Commentary & Opinion Archives - Page 55 of 85

May 3, 2017June 29, 2023

10 Key Elements of Any Data Security Policy to Safeguard Your Company

I recently told you that small businesses (less than 250 employees) suffered 31 percent of last year’s cyberattacks. What can you do to best protect your business (of any size) to repel an attack? Let me introduce you to the data security policy, an essential component of any employee handbook now, and likely forever.

What should an effective data security policy contain? Consider 1) consulting with a knowledgeable cybersecurity attorney; and 2) including these 10 components (c/o me, Travelers, and the U.S. Small Business Association):

Safeguard Data Privacy: Employees must understand that your privacy policy is a pledge to your customers/vendors/etc. that you and they will protect their information. Employees should only use data in ways that will keep customer identity and the confidentiality of information secure.
Establish Password Management: A policy mandating complex passwords, changed regularly, is required for any workers who will access corporate resources.
Consider Two-Factor Authentication: Consider requiring multi-factor authentication that requires additional information (i.e., an additional pass-code delivered to a designated secondary device) beyond a password to gain entry.
Govern Internet Usage: Each organization must decide how employees can and should access the internet, which balances employee productivity against corporate security concerns.
Manage Email Usage: Many data breaches result from employee misuse of email, which results in the loss/theft of data or the accidental downloading of viruses, malware, or ransomware. You need standards on the use of emails, message content, encryption, and file retention. Moreover, do not forget to train your employees on how to detect and deflect phishing attempts.
Govern and Manage Company-Owned Mobile Devices: Organizations that provide mobile devices for employee use need a formal process to help ensure that any use is secure. A good starting point? Requiring the same password protection as non-mobile devices, and a mobile device management infrastructure that lets you remote wipe a device if it’s lost or stolen.
Establish an Approval Process for Employee-Owned Mobile Devices: Ownership of smartphones has reached a critical mass. A “Bring Your Own Device” program is no longer an option, but should be required. If employees are going to bring personal devices into the workplace, and use them to connect to your network, you need to deploy reasonable policies to govern their use and protect your network and security, instead of ignoring the issue or instituting prohibitions that employees will ignore anyway.
Govern Social Media: All users of social media need to be aware of the risks associated with social media. Social media presents a real risk of corporate breaches of confidentiality. It is easy to tell your employees, “Think before you click.” Yet, 76 percent of the Inc. 500 lack a social media policy for their employees, and 73 percent of all employers conduct no social media training. If you aren’t educating your employees about the risks and benefits of social media, both in and out of the workplace, you are not only missing a golden opportunity, but you also leaving yourself exposed to breaches of confidentiality and other snafus.
Oversee Software Copyright and Licensing: Software usage agreements oblige organizations to adhere to their terms, and you should make employees aware of any software use restrictions. Also, employees should not download and use software that has not been reviewed and approved by the company (some of which could expose the company to viruses, malware, or ransomware).
Report Security Incidents: Finally, all of the above goes out the window if your employees do not know and understand when and how to report a security breach, and how and when to report malicious viruses, malware, or ransomware in the event it is inadvertently imported. All employees must know how to report security incidents and what to do to mitigate any damage.

As is the case with any policy, a data security policy will not be worth the paper on which it’s written if you don’t train your employees on what it means and how it operates in practice. Data breaches are not an if issue, but a when issue. You will be breached; the only question is when it will occur. While you cannot prevent a data breach from occurring, you can and should train your employees to sure up any knowledge gaps that further opens the risk they inadvertently pose.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

May 2, 2017June 29, 2023

If You Think Your Small Business Isn’t at Risk for Cybercrime, Think Again

If you’ve ever spoken or thought the words, “We’re too small to worry about a cyberattack,” you’d better think again.

According to a recent study, 31 percent of all cyberattacks in 2016 were directed at companies with less than 250 employees.

Do I now have your attention?

If you’re still on the fence, consider these other stats, courtesy of Dark Reading:

98 percent of all companies suffered a cyberattack in 2016.
The average company suffers a minimum of 11 cyberattacks per day, with some facing as many as 50 daily.
27 percent of all cyber incidents are caused by insiders due to malicious or accidental actions.
Individuals open 30 percent of phishing messages directed to them, with another 12 percent clicking the malicious attachment or link, enabling the attack to succeed.
40 percent of companies have no cyber incident response plan in place
70 percent of companies lack cyber insurance.
Over the lifespan of a mobile device, 22 percent of all such devices will disappear, with over 50 percent of those never to be recovered. With more and more internet traffic flowing via mobile over desktop, these missing devices (along with other security holes such as open and unsecured wifi) pose a huge risk to your data security.

I’ll soon discuss your first and best defense against a cyberattack, a data security policy, and the key elements that it must have to best shield your company.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

May 2, 2017June 29, 2023

A Legal Firing for Fire Chief’s Fiery Posts

When I’m not lawyering, I’m speaking in public. And one of the topics on which I’ve been focusing of late is the balance between an employee’s privacy and an employer’s right to know.

One of the themes of this talk is that social media has irreparably blurred the line between one’s personal persona and one’s professional persona, and that employees best be careful with what they say online, because employers are watching and holding them accountable.

Case in point? Buker v. Howard County, which concerns a fire department battalion chief, Kevin Buker, fired because of a series of posts (his spelling and punctuation, not mine) to his personal Facebook page.

“My aide had an outstanding idea … lets all kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal …its almost poetic …”

And …

“To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any 8 of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.”

And …

“Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Governement recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.”

Additionally, Buker “liked” a photo, posted by a co-worker, of an elderly woman with her middle finger raised, captioned: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE F**K I WANT[.]”

Finally, he “liked” a racist comment by a co-worker to his “beating a liberal to death” post, which suggested that Buker “pick a black one.”

Based on the totality of these posts, the department fired Buker.

The court had little problem affirming the lower court’s decision dismissing Buker’s claims.

“For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy. First, Plaintiff’s Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department. … Second, Plaintiff’s Facebook activity significantly conflicted with Plaintiff’s responsibilities as a battalion chief. … Third, Plaintiff’s speech frustrated the Department’s public safety mission and threatened ‘community trust’ in the Department, which is ‘vitally important’ to its function. … Fourth, Plaintiff’s speech — particularly his ‘like’ of the image depicting a woman raising her middle finger — ‘expressly disrespect[ed] [his] superiors.’ Lastly, we observe that the record is rife with observations of how Plaintiff’s Facebook activity … disregarded and upset the chain of command upon which the Department relies. In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiff’s Facebook activity.”

Let me put it another, more practical, way. Many employees have not yet realized that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination.

Until people fully understand that social media has erased the line between the personal and the professional, these issues will continue to arise. It is our job as employers to educate our employees about living in this new online world, because it is clear that not all employees have yet learned this lesson.

And, until they do, employees will keep getting fired for what they post on social media (even on their personal profiles during non-working time).

And I will keep speaking and writing about it.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

May 1, 2017June 29, 2023

Green Thumbs and Living Walls in Urban Areas

Apartment-hunting in the city, I’ve been disappointed in the lack of community gardens in these spaces. Apparently that’s not a common thing? Is there no room for green thumbs in city life?

living walls — A residential project in Woodside, California.

David Brenner had a similar idea in 2008. He’s the principal and lead designer of Habitat Horticulture, a Bay Area-based organization that brings greenery to city spaces, particularly through living walls. His educational background is in horticulture, environmental psychology and landscape design at the California Polytechnic State University, and he also did an apprenticeship at the Royal Botanic Gardens of London where he worked at a tropical nursery.

There, “I got really excited about the ability to grow plants vertically,” said Brenner. He returned to CalPoly, where he started experimenting with growing vertical growth, and since then he’s brought this type of unique garden to corporate and city spaces.

Brenner and his team have put together installations for organizations like the San Francisco Museum of Modern Art, Cisco and Facebook, as well as smaller spaces like a Peet’s Coffee in San Francisco. Part of the beauty of these installations is that they can be grand or small, depending on important considerations like space or budget.

A living wall at Cisco’s office in California.

“I really wanted to bring plants in urban areas and into people’s lives in different ways,” he said. “I was really in tune with the psychological benefits plants have early on, as I grew up watering my grandparent’s plants.”

Several benefits are associated with being in green spaces. Plants have an air purification effect, said Brenner, and they’re one way to bring a diversity of species into the city. Companies could also increase efficiency by filtering storm water or recycled water into living walls. Finally, plants can have a powerful impact on well-being, he added. For example, they can help with stress reduction and lowering heart rates. He also mentioned the revitalization impact plants can have.

From personal experience, I can say that taking a break from being at a desk all day to be outside or experience nature in some way does help me feel more refreshed for the rest of my day. Hearing about this company also brought to mind all the people I know who are gardeners: from my dad to my grandparents to a few coworkers. Realistically plants aren’t a passion for everybody, but for many people it’s a major stress relief. Something lush and green is an amazing break from concrete and congestion, especially in a city like Chicago.

Habitat Horticulture was the first companies in the Bay Area to offer a product like this, in 2010. And in the past several years the trend has grown. A quick google search brought up many, many other companies in areas specializing in interior plant design around the U.S., including Chicago-based NPK Associates, Michigan-based LiveWall, and Des-Plaines-Illinois based Ambius.

For Brenner and his team of 22 at Habitat Horticulture, the whole process starts with, what does the client want? “I don’t like to say no. I think there’s a way to do everything,” said Brenner, who thinks it’s fun to experiment with new ideas. The organization conveys the type of installation they’re looking for (Is it lush or natural? Any color preferences? What texture? Etc.), and Brenner draws the design out on an Ipad. His team includes people who specialize in installation, irrigation, project management and, very importantly, maintenance.

I was interested to hear about how he decides what type of plants fit a company’s vision and workspace. For example, with the San Francisco Museum of Modern Art, the design focused on California-native species. Brenner thought of what people could find in California. The wall ended up being something very lush and green and inclusive of local species.

Another way he might decide what fits the space is the environment in which the wall exists. The Jaspar building had a very tall, vertical, outdoor wall. To create movement throughout wall, Brenner chose some not-so-wind-resistant plants to get a windswept look to the wall. Rather than working against the environment, the design embraced it. “The beauty of plants is they interact with their environment, and wind is part of that,” said Brenner.

For some businesses, something of this scale may not be possible, for space and money reasons. Other options Habitat Horticulture offers are picture-frame sized installations and living tables.

“Living walls is the primary focus,” said Brenner. “But our broader goal is to bring greenery into office spaces in different ways.”

Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.

May 1, 2017June 29, 2023

Wait, an Employer Can’t Fire an Employee on FMLA Leave Caught on Facebook on Vacation?

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?

Fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave.

Tread lightly, however, before making that decision, for in Jones v. Gulf Coast Health Care, the 11th Circuit Court of Appeals concluded that based on these same facts, Rodney Jones was entitled to a jury trial on his FMLA retaliation claim.

How did the court reach this (troubling) conclusion?
1. Temporal proximity: The employer suspended Jones on the day he returned from his FMLA leave and fired him a few days later. According to the Court, the “close temporal proximity” between the end of Jones’s FMLA leave and the adverse action is sufficient to create a jury issue on the causation prong of his FMLA retaliation claim.
Me: When is the employer supposed to fire him? During his vacation? Wouldn’t that have created an even closer temporal proximity? Or should it have let him return to work and waited months before announcing its decision? Wouldn’t that have created a jury question on the issue of pretext? (How could the vacation genuinely have motivated the decision if the employer waited months to act on it?) The best practice is never to wait but immediately to advise of the consequences. Yet, by suggesting that such immediacy dooms the employer, the Court is placing all employers in a no-win situation.
2. Pretext: According to Jones, the only explanation the employer provided him “was that he was being fired for abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Yet, (a) Jones was not told that he had violated the company’s social media policy or that the company believed he had unnecessarily prolonged his recovery to take a vacation; and (b) because the company lacked a policy that required employees to stay at home or refrain from traveling while on FMLA leave, it could not conclude that he had “violated the ‘spirit’ of medical leave — to rehabilitate and recover.” Therefore, because of these “inconsistencies and contradictions” a jury should decide whether the employer’s explanation was a pretext for retaliation.
Me: The employer advised Jones that it was terminating him for “abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Must it expressly rely on a written policy (social media or otherwise)? Must a company have a policy forbidding employees on FMLA leave from traveling or vacationing? By taking an FMLA leave for one’s own serious health condition, an employee certifies the inability to work, or the inability to perform at least one essential function of the job). If vacation photos posted to Facebook suggest that the employee had recovered and no longer needed to be out on medical leave, how is the employee not abusing his FMLA leave? And how is an employer not justified in firing the employee for this lie?

This result should disturb all employers. I would have reacted the same way as Gulf Coast Health Care, and, frankly still would despite this decision. The employment relationship is based on trust, and once that trust erodes, the relationship is broken (almost always beyond repair). If an employer concludes that an employee has lied about the need to be on FMLA leave, how can it react any way other than termination?

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

April 26, 2017June 29, 2023

Structuring a Remote Working Program

Remote working has shifted from a trend to a strategy necessary in the war for talent. It’s not going anywhere. It’s a competitive advantage.

And with that comes many considerations. Employers must ask, if I am to adapt remote working as a benefit to employees, what do I need to know? What are all of those logistic, legal and management-related things that I can’t afford to ignore from the very start?

This was the theme of David Lewis’ lecture at the Society for Human Resource Management’s Talent Acquisition conference in Chicago. Lewis, president and CEO of HR consulting company Operations Inc., brought up several important points any employer considering a remote working option should remember. He was very pro-remote work — benefits include shorter commutes, a broader access to talent and less need for office spaces — but also realistic in pointing out the structure and rules for a successful remote working program.

One key message was that although remote working is an option employers should consider, it’s not an option for everybody. It’s not a universal employee right. Leaders should look at each position objectively and decide whether it’s a job that can be done remotely. Some jobs simply can’t.

On an individual level, good performers who have proven that they are productive and reliable are solid candidates, while bad performers are not. That guy who always needs somebody looking over his shoulder or holding his hand throughout the day? He would not be productive working from home.

For employees who have the green light to work remotely: It’s not all hunky-dory from there. Employers should know what kind of office space this employee is working in. Is it an environment conducive to household interruptions? How is this person’s internet speed? If this person needs a better internet connection, who pays for it? (Usually the company does, said Lewis.) Does workers’ comp cover the work-from-home injuries?

The type of office furniture an employee uses is a consideration as well, said Lewis. What if their chair causes back problems? What if their desk is at an awkward height and hastens other physical problem?

Many companies will provide certain amenities for a home office, like technological needs (computer, printer, potentially internet). This could also apply to furniture. Some companies provide an allowance for this, said Lewis; others may provide the same standard furniture to remain consistent to all employees.

Start the conversation with, What do you already have? If this employee already has an appropriate chair and desk, great, that’s one less furniture set to deal with.

One final takeaway was that some managers will naturally be paranoid that remote workers just can’t be as productive as working in-office. Don’t decide that remote working isn’t working and take away the option because of paranoia, said Lewis. Rely on metrics and hard data for something like that.

I spoke with a co-worker about this session later in the day. His consensus was that a lot of this sounded like way too much micromanaging. I don’t disagree; I wouldn’t want my employer measuring my at-home desk and scrutinizing my work-from-home environment with a fine-tooth comb. The desk I use is a giant rectangle of wood with four metal legs from an old Ikea table. I don’t know how tall it is. It’s covered with dried acrylic paint and to-do lists written in Sharpie. But it’s cleared off except for my lamp, essential oil diffuser and laptop when I work from home, and it’s never caused me any problems. Still, I don’t think it’d pass the test.

What I got out of this session was less about the micromanaging and more about the idea behind it: Remote working isn’t going anywhere. And having clear guidelines and rules from the very beginning isn’t a bad idea for employers who want a consistent working-from-home policy. Some sort of framework that deals with potential future legal issues like workers’ comp or OT would be helpful.

Ultimately, as long as the employee is hitting their deadlines and continuing to be productive even when working at home, I’d hope most companies would ignore some of the more nitpicky things in the remote-working guidebook, like chairs and desks.

Andie Burjek is a Workforce associate editor. Comment below, or email at editor@workforce.com. Follow Workforce on Twitter at @workforcenews.

April 26, 2017June 29, 2023

Congrats to Philip Miscimarra on His Appointment as NLRB Chair

I’m on record as calling Philip Miscimarra “mad as hell,” referring to his scathing dissents in recent NLRB protected concerted activity cases. I also have it on good authority that while he and I agree that the NLRB has gone off the proverbial reservation in these cases, he is not, in fact, mad as hell.

Be that as it may, he has every reason today to be as happy as he can be.

Late last week, President Trump removed the “acting” from Miscimarra’s title as NLRB chair, officially naming him to fill that position on a permanent basis.

Congrats, Mr. Miscimarra. I cannot wait for your board to undo the damage done to employers by the Obama-era NLRB. For example:

Thank you, sir, for putting up the good fight in dissent these past four years. Now, let’s see what you can do as the Head NLRB Member in Charge (once President Trump fills the board’s two vacancies).

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

April 26, 2017June 29, 2023

Job Boards Aren’t Dead; They’ve Just Matured

It’s not often that I get geeked up about the launch of a new product. Well, there was that New Coke thing. And Betamax. But that was DECADES ago. Since then I’ve grown; wised up; matured, you might say.

And maybe that’s why this new product appealed to me. AARP rolled out its new job board for, well, older people. Seniors. Users and members of AARP. Mature people … like me.

Michelle Hoffman, the products and platforms director, work and jobs, at AARP, gave me a brief online tour on Day 2 of SHRM’s Talent Management Conference & Exposition. Understandably since the site launched just six weeks ago, it’s relatively thin. Employers have yet to discover it. But there is content, and enough to see that this could be a really valuable tool for older job seekers and those looking to add workers with years, if not decades of experience.

In fact, the topic of workers over 50 randomly popped up during Tim Sackett’s excellent presentation on diversity and inclusion earlier in the day.

“If you’re over 50 you’re crap,” Sackett sarcastically said of clueless employers. “They want 27-year-olds with 20 years of experience.”

As empty nesters, 50-plus workers have more capacity and bandwidth to do a good job, Sackett said. “Instead they want to hire that 30-year-old who has sick kids.”

A D&I issue? Absolutely.

But back to AARP’s job board. The last of the old-school job boards was also at the conference. Rumors continue to swirl regarding CareerBuilder’s sale. Yes, it took years for Monster to finally sell off, leaving CareerBuilder as the last of the HotJobs-Monster triumvirate that dominated the space for years.

AARP’s site is simply named the AARP Job Board. But as with the trend, it’s niche-y. It’s simple and clean, informational and appears easy to use. It also fits to tablet size. And don’t underestimate AARP’s ample muscle behind it.

In other words, at a bouncing six weeks old, AARP’s new-era narrow focus job board presents a clear sense of maturity and longevity.

Unlike Betamax or New Coke.

The Buzz … I hadn’t heard about it – no surprise there – but several presenters talked about GE Millie program. Huh? The venerable company committed earlier this year to employ 20,000 women in STEM positions by 2020. And 86-year-old National Medal of Science winner Millie Desselhaus is the unlikely spokesmodel. It apparently was the centerpiece of GE’s Shaunda Zilich’s Tuesday morning presentation on the changing nature of recruiting. Tim Sackett mentioned GE Millie during his D&I presentation.

Phrase of the Day … Frans Johanssen’s lively final-day keynote’s talk on recruiting innovation provided the new phrase: smallest executable step. In other words, narrow your focus to help innovate.

Rick Bell is Workforce’s editorial director. Comment below or email editors@workforce.com.

April 25, 2017June 29, 2023

Comparing Notes on Internship Programs

We have an internship program. And, for better or worse, I am in charge of it.

Perhaps like you, the internship program is collateral duty for me; in other words, it’s another responsibility among many.

I enjoy it, though. We have had some wonderfully bright young minds pass through the cubicles at Human Capital Media, and they continually surprise me with their talents and abilities.

So it was with more than a passing interest that I attended a session on internships during the opening day of SHRM’s Talent Management Conference & Exposition, which is conveniently being held in the Hyatt Regency Chicago — right next door to HCM World Headquarters. I wanted to see if I was getting the most out of our program, and if we were providing a valuable experience for our eager young journalists in training.

I’m happy to report that yes, our program seems to be on par with what others around the country are doing. Sharon Beaudry, an assistant professor at the Oregon Institute of Technology in Klamath Falls, led the session titled, “Tomorrow’s Talent in Your Hands Today: Developing a Robust Internship Program for a Win-Win Result.”

Beaudry, who spent two decades in HR and now is in academia, had a good handle on developing and maintaining a good internship program. One of the key points she made to the room of 100 or so HR practitioners was eerily parent-like: “They listen to you, not us.”

Which is true. I occasionally [ahem] go on these long-winded philosophical diatribes with the interns regarding all manner of journalist-ing. And somehow they sort through my babble and will come back with a “ … but you said …” that will stop me dead in my tracks. “Oh yes, right, absolutely you should attribute that sentence.”

There were a few things I could check off as good practices: we pay our interns (although not at the national average of $17.69 — yikes!); keep the busy work to about 20 percent of their time; and we don’t treat them like second-class citizens. Our interns are involved in staff meetings, companywide events and sit smack-dab in the midst of the editors.

We try to offer ongoing, continuous supervision, although I like to let them think for themselves, too.

Unfortunately Beaudry’s presentation ran long, leaving no time for Q&A. A couple of people offered thoughts during her talk, but it would have been a great opportunity — for me, anyway — to hear what others are doing with their interns.

Outside of paying $17.69 an hour, that is.

Odds and ends … It’s fairly common to hear HR people say “that’s inside baseball” when someone is talking about the minutiae of some program or practice. Well, you could say Molly Fletcher’s opening keynote was as “inside baseball” as you can get. Fletcher is an agent for a number of major league players and coaches, and her stories and anecdotes got the conference of to a great start, although for the non-seamheads, it might have been a too little inside baseball.

A new term to add to your HR bingo board: Geo-fencing was a new one on me. It popped up during a panel discussion on top recruiting trends for 2017. Recruiters may get it, but I’m still a little hazy on it. Carol McDaniel, director, Talent Acquisition, Johns Hopkins All Children’s Hospital, explained it as setting up a virtual perimeter, having to go where the talent is to target people with specific skills.

Make sense? Yeah, didn’t think so.

Rick Bell is the editorial director for Workforce and is pinin’ to hear Roy Rogers to sing “Don’t Geo-Fence Me In.” Comment below or email editors@workforce.com.

April 25, 2017June 29, 2023

Court: It’s OK for an Employee to Curse Out His Boss on Facebook

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message.

I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration.

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Because the employee couched his MF’ing rant with a decidedly pro-union message, the appellate court held that section 7 protected him and his post.

First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. …

Second, Pier Sixty consistently tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace…. Under the circumstances presented here, it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity. …

Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible.

Have no fear, employers, for despite the NLRB’s victory, the 2nd Circuit did find this to be a close case:

We note that this case seems to us to sit at the outer-bounds of protected, union-related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests.

What can employers learn from this decidedly pro-employee decision?

1. Timing is everything. Central to most of the court’s logic is the fact that (a) this employee was pro-union; (b) expressed his pro-union sentiment directly in his rant; and (c) such rant occurred a mere two days prior to the union election.
2. It’s perfectly reasonable to take a stand against profanity in the workplace, but if you are going to do so, be consistent, or least consistent enough such that your first attempt at firing an employee for said profanity is not a pro-union employee two days prior to a union election.
3. Social media is different, because of its openness and visibility. However, if you are going to rely on that openness to discipline or fire an employee who is using social media to engage in protected conduct because of abusive behavior such as profanity, you best come armed with actual evidence of customer or business disruption, or reputational harm. The mere public nature of the outburst alone may not be enough to justify your action.