Wednesday, October 31, 2012

Employer’s Response to Domestic or Dating Violence, Sexual Assault, or Stalking May Create a Claim for Discrimination

Anyone who picks up a newspaper knows that our world can be very violent, including domestic violence, sexual assault and stalking. Employers often see firsthand the impact of such violence on their employees. Most of the time, employers who learn that an employee is experiencing some form of domestic violence, sexual assault, or stalking will do what they can to help the employee manage the situation. Sometimes, however, employers of victims of violence react in a negative way. The Equal Employment Opportunity Commission (“EEOC”) has recently issued a guidance describing how the actions or reactions of employers in these situations may be a form of discrimination under federal law. The guidance can be found here

In the guidance, the EEOC points out that Title VII and the American with Disabilities Act do not directly prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking. So, just how can an employer be liable for discrimination in these instances? Good question.

To illustrate the connection between discrimination and domestic violence, the guidance provides several examples of how an employer’s actions in response to domestic violence might be based on a sex-based stereotype. For example:
  • An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama” that battered women bring to the workplace.
  • A hiring manager believes that only women can be true victims of domestic violence because men should be able to protect themselves, and does not select a male applicant when he learns that the applicant obtained a restraining order against a domestic partner.
The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which, the guidance explains, could include impairments resulting from domestic or dating violence, sexual assault or stalking. For example:
  • An employer searches an applicant's name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.
In Minnesota, there’s an additional consideration for employers. Minnesota’s Human Rights Act prohibits discrimination in employment based on marital status, including discrimination based on the situation or identity of an employee’s or applicant’s spouse. An employee in Minnesota probably cannot be terminated because her spouse is disrupting her work with threatening phone calls, or because the employer is worried that the spouse may come onto company property looking for the employee.
Perhaps the most important thing employers should take away from the EEOC’s new guidance and related state law is a reminder that all employment decisions should be carefully analyzed. Some forms of discrimination are less obvious than others, and agency interpretations of discrimination laws can change over time. Be sure that your decision makers and human resources personnel have access to current and complete information.

Thursday, October 25, 2012

Week in Review


Using technology can come at a cost. You don't have to read too many of these Week in Review posts to know that it is not uncommon for individuals to be fired for inappropriate use of email, social media, cell phones, or other means of electronic communication.  Past stories have also shown how technology can cost someone their reputation, money, or freedom from incarceration. This week, we add two items to the list of things that technology can put at risk: unemployment benefits, and your health.
An employee in Pennsylvania was fired for criticizing his place of employment and coworkers on Twitter. He then applied for and was denied unemployment benefits. The unemployment law judge found that the employee's tweets had violated the employer's code of conduct and that this constituted willful misconduct.  The decision was affirmed upon review.
A second article this week showcases the dangers your cell phone may pose to your health. Given the close proximity your phone has to your ears, nose, and mouth, as well as the transfer of germs from your hands, you could be getting sick from the bacteria living on your phone. This problem is compounded by the difficulty of finding effective ways to sanitize the devices without harming them.
Technology and the WorkplaceIs Your Cell Phone Making You Sick? (WSJ)
Employee's Twitter Hating Costs Him Unemployment Benefits (Employer Handbook)
Boss Allegedly Downloaded Nude Photos From Employee Cell Phone, Showed Them Around the Office (Forbes)
Worker Can't Get Pay for Lunchtime Emails, Judge Says (Law 360)
The Fine Art to Juggling Personal and Professional Twitter Accounts (Yahoo)

Technology and the Law
Cell Phone Tower Tracking Without Court Order Considered in NJ Supreme Court (ABA Journal)
Fox Loses Bid to Ax Chicago Judge's $28M Privacy Suit (Law 360)
Internet Providers to Begin Warning Customers Who Pirate Content (CNN)
Hate Illegal Robocalls? FTC Offers $50k to Stop Them (CNN)
Privacy Concerns Linger Over New Facial Recognition System (Huffington Post)

There's an App for That
Have an "Appy" Halloween With These Great Apps (Examiner)
Keeping Loved Ones on the Grid (NY Times)
Alicia Keys Launches Storytelling App for Kids (Yahoo)
How Smart is that iPhone? Apps Unveil the Tricks (NY Times)
Finger Scan Technology May Halt Credit Card Theft (CBS)

Wednesday, October 24, 2012

Another Workplace Technology Challenge—Election Day

As Election Day approaches, politics and political opinions are likely to be a hot topic of conversation in the workplace. In some cases, this can become a source of tension and conflict among co-workers. This may be especially true this year given the deep political divide that seems to have developed in our country over the past few years. As most human resource professionals know, workplace conflicts can have a detrimental effect on productivity and create legal risk. The best approach to manage this issue is setting the “tone at the top” as one of respect for different opinions and viewpoints. That message then needs to be clearly communicated to employees. 
Political Speech and the Law
Free Speech
In the private workplace, there is no absolute constitutional right to free speech. That right is only guaranteed and applicable in public places and not privately owned businesses. As discussed below, however, this does not mean that employees have no legal rights at all related to political views or opinions.
Off-Duty Conduct
Some states and many local municipalities have enacted laws that provide certain protections to employees during their off-duty hours. These laws may protect an employee from any adverse action by an employer based on their political views or activities during off-duty time. Be sure you understand the local laws and regulations that apply to your workforce. 
Labor Laws
The National Labor Relations Act (NLRA) contains many nuances that employers either don’t know about or don’t understand clearly. An employer can stop employees’ political discussions if they are disrupting the work environment by talking about their support for a certain candidate or disparaging the political stances of others. If the political speech is tied to a workers’ employment situation, such as supporting a candidate because they believe they will have better work conditions or better pay, that changes things. If employees are talking politics in connection with their conditions of employment, and they aren’t disrupting work during normal business hours,  that could be a protected activity under the NLRA.
Voting Leave Rights
Many states, including Minnesota, allow employees to take paid time off to vote. Employees have the right “to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work.” Generally, an employer may not dock pay, personal leave, or vacation for voting leave. More on voting leave rights can be found in my September 26 blog article.
Social Media
Since the presidential election of 2008, social media use has grown dramatically and is one of trickier challenges that employers face in a presidential election year.  In 2012, some employees may communicate via Twitter, Facebook and other social media tools more than they communicate in live conversations.
The legal requirements cited above apply to all types of communication or “speech,” including social media.   Employers need to be reasonable when setting expectations or policies about social media use. When it comes to setting ground rules related to social media and politics, my earlier “tone at the top” advice applies with equal force.  While employers may discipline or fire an employee for disrupting the workplace with political talk, a reasonable and respectful approach to managing political discussions at work will go a long way toward avoiding  legal problems. 
When the political atmosphere at work starts to heat up, especially during election year, it is always a good idea to seek the advice and input from a lawyer familiar with workplace and employment laws.

Thursday, October 18, 2012

Week in Review

Do you remember a while back when I wrote about a group of lifeguards that got fired for posting a spoof of the "Gangnam Style" video on YouTube? The city claimed that they violated the aquatic center's standards of conduct and improperly used city property, but the lifeguards countered that they did it while off the clock. Well, after some heated controversy, the mayor of the city has now recommended that they be reinstated. Three of the five council members agreed, and the city manager is now reviewing the file. Although things may end up working out for these young workers, the situation serves as a good reminder that employees' social media use -- even when done off-duty -- can leave both the employer and the employees in hot water.

Other individuals caught up in a technologically-induced bind include a prospective juror facing jail time for Googling a murder defendant, despite written orders from the judge not to do so, a Texas woman arrested for exposing an undercover agent on Facebook, and a teacher fired after her former student tweeted details and photos of their sexual encounters.

Technology and the Workplace
Arlington Resident Fired After Outing as Reddit Troll (Star-Telegram) (Lawffice Space)
Ontario Man Loses Job After Writing Cruel Facebook Comment About Amanda Todd (National Post)
14 Lifeguards Fired for "Gangnam Style" Video to be Rehired (The Inquisitr)
Washington Firefighter Fired for Sending Christian Messages Using Department Email (FOX)
Teacher Fired After Former Student Brags About Sexual Relationship on Twitter and Posts Nude Photos She Sent Him (Daily Mail)

Technology and the Law
Expect Jail Time, Judge Tells Prospective Juror Who Googled Murder Defendant, Flouting Written Order (ABA Journal) (Tampa Bay Time)
Texas Woman Arrested for Posting Photo of Undercover Cop on Facebook (Huffington Post)
Lyrics Website Fined $6.6 Million for Copyright Infringement (IT-Lex)
Twitter Blocks Account for a Government for First Time (Huffington Post)
Judge Affirms Ruling That Samsung Did Not Copy iPad (Chicago Tribune)

There's an App for That
App Lets You Donate to Charity by Just Opening a Web Browser Tab (LA Times)
Purr-fect "Pic for Pets" App Helps Increase Animal Adoption (FOX)
New App From Finland Takes Crime Fighting to Phone Screen (Yahoo)
TV Automatically Pauses When You Leave the Room (NBC)

Wednesday, October 17, 2012

DOL Offers New “Toolkit” for Employers

The United States Department of Labor recently announced the creation of a “virtual workplace flexibility toolkit” designed to provide employers, employees, policy makers, and others with information and resources about workplace flexibility.
October is National Disability Employment Awareness Month, and the Toolkit is designed in part to assist employers of disabled workers who seek accommodations. The Toolkit web site makes clear, however, that it is intended to address all kinds of complex employment situations, including the circumstances of parents of young children, single parents, family caregivers and mature workers.
According to the web site, “Workplace flexibility is a Universal Strategy that can meet the needs of employers and their employees, which includes when, where, and how work is done. Essentially, flexibility enables both individual and business needs to be met through making changes to the time (when), location (where), and manner (how) in which an employee works. Flexibility should be mutually beneficial to both the employer and employee and result in superior outcomes.”
The resources that can be accessed from the web site are impressive. They include research results, case studies from major employers, articles, frequently asked questions, and links to additional sources of information.
A review of the Toolkit provides a good reminder that employers should keep their hiring practices and methods of employee accommodation up to date. By doing so, they increase their chances of finding the best workers and getting the most from the workers they already have.

Thursday, October 11, 2012

Week in Review


The Internet can be a great way for companies and professionals to market their products or services and bring in business. But lightning-quick global communication isn't always a good thing, especially when a dissatisfied customer is the one who is doing the talking. This week, a New York lawyer learned that responding to online criticisms may create more problems than it solves. After anonymously being called "the most unscrupulous lawyer" on a review website, the lawyer posted a response saying that he knew who wrote the comment and that the writer, a former client, was "emotionally disturbed." The lawyer went on to accuse the former client of "harassing and victimizing" several women. The client took the lawyer to court, alleging that these comments amounted to defamation and demanding they be taken down. While the judge's order to take the comments down didn't address the merits of the defamation claim, the lawyer may still ultimately be held liable for these comments.
Other individuals who got in trouble due to online activity this week include a nurse who was fired for liking a colleague's Facebook post that criticized management and a salesman fired for "threatening" a co-working by using CAP locks in an email.
Technology and the Workplace
Judge Tosses Fired Employee's Computer Hacking Claim Over Takeover of Her LinkedIn Account (ABA Journal)
Audio Recording Bares Nurses Fired Over Facebook Like on Critical Status Update (Global Nation)
Is ALL CAPS a Threat? (Lawffice Space)
Boeing Accused of Videotaping Union Marches, Seizing Photos (Law 360)
Court Orders Lawyer to Remove Allegedly Defamatory Comments From Web (Thomson Reuters)

Technology and the Law
Supreme Court Terminates Warrantless Electronic Spying Case (Wired) (WSJ)
Seven-Year Sentence in Fake Facebook Stock Sale (La Crosse Tribune)
Tighter Rules on Cellphone Tracking Urged (Star Tribune)
Google Agrees to Pay $10 to Each "Sponsored Stories" Victim (CNN)
Google Awards $60,000 Prize for Chrome Hack (CNN)

There's an App for That
Researchers Developing Apps to Diagnose Ear Infections (FOX)
Mayo Clinic Launches App to Help People Conquer Fears and Overcome Anxiety (Med City News)
Smartphone on Wheels: Car Integrates Apps into Driving (FOX)
Ebay Unwraps New Website Design, Same-Day Delivery App (LA Times)
Social Media Browser for iPad Released (ABC)

Wednesday, October 10, 2012

Workplace Violence: Prevention and Response

The workplace tragedy that occurred in Minneapolis two weeks ago, and the media coverage that followed, concerned all Minnesotans, me included. In addition to my reaction as a citizen, I viewed the events and their aftermath as an employment lawyer.
As is often the case in the face of horrific and inexplicable acts of violence, the workplace mass shootings by Andrew Engeldinger led to questions from many quarters about whether and how such a senseless act of violence could have been avoided. Such well-intentioned questioning, while certainly understandable, raises important employment law-related questions and concerns.
A follow-up piece in a Minneapolis newspaper  made my “employment lawyer radar” ping noisily. The article included insights from workplace violence experts about detecting and preventing violent outbursts from disgruntled employees. One expert, criminologist James Fox, noted that efforts to prevent workplace violence can be frustrated by the fact that behavioral warning signs tend to be only “yellow flags” that do not become “red flags” until actual violence erupts. 
Fox may be right, but there are dangers in becoming hyper-vigilant about “yellow flag” employee behavior. It takes training and experience to distinguish between behavior that portends violence and behavior that is simply atypical. Because behavioral differences can be the result of protected mental disabilities, intolerance of unusual behavior may become unlawful disability discrimination. Remember also that, in addition to prohibiting discrimination against qualified disabled employees, federal and state laws prohibit discrimination against employees who are regarded as disabled, whether they are, in fact, disabled or not. It is easy to imagine an employer allowing fear of workplace violence to become unfounded fear of employees whose behavior is unusual.
Supervisors and managers should always focus on the actual effect of an employee’s unusual behavior on his or her performance and should ask whether the behavior violates any specific and objective workplace policies. It is wise to avoid making significant disciplinary decisions, including decisions to terminate, based only on subjective or vague complaints of behavior that is erratic or strange.
Although employer actions cannot ensure that workplace violence will never occur, there are important things that every employer can do to minimize its likelihood and to control its impact if it does occur:
  • Consider offering an employee assistance program that can assist workers as they deal with personal problems, illnesses, and stress.
  • Make sure that managers and supervisors behave calmly, professionally, and respectfully in all their dealings with employees.
  •  Monitor the workplace for bullying or threats.
  • Encourage managers and supervisors to be thoughtful and humane in their personnel decisions and practices. Make sure that discipline and termination decisions are communicated appropriately and respectfully.
  • If a potential for workplace violence is suspected, get help from professionals who can provide a threat assessment and suggest countermeasures.
  • Enact a workplace violence policy and response plan that includes appropriate training for managers and supervisors.

Monday, October 8, 2012

FOCUS ON BENEFITS: Open Enrollment Season is Upon Us. How’s Your Summary of Benefits and Coverage?



The kids are back in school, the crispness of fall is in the air, and thoughts of HR professionals are turning to… what else?  Open enrollment!  One of this year’s fun challenges is the “Summary of Benefits and Coverage,” or SBC.  
Does every health plan have to have an SBC?  All group health plans that aren’t “excepted benefits” under HIPAA have to provide it. Vision plans, dental plans, HSAs, and health flexible spending accounts are often excepted benefits. High-deductible health plans are not. 
·        TIP:  Here’s the part where you need to sit up and pay attention: even plans that are grandfathered under health care reform are required to provide an SBC.
Won’t the insurance provider take care of this?  If a plan is insured, the insurer and the plan administrator (usually the employer) share responsibility for this disclosure. Both don’t need to provide it, though, so you should coordinate with your insurer. Don’t assume your insurer is handling it—ask! If your plan is self-insured, the SBC is your responsibility, although you should get help from your TPA.
Who should receive the SBC?  All participants and beneficiaries, including COBRA qualified beneficiaries.
·        TIP: Unless the plan administrator or the insurer knows that a beneficiary has a separate address from the employee-participant, the employee may receive the SBC on the beneficiary’s behalf.
What is the SBC?   This is NOT the same thing as your old friend the Summary Plan Description, known as the SPD. (Really, what would we do without acronyms?)  This is a new disclosure, in addition to the SPD. There are strict requirements about the appearance of the document, the length of the document, and the content. The regulations include a template, which you can find here http://www.dol.gov/ebsa/pdf/correctedsbctemplate.pdf, and a sample SBC here http://www.dol.gov/ebsa/pdf/CorrectedSampleCompletedSBC.pdf.
·        TIP:  Don’t just refer to the SPD to explain one of the key points that the SBC has to include.  The required content must be in the SBC itself.
·        TIP:  Use the template in the regulations, either to draft your own SBC, or to make sure the one your insurer drafted does what it’s supposed to do.
When is the SBC due?  During the first open enrollment period that begins on or after September 23, 2012… that means your next open enrollment season.
·        TIP:  For people who don’t enroll through open enrollment, the SBC requirement applies beginning on the first day of the first plan year that begins on or after September 23rd.
Why this new requirement?  Good question.  Didn’t it seem like the SPD was enough?  The idea is that the SBC should give some really concrete information that can be used to make an “apples-to-apples” comparison among plans.
·        TIP:  Much of the language from the template must be used verbatim.  Be careful about making changes.
How should the SBC be provided?  It can be provided in paper format, of course. You can also give the SBC out electronically, in accordance with Department of Labor guidance.
·        TIP:  The SBC can be provided electronically in connection with online enrollment or renewal. Participants and beneficiaries who enroll online can get the electronic SBC.
·        TIP:  For employees who are eligible but not enrolled, the SBC can be provided electronically. You can even do an internet posting, if the employees are notified by email or postcard that the SBC can be found on the internet.
·        TIP:  In all cases, you must tell the people receiving notice of an electronic SBC that a paper copy will be provided upon request.
What happens if you don’t comply?  The penalty for a willful failure to provide the SBC is a maximum of $1,000 per failure—and each participant or beneficiary who doesn’t get the SBC counts as a separate failure. You cannot pay the penalty out of plan assets. An Internal Revenue Code excise tax of up to $100 per day may also apply.
·        TIP:  This first year, a good faith standard applies, so it’s a good time to put forth your best effort to comply.
What if we need to make mid-year changes to the SBC?  You can do that, but notice must be provided at least 60 days before the change is effective, if it’s a material modification to the plan. If you make changes at renewal time, that will be reflected in the SBC provided at open enrollment.
Have more questions?  You can consult the Department of Labor’s guidance on health care reform here: http://www.dol.gov/ebsa/healthreform/.  Take a look at Parts VII and IX of the FAQs.

Thursday, October 4, 2012

Week in Review

Is it just me, or has Wisconsin been in the news a lot lately? From politics to sports, the Dairy State has caught the interest of the nation. This week was no different. When a Wisconsin news anchor used air time to address an email that criticized her weight and accused her of being a bad role model, the clip went viral. National news outlets picked up on the story, the anchor appeared on major-network morning shows, and people around the country weighed in on the appropriateness of the email and the problem of cyberbullying in general. Despite the controversy, the email author is standing by his comments.

In other important news, California has become the third state to pass legislation prohibiting employers from obtaining social media login information from its workers. The law prohibits colleges from trying to gain access to students' social media accounts. Also, as my colleague Megan Anderson posted yesterday, the NLRB has issued its first Facebook firing decision, which came down in favor of the employer.

Technology and the Workplace
Prison Guard Reinstated After Investigation Shows Other Guards Were Friends With Inmate on Facebook (ABA Journal)
Overweight TV Anchor Jennifer Livingston Responds to Viewer "Bully," Bully Unapologetic (ABC) (ABA Journal) (FOX)
NLRB Sides With Car Dealer in 1st Facebook Firing Decision (Law 360) (National Labor Relations Board)
FDA Wants Employee Email Spying Suit Dismissed (Law 360)
California Enacts Workplace Social Media Protections, NJ Gets Closer (Employer Handbook)(CNET) (Huffington Post)

Technology and the Law
Federal Warrantless Surveillance Has Increased 60% Since 2009, Says ACLU (ABA Journal) (WSJ) (CNET)
Major Banks Hit With Biggest Cyberattacks in History (CNN)
Georgia Mom Sues RadioShack After Daughter Allegedly Finds Porn on Cell Phone (Huffington Post)
Alleged "Hoodlums" Upload Search Engine Optimized Assault Footage to YouTube, Lead Police Right to Them (Above the Law)
Regulators Moving to Strengthen Privacy Rules for Children on the Web (ABA Journal) (NY Times)

There's an App for That
Facebook Wants You To Pay $7 to Promote Your Posts (CNN)
Palm-Reading App Unlocks Phone With a Wave of the Hand (NBC)
Starbucks iOS App Adds Support for Apple's Passbook (CNET)
Confident Consumer: Apps Aid Holiday Shopping (USA Today)
The New Essential Apps, September 2012 (Gizmodo)

Wednesday, October 3, 2012

NLRB Upholds Employer’s Firing Based on Employee’s Facebook Post

Finally, the NLRB has sided with an employer in a Facebook firing case. On October 1st, the NLRB issued its decision in the Karl Knauz Motors, Inc. case, upholding a car dealership’s decision to fire a sales employee based on his Facebook postings.

As mentioned in a previous post the NLRB filed a complaint against the Knauz BMW dealership in May 2011 after the dealership fired a sales employee who had posted critical comments on Facebook about the dealership serving low-end food and drinks at an event promoting a luxury car. Other dealership employees had access to the Facebook page.

In its October 1st decision, the NLRB found that the car dealership did not violate federal labor law, because the sales employee was not fired for his negative postings about the dealership’s sales event. Instead, the employee was fired for posting pictures and a sarcastic comment on Facebook regarding a motor vehicle accident involving a customer.

Under federal labor law, non-management employees in both unionized and non-unionized work settings have the right to engage in “concerted” activity for their mutual aid and protection, including group discussions about improvements in the terms and conditions of employment. The Facebook postings regarding the motor vehicle accident were found not to constitute protected concerted activity, because, the NLRB said, the posting was “a lark, without any discussion with any other employee” and there was “no connection to any of the employees’ terms and conditions of employment.” Because the employee’s other posts about the dealership’s sales event did not cause the employee’s termination, the NLRB did not have to decide whether those posts were legally protected by federal labor law.

While the NLRB upheld the car dealership’s firing decision, it also reaffirmed its position that overbroad technology policies violate federal labor law. In the Knauz case, the NLRB found that the dealership’s “courtesy” rule in its employee handbook was unlawful. The NLRB reasoned that the rule, which asked employees not to be disrespectful or use language that injured the employer’s image or reputation, would cause a reasonable employee to believe that legally protected statements of protest or criticism were prohibited. The NLRB ordered the dealership to remove the courtesy rule from its handbook. This aspect of the NLRB’s ruling in Knauz serves as an important reminder that employers’ technology policies must balance the employer’s rights and business needs with employees’ right to engage in legally protected online activity.