The Employer Handbook Blog

Welcome citizens of the Utah.

I'd say welcome back, but, according my blog stats, so few of you have seen my blog a first time. How could that be? Some of my best posts involve the Beehive State:

• "144 'N'-words, but black employees can't prove they were offended"


• "Fifth of vodka + whiskey + elevator shaft = no workers' comp"


• "Apparently, sex in a supply closet is not sexual harassment"

I even have two random Johnny Utah references sprinkled about.

This all led me to theorize that Utah didn't have internet. For realz, have you ever received an email from Utah? Amirite? 

Although, I read yesterday that Utah passed this law to become the fifth state to ban employers from requesting social media passwords from applicants and employees.

With its new law, we end up with another state crafting a solution in search of a problem. But, to its credit, the new Utah law does have certain carve-outs to allow employers to access employee social-media information to permit the employer to discharge its legal obligations (e.g., investigate claims of unlawful harassment, determine whether an employee has misappropriated confidential information).

At least we know now that Utah probably does have the dial-up internet. Maybe.

For much of the week, I've blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards's employer, SendGrid, to fire her "fair" or "unfair"? "Fair" and "unfair" were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%). 

I'm assuming that most of my readers and, therefore, most of the respondents have an HR or legal background. Therefore, I will further assume that, while the results here are quite balanced, had I asked the question whether the firing was "lawful" or "unlawful," the results would not have been nearly as close.

Thank you to everyone who participated.

I went back and forth on whether to include "BREAKING" in the title to this post. Twas a close call. Close, like that time Bar Rafaeli almost dialed my number by accident (and by almost, I mean she was 7 numbers off -- out of 10).

No, feeling "maybe overworked" will not get you leave under the Family and Medical Leave Act. A Florida federal court recently confirmed this in Pivac v. Component Services and Logistics, Inc.:

The substance of the Plaintiff's "evidence" is that she felt maybe overworked and wanted time off, first to visit her parents, but then just because she was crying and sad. She went to a doctor who provided her with no treatment, no referrals, no medicine, and no further appointments. The Plaintiff stated that she "told him [the doctor] she needed about seven days to get herself together and he gave her a `Medically Excused Absence' form for the dates October 4, 2011 to October 17, 2011." There is absolutely no evidence presented by the Plaintiff that she met the definition of "serious medical condition" at the time she took the extended unpaid leave. There are no medical records submitted, no indication of continuing treatment at the time of the Plaintiff's being out of work from the 4th to the 17th of October of 2011, no evidence, other than the Plaintiff's conclusory statements, that she suffered depression and anxiety as chronic health conditions. In fact, the only thing the Plaintiff has established is that she told the doctor she did not feel like working and he gave her a note to excuse her from working. There is just nothing here on which to find that the Plaintiff suffered a serious medical condition and without that the cause of action may not proceed.

So, don't rely on an employee's say-so. As a condition of qualifying for FMLA leave, an employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider.

And if that certification doesn't sit right with you, go for a second or third opinion. For more on that, check out Jeff Nowak's post yesterday at FMLA Insights.

Whew!

Got a little carried away with yesterday's post about the employee who got fired for tweeting complaints about discrimination, didn't I?

Then again, I'm not the one who came up with the hashtag #donglegate.

Yesterday, I offered my legal analysis. Today, I want your non-legal opinion:

Is this Retaliation 2.0?

Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained...on Twitter:

And then she blogged about it here. The social-media complaints resulted in one of the joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her employer supported her.

That same day, SendGrid, Ms. Richards's employer, fired her.

(Jon Brodkin at arstechnica.com has the full story here).

We can argue about the propriety of using social media to publicize a harassment complaint, especially when a private complaint could have sufficed. Still, the SendGrid response certainly seems harsh and unfair.

But did SendGrid go so far as to retaliate (as a matter of law) against Ms. Richards?

Find out, after the jump...

Continue reading "Employee gets fired for tweeting complaints about discrimination" »

School teacher, Lawrence Smizer, is a regular Facebook wordsmith:

To all my family that fought my sister tooth and nail over some BULLSHIT (And you know who you are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!! HAHAHAHAHAHAH AHAHAHAHAH AHAHAHA AHAH HAHAH HAAH

Smizer was Facebook friends with two co-workers. They dimed him out to the school and Smizer was fired. So, he sued for reverse-race discrimination.

Reverse-race discrimination, mmm-kay. How do you think it worked out for him?

Find out after the jump...

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Continue reading "Firing for *&$%-laced Facebook post is not reverse-race discrimination, you guys" »

Your social media policy may be good when it comes to addressing legal risks. But getting that message across to your employees...

Not so much, according to a recent survey from Protiviti (here).

The Protiviti survey shows that more businesses are addressing employee use of social media -- 57% of respondents have social media policies. And, generally, those social media policies do a good job of addressing legal risks. For example, 90% of surveyed companies with social media policies have provisions in those policies what address disclosure of company information.

However...

Where social media policies are lacking, according to the survey, are the practical uses of social media. Just over half of policies discuss the organization's purpose in using social media. And just 38% of those policies address employee training. Tellingly, the most commonly cited obstacle to addressing social media risk within the organization is -- you guessed it -- employee training.

So, use this survey as a wake-up call. Make sure that your social media policies educate employees about social media. Then train your employees on those policies.

And, guess what? Because social media changes, remember to retrain your employees too.

photo © 2010 Paul Newtron | more info (via: Wylio)

Why just last week, I was hanging out with the ghost of John Houseman, who was blabbering on and on about making money the old-fashioned way. And while all this reminiscing of the old Smith Barney days was giving me the vapors, he just wouldn't let me get a word in edge-wise.

That was until, someone pulled along side of us and asked for our Grey Poupon, which seemed strange at the time because we were driving around in the '93 Ford Probe I drove in high school.

*** hears familiar sound of restraining orders being taken out ***

But it gave me just enough time to tell Hou$eman -- he was Ke$ha before Kesha was Ke$ha, you know -- about the March edition of the Employment Law Blog Carnival, which is now up and running. You can view it here

As always, it's jam packed with all the current, topical information an employment lawyer or HR-compliance dork maven would need to rule the roost at the next SHRM event. And a special thank you to Stephanie Thomas for hosting.  

If you would like to participate in future carnivals, email me and I will add you to the distribution list. Participants must be bloggers (so we can link to your blog) and Carnival posts must be HR/employment-law-related. But if you put ketchup on your hot dog, go jump in a lake. 

Otherwise, ride the lightning.

Sorry for the late post gang. Rough night last night.

Today, I'm punting the ball over to my blogging buddy Phil Miles at Lawffice Space who has the scoop on a new age-discrimination matter that the Supreme Court has agreed to address. You can read Phil's post here.

Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation numero uno. It's been that way since 2010.

There are three essential elements of a retaliation claim: (1) protected activity -- opposition to discrimination or participation in the statutory complaint process; (2) adverse action; and (3) causal connection between the protected activity and the adverse action.

This post focuses on "opposition to discrimination." Specifically, is withdrawing from what one perceives to be a sexual advance by one's employer opposition to discrimination and, thus, a protected activity?

The answer after the jump...

Continue reading "Is rejecting a sexual advance, without reporting it, protected activity?" »

On March 12, a federal court in PA resolved the first HUGE LinkedIn account dispute case involving an employee and former employer. I've written about out it a few times previously. (Here, here,and here).

The latest decision is involved. And rather than pontificate -- too many syllables -- I'll defer to Venkat Balasubramani, who has the full scoop here.

My laziness knows no ends. Unless those ends involve a medium-rare burger, wrapped in bacon.

Don't mind if I do!

Today we have a guest blogger at The Employer Handbook. It's Peter Ames. Peter Ames writes this piece on behalf of Office Genie, a desk and office space market place in the United Kingdom

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

Continue reading "GUEST POST: A guide to creating a comfortable workplace" »

Back in late January, a federal appellate court ruled that President Obama lacked the power to make three recess appointments last year to the National Labor Relations Board. More on that here.

In this press release issued yesterday, the NLRB announced that would seek Supreme Court review. Quoted below is the press release:

The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid. The Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013.

So, yeah, um, that's it for today. Unless Lady Gaga's new gold-plated wheelchair interests you. Or maybe this nutty shootout attempt by Ottawa's Kaspars Dugavins?

Are you still here?

Most parties (and their attorneys) expect that settlement communications are not admissible at trial. There's even a federal rule of evidence on this subject. However, a federal court recently recognized an exception. But, with all due respect to the United States District Court for the District of New Jersey, the opinion is a little dry. 

So, after the jump, I spiffed it up a bit -- Point Break style, brah -- with a few takeaways for practicing attorneys.

This is your wake-up call.

Continue reading "100% pure settlement offer? If not, it may be ADMISSIBLE ... AT ... TRIAL!" »

Or sexually harass your co-workers.

Unless, of course, you consider my working Hollywood manuscript: "An EEOC Complaint Is Your Free Pass to Sexually Harass." I know, the title needs work, but with C. Thomas Howell, Tawny Kitaen real star power and a producer.

** Immediately regrets sixth shot of Drambuie with breakfast **

There's a point to all of this, and some employer tips too, after the jump...

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Continue reading "An EEOC complaint is not your free pass to goof off at work" »

"Damn you, Department of Labor! It's 12:00:01 on March 8, 2013. I keep refreshing this stupid site and nothing is happening! I NEED FORMS!!!!" 

--- Absolutely no one in HR.

Actually, the forms have been available for some time now, slacker.

Forms

• WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition (PDF)


• WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition (PDF)


• WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)


• WH-382 Designation Notice (PDF)


• WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)


• WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)


• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)

(Note: One area where the forms fall short is the lack of GINA safe harbor language. Consider adding it. Also, it's a good idea to consult with an employment lawyer to see what other tweaks to the forms may benefit your company).

Here is the poster.

I had two topics on the brain to blog about:

1. Whether, under the Americans with Disabilities Act, being on time is an essential function of the job. Fortunately, Daniel Schwartz addressed that yesterday here at the Connecticut Employment Law Blog.


2. As a follow-up to yesterday's wage-and-hour / Daylight Savings Time post, exploring how DST impacts tracking intermittent leave taken under the Family and Medical Leave Act.

{Go take a bath right now to cleanse yourself of the employment-law dorkness that hit you from reading No. 2}

Instead, after the jump, I have, well, you read the title to this post. These are my tweets (and several retweets) from the "EEOC Overview and HR Mixer" I attended yesterday -- hashtag #ubernerd #EEOCHR

{Better grab the soap and turn on that bath again. You've been warned.}

Continue reading "In 77 tweets, what employers can learn about EEOC enforcement #EEOCHR" »

This Sunday, Daylight Savings Time begins, as we push the clocks forward one hour at 2:00 AM on March 10, 2013.

Did someone say Clocks?

How does the time change affect the manner in which you pay hourly non-exempt employees who work the graveyard shift? I'll let the Department of Labor explain:

On the Sunday that Daylight Savings Time starts at 2:00 a.m., the employee does not work the hour from 2:00 a.m. to 3:00 a.m. because at 2:00 a.m. all of the clocks are turned forward to 3:00 a.m. Thus, on this day the employee only worked 7 hours, even though the schedule was for 8 hours.

The FLSA requires that employees must be credited with all of the hours actually worked. Therefore, if the employee is in a work situation similar to that described in the above example, he or she worked 7 hours on the day that Daylight Savings Time begins....

Of course, when we get to November and set the clocks back, remember that employees working the graveyard shift must be paid an extra hour.

But, until then, enjoy the sun.

P.S. - If you are going to be in Washington, DC on Monday for SHRM's 2013 Employment Law and Legislative Conference, please drop me a line. I'd like to meet you. 

First drink is on you. After all, it's the least you could do.

Yesterday, I discussed some pending federal legislation that would expand the FMLA to cover part-time employees. Now, I hear that another bill introduced in the U.S. House of Representatives, known as the Equal Employment for All Act, would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions. 

A copy of the Act and more details on employer credit checks after the jump...

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Continue reading "New federal bill would ban credit checks on employees and applicants" »

Under the Family and Medical Leave Act (FMLA), employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

Consequently, part-time employees generally do not qualify for FMLA leave because they do not meet the 1,250-hour requirement.

However, a new bill introduced last month in the U.S. House of Representatives would change that if signed into law. It's called the Part-Time Worker Bill of Rights Act of 2013 and you can download a copy of it here.

The Part-Time Worker Bill of Rights Act of 2013 would remove the 1,250-hour requirement. Thus, any employee with at least one year of service, working at a location where the company employs 50 or more employees within 75 miles, would qualify for FMLA.

Presently, the bill sits in Committee. It has a single sponsor, Rep. Janice Schakowsky [D-IL9], and govtrack.us gives it a 1% chance of passing.

Earlier this month, the U.S. Equal Employment Opportunity Commission issued this press release in which it sought your feedback to improve its internal processes for investigating and conciliating charges of discrimination.

Well, the deadline is today.

Eek! Sorry, I got distracted remastering goat remixes should have reminded you earlier.

Geez. How can we fix this? Harlem shaking clothes dryer. Yeah, boy. Slapping together a big email isn't going to work. No time for that.

But, hey, we can work with this. And for my people, I went right to EEOC Commissioner Chai Feldblum for help.

So, if you have quality control suggestions for the EEOC, tweet them today before 5 PM EST with the hashtag #QCP. Commissioner Feldblum will read them. And, if you can spare a few of your 140 characters, toss me quick shout out, would ya?

Have a nice weekend.