Author: Jon Hyman

Posted on

Should You Allow Employees to Shop Online From Work?

Today is Cyber Monday, the day online retailers promote their (alleged) deepest holiday discounts. It is estimated that more than 125 million Americans will take advantage of these sales and shop online today. And, many, if not most, of them will do so from work.
The latest available numbers suggest that more and more companies are allowing employees to shop online from work. As of 2014, 27 percent of employers permit unrestricted access to employees shopping online while at work, up from 16 percent in 2013 and 10 percent and 2012. Meanwhile, 42 percent allow online shopping but monitor for excessive use, while 30 percent block access to online shopping sites. Similar data is not yet available for 2015, but one can assume that these numbers have continued to trend towards greater access for employees.
Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?
You answer should skew towards greater access. I advocate for fewer restrictions for personal Internet use at work for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and, it’s almost impossible to police anyway.
We no longer live in a 40-hour work week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some Internet flexibility both to recognize this sacrifice and to engage employees as a recruitment and retention tool?
Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks Internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone. By trying to control employees’ Internet habits, employers are fighting a battle they cannot win. The iPhone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.
Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employee is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday. But, if an employee is not performing, and you can trace that lack of performance to Internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldn’t bring a knife to a gun fight, don’t bring a technology solution to a performance problem.
As for me, I’m hunting for Legos, Friends for Norah and Star Wars for Donovan. Please don’t tell them.
Posted on

NLRB Provides Employers a Roadmap to a Legally Compliant Off-Duty Access Policy

Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer?

In Marina Del Rey Hosp. (10/22/15) [pdf], the National Labor Relations Board considered the following access policy:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

Did it pass NLRB muster?

According to the NLRB,“an employer’s rule barring off-duty employee access to its facility is lawful only if it is limited to the interior of the facility, is clearly disseminated to all employees, and applies to off-duty access for all purposes, not just for union activity.” Because this policy checked each of these boxes, it passed muster under the NLRA.

Of course, having a lawful policy, and lawfully applying that policy, are completely different.

However, we agree with the judge that the Respondent’s policy was unlawfully applied in a manner that discriminated on the basis of union activity. The record reveals that the Respondent permitted off-duty employees to enter the Hospital for a variety of reasons unrelated to union activity (such as picking up paystubs, submit-ting scheduling requests, applying for a transfer, and attending social events such as retirement parties and wedding or baby showers).  But on at least two occasions, the Respondent applied its off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria. This evidence supports a finding that the Respondent applied its off-duty access rule in a disparate manner, in violation of Section 8(a)(1).

What lessons can employers take away from this decision?

  1. If you’re looking to draft an employee off-duty access policy, you could do a whole lot worse than one the NLRB has already blessed as kosher.
  2. Once you implement that policy, make sure you do so fairly, consistently, and non-discriminatorily. Otherwise, your lawful policy might still draw the NLRB’s ire.
Posted on

It’s not Illegal to Give a Negative Job Reference, but …

When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you …

(a) Ignore it.
(b) Confirm only the fact of prior employment and dates.
(c) Give a truthful, negative reference.

Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they fear liability if the ex-employee loses a job because of a negative reference. Yet, in Ohio and elsewhere, there is nothing illegal about providing truthful, negative information.

Ohio Revised Code 4113.71 creates a privilege for employers to provide information about the job performance of a former employee to a prospective employer of that employee.

An employer who is requested by an employee or a prospective employer of an employee to disclose to a prospective employer of that employee information pertaining to the job performance of that employee for the employer and who discloses the requested information to the prospective employer is not liable in damages in a civil action to that employee, the prospective employer, or any other person for any harm sustained as a proximate result of making the disclosure or of any information disclosed, unless the plaintiff in … establishes … (1) … that the employer disclosed particular information with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose; or (2) … that the disclosure of particular information by the employer constitutes an unlawful discriminatory practice….

So, if the practice of providing a truthful, non-malicious, good faith, non-discriminatory negative reference is perfectly legal, why are so many employers wary of doing it? Consider Kienow v. Cincinnati Children’s Hosp. Med. Ctr. (Ohio Ct. App. 10/23/15).

Kienow concerned a former employee of Cincinnati Children’s who failed to get hired by a new employer because of a negative reference she received from her former supervisor. She sued, claiming defamation and tortious interference with her employment. She lost the defamation claim because she brought it too late, but the tortious interference claim survived despite 4113.71.

Cincinnati Children’s maintains that Kienow’s complaint did not plead facts to overcome the statutory privilege. But it is not obvious on the face of the complaint that the privilege applied: there was no allegation that Dayton Children’s “requested” information from Cincinnati Children's or Morris.

In other words, because Kienow argued that her supervisor at Cincinnati Children’s reached out to her prospective employer without first being asked for the reference, 4113.71 might not apply.hat

What does all this mean? It means that even though employers hold a legal privilege to provided a negative reference, the associated transactional costs from potential litigation (no matter how unlikely for an employer to lose) is enough of a deterrent such that negative job references are almost non-existent.

Can you provide a negative references on a marginal ex-employee? Absolutely. Should you? That depends on your tolerance for the potential of litigation, and your belief that people deserve a second chance elsewhere.

Posted on

NLRB Updates Its Policy Memo on E-signatures for Union Petitions

Earlier this year, the NLRB began accepting electronic signatures in support of an employee’s showing of interesting in support of a labor union. The board has begun accepting e-signed documents, provided that they meet the following four criteria.

1. Submissions supported by electronic signature must contain the following:

  • the signer’s name;
  • the signer’s email address or other known contact information (e.g., social media account);
  • the signer’s telephone number;
  • the language to which the signer has agreed (e.g., that the signer wishes to be represented by ABC Union for purposes of collective bargaining or no longer wishes to be represented by ABC Union for purposes of collective bargaining);
  • the date the electronic signature was submitted; and,
  • the name of the employer of the employee.

2. A party submitting either electronic or digital signatures must submit a declaration (1) identifying what electronic or digital signature technology was used and explaining how its controls ensure: (i) that the electronic or digital signature is that of the signatory employee, and (ii) that the employee herself signed the document; and (2) that the electronically transmitted information regarding what and when the employees signed is the same information seen and signed by the employees.

3. When the electronic signature technology being used does not support digital signatures that can be independently verified by a third party, the submitting party must submit evidence that, after the electronic signature was obtained, the submitting party promptly transmitted a communication stating and confirming all the information listed in 1a through 1f above (the “Confirmation Transmission”).

  • The Confirmation Transmission must be sent to an individual account (i.e., email address, text message via mobile phone, social media account, etc.) provided by the signer.
  • If any responses to the Confirmation Transmission are received by the time of submission to the NLRB of the showing of interest to support a petition, those responses must also be provided to the NLRB.

4. Submissions supported by electronic signature may include other information such as work location, classification, home address, and additional telephone numbers, but may not contain dates of birth, social security numbers, or other sensitive personal identifiers. Submissions with sensitive personal identifiers will not be accepted and will be returned to the petitioner. They will not be accepted until personal identifiers are redacted.

The NLRB has now updated these guidelines with examples of specific forms of what these e-signed documents should resemble. 

When you combine these e-signatures with the board’s recent ambush election rules, you can see why a well-planned union avoidance strategy is a must for any non-union employer that hopes to stay that way.

 
Posted on

The Other Side of the Coin on the Appropriate Response to Harassment

Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin — what happens when an employer does not take proactive steps to eliminate harassment from the workplace.

The allegations of sexual harassment in Ellis v. Jungle Jim’s Market (Ohio Ct. App. 10/13/15) [pdf] are pretty egregious. Among the worst were Dana Ellis’s supervisor unzipping his pants and asking her to take a look, telling her he wanted to “bend [her] over and BF” her, sticking out his tongue and simulating licking her, and asking her what positions she likes to have sex in, if she likes oral sex, and if she swallows.

While those allegations are bad, the company’s response was even worse. When Ellis’s co-workers complained to the store manager, Cathy Dick (really her name),about the harassment, she merely provided the supervisor a warning and kept the employees working together.

With all that, however, the employer still could have prevailed in the case because the employer did not take a tangible employment action against Ellis. All it had to prove was (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

On prong “a”, this employer failed miserably, not only in the after-the-fact remediation of the harassment, but also in the before-the-fact preventative measures:

Although Jungle Jim’s had a sexual harassment policy in place at the time Ellis began her employment, there is an issue of fact as to whether Jungle Jim’s actively implemented the policy or trained its employees and supervisors on the policy. Evidence was introduced that when Ellis received the policy in October 2012, the policy was not up-to-date as it advised Ellis to report sexual harassment complaints to “Norma Sarosy,” who, according to Dick, had died in February 2012. Ellis was not provided with a revised copy of the policy informing her that Dick now chaired the committee responsible for investigating sexual harassment complaints. Dick also testified that prior to Ellis filing the present lawsuit, Jungle Jim’s did not provide any sort of training to its employees regarding harassment or discrimination, although she did speak with some managers about the issues in an effort to train them. Dick explained that although she had been placed in charge of training managers and investigating complaints about sexual harassment, she had not received any formal training or attended any seminars on the issue. Rather, her knowledge on the issue came from reading “two or three” books about harassment and discrimination over the last one to seven years.

In other words, no training equals big problems for an employer.

What does this case teach out about our anti-harassment programs? Merely having a policy is not enough.

If you do not train your supervisors, managers, and others in how to response to workplace harassment, you will have a difficult time avoiding liability when things go wrong. Anti-harassment training should be part of your onboarding process for all employees. It does not have to be a deep-dive on every nook and cranny of U.S. workplace harassment law for each hire (although that would be best).

At a minimum, however, you should have someone knowledgeable about harassment and your policy against it sit down with each new hire, explain your anti-harassment policy, and offer the opportunity to answer any questions. That, plus comprehensive annual harassment training for all employees, should mitigate against a court finding that you failed to actively implement your policy or train your employees and supervisors on it — a finding that could prove fatal to your defense.

Posted on

Beware Blanket Exclusion Policies Under the ADA

Nicholas Siewertsen, who has been deaf since birth, sued the Worthington Steel Co., claiming that it discriminated against him when it banned him from performing any job requiring him to operate forklifts or cranes.

From the time of his hiring in 2001 until the ban in 2011, Siewertsen operated forklifts, overhead cranes, and other motorized equipment without incident at the Porter, Indiana-based company. He communicated with his co-workers using a variety of techniques and tools, including written messages on notepads, computer programs and text messages, hand gestures, and limited speech.

In 2011, however, the plan human resources manager learned, apparently for the first time, that the company had a corporate policy against deaf employees driving forklifts. Without considering Siewertsen’s decade of on-the-job performance, the company disqualified him from his current position and transferred him, without a demotion in pay, to one of four menial jobs in the plant that did not require the use of forklifts or cranes. Siewertsen sued, claiming that the company violated the ADA by applying the no-forklifts-for-deaf-employees policy, and transferring him to another position. (Even though the transfer did not result in a reduction in pay, Siewertsen claimed the new position lacked any opportunities for promotion or advancement within the company).

The district court denied the employer’s motion for summary judgment, concluding that a jury should decide whether Worthington Steel satisfied its obligation to engage in an “individualized inquiry” as to whether Siewertsen could perform his job despite his disability:

The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. At bottom, the individualized inquiry requires the employer to consider whether the employee, despite his disability, is capable of performing the essential functions of the job. (internal quotations and citations omitted.)

So, what is an employer to do when faced with an employee whose disability could prevent them from performing a job?

  1. Do not apply a blanket exclusion policies. The ADA mandates an individualized inquiry, and one who excludes a disabled employee pursuant to such a policy has shirked this obligation under the ADA.
  2. Inquire as to an employee’s past experiences and successes working, despite the limitations imposed by the disability.
  3. Consider reasonable accommodations that will enable the employee to perform the essential functions of the job.

If you do nothing other than apply a blanket policy, you will have a hard time showing a court that you engaged in the required individualized assessment. The ADA is intended to be a law of inclusion that breaks down barriers that prevents disabled employees from working. The more effort you took to attempt to break down those barriers and permit an disabled employee to work (even if it ends up not working out), the better position you will be in if a disabled employee sues you.

Posted on

Is Digital ‘Shunning’ Illegal Retaliation?

Wired tells the story of an Australian tribunal, which ruled that an employee was illegally bullied at work, in part because a co-worker had unfriended her on Facebook.

Transfer this case to America, and assume that the employee is claiming retaliation based on the unfriending. Supposed Employee A complains to HR that Employee B is sexually harassing her, and, as soon as Employee B finds out about the complaint, he unfriends Employee A on Facebook. Does Employee A have a claim for retaliation based on the unfriending?

The answer is likely no.

As a matter of law, an adverse action sufficient to support a claim for retaliation merely must be an action that would dissuade a reasonable worker from complaining about discrimination. Yet, the Supreme Court has stated that the adversity to support a claim for retaliation must be “material,” and that petty slights, minor annoyances, or a simple lack of good manners normally will not count:

We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….

A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

Thus, an ostracism or shunning from a social network—one that serves no work-related purpose other than fostering congeniality among co-workers—likely should not support a claim for retaliation.

 
Posted on

Union Organizing as a Protected Class? Worst. Idea. EVER.

Raise your hand if you think that it needs to be easier for workers to unionize. If I could look through my computer screen, I’d see very few of my readers’ hands raised.

Two hands that would be raised, though, are those of Washington Sen. Patty Murray and Virginia Congressman Bobby Scott (both Democrats), who, last week, introduced and sponsored the Workplace Action for a Growing Economy (WAGE) Act.

What would the WAGE Act do?

  • Triple the back pay to employees fired or retaliated against for engaging in protected concerted activity.
  • Provide employees with a private right of action to bring suit to recover monetary damages and attorneys’ fees in federal district court, in addition to injunctive relief.  
  • Clarify that joint employers are jointly responsible for violations affecting workers supplied by another employer.
  • Establish civil penalties up to $50,000 for employers that commit unfair labor practices, with double penalties for repeat violations.
  • Impose individual liability for employer violators on officers and directors. 
  • Allow the NLRB to issue a bargaining order upon finding that an employer prevented a free and fair election, provided that a majority of employees signed authorization cards within the previous 12 months.

What else do you need to know about the WAGE Act? It’s supported by the AFL-CIO, the Teamsters, the Communication Workers of America, The Leadership Conference on Civil and Human Rights, The Century Foundation, and other worker-rights groups.

AFL-CIO President Richard Trumka described the legislation: 

The WAGE Act puts corporations who abuse working people on notice that there will be real penalties for lawbreaking. Penalties like triple back pay, strong civil penalties and preliminary reinstatement.

Teamsters General President James P. Hoffa added:

For too long employers have manipulated and abused the system under the NLRA. The WAGE Act offers real reform to our current laws and provides worker protections through significant penalties that will discourage employers from acting illegally. It is long past time to bring our labor laws into the 21st century.

The act’s co-author, Senator Murray, continued:

Too often, as workers are underpaid, overworked and treated unfairly on the job, some companies are doing everything they can to prevent them from having a voice in the workplace. The WAGE Act would strengthen protections for all workers and it would finally crack down on employers who break the law when workers exercise their basic right to collective action.

This bill has no chance to become law. But that’s not the point. The labor movement is setting up the 2016 election to be a referendum on the American working class. This bill is a symptom of this problem, not the solution. Nevertheless, it illustrates the class divide that could lead to a greater resurgence of organized labor.

Posted on

Time Off for Religious Holidays

Today is Rosh Hashanah, the Jewish New Year, which means that many Jewish employees are taking the day off. Is an employer obligated, however, to grant a request for time off when requested for a religious observance?



Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.



Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.



In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee’s duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.



In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical or other reasons.



Legalities aside, however, this issue asks a larger question: What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

Posted on

OSHA’s New Burden of Proof Is a Big Burden for Employers

Today, I’m going to talk about burdens of proof, a topic that might seem dry, but is vitally important to employers.

Last month I provided some insight into the 22 different federal statutes that protect whistleblowing employees from retaliation. The Occupational Safety and Health Administration administers the enforcement of each of these statutes’ anti-retaliation provisions. It’s now a whole lot easier for OSHA to enforce these laws against companies' alleged of retaliation.

Earlier this year, OSHA published a memorandum titled, Clarification of the Investigative Standard for OSHA Whistleblower Investigations. This “clarification” is actually a loosening of OSHA’s investigatory standard. Now, all OSHA needs to pursue a retaliation claim against an employer is “reasonable cause to believe that a violation occurred.”

What does “reasonable cause” mean? It means that all OSHA needs to take a whistleblower claim to hearing is a “belief that a reasonable judge could rule in favor of the complainant … that a violation occurred.” This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence.

If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50 percent-plus showing, maybe as little as enough to merely nudge the scales in the direction of that halfway point.

As OSHA’s summarizes:

Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred. Rather, when OSHA believes, after considering all of the evidence gathered during the investigation, that the complainant could succeed in proving a violation, it is appropriate to issue a merit finding under the statutes that provide for litigation before an ALJ….

Needless to say, this loosening of the proof standard has the potential to be significant. Time will tell if if it will increase the number of whistleblower complaints filed by employees. I am confident, however, that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation has increased significantly.