Call it a cheap way to increase my SEO — Kim Kardashian Justin Bieber love child — but I’m ending the week the way I started it: with another social media post.

Come you moths to my social media flame.

Ha Ha! Made you listen to The Bangles! Good luck getting that song out of your head. Maybe this will help. #Sike

So, while you curse me for planting kitschy 80’s ballads in your head, check out the top ten social media red flags (according to a CareerBuilder survey) why companies are passing on job candidates:

  • 46% Posted provocative or inappropriate photographs or information
  • 41% Posted information about them drinking or using drugs
  • 36% Bad-mouthed their previous company or fellow employee
  • 32% Poor communication skills **Meyer curses survey**
  • 28% Discriminatory comments
  • 25% Lied about qualifications
  • 24% Shared confidential information from previous employers
  • 22% Linked to criminal behavior
  • 21% Screen name was unprofessional
  • 13% Lied about an absence

Among the worst social media content that employers had identified as candidate disqualifiers: (1) A social media profile included links to an escort service; (2) Posting a photo of one’s own arrest warrant (although a sexy mugshot has been known to lead to a modeling contract); (3) Candidate had sued his wife for shooting him in the head.

But all is not lost for us social media dorks — holla if you hear me! Survey says: social media can help separate you from the pack (in a good way, as opposed to a shot-in-the-head way) too. Among the common reasons employers hired a candidate based on their social networking presence are:

  • 46% Got a good feel for the job candidate’s personality, could see a good fit within the company culture
  • 45% Background information supported their professional qualifications for the job
  • 43% Job candidate’s site conveyed a professional image
  • 40% Well-rounded, showed a wide range of interests
  • 40% Had great communication skills
  • 36% Job candidate was creative
  • 31% Received awards and accolades
  • 30% Other people posted great references about the job candidate
  • 24% Job candidate had interacted with my company’s social media accounts
  • 14% Job candidate had a large amount of followers or subscribers

Well, now I’m not sure if it’s the “site conveyed a professional image” personal validation ** fart ** or the lingering sugar high from yesterday’s Fluffernutter gorging, but I’m going to extend a final opportunity to snag a copy of my slide deck from my SHRM presentation, “Social Media: Practical Guidance from the Youngest Attorney in the Room.” 

Send me an email, and the PowerPoint is yours.

Image credit: Imgur

Last night, having come across this wacky Family Show gif, I couldn’t decide whether to binge watch the first season of Amish Mafia. Again. For the third time.

(And, by third, I mean eighth).

Or dip my English toe into the Breaking Amish pool.

So, in an attempt to get in the mood, I tried to bake a shoofly pie, but, short on blackstap molasses and a replacement plug for my Easy Bake Oven, I quickly audibled to a Fluffernutter.

Because nothing speaks to me to resolve a Wednesday night Amish television dilemma like a Fluffernutter, amirite?

But, two — ok, two-and-a-half — Fluffernutters later, I had a hankering to blog about the Supreme Court’s employment-law docket for next session, which includes a pregnancy discrimination case, involving the manner in which an employer would have to accommodate a pregnant employee.

You can read more about that one here and here.

But, then, my peanut-buttery-marshmallow focus honed in on this recent decision from United States District Court for the Southern District of New York. It involves an employee who returned from maternity leave and, shortly thereafter, applied for a job promotion, only to be bypassed for another candidate. So, she quit and sued for pregnancy discrimination.

Now, the Pregnancy Discrimination Act prohibits discrimination based on pregnancy. It also protects those who have recently given birth…up to a point. That is, a new mom is protected too. But, the passage of time will eventually carry a new mom outside of the protection of the Pregnancy Discrimination Act.

How long you ask? Well, according to the court deciding the employer’s motion to dismiss, about four months, which, ironically, is the time it would take me to master the art of baking shoofly pie.

In denying the motion to dismiss and allowing the bypassed plaintiff to continue to pursue her pregnancy discrimination claim, the court measured the time period from the date of childbirth to the date the plaintiff first applied for the promotion, which was under four months. (Rather than when the employer hired someone else to fill the position, which was beyond four months).

So, employers, learn from the mistake made here and do it right: wait four months and a day before taking adverse employment actions against new moms, don’t allow pregnancy (or recent childbirth) to factor, at all, into your employment decisions. Make sure that your managers, the ones making the decisions, understand that as well. And don’t forget about sex-plus discrimination either.

Hey, how’d that last song get in there? Someone call my music editor!

Image credit: Giphy

Work with me here folks:

  1. Late last month, I had intended to blog about this Idaho case, in which a nurse was denied unemployment compensation benefits because of a threatening Facebook post. But, Molly DiBianca at the Delaware Employment Law Blog beat me to it. You can check out her post here.

  2. Speaking of Idaho, that’s right next to Montana, where you’ll find the City of Bozeman. Ah yes, the City of Bozeman, the poster child for why states have enacted laws protecting employees from having to disclose social media logins and passwords. And the latest state to do so is Rhode Island. You — yeah, you there in Providence — can view a copy of the new law here.
  3. This flood of social media privacy laws was just one of the topics I discussed at my SHRM Annual session a few weeks ago. Last chance to get a copy of my slide deck. Just email me for it.
  4. Another subject we discussed was how to draft a “bulletproof” social media policy. Well, here’s a post from Jason Shinn at the Michigan Employment Law Advisor about — are you sitting down? — an NLRB Administrative Law judge who broke tradition of throwing shade at social media policies long enough to actually bless one.
  5. What about your social media policy? Yeah, you! Does your policy address social media use “off the clock?” It should, because employee use of social media “off the clock” may still impact your workplace.
  6. And, finally, if you are curious about what the Americans with Disabilities Act says about employee medical information and social media — who isn’t? —  then check out Jon Hyman’s post at The Ohio Employer’s Blog.

Kevin Bacon, who I trust is reading this post, would be proud.

Image Credit: QualifyGifs on Imgur

A few months ago, I blogged about a California federal court decision, which recognized that Walgreens may have an obligation under the Americans with Disabilities Act to accommodate one of its cashiers who opened a $1.39 bag of chips (without having paid for it first) because she was suffering from an attack of hypoglycemia (low blood sugar).

That post was entitled “The ADA may require companies to accommodate employee theft. Yep, stealing.

Unfortunately, definitive guidance on that will have to spring from another lawsuit. That is, Walgreens settled for $180,000 last week. A copy of the consent decree is embedded below (and can also be found here).

Now, I’m reasonably sure that Walgreens is right that employee theft is not a reasonable accommodation for an ADA disability. And let’s assume that Walgreens has strict rules on employee theft and grazing.

But would failing to discipline this cashier really blow the lid off of Pandora’s Box? Or did a Supervisor / HR Manager / Lawyer (some combination) simply overreact by failing to cut some slack to a diabetic employee who needed to eat a small bag of potato chips — I’ll draw the line at a can of Pringles — to avoid a low blood sugar attack?

You know, it’s important to train your managers how to address ADA accommodation issues. It’s also important to remind your managers that using their best judgment counts for something too.

Who knows? It may only cost you $1.39, instead of $180,000.

socialcollage.jpegA few weeks, ago I was speaking about social media and the workplace to a fabulous audience at the 2014 SHRM Annual Conference and Expo. (Email me if you want a copy of my slidedeck).

One of my session themes was that there is no such thing as employees using social media “off the clock.” That is, even if an individual tweets or updates her Facebook status outside of the four walls of the workplace, that communication can still impact the workplace.

Dan Davis at IBM Social Business recently blogged about this, and another Twitter user described it as the “24/7 social media conundrum” Two recent incidents described below bear this out.

The complaining waitress and poor tipper, who just happens to be the waitress’s Facebook friend.

First, is comes this report of a waitress at the Texas Roadhouse, who, on her own personal time, took to Facebook to complain about customer tips. For this outburst, she was fired.

The article, which is framed in terms of the employee’s supposed “First Amendment Rights” cites criticism of the restaurant for taking action against the waitress, ostensibly because she should have the right to complain (or not complain) freely about her working conditions.

However, before you go an sympathetic on me, I should mention that it’s not as if the employer were twisting it’s proverbial handlebar mustache as it monitored social media for workplace gripes from employees.

No, in this case, the waitress stupidly complained on Facebook about a tip from an “a**hole” customer … who happened to be one of her Facebook friends! The Facebook friend showed the post to the restaurant manager, which in turn, led to the waitress’s termination.

Folks, this is no different than if the waitress had called the customer as a**hole — to her face. Actually, it is, because not only did the waitress embarrass her Facebook friend, a customer of the restaurant, she did so publicly.

That’s a terminable offense. Period.

The Opie and Anthony Show.

As a big Howard Stern fan — Bababooey! — I can’t say that I’m too broken up over the news from last week that SiriusXM fired Anthony Cumia, of the Opie and Anthony Show following a vulgar, violent, racist, sexist Twitter tirade.

(Gawker has a NSFW recap here).

Yes, Mr. Cumia spewed on his own time. However, what was clearly not schtick, went very viral and became very public. So, SiriusXM decided that the was not the type of person it wanted to continue to employ.

Ignore “off the clock” social media rants at your own risk.

Do employees have the right to complain about work, either offline or online? In many circumstances, they do.

But, would you tolerate the type of behavior described in the examples above? If your response is something along the lines of “what employees do on their own time is not my concern,” then, it’s time to step into the 21st century. Because online communication is permanent, viral, and does not respect the brick and mortar you use to insulate your employees from the outside world.

Would you stick with a “what employees do on their own time…” line if one of your employees is offended by a Cumia-style rant read on one of your computers in your workplace?

And what if that rant was specifically intended for a co-worker? When one of your employees composes a racist tweet or a sexually-harassing Facebook post aimed at a co-worker, and the “victim” complains to a HR, it does not matter that the speech was off-the-clock. If the victim feels victimized at work, it’s a workplace problem. So, treat it accordingly.

Otherwise, don’t lose my number when the lawsuit gets filed.

Thumbnail image for fmla.jpegHow many times has an employee provided you with an incomplete Family and Medical Leave Act certification? Oh, I don’t know, maybe a missing return date…

If the FMLA leave is foreseeable, then the employee must provide the employer with the anticipated timing and duration of the leave. However, where the FMLA leave is unforeseeable — think, car crash — then that information can wait if the employee herself doesn’t know her return date.

But that doesn’t mean you — yeah, you employer — should let it go.

[Nope, not cueing any music here, m-kay…]

Do I have a case in point? You bet I do.

Suzan Gienapp, a residential nursing care facility employee, told her manager that she needed time off to care for her daughter, who was undergoing treatment for thyroid cancer. Apparently, this leave was unforeseeable.

While on leave, Ms. Gienapp mailed in an FMLA form, leaving blank a question about the expected duration for her covered leave. Although the parties debated whether the employer made a verbal request for a return date, there was no dispute that Ms. Gienapp complied with the company’s monthly call-in requirements to provide updates. The parties also agree that the company never made a written request for a return date.

Ultimately, based on a statement on the FMLA paperwork that the daughter may require assistance through July 2011, the company concluded that Ms. Gienapp would not be able to return to work within the 12-week leave period. Thus, it replaced her. And when Ms. Gienapp later reported for work on March 29, before her leave would otherwise have expired, but after she had been replaced, the company told her that she no longer had a job.

Awkward!!!

FMLA violation? Assuming the truth of Ms. Gineapp’s story, yep.

And here’s why, according to the Seventh Circuit Court of Appeals (opinion here)

“Harbor Crest told Gienapp to call in monthly, and it is conceded that she did so….We assume therefore that Gienapp complied with Harbor Crest’s policies….What seems to have happened instead is that Chattic drew an unwarranted inference from the physician’s statement in the original form and confused the anticipated duration of the daughter’s need for care with the anticipated duration of Gienapp’s absence from work, even though these are logically distinct.”

Employer takeaways

  1. Communicate. Don’t just call, but write/email employees on unforeseen FMLA leave to ascertain the timing of FMLA leave and memorialize those efforts.
  2. Document. Record your efforts to communicate with employees regarding FMLA leave and return to work.
  3. Enforce. Require employees to follow your call-in rules for unforeseeable leave and, thereafter, provide periodic updates on return to work.

tinder.jpgI’m often asked, “Eric, where do you find this stuff?”

Why TMZ, of course. Break ‘em off TMZ:

“Whitney Wolfe claims in a new lawsuit — obtained by TMZ — she was mercilessly brutalized by the other execs who wanted to remove her title because no one would take a site like Tinder seriously if they knew it was founded by a 24-year-old chick.

Wolfe says one of the execs made a romantic play for her and she eventually dated him … but it didn’t end well and she claims he then waged a harassment campaign against her.

She says the guy also texted her when he found out she was interested in someone else, saying, ‘I will s**t on him in life. He can enjoy my leftovers.’ She says she was also talking to some Muslim men and he texted her, ‘You prefer to social climb middle-aged Muslim pigs that stand for nothing.’

And Wolfe says the guy referred to one of her girlfriends as ‘a liberal, lying desperate slut.'”

Here is a link to Ms. Wolfe’s complaint against Tinder, and another link (here) to a press release about the complaint from the law firm representing Ms. Wolfe.

For those who don’t know, Tinder describes itself (here) as “the fun way to connect with new and interesting people around you.” More bluntly, TMZ describes Tinder as “an online dating app best known for hooking people up who want to bang.”

It is against this backdrop that I offer a takeaway. To establish sexual harassment, one must show that, among other things, not only was he/she offended, but that a reasonable person in their shoes would have been offended by the same workplace behavior. When measuring what is offensive, the nature of the workplace matters. Indeed, what may be offensive in a law firm environment, may not be, say, in a writing meeting on the set of the television show Friends.

Still, there are limits. And just because someone works at Tinder, which apparently helps users bang, doesn’t mean that she consents to being the target of nasty, insensitive comments.

So, kindly remind your employees that, no matter the environment, sexual harassment won’t fly.

HobbyLobbyStowOhio.JPG

Mid-morning yesterday, the Internet broke shortly after the Supreme Court issued its 5-4 decision in HHS v. Hobby Lobby Stores, Inc..

Jeez, I’m still cleaning out my Twitter, LinkedIn and Facebook feeds.

In case your wifi, 4G, 3G, dial-up, TV, radio, and other electronics picked the wrong day to quit sniffing glue, the long and short of yesterday’s Supreme Court decision is this: Smaller, closely-held (think: family-owned) companies don’t have to provide Obamacare access to birth control if doing so would conflict with an employer’s religious beliefs.

So, how does yesterday’s decision affect your workplace? I promised you three ways, and here they are:

  1. The court’s opinion creates an Obamacare exception for closely-held business. If your company isn’t closely held, then there’s nothing to see here.
  2. The Hobby Lobby decision does not allow employers (closely-held or otherwise) to discriminate against employees under the guise of a religious practice. In the dissent, Justice Ginsburg pondered, “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage or according women equal pay for substantially similar work. Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?” Well, no. The majority recognized that “the Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to [a protected class], and prohibitions on [discrimination] are precisely tailored to achieve that critical goal.”
  3. The Court’s opinion is a good reminder about religious accommodations in the workplace. Title VII requires covered employers to make reasonable accommodations for a worker’s sincerely-held religious beliefs unless doing so would impose an undue hardship on business operations. The “sincerity” of an employee’s stated religious belief is usually not in dispute. (More on that here). And, in these situations, an employer should not judge the employee’s religious belief to determine whether it is plausible. Rather, the focus should usually be on whether the accommodation would impose an undue hardship — because the burden there is rather low.

Image Credit: “HobbyLobbyStowOhio” by DangApricot – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

paintcans.jpgThe Benjamin Moore color gallery contains, among others, Clinton Brown and Tucker Chocolate.

My virgin ears! I mean, how racist can you get?!? Or, so says Clinton Tucker, a former Benjamin Moore employee, who filed a complaint in New Jersey state court in which he alleges that these paint names are hella-racist.

According to Courthouse News Service (here), Tucker says that “being a black man named Clinton Tucker, the plaintiff found this to be extremely racially offensive.”

Incidentally, Benjamin Moore also has paint colors called Tucker Orange and Tucker Gray. However, a brief search I conducted yielded no discrimination lawsuit initiated by older or fake-baking employees.

Which brings me to the point of this post, That is, to prevail on a hostile work environment claim, an employee has to show, among other things, that a reasonable person in his shoes would be offended by the same conduct with which the plaintiff takes offense.

And since no one on the face of the earth would find the paint names Tucker Chocolate and Clinton Brown to be racially offensive, then, absent other facts to support a hostile work environment based on race, I think we have a loser claim here.

And an excuse to play Color Me Badd.

*** ducks tomato ***

Thumbnail image for Thumbnail image for Supreme Court.jpgIn a unanimous opinion delivered yesterday (here) in NLRB v. Noel Canning, the Supreme Court concluded that President Obama’s so-called “recess appointments” of three of the five members of the National Labor Relations Board between the Senate’s January 3 and January 6 pro forma sessions were unconstitutional.

Amy Howe from SCOTUSblog.com summarized the decision “in plain english”:

“[A]ny recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment.”

* * *

“[T]he Senate can prevent the president from making recess appointments even during its longer recesses by holding “pro forma” sessions – that is, sessions at which no work actually gets done – every three days.”

So, there you have it. The net effect of this opinion is that any NLRB decision rendered with the three improperly-appointed NLRB members is void of lack of a quorum. (Previously, the Supreme Court held here that the Board is powerless to rule with less than a quorum of three members). Although, with a full quorum now, you’d expect that those case would eventually be affirmed.

For more on the Court’s decision on NLRB v. Noel Canning check out: