense. It’s a negative to corporate performance, an obstacle to straight-talk relationships, and a prime cause of low morale at work. Even the mere knowledge that such an event will take place damages daily communications and teamwork.

The alleged primary purpose of performance reviews is to enlighten subordinates about what they should be doing better or differently. But I see the primary purpose quite differently. I see it as intimidation aimed at preserving the boss’s authority and power advantage. Such intimidation is unnecessary, though: The boss has the power with or without the performance review.

But never fear, he has a substitute: Performance previews.

The alternative to one-side-accountable, boss-administered/subordinate-received performance reviews is two-side, reciprocally accountable, performance previews.

And for those who worry that getting rid of performance reviews will make it more difficult to fire someone, he offers this response:

Some of you may also ask if the performance review goes away, how do we prepare the groundwork if we want to fire somebody? For the better, I’d argue: Take away the performance review, and people will find more direct ways of accomplishing that task.

 

It is a lengthy piece and worth reading. But at the end of the day, it strikes me as more high-minded theory than practical guidance.  I’m not dismissing the various 360 approaches to performance reviews or the need to provide continual feedback to employees on performance issues through the year, but eliminating performance reviews won’t solve all the problems in the workplace.  Instead, it’ll shift them to another source.

And for lawyers trying to defend against employment discrimination claims, getting rid of performance reviews will eliminate some of the last best hope in providing true written documentation of the employee’s performance.  Reviews, as they stand now, may not be the greatest (since reviews tend to be watered down) but at least they provide some support.  Eliminating that, and companies will be left to argue employment decisions based on bits and pieces elsewhere — if they are even written down.

I’m not sure that finding "more direct ways" of firing someone is realistic too.  Many supervisors and managers either are risk-adverse or do not like confrontation.  It is hard to see how eliminating performance reviews will make their tasks any easier when it comes time for discipline or termination.

Before companies get rid of the performance review, the question that ought to be asked is: Is the system we replace it with better?  And if so, how?  If a company can’t answer these questions, it may just be shifting its problems from one source to another.

(H/T Workplace Prof Blog)

The Wall Street Journal has an interesting story this morning about employers who are seeking to implement and enforce arbitration agreements on employment law claims. 

Arbitration of employment disputes took off in the early 1990s after federal legislation made it easier for workers to sue — and win big damages — over claims such as sex, race and disability discrimination. Intent on reducing large payouts and litigation costs, companies responded by putting in place arbitration programs in which disputes are heard not by a judge or jury, but by an arbitrator.

Typically, disputes are handled by a single arbitrator, who, as a lawyer, may be less likely to be swayed by emotion than a jury would be. In arbitration, workers also face greater constraints on the amount of evidence they can gather to support claims. Proceedings usually are private, and final awards aren’t easily overturned by courts.

Employment arbitration now covers a wide swath of industries, from restaurants and retailers to law firms and banks. An estimated 15% to 20% of businesses now require employees to arbitrate disputes, according to Alexander Colvin, a labor studies professor at Pennsylvania State University. By contrast, a 1995 government study indicated that less than 10% of companies had employee-arbitration programs.

While more employers are using arbitration agreements, it is hardly a majority.  Employers considering arbitration clauses should determine what is best for their company without worrying about trends.  As the article notes, the studies on the outcomes of arbitrations are far from clear:

Proponents of arbitration argue that while juries sometimes give huge awards, they also can award nothing; arbitrators, they say, are more inclined to provide at least some damages. People on both sides of the debate say that very large awards are less likely in arbitration. But data on outcomes conflict: Some studies show that employees fare worse in arbitration than in court, while others conclude that employees win more often in arbitration and recover comparable amounts. Studies show that employment arbitrations are resolved twice as quickly on average as lawsuits.

Arbitration is not for every employer and even where the employer decides to implement an arbitration program, there are many nuanced decisions that need to be made. An article by some of my colleagues a few years ago touches on this and is a good starting point for thinking about whether an arbitration clause is right for you. 

(Hat Tip: Law Blog)