November 2011 Archives

November 30, 2011

Here's a sneak peek into how union-election rules will soon change

nlrb.jpgYesterday, the National Labor Relations Board gave a glimpse into how it plans to change the way your workplace may become unionized. Details follow after the jump...

* * *

Continue reading "Here's a sneak peek into how union-election rules will soon change" »

November 29, 2011

3 tips to guide a social-media check on your potential new hire

watertoe.jpgAccording to this recent SHRM survey, only 18% of companies have used social media to screen job candidates. Most cite the legal risks of screening candidates as the reason for not implementing a social-media background check.

While a social-media background check may not be useful in certain instances, I can imagine many situations in which a company would benefit from checking up on candidates online before filling a job opening. Heck, consider that 89% of employers plan to use social media for recruiting this year.

Have I piqued your interest? After the jump, I'll offer some suggestions about how your company can safely run a social-media background check...

* * *

Continue reading "3 tips to guide a social-media check on your potential new hire" »

November 28, 2011

Barbie Shagwell, whips, and other social-media hiring red flags


Two weeks ago, I was in Las Vegas at the Advanced Employment Issues Symposium, presenting on using social media to make hiring decisions. If you would like to obtain a copy of my presentation, just head on over to our Facebook fan page, "like" us, and download it.

After the jump, I want to touch upon one of the hotter topics we discussed. That is, just what are those red flags that employers should be looking for should they choose to use social media to background-check job candidates?

* * *

Continue reading "Barbie Shagwell, whips, and other social-media hiring red flags" »

November 23, 2011

Occupy National Labor Relations Board?!? #OccupyNLRB

Back in September, I joked that the National Labor Relations Board (NLRB) was on the verge of disbanding.

(Ok, maybe it wasn't "ha! ha!" funny. Just work with me here, will ya?)

GridlockHow does this blog post relate to gridlock in Paris and a red circle? Hella-existential, I'd say... 

Now, one week away from a scheduled November 30, 2011 meeting at which the NLRB will propose new rules which could facilitate union elections, Kevin Bogardus at reports here that one NLRB member is threatening to resign. Egads!

Why should your company care if a NLRB member resigns now?

Cue the Foos.

Because if Republican Brian Hayes actually resigns from the NLRB, then the NLRB will have no further rule-making or decision-making authority. Brian Hayes is one of three current NLRB members. (There are two additional empty seats). And the NLRB cannot legally do squat with just two members. Only Congress can fill the remaining seats, subject to approval from President Obama. (Technically, President Obama has recess-appointment power, but he won't have a chance to exercise it before he is re-elected. Or should I say, if he is re-elected? Take that, 99%!). Given that the House of Representatives is Republican controlled, let's just say that the odds of the House approving anyone perceived as union-friendly to fill any vacated NLRB seat are only slightly better than me winning Dancing With The Stars.

Annnnnnnnnnnnnnnnd now back to you, Tom Bergeron. (Sadly, I didn't have to Google that).


Image Credit:

November 22, 2011

Your employees' "private" Facebook posts are not private

brokenrecord.jpgWhat is this? A broken record?

Yesterday, I blogged about a recent NY appellate decision in which the court held that an employee who had sued her employer would have have to turn over her Facebook postings that related to the case.

Today, we head south down 95, and then west to Franklin County, PA, where a state court judge recently explained, in far greater detail than in the NY opinion, why employees have no reasonable expectation of privacy in their Facebook posts. (Not coincidentally, everything is done better in PA than in NY. Inferiority complex, much? Yep.)

I'll break it down -- the decision, not my complex -- after the jump...

* * *

Continue reading "Your employees' "private" Facebook posts are not private" »

November 21, 2011

Can you access an ex-employee's Facebook posts if she sues?

laddersky.jpgWhat a whirlwind 12 months it's been for Edith Employee! Or, should I say, Edith "former" Employee?

Last year, she was an employee for ABC Company. This year, she is suing ABC for sexual harassment. Among other things, Edith claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life.

And, right now, we find the parties entrenched in some scorched-earth discovery. ABC Company has just requested "all of plaintiff's Facebook records compiled after the incidents alleged in the complaint, including any records previously deleted or archived."

Can ABC do that? Will Edith have to turn over all of these records? The answer follows after the jump..

* * *

Continue reading "Can you access an ex-employee's Facebook posts if she sues?" »

November 18, 2011

U.S. employees had a lot of discrimination claims is FY2011

Thumbnail image for Thumbnail image for EEOC.jpgHow many claims were filed? And how much money did the U.S. Equal Employment Opportunity Commission recover for individuals? Find out after the jump...

* * *

Continue reading "U.S. employees had a lot of discrimination claims is FY2011" »

November 17, 2011

Top 5 Reasons Employers Give Their Employees the Boot

I'm in Las Vegas.

So, for today, Jane Smith has control of the The Employer handbook. Jane is a freelance writer and blogger. She writes about free background checks for After the jump, check out her top 5 reasons employers give employees the boot. Questions and comments can be sent to:

* * *

Continue reading "Top 5 Reasons Employers Give Their Employees the Boot" »

November 16, 2011

POLL: Would you fire this employee for her Facebook comments?

youmakethecall.pngI read this on ZDnet yesterday:

Administrative Law Judge Ellen Bass has ruled Jennifer O'Brien, a first-grade teacher at School 21 in Paterson, New Jersey, should lose her tenured job, because of a Facebook comment she made about her students. O'Brien has been on administrative leave since March, which is when she posted her status update saying "I'm not a teacher -- I'm a warden for future criminals!" She claimed she wrote it out of exasperation after several students disrupted her lessons, one pupil hit her, and another stole money from her.
Bass said O'Brien "demonstrated a complete lack of sensitivity to the world in which her students live" and called her conduct "inexcusable."

My question for you, my brilliant readers, is what discipline, if any, would you have doled out to Ms. O'Brien? Sound off in the comments below...

November 15, 2011

This is what a social-media policy in a unionized workplace looks like


Do you have a unionized workforce? If you have a social-media policy, it should not expressly restrict employees' rights to discuss terms and conditions of employment. Otherwise, you may be violating the National Labor Relations Act.

And to those non-union employers who have social-media policies, don't think for a second that you have carte blanche to control what employees say and do online. The National Labor Relations Act covers you as well.

So how can you draft a social-media policy that won't run afoul of the National Labor Relations Act? Find out after the jump...

* * *

Continue reading "This is what a social-media policy in a unionized workplace looks like" »

November 14, 2011

6 things you must know about social media & your workforce

plug.jpgCisco just completed this study, which shows just how much social media, device freedom, and mobile work means to the next generation. Thinking about banning social media in the workplace? Before you flip the kill switch, read the rest of this post after the jump...

* * *

Continue reading "6 things you must know about social media & your workforce" »

November 11, 2011

Post-employment acts don't create a hostile work environment

hourglass.jpgWhen Krysten Overly, a financial advisor at a bank, told her male boss that she was resigning, Overly claims that he grabbed Overly's arm to push her out the door. And as Overly left her boss's office, he yelled, "Good riddance, bitch!"

What a jerk! But, as a matter of law, did he contribute to a sexually harassing hostile work environment? Find out after the jump...

* * *

Continue reading "Post-employment acts don't create a hostile work environment" »

November 10, 2011

What if you forget to tell an employee about FMLA leave?

Thumbnail image for Thumbnail image for fmla.jpegIf you have 50 or more employees, you must abide by the Family and Medical Leave Act. The FMLA affords up to 12 workweeks of leave in a 12-month period, among other things, to care for a parent with a serious health condition. But let's say that you have dropped the ball and failed to provide your employees with:

  • information or notice explaining the provisions of the FMLA,
  • information regarding how to file complaints for violations of the FMLA, and
  • FMLA information in "any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook."

Let's even assume that one of your employees takes leave that would otherwise qualify under the FMLA, but you fail to tell that employee that the FMLA covers the leave.

Have you interfered with your employee's FMLA rights? I'll spin some Alice in Chains and drop the 411 after the jump...

* * *

Continue reading "What if you forget to tell an employee about FMLA leave?" »

November 9, 2011

Employer lessons from Penn State (Hint: ignorance is not bliss)

This Jerry Sandusky situation is blood curdling. I won't rehash the facts. But in case you've been living under a rock for the past few days, you can read about them here.

I am not going to comment on Penn State's moral compass. Rather, as a labor-and-employment-law attorney, I see plenty of lessons for employers. Let's just focus on three simple ones:

  1. Take complaints seriously. Always. Fortunately, most employers do. Those who don't appear to condone the behavior. 
  2. If the behavior is criminal, immediately contact the police. By doing nothing, you give the actor both time and impunity to harm others.
  3. Do something about the complaint. Investigate and follow with action that is reasonably designed to ensure that the offensive behavior does not happen again. If the offensive behavior is serious enough, fire fast.
November 8, 2011

What are the latest trends in social media and performance reviews?

worksimple.jpgIn yesterday's post, while highlighting the latest trends in social media and litigation, I noted that most companies in some way restrict employee access at work to social media content. However, the number of blockers is falling. In 2009, approximately 2 in 3 companies had some type of restrict. Last year, that number fell to 55%.

As some employers learn to embrace accept tolerate employee use of social media, some experts predict that others may embrace social media to the point where they begin to incorporate social media into performance evaluations. These evaluations will focus on social goals, feedback, and recognition. This infographic explains from where we have come with performance reviews and offers a potential online path to improving them.

What do you think? Sound off in the comments below.

Image credit:

November 7, 2011

What are the latest trends in social media and litigation?

trend.jpgThis week I plan to dedicate a few blog posts to highlighting some of the latest trends in social media and [fill in the blank]. Today, after the jump, it's social media and litigation...

* * *

Continue reading "What are the latest trends in social media and litigation?" »

November 3, 2011

Fact or Fiction: A hostile work environment requires bad motives

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post". So, let's get right to today's question:

Thumbnail image for ffiction.pngIf a former employee sues for discrimination, claiming to have been subjected to a hostile work environment, must the employee prove that the harasser acted with bad intentions? Put another way, if the harasser was just joking around, does the plaintiff lose the case?

No way! FICTION!!!

An employer is liable for a hostile-work-environment discrimination if the employee can prove five elements:

  1. the employee was subjected to certain conduct because of the employee's particular protected class (e.g., race, religion, national origin, gender, sex),
  2. the discrimination was severe or pervasive,
  3. the discrimination detrimentally affected the employee,
  4. the discrimination would detrimentally affect a reasonable person in like circumstances, and
  5. a basis for employer liability is present.

It does not matter whether the harasser intended to harm the victim. It only matters how the harasser's action's impacted the victim (and how someone in the victim's shoes would feel). This nuance, which many employees do not appreciate, is a crucial point to stress when conducting anti-harassment training -- before a lawsuit is ever filed.

November 2, 2011

Miami Heat owner fined $500,000 for a single tweet

We know that employees can be disciplined -- and even lose their jobs -- based on their use of social media. But even business owners can face backlash for what they say online.

arison.jpgEarlier this week the NBA fined Miami Heat owner, Micky Arison, $500,000 based on the following Twitter exchange:

Disgruntled fan: "How's it feel to be apart of ruining the best game in the world? NBA owners/players don't give a damn about fans&and guess what? Fans provide all the money you're fighting over&you greedy (expletive) pigs.

Arison: "You are barking at the wrong owner."

It turns out that the NBA has a strict gag order against speaking about the current labor dispute. Who knew? Oh, wait, Arison did. The $500,000 fine, first reported by Yahoo! Sports, is five times the amount other owners have previously been fined for public comments about the ongoing labor situation.

Must be nice to have that kind of money to spend on a tweet...

November 1, 2011

Herman Cain, sexual harassment, and 10 lessons for employers

hermancain.jpegSpeak into a microphone and point one finger in the air if your Halloween completely sucked.

Politico has reported that the National Restaurant Association paid out a five-figure settlement to two women who accused Herman Cain of making sexually suggestive comments.

Details on the allegations and lessons that employers can learn from this after the jump...

* * *

Continue reading "Herman Cain, sexual harassment, and 10 lessons for employers" »