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Does Social Media Change the Meaning of Solicitation?

Consider the following scenario. Your company uses sales representatives to sell its products. To protect your company’s relationship with its other employees, you require all sales reps to sign a no-solicitation agreement as a condition of their employment. Under the agreement reps cannot “directly or indirectly solicit, entice, persuade or induce any … employee … of the Company … to terminate or refrain from renewing or extending his or her employment, association or membership with the Company … or to become employed by or enter into a contractual relationship” with the employee executing the no-solicitation agreement.

If an employee connects with co-workers on Facebook or any other social network, and then leaves your company, has he violated the no-solicitation agreement by maintaining the connections?

According to the court in Pre-Paid Legal Services, Inc. v. Cahill (E.D. Okla. 1/22/13), the answer is, “No.”

In this case, PPLSI complains that Facebook posts that tout generally the benefits of Nerium as a product and Defendant’s professional satisfaction with Nerium constitute solicitations presumably because some of Defendant’s Facebook “friends” are also PPLSI sales associates and may view Defendant’s posts….

PPLSI has not shown any intent on Defendant’s part to solicit current PPLSI associates…. There was no evidence presented that Defendant’s Facebook posts have resulted in the departure of a single PPLSI associate, nor was there any evidence indicating that Defendant is targeting PPLSI sales associates by posting directly on their walls or through private messaging.

In other words, because the employer could not demonstrate any intent on the part of the departed employee to solicit other employees via Facebook, the mere fact that they are Facebook friends is not enough to violate the no-solicitation covenant. Presumably, the same logic would hold true if the no-solicitation covenant applied to customers instead of employees.

One case does not equal dogma (although Cahill did discuss and agree with another similar case from an Indiana appellate court). These cases are highly fact specific and depend as much on the court’s perception of the parties’ equities as they do on the language of the challenged agreements.

If, however, you are concerned about ex-employees using Facebook, Twitter, LinkedIn, and other social networks to lure employees or customers, why not include language in your no-solicitation agreement to cover such a possibility?

“Solicitation” includes, but is not limited to, offering to make, accepting an offer to make, or continuing an already existing online relationship via a Social Media Site. “Social Media Site” means all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, in addition to any other form of electronic communication.

By defining “solicitation” to include passive social media connections and activities, you are at least putting yourself into a position to have a court consider shutting down an ex-employee for maintaining online relationships.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Customer Preference Does Not Protect Employers From Race Discrimination Claims

CNN reports that a Flint, Michigan, nurse is suing her hospitalbecause it kowtowed to a man’s request that no African-American employees care for his baby. The lawsuit [pdf] outlines her key allegations:

11. The father told the Charge Nurse that he did not want any African Americans taking care of his baby. While telling the Charge Nurse, he pulled up his sleeve and showed some type of tattoo which was believed to be a swastika of some kind.

12. After the father made the discriminatory request to not allow African Americans to take care of his baby, instead of flatly denying the request, the Charge Nurse called the Nurse Manager, Defendant Osika.

13. Defendant Osika told the Charge Nurse, Herholz, to re-assign the baby to another nurse and to advise Plaintiff that Defendant Osika, would speak to her supervisor and take care of it the next day.

14. Plaintiff was re-assigned on or about October 31, 2012 because she is African American….

19. When Plaintiff reported to her work, she learned that during that day there was a note prominently posted on the assignment clipboard that read as follows: “NO AFRICAN AMERICAN NURSE TO TAKE CARE OF BABY.” Plaintiff was shown a picture of the note.

Let’s make this as clear as possible. Adhering to the request of a customer is not a defense to a race discrimination claim. As one court succinctly stated : “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” (Note that the same might not hold true for a customer preference based on gender, because employers can claim a bona fide occupational qualification as a defense to a sex discrimination claim).

If you find yourself in a position of having to face down a customer making such a request, take a stand. Tell the customer, “We don’t treat our employees like that, and if you can’t deal, we don’t need your business.” Be the better corporate citizen. It’s not just the legal way to act, it’s the moral way to act.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Obsessing (Compulsively) Over Reasonable Accommodations

I grew up with a guy who really liked the Presidents of the United States (the actual Presidents, not the 90s alt-rock band). He was so fond of them, in fact, that he had a complete collection of presidential figurines in his bedroom. He kept them in chronological order, in perfectly straight rows, on his dresser. And he instinctively knew if you moved one out of line. He’d swoop in and fix it almost as quickly as one could say “John Adams.”

As far as I know, this person did not have obsessive-compulsive disorder. But, what if he did, and he what if he worked for you? Would you have to accommodate this employee’s OCD, and if so, how?

The first question is the easy one to answer. Under the American with Disabilities Act’s liberal definition of disability, OCD is almost certainly a covered mental disability.

The second question, however, is trickier. If the OCD inhibits the employee’s ability to perform the essential functions or his or her job, then, yes, you have to make a reasonable accommodation, but only if you can do so in way that will enable the employee to perform those affected essential functions.

In other words, it depends. Consider these two examples:

  • In Earl v. Mervyns, Inc. (11th Cir. 2000), the plaintiff, a retail manager, claimed that his OCD prevented him from arriving to work on time in the morning. The court agreed with the employer that punctuality was an essential function of his position, and concluded that no accommodation would meet the needs of his OCD. Thus, the court deemed the plaintiff “not qualified” under the ADA and upheld the dismissal of his disability discrimination claim.
  • Yet, in Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001), the court concluded that the employer failed to consider whether either a leave of absence or telecommuting arrangement would have enabled the plaintiff, a medical records transcriber, to perform her job with her OCD.

The lesson here is not so much about accommodating OCD as an ADA-covered disability, but a broader lesson about handling any disability in the workplace. You need to have a dialogue with an employee about reasonable accommodations. Without opening the channels of communication, you will never know what is feasible. More importantly, without the dialogue, you probably have not satisfied your obligations under the ADA. As the court in Humphrey correctly pointed out:

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations…. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees…. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible….

Moreover, … the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.

In other words, talk with the employee. You’d be surprised how many employment problems you could head off with an earnest and open conversation.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Workplace Social Media Policies Must Account for Generational Issues

Cisco recently interviewed 3,600 Gen Y College students and workers between the ages of 18 and 30. The purpose of the survey was to gauge the influence of social media, mobile devices, and the Internet on that generation’s job choices. The results (via Gen Y Hub) say a lot about how companies should be managing the divergent expectations of different generations in the workplace.

  • 2 out of every 3 college students will ask a prospective employer about its social media policy during a job interview.
  • If a company bans the access of social media in the workplace, 56 percent either will not accept a job or will ignore the policy.
  • 1 out of every 3 value social media freedom over salary.
  • Approximately 70 percent believe that corporate devices should also be used to access personal social media accounts.

Generational issues might be the most important interpersonal aspect of managing social media in the workplace. Yet, this issue is rarely discussed. Each generation has a very different idea both about the role of technology in their daily lives, and the impact of technology on their concepts of personal privacy. A policy that only recognizes the interests of one generation will chase away the others. Take the time to craft a workplace technology program that properly accounts for the divergent ideas of Boomers, X-ers, and Y-ers.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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The Revolution WILL Be Televised … Shore Up Your Social Media Before a Termination

Last week, music retailer HMV laid off 190 employees. One of the affected, a former HR employee, hijacked the company’s Twitter account and live-tweeted what he described as the “Mass execution, of loyal employees who love the brand. #hmvXFactorFiring “

In addition to everything else companies have to worry about when terminating employees (lawsuits, sabotage, theft of confidential information, low morale), companies now also have to worry about the maintenance of their public image via social media.

We live in a world in which the walls of privacy are not-so-slowly eroding. Nothing can damage a company’s reputation more quickly than a viral campaign. We no longer have to worry about employees merely discussing the nitty-gritty of a termination. Today, we have to worry about our employees broadcasting it to the entire world in 140 character insta-bursts. And, there’s not much you can do about it after the fact. Once the information is out, it’s out. HMV deleted the tweets, but all it took was one person to “print screen,” and the next thing you know bloggers around the world are republishing the information it tried to hide.

While there is not much you do after the fact, there is one thing you can do before the fact. If you are concerned about employees live-tweeting a termination or a mass layoff, disable their access to your social media channels before you tell them. Change their passwords. Remove their logins. Is there a chance they’ll figure out something is afoot before you officially communicate the termination? Absolutely. Does the harm to your business from that risk pale in comparison to the viral harm you will suffer if said employees hijack your official social media channels? You bet.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Kiss and Tell

A suggestion for business leaders this Valentine’s Day: don’t just focus on your honey. Get sweet on your workforce as well. And tell anyone who’ll listen how much you love your people.
Appreciating workers is age-old advice, but it comes with contemporary twists as Feb. 14 approaches. For one thing, a number of signs indicate the balance of power is shifting toward employees and away from employers. Highly skilled positions are getting harder to fill, overall job growth is continuing, and the economy is in general expanding—albeit in fits and starts.
What’s more, as we discuss in our upcoming February cover story, “re-shoring” is under way. That is, U.S. employers are recognizing limits to the shift of work to lower-wage locations offshore. Manufacturing and service-sector jobs are returning to or being generated in America, for reasons including long-distance communications challenges, higher wage rates in the developing world and steep transportation costs.
Ravin Jesuthasan, global practice leader for talent management at consulting firm Towers Watson, says organizations in some cases rushed to send work overseas and didn’t recognize the downsides. Now there’s growing interest in bringing some operations back to America’s shores. We’re “reaching a point of balance with offshoring,” Jesuthasan says.
All this means U.S. employers are going to have to woo workers more than they have over the past five years or so. But as you romance your recruits, the formula for success today is not the same as it was decades ago. The employee satisfaction focus of the 1950s and ’60s alone won’t cut it in today’s cut-throat global business climate. A new employer-employee relationship is in order. It’s a kind of tough love, where companies are exacting about their expectations and clear that jobs are far from guaranteed even as they foster a caring, inspiring culture.
In other words, admit that decisions about whether to offshore some operations and jobs will be based on hard numbers such as costs. And push people to work hard. But do that in part by giving them a stirring vision to pursue. That’s a rarity today, with only 4 percent of employees saying they are inspired by values and a commitment to a mission and purpose.
What’s more, offer generous severance packages if jobs are lost and show concern for workers’ long-term well-being by investing in training—which typically helps both employee and employer.
And share the wealth if things are going well. Consider giving a box of bonus bonbons akin to what Random House’s CEO gave his employees in the wake of the success of Fifty Shades of Grey.
Showing genuine affection and generosity for employees matters more than ever these days, because company cultures are exposed as never before. Feedback site Glassdoor offers a window into how workers are treated, as do other sites and the continuous stream of social media posts by workers everywhere.
Ahead-of-the-curve companies are entering the conversations about what they’re like to work at. They are showcasing their cultures through their own websites and encouraging employees to be brand ambassadors who talk about prized programs like software company SAP’s “social sabbatical” that allows high-potential employees to help out businesses in developing countries. In effect, these companies are loud and proud about how much their employees mean to them.
Valentine’s Day is a time to rekindle the spark. Why not use it as an occasion to shower your employees with affection? Fall in love in a modern way, and don’t be shy about how much you adore your workforce.
Ed Frauenheim is senior editor at Workforce. Comment below or email efrauenheim@workforce.com.

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Labor Department: Employers Find It Easy to Comply With the FMLA. What?!?!

Twenty year ago today, President Clinton signed the Family and Medical Leave Act into law. To commemorate this anniversary, the Department of Labor has released the results of a survey of employers on the status of this law.

According to the Labor Department:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale.

Did I read that right? Does the Labor Department really conclude that “employers generally find it easy to comply with the” FMLA? I started practicing law in 1997; I’ve spent my entire career advising employers on the FMLA. I am not aware of any company that finds it “easy to comply with” the FMLA. In fact, most companies whom I have counseled would tell you that FMLA administration is among the most complicated of all HR functions.

Either the Labor Department found the only 1,649 employers (91 percent of the 1,812 worksites surveyed) who “find it easy to comply with” the FMLA, the Labor Department is putting some major spin on its survey results, or my read on FMLA administration is way off.

To find out for sure, I’m running my own poll, which asks the question, How difficult has it been for your company to comply with the FMLA?

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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How Do You Fight Invisible Discrimination?

With what seemed like most of Cleveland’s western ‘burbs, I spent part of my Sunday afternoon shopping at Costco. My trip not only included the expected bulk items, but also some unexpected bigotry.

Near the samples of mozzarella and pita grilled cheese (delicious), I crossed paths with a family—a father and his two sons—of what appeared to be Arabic descent . The older of the two boys, around age 10, turned to his dad and said:

I got back at that lady who cut me off; she looked Jewish.

Needless to say, I was stunned, and decided that I couldn’t let the comment go answered. I quietly told the family that I couldn’t stop them from thinking what they want, but they should be careful when and where they express their feelings. They walked away.

In a decade or two, that boy will join the workforce. He could be one of your employees, or, worse, one your managers or supervisors. How do you root out this kind of hatred before it outs itself out in a harassment complaint or discrimination lawsuit? There is no easy answer to this difficult question. Perhaps all we can do is recognize that everyone carries baggage. Some is harmless, and some is hateful. If we foster a workplace of openness and inclusion, when that hatred exposes itself employees will understand that it belongs to a rogue and not your company, and hopefully, choose not to hold you accountable (provided you respond quickly and decisively when brought to your attention).

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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How Lean Is Too Lean?

Dear Not Enough Cooks:

There are three reliable sources of information to indicate how well employees are managing the workload.

First are behavioral indicators. Are more people taking sick leave now compared to pre-reduction? Are there more complaints, more team conflict? Is the loss of 27 employees higher than your previous turnover rate? What’s the conversation like in the break room—or do employees no longer have the opportunities to mix and chat? Are employees routinely working longer hours and weekends? Have leave applications slowed down? Have customer complaints increased?

To support these behavioral observations, your organization ideally would gather empirical data from former and/or current employees.

Second, employees who leave may be able to provide reliable information about the impact of workload.

Implement an effective exit interview process to enable the organization to understand the true causes of loss. For example, of the 27 who left last year, who did so for reasons that your organization could have influenced? If those resignation reasons relate to overwork, then conduct a cost comparison: how much does it cost to replace staff and retrain new people to full productivity, compared with how much it costs to reduce workload pressures through various means.

Reasons for resignation Number of employees affected
Overwork/long hours/poor work-life balance: eight people
Adverse manager practices or behavior: four people
Low pay: four people
Lack of challenge and development: four people
Conflict with team: three people
Prefer fulltime parenthood: two people
Return to study: one person
Overseas travel: one person

To replace eight employees with an average salary of $60,000 (using a conservative 30 percent of salary as replacement cost) would equal $144,000. Some of that money should be reallocated to reduce the workload of remaining employees: For example, by hiring additional staff, adding new skills or improving your processes.

The third source of reliable information comes from current employees.

Only if your organization is prepared to address issues of overwork should you then ask employees about their experiences in your workplace.

Conduct a survey with a sample of staff and explore the things your people consider great (and not so great) about your company—and how these people would change things if they could.

Employees will identify means of reducing workload, other than just employing more people. Workflow improvements, removing red tape, skills improvements: A range of simple solutions can emerge when you ask people for suggestions on improving their life at work.

If workload pressures cause an adverse reaction, then it is sound strategy to reduce turnover risks by gathering information directly from employees, who should be your most prized asset.

SOURCE: Lisa Halloran, Retention Partners, Sydney, Australia

LEARN MORE: Flexible scheduling and a commitment to work/life balance can help boost retention of key contributors.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Damn You Auto-Correct! (Train Your Employees to Proofread)

Do you have employees under the age of 35? If so, the odds are that they communicate with each other with text messages on their mobile devices. If you’ve ever texted, you know the evils of auto-correct. For the uninitiated, auto-correct is a function of today’s smartphones that automatically changes an unrecognized word to its closest match.

Sometimes, these auto-corrects have hilarious results.

Of course, one employee’s hilarious is another’s offensive, which brings us to today’s human resources lesson.

When you hold your annual harassment training (you hold annual harassment training, right?) you might want to consider mentioning the evils of autocorrect. You will never succeed in having the Gen-Y’ers and Gen-Z’ers exchange their iDevices for more face-to-face conversations. You may succeed, however, in educating on the importance of proofreading messages before they are sent, which, in turn, could save you the time and expense of an internal harassment investigation, or, worse, defending a lawsuit.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.