February 2012 Archives

February 29, 2012

You can't get Facebook login info based on a smiling profile pic

smileyface.jpgI got this as a Google Alert on Monday. The case is Davids v. Novartis Pharmaceuticals Corp. Allow me to set the stage for you.

  • Plaintiff sues, claiming ongoing suffering from osteonecrosis of the jaw (if you click the link, don't look at the picture on the right. Ewwwww)

  • Defendant corporation realizes that plaintiff has a Facebook account and serves a request for production of Facebook documents.

  • Plaintiff produces only those documents that are available publicly (i.e., those to which access is not otherwise restricted through Facebook privacy controls)

  • Not satisfied with the production, defendant moves to compel plaintiff to turn over her Facebook login information

The basis for the motion?

Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition. (my emphasis)

Sounds like someone didn't read my chapter in Think Before You Click. Comparing the situation here to cases from PA,  NY, and another from NY the court denied the motion to compel:

Defendant's argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff's account.

If only the Defendant had laid a better foundation with additional discovery as to the overall scope of what the plaintiff had in her Facebook account, this could have ended differently.

February 28, 2012

Social Media In The Workplace: Where is it Today? Tomorrow? [VIDEO]

tlnttransform.gifYesterday, I had the absolute privilege of moderating a panel on social media in the workplace at TLNT Transform in Austin, TX. Transform is for talent managers and HR leaders who are looking for cutting-edge insights and best practices from innovative and forward-thinking companies. 

Three HR Rockstars, Karren Fink, Laurie Ruettimann, and Rebecca Meissner, made my job as moderator on the social-media panel a breeze. If you can get past my initial crappy lawyer joke -- and that, apparently, I don't know my right from my left -- it's worth watching. Here is a link to the video.

For more videos of other excellent presentations at TLNT Transform, click here. For all the tweets about #TransformHR, click here.

February 27, 2012

But, you see judge, it was only "exotic dancer" harassment...

Frozen Food AisleI've come up with some pretty creative defenses to unlawful harassment. Usually, however, before I file a pleading, I take out my trusty red pen iPad and delete those arguments that are just so outrageous that I feel my client will lose credibility with the court.

But that's just me.

After the jump, I have a recent federal-court decision in which a Maryland grocery claimed that the [alleged] relentless sexual harassment of a female employee by the store's male manager wasn't "sexual harassment" -- that would be illegal. Rather, it was "exotic dancer" harassment.

That's pretty creative, alright.

Oh boy...

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February 24, 2012

Want to keep your job? Don't do this if you're bored at work...

Thumbnail image for englishwig.gifSome folks -- not you and me, but some folks -- can watch porn at work and not get in trouble; they work in the porn industry.

When you're an employee of the courts -- a courtroom clerk, to be precise -- it's frowned upon. 

Oh, you'll never guess what happens next. Well, maybe you can. See how right you are after the jump. Fair warning, however, this is one my less tasteful posts. And that's saying something...

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February 23, 2012

Social Media & HR: Policies and Legal Pitfalls in 140 characters

What were you doing yesterday between 3 and 4 PM EST?

Me? I was tweeting with the great people at SHRM's We Know Next and several other Twitter stars, answering questions and otherwise making insightful snarky comments that sniffed insightful but were generally closer to snarky, on the topic of "Social Media and HR - Policies and Legal Pitfalls."

If you were part of the dialogue, thank you for participating. (And muchas gracias to SHRM for inviting me to be a part of #NextChat). If you couldn't make it, click through to see what you missed and to get a crash course in Social Media 101 for HR...

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February 22, 2012

The ADA does not force employers to provide indefinite leave

medicalleaverequest.jpgHey, that blog title looks familiar. Oh yeah! I wrote about it here back in October.

This time around, another federal court, the Tenth Circuit Court of Appeals, has reaffirmed that while a "leave of absence may be a reasonable accommodation [under the Americans with Disabilities Act]", the employee must provide a reasonable estimate of the amount work that will be missed. "Conversely, when the employee seeks leave, but it is uncertain if or when he will be able to return to work, a leave of absence is not a reasonable accommodation."

The case is Valdez v. McGill, a copy of which you can find here.

For more on reasonable accommodations under the ADA check out these posts:

(h/t Karla J. de Steuben)

February 21, 2012

Supervisor's advice to sexually-harassed employee: "Pray..."

Praying HandsWorst. advice. ever.

More on this doozy involving two Denny's waitresses after the jump...

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February 19, 2012

ESPN disciplines employees for offensive Jeremy Lin statements

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The Associated Press reports here that ESPN, the Worldwide Leader in Sports, has taken action against three employees for offensive comments made about NY Knicks point guard, Jeremy Lin.

The headline "Chink in the Armor" was used Friday on ESPN's mobile website after Lin had nine turnovers in New York's loss to New Orleans.
In a statement Sunday, ESPN apologizes for that headline and also says it is also aware of two other "offensive and inappropriate" comments on ESPN outlets.

On its website, ESPN reported Sunday that it had investigated and responded accordingly:

We have engaged in a thorough review of all three and have taken the following action:
      • The ESPN employee responsible for our Mobile headline has been dismissed.
      • The ESPNEWS anchor has been suspended for 30 days.
      • The radio commentator is not an ESPN employee.

Photo Credit: Frank Franklin II/AP

February 17, 2012

On 2/22/12, I'm yours for a SHRM #NextChat on Twitter

weknownext.pngA little birdie told me that Jason Mraz wrote this song about me and you.

Uh, oh. Meyer's off his meds again. No folks, allow me to explain.

Next Wednesday, I will be tweeting (on Twitter) for SHRM's We Know Next, and answering questions you have about "Social Media and HR - Policies and Legal Pitfalls". Just get on Twitter at 3 PM EST on 2/22/12. Tweet your questions and comments to me with the hashtag #NextChat. And I'll answer them like a boss; (link may be NSFW -- depends on your tolerance for SNL digital shorts, and if you have a sense of humor).

What should we discuss? Well, Jon Hyman at the Ohio Employer Law Blog posted some statistics yesterday about the number of employees who friend their bosses on Facebook. Good idea for employees? Ask me on Wednesday.

What else? How about...

  • Should you monitor employee use of social media? (Is that even legal?)
  • What should you be doing to screen potential hires using social media?
  • What is that #1 "must have" for a social-media policy?
  • What issues are companies having with implementing a social-media policy?
  • How broad can a social-media policy be without being too broad (i.e., unlawful)?
  • Do businesses even need a social-media policy? Or is this just snake oil that lawyers sell to scare employers?
  • Can we be Pinterest pals?
  • Boxers or briefs? (Oops. Forgot the strikethrough.)
  • Social-media training for employees; good idea?
  • What privacy rights do your employees have?

Whatever is on your mind, just tweet it with the #NextChat hashtag next Wednesday at 3PM.

February 16, 2012

A recap of yesterday's EEOC meeting on pregnancy discrimination

babyhospital.jpgMy loyal readers know that yesterday the U.S. Equal Employment Opportunity Commission held a public meeting to discuss pregnancy discrimination and caregiver issues.

Conversely, my disloyal readers can go to hell. No, no, I forgive you. Just send me a check and we'll call it even.

*** Takes meds ***

*** Flashes Men In Black red light ***

Ah, yes, pregnancy discrimination. Click through for a summary of what happened at yesterday's EEOC meeting...

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February 15, 2012

EEOC to meet today to discuss pregnancy discrimination

Thumbnail image for EEOC.jpg

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on the subject of pregnancy discrimination and caregiver issues at 9:30 a.m. today in Washington, DC. If you are in the area, feel free to stop by. The meeting is open to the public.

According to this press release, the Commission will examine "recent trends in discrimination against pregnant workers and workers with caregiving responsibilities, examining these two forms of discrimination as a continuum."

The timing of this meeting couldn't be better. The blogosphere has been abuzz about this recent decision in which a federal judge reasoned that lactation "is not pregnancy, childbirth, or a related medical condition" and, therefore, is not pregnancy-related. Consequently, "firing someone because of lactation or breast-pumping is not sex discrimination."

Methinks that may get discussed. I'll have a follow-up post on the meeting after it concludes.

February 14, 2012

A Valentine's Day reminder from The Employer Handbook

venn.jpg

Happy Valentine's Day! x.o.x.o.

- The Employer Handbook

February 13, 2012

The wrong way and the right way to request FMLA certification

Thumbnail image for fmla.jpegThe Family and Medical Leave Act allows an employer to require that a employee's request for FMLA leave be supported by a certification issued by the employee's health care provider. An example of one of the right ways to do this, from a recent federal-court decision, follows after the jump...

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February 10, 2012

Pedophilia as a disability?!? #Vomit

greece.jpg

Yesterday, Greece came through with a long-awaited economic reform deal. Congratulations to them.

What I want to know, however, is what the heck the Greek government was thinking when it recently expanded a list of state-recognized disability categories to include pedophiles, exhibitionists and kleptomaniacs. Bailout money back, please.

At Res Ipsa Loquitor, Jonathan Turley notes that the Greek government already recognizes pyromaniacs, compulsive gamblers, fetishists and sadomasochists as persons entitled to ask for government assistance. 

Fortunately, the Americans with Disabilities Act enumerates a number of psychological impairments which are not disabilities and, thus, cannot give rise to a claim under the ADA. These disorders include pedophilia, exhibitionism, other sexual behavior disorders, compulsive gambling, kleptomania, and pyromania. 

U-S-A! U-S-A!

February 9, 2012

Adultery + "distressing" text messages = no sexual harassment

Text message.png

Hey there, Casanova. Dontchaknow that the victim always keeps the text messages? Always! But does the victim win the sexual-harassment case about which I am blogging after the jump? Hint: no.

Oh, come on! Don't let that deter you! Click through anyway to pad my hit count and because you know I have the rest of the text messages and all of the dirty deets from a recent Bible Belt federal-court decision. 

See you on the other side...

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February 8, 2012

Judge, jury, and...Facebookutioner

juryRoomPoster.jpg

Like you could do better...

If When "Facebookutioner" catches on, you read it here first.

But seriously folks, let's talk about what judges are doing about jury use of social media during trial...

According to this survey, in which 508 federal judges completed questionnaires, only 30 respondents (5.9%) are aware of instances in which jurors have used social media during trial or deliberation.

  • What is the social network of choice among jurors?

  • What are jurors doing online during trial?

  • And what are judges doing to stop it?

Find out after the jump...

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February 7, 2012

What box got checked most at the EEOC in 2011?

eeoclogo.pngFor the second year in a row, it was retaliation. Of the nearly 100,000 Charges of Discrimination that employees filed with the EEOC in 2011, retaliation claims accounted for just over 37% of them. Race claims were just behind at 35.4%. Sex was third at 28.5%.

A complete breakdown of 2011 EEOC charge statistics can be found here.

February 6, 2012

The so-called "privacy" of employee emails

passwordprotected.jpgHumblebrag alert.

Reporters call me all the time. It's a wonder that I can get any work done.

Why, just last week, I was speaking to a reporter about an action recently initiated by current and former employees of the FDA, alleging that the agency unlawfully monitored their private emails. During our discussion, I mentioned another case -- this one called Stengart v. Loving Care Agency -- in which the NJ Supreme Court held that an employee who emails her attorney from a company computer may have a reasonable expectation of privacy in those emails provided that the employee uses a password-protected web-based email account.

Ah, serendipity! The following day, I read about another case decided last week in which the NJ Superior Court reaffirmed that many employee emails are not private. More on this case and a best practice for employers after the jump...

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February 3, 2012

Pepsi and Criminal Background Checks: Beyond the Buzz

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Janette Levey Frisch. Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

Janette's post on criminal background checks, which includes some best practices for employers, follows after the jump...

(Want to guest blog at The Employer Handbook? Email me.)

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February 2, 2012

Good luck overcoming the at-will employment presumption in PA

rockhardplace.jpgIn Pennsylvania, as in most states, an employee without a contract for a specific term of employment is deemed an at-will employee. Subject to certain exceptions (e.g., discrimination, violations of public policy), an at-will employee can be terminated for any reason or no reason at all.

How hard is it to overcome the at-will employment presumption? Pretty darn hard, as the Third Circuit Court of Appeals reminded us last week. More on this decision and some tips for employers after the jump...

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February 1, 2012

Ouch, that hurts! Supervisors may be liable for FMLA violations

Thumbnail image for fmla.jpeg

In this case of first impression in the Third Circuit Court of Appeals, which covers PA, NJ, DE, and USVI, the court ruled that a supervisor in a public agency may be subject to personal liability under the Family and Medical Leave Act. The court further emphasized that there is "no reason to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned."

Holy Schnikes!

Details after the jump...

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