Category: Technology

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What the ADA Says About Employee Medical Information and Social Media

The Americans with Disabilities Act protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? It can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court — in Shoun v. Best Formed Plastics — began sketching an answer. 
 
George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” 

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

 
The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.
 
All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.
 
Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information — workers’ compensation claims, Family and Medical Leave Act claims, reasonable accommodation requests, and other medical information related to the performance of the job — is off-limits for discussion. 

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement — and, more importantly, training — on this issue could save you from a disability discrimination lawsuit down the road.

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‘Free Speech’ Can Be Costly in the Workplace

In late March, many employees of the Silicon Valley-based tech company Mozilla Corp. took to social media to criticize or defend their then-CEO Brendan Eich after it was reported he donated $1,000 in 2008 to an organization that supported California’s controversial Proposition 8 ballot initiative to ban same-sex marriage.

Eich was named Mozilla’s CEO on March 24, according to a Mozilla news release. The next day blog posts and other media stories about Eich’s political contributions began circulating online, sparking a social media backlash from Mozilla employees. Amid the intense public scrutiny, Eich voluntarily resigned his position April 3.

The Mozilla controversy brought the topic of free speech rights in the workplace to the forefront of the public forum. Strong arguments can be made in support or against Eich’s decision to voluntarily resign as Mozilla’s CEO. Though, when it comes to working for a private corporation, employees oftentimes falsely believe their First Amendment right to free speech fully applies at work.

The First Amendment of the Constitution guarantees every U.S. citizen the right to free speech protected from punishment by the government. In most cases of private employment, however, political speech is not a protected right.

The First Amendment of the Constitution guarantees every U.S. citizen the right to free speech protected from punishment by the government. In most cases of private employment, however, political speech is not a protected right.

An employer is able to separate itself from any employee viewed to be tarnishing the image it tries to present to the public, legal experts explained.

“In general, the First Amendment does not restrict a private employer’s ability to punish political speech in most states,” said Brian Wassom, a partner at law firm Honigman Miller Schwartz and Cohn in Bloomfield Hills, Michigan. “In most states, employment is at-will. If an employer finds an employee’s speech to run counter to the company’s values and image, there’s nothing preventing them from terminating that employee.”

While Eich voluntarily left Mozilla, his support of Proposition 8 could have been interpreted as an activity that did not align with the company’s commitment to openness and diversity – as many of Mozilla’s employees did.

Employee Activism

The social media response of Mozilla employees to Eich’s appointment is part of a growing trend of employee activism. According to a study published in April by global public relations firm Weber Shandwick, “employee activists draw visibility to their workplace, defend their employers from criticism and act as advocates, both online and off.”  

One in five employees can be considered an employee activist, the study found. Additionally, 33 percent of employees have high potential to become employee activists as well. The study also suggests employers should embrace employee activism and encourage more brand socialization. Brand socialization improves organizational transparency and could lead to an increase in engagement. For example, the research shows employees whose employers encourage social activism are significantly more likely to help boost sales than employees whose employers do not (72 percent vs. 48 percent, respectively).

“The employee activist movement should not be underestimated,” said Micho Spring, Weber Shandwick’s global corporate practice chair, in a written statement. “Identifying and activating employees willing to rise to levels of extraordinary support for their organizations should certainly be an important priority for CEOs.”

Although the study shows social media holds potential benefits for employers, there are risks involved as well, explained legal experts. Many employment lawsuits involving social media deal with issues regarding the National Labor Relations Act.

The act “protects line employees from adverse actions from employers based on statements concerning the terms and conditions of employment that are for the mutual aid and benefits of co-workers,” said Philip Gordon, chair of the privacy and data protection group at law firm Littler Mendelson in Denver.

There are two components that protect employee speech under the NLRA, Gordon explained. The first is that the speech must be concerning terms and conditions of employment, but those terms are broadly defined. For example, discipline or management performance could fall under terms and conditions of employment.

Secondly, the speech must be “concerted,” meaning speech concerning a workplace condition or term of employment that a group of co-workers would like to see changed. An employee could write a post on Facebook that criticized a management policy and thanked co-workers for getting together to discuss it.

To avoid a lawsuit, employers should understand laws like the NLRA and how it applies to social media. Likewise, employees need to realize their employer’s social media policy lest they lose a job over a careless tweet or Facebook post.

“Still, to this day, it’s surprising how few employees really appreciate the power of what they share online,” Wassom said. “The sorts of things we don’t punish in a water-cooler conversation may end up being posted online for the entire world to see. Employers need to really drive home the idea that employees need to think twice about what they post and why it can be more consequential online rather than whispered in a conversation around the water cooler.”

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NLRB Judge Clips Wings of Hooters’ Workplace Policies

In Hooters of Ontario Mills [pdf], an National Labor Relations Board Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal polices in its employee handbook.

Alexis Hanson, a Hooter Girl in an Ontario, California, outpost of the beer-and-wings establishment, complained to management that she believed that bar’s annual bikini contest was rigged. After the contest, she was terminated for “cursing at” the winner and the store’s Marketing Director. When she protested that she hadn’t cursed at anyone, the manager changed her tune and told Hanson, “Okay. Well, then you are being terminated for your negative social media posts.”

The ALJ concluded that Hanson’s discharge was unlawfully motivated by her protected concerted activity (i.e., her complaints to the manager about the bikini contest). The ALJ was persuaded by the fact that the employer had failed to conduct an investigation before firing Hanson, and also by its shifting reasons for her termination. 

The ALJ also concluded that a variety of policies in the restaurant’s employee handbook were overly broad violations of employees’ rights to engage in protected concerted activity:
  • NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination.
  • Insubordination to a manager or lack of respect and cooperation with fellow employees or guests may result in discipline up to and including termination.
  • Disrespect to our guests including discussing tips, profanity or negative comments or actions may result in discipline up to and including termination.
  • The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party may result in discipline up to and including termination. This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
  • Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by coworkers and clients. Refrain from posting negative comments about Hooters or coworkers. In all cases, NEVER publish any information regarding a coworker or customer.
  • Any other action or activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business may result in discipline up to and including termination.
What are the takeaways from this case?
  1. These employees were non-union. This case serves as a reminder that the NLRA’s protected-concerted-activity rules apply to union and non-union shops.
  2. It’s debatable whether complaints about a workplace bikini contest constitute protected concerted activity. In this case, however, the ALJ appeared to be more persuaded by what the manager did not do in response to the complaints, as opposed to what the employee complained about. The manager did not investigate, and did not maintain a consistent reason for the termination. In other words, the reasons given for the terminated seemed to be a pretext to cover up something else — retaliation for Hanson’s protected concerted activity. The moral of this story? No matter the situation, thorough investigations and maintaining a consistent story will save your bacon in many workplace lawsuits.
  3. As often happens in theses cases, the termination served as an entre for the NLRB to review (and overturn) workplace policies as overly broad. If you don’t want the NLRB to see your policies, don’t fire employees for protected concerted activity. Most of these cases get to the Board because someone was fired, not because someone just decided, out of the blue, to challenge a handbook.
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Should you Check Your Employee’s Social Media Accounts?

Monday’s Wall Street Journal had a compelling counterpoint about whether employers should be checking their employees’ social media accounts. Nancy Flynn, the founder and executive director of the ePolicy Institute, presented the pro, while Lewis Maltby, the president of the National Workrights Institute, presented the con.

Flynn argued that keeping an eye on employees’ online activities helps companies help themselves.

Management has a right and responsibility to monitor how employees are using social media at all times. If companies don’t pay attention, they may end up facing any number of serious problems. It’s all too easy for disgruntled or tone-deaf employees to go onto social media and criticize customers, harass subordinates and otherwise misbehave. Sometimes that can bring workplace tensions and complaints, sometimes it can damage a company’s reputation in the marketplace, and sometimes it can lead all the way to lawsuits or regulatory action.

Maltby argued that examining employees’ online activities often results in an unreasonable fishing expedition.

Yes, employers have a legal right to monitor employees’ conduct on their work computers. But the only time employers have a legal duty to monitor employee communications is when the employer has reason to believe that the employee is engaged in illegal conduct.… The fact is, the vast majority of what employees do on the Internet has nothing to do with work, takes place during their private lives and is done on their personal computers. Once again, employers should get involved with employees’ private lives only when there is reason to be concerned.

Who’s right? Do employers have a right to monitor employees’ social media accounts, or is this an invasion of their personal lives? I believe that there is nothing private about social media. Even outside of work, what employees say on their not-so-private social pages can impact their employer. Do they post racist, sexist, or other inappropriate statements? Do they divulge confidential information about their workplace? Are they engaging in conduct that would.make them unfit for employment (like illegal drug use)? 

The reality is that employees who believe that what they say on their personal social media sites, away from the workplace, is off-limits to their employer, operate under a grand misconception. Like it or not, we live in a world where, thanks in large part to social media, the line between the personal sphere and the work sphere no long exists (or if it exists it’s really blurred). Employees that fail to recognize this fact take a huge risk.

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The Digital Override

The digital revolution has brought about dramatic changes at home and work. Today, we think nothing of creating videos to post on Vine and YouTube, writing our own news stories as “citizen journalists” on sites like Reddit or taking on the role of hotelier by renting out a spare bedroom for a night through sites like Airbnb.com. Consumers have taken control of the narrative and are exercising their power as never before.

Leading organizations also are fundamentally rethinking HR in light of an emerging class of social and market-based tools that will let employees manage almost every aspect of their professional lives digitally. The digital revolution is enabling companies to democratize talent management for the first time and allowing employees to participate in defining their own talent management practices, thereby making it part of everyone’s job description.

With new digital technologies such as social, mobile, gaming, the cloud and analytics, organizations can shift the focus of information and decision-making away from a central HR group and toward employees and managers. In the past few years, these technologies have enabled employees to define people practices organically, making them more accurate, relevant, customized and ultimately more valuable. And they now enable talent management to be seamlessly interwoven with everyday work — where research has long shown the most significant performance improvements are to be had.

Take performance reviews. Companies including Facebook Inc. and Hewlett-Packard Co. are transforming their one-way review processes that are largely defined and controlled by HR by applying social technologies to turn them into dynamic, collaborative systems where collective feedback and recognition is continuously gathered from people across the company using crowdsourcing techniques. The result? Accurate, actionable, personalized results. A major advantage of many of these new tools is that they can be woven into everyday work.

Hilton Worldwide has taken democratized talent management to heart. The hotel chain is aiming for ubiquitous access to talent data and is working to place it directly in the hands of managers so they can weave it together with business data to drive strategic decisions about talent and higher levels of performance. According to Matt Schuyler, the company’s executive vice president and chief human resources officer, critical talent processes like workforce planning are more likely to be performed by managers themselves in the near future — using data to determine gaps between workforce projections and available supply of staff or forecasted attrition, for example, and modeling different scenarios that could be used to close any gaps.

“We’re seeing a big shift right now for HR,”  Schuyler said. “By giving the business easily digestible data that is at their disposal when and where they need it, and by implementing new cloud-based and mobile applications with more intuitive, consumerlike user interfaces across all talent management practices, we’re looking at a future where employees will do more and more themselves at the point of need. This will be a fundamental transformation for the HR function; we imagine HR will become much more focused on enabling analytics and become much more of a coach, counselor and strategic adviser to the business than ever before.”

Hilton Worldwide is already starting to plan for a large-scale swap-out of HR resources, which will ultimately redefine the function. For every dollar saved by better automating HR activities or placing them more in the hands of employees, the company plans to spend that dollar on HR professionals who can lend strategic advice and counsel.

The Digital Technologies Driving Democratization

What are the advances in digital technology that are transforming human resources and enabling talent management to become more embedded in the fabric of everyday work? Here are some new digital advances and how they are fundamentally changing the nature of the game:

• Social: Social media extends the Internet concept of removing intermediaries to the masses, enabling unlimited, easy reach to large numbers of people. Its significant reach enables people to connect to create a unified, powerful voice. And it enables people to actively “co-create” practices, processes or content so they are ever-evolving and timely rather than fixed and static.

• Mobile: As mobility applications designed for tablets and smartphones become more available, digital talent processesare becoming easier to perform anywhere, anytime and on any device, making them more easily woven into the fabric of everyday work where and when it occurs. Consider TouchBase from Ultimate Software Group Inc., for example, a wall-dockable tablet that takes a digital photo of each worker to verify the worker’s identity instead of requiring workers to punch in.

• Gaming: The infusion of principles derived from gaming make performing talent management practices far more fun and easier to do — thereby motivating employees to take on more talent management activities. Sites like Gild, Knack.it, Mixtent and True Office help companies transform everything from recruiting to performance appraisals to learning into a game.

• The cloud and more intuitive user interfaces: The latest generation of cloud applications puts individuals in charge of their own destiny more than ever before, providing tools, for example, for goal alignment, frequent feedback, teamwork and collaboration, and career self-management (with or without the involvement of an employer). Cloud applications also have improved, more intuitive user interfaces that make them easier to use by all, whether the user is an HR professional or not.

• Analytics/big data: Companies that integrate traditional business and talent data with big data obtained from social and local data sources — tweets, blog posts, RSS feeds, customer service feedback, GPS coordinates and more — can get a far more complete picture of their workforce’s abilities, wants and needs. The emergence of analytics and more sophisticated modeling and decision support tools also means that decision-making can be more easily performed on the front lines by employees themselves with digital assistance.

—Anthony Abbatiello

This isn’t just about the traditional notion of self-service, or the ability for employees to perform mundane administrative HR activities themselves online, like updating their address or viewing a paycheck without HR’s intervention. Rather, it means involving employees and managers in high-impact talent processes including recruiting, succession planning, learning and shaping career paths.

Long the domain of recruiting experts in HR, new digital platforms now enable hiring managers to find potential employees directly, potentially eliminating much of the role of traditional marketing and candidate sourcing. Digital talent markets and social networks now enable the power of all employees — and their respective networks of friends and colleagues — to find and attract the best job candidates. Instead of placing one-way, impersonal ads oriented toward the masses, current or potential employees are now helping to define the recruiting experience — and making it an information-rich, two-way, highly collaborative and personal process. Our research at Accenture estimates in the near future that social media connections with employees could yield up to 80 percent of new recruits. We also have implemented new digital recruiting channels for employee referrals and a new candidate interview app. Both put the recruiting experience in the palm of the candidate’s hand.

Another new trend in recruiting may place more power in the hands of the individual, with employers competing for talent in auction-type formats. Hired.com, formerly DeveloperAuction, has emerged to help top coders see what they’re worth by broadcasting their résumés to hundreds of tech companies registered with the site in competitive, 14-day cycles. After companies make their offers, candidates can accept interviews or pass.

But recruiting isn’t the only talent management practice where employees take on a much more powerful, participatory role. Perhaps nowhere has this notion taken hold so strongly to date as in learning, where peer-to-peer learning through social media platforms has been embraced by corporate learning leaders.

In benefits, choices can be determined by consensus through corporate social media sites revealing which benefits are important to which employee populations. And in career development, new software as a service applications offered by leading vendors now enable companies to analyze employee transfer and promotion histories captured in the system to determine common (or uncommon) career paths taken. Other employees can then view the career paths taken by others who have similar skills, preferences and roles, and then network with these people to learn more through social networking technologies.

Digital technologies also enable other, less obvious talent management practices to become much more democratic. Employees can now use social media — like posting videos explaining their jobs and the company culture to others — to onboard new colleagues. And employees can use social media to advise career counselors how best to counsel them instead of having HR provide this advice.

But this fundamental shift won’t be easy. One HR executive at a global pharmaceutical company explained that HR is challenged by integrating talent management decisions into the business. It is a fundamental mindset change. HR has to evolve, and its role is to be an enabler and enhancer for decisions to be made in the business by employees themselves.

A world of more democratized talent management leads many to question whether HR is needed at all. Our two-year research program into the future of HR suggests, however, that HR will never likely be abolished, or even significantly diminished, in a world where employees participate in talent management more than ever before.

Still, HR will need to radically redefine itself or risk obsolescence altogether. Certainly the administrative burden that HR departments have carried for so long will lighten up considerably, shrinking the portion of HR focused on administration to a small fraction of what it is today.

Instead of centrally defining, controlling and administering talent management practices, HR will have to redefine its mission and mandate to concentrate on building a culture where people can use talent management tools to enhance their own job performance. The time has come for HR to start taking its own medicine and investing in talent development for HR to become the talent architects of the future.

In this new role, HR will provide the coaching, tools and strategy for the business to make talent management truly a responsibility of all.

Anthony Abbatiello is a managing director and the global HR consulting lead within Accenture’s Strategy practice, based out of the New York office. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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6th Circuit Recognizes Telecommuting as an ADA Reasonable Accommodation

In Core v. Champaign County Board of County Commissioners, the U.S. District Court for the Southern District of Ohio opined that telecommuting (i.e., work-from-home) might be an Americans with Disabilities Act reasonable accommodation under the right circumstances, but that case did not present those circumstances. The Core court specifically noted that the 6th Circuit does not “allow disabled workers to work at home, where their productivity inevitably would be greatly reduced,” except “in the unusual case where an employee can effectively perform all work-related duties at home.”

Yesterday, in Equal Employment Opportunity Commission v. Ford Motor Co., the 6th Circuit, for the first time, recognized that modern technology is making telecommuting a realistic reasonable accommodation option. The case involved an employee with Irritable Bowel Syndrome who could not drive to work or leave her desk without soiling herself. Ford declined her telecommuting request because it believed in its business judgment that her position — a buyer who acted as the intermediary between steel suppliers and stamping plants — required face-to-face interaction.

The 6th Circuit disagreed, in large part because Ford could not show that physical attendance at the place of employment was an essential function of her job.

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.…

[W]e are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.… We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” … [C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Like it or not, technology is changing our workplace by helping to evaporate walls. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes work-at-home arrangements more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider the following three-steps:

  • Prepare job descriptions that detail the need for time spent in the office. Distinguish one’s physical presence in the office against one’s working hours.
  • Document the cost of establishing and monitoring an effective telecommuting program.
  • If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).
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MOOCs: the Next Evolution in E-Learning?

tuition reimbursement

Robert Hall doesn’t consider himself an expert on massive open online courses, otherwise known as MOOCs. But after creating learning content through MOOC vendor Udemy, Hall is the go-to guy at Marek Bros., a Houston-based construction company.

Hall, a project manager by trade, used Udemy’s open-source software to develop instructional videos about new processes for managing construction-related bidding data. Frustrated by the inefficient way data were managed, Hall took it upon himself to find a better way. He created 15 videos, each between two and four minutes in duration, that show which formulas and protocols to follow when employees record various information on spreadsheets.

Hall’s co-workers frequently call on him to explain the various new rules. Rather than address each individual inquiry, Hall refers them to the corresponding training content. “If they have a question about a certain process, I’ll advise them to watch my five-minute lecture on that topic. It gives them a good refresher and they can see it as often as they want at their convenience.”

Marek Bros., a company with 2,000 employees and offices in Georgia, Oklahoma and Texas, is emblematic of the small steps companies are taking with MOOCs, a technology that enables anyone with a computer and Internet access to create and consume learning content.

Industry observers believe MOOCs will follow an adoption path similar to that of e-learning, which likewise germinated within universities before being embraced by corporations.

 

Use of MOOCs has been confined mostly to academia, although momentum is slowly building among corporations. In January, Seattle-based Intrepid Learning Solutions launched its branded Agile Corporate MOOC, becoming the first vendor to squarely target the corporate market.

Udemy’s platform provides access to several hundred pre-designed modules, ranging from courses in Microsoft Corp.’s productivity software to management courses from The Jack Welch Management Institute. Organizations can use Udemy’s platform to create customized courses for free, or pay a subscription fee that grants access to branded programs and expanded services.

“We’re a little bit different from academic MOOCs because of our emphasis on skills-based content,” said Dennis Yang, president and CEO of San Francisco-based Udemy.

Here’s how a MOOC typically works: Hundreds or even thousands of students enroll in self-paced digital courses of study, which typically include virtual “lectures,” completing online graded exercises and extensive participation in collaborative online forums.

Industry observers believe MOOCs will follow an adoption path similar to that of e-learning, which likewise germinated within universities before being embraced by corporations.

“There could be a huge demand for MOOCs as the corporate content market gets consolidated. If companies are able to get low-cost to free learning content through a MOOC, they’ll be interested,” said Josh Bersin, president of research firm Bersin by Deloitte.

Hall doesn’t speculate on when MOOCs might go mainstream. His focus is on the videos that should enable Marek Bros. to boost its bottom line. “It gives us a better idea of what our market share is and what it should be, which helps us change behavior to improve results,” Hall said.

Which is what learning is all about.

Garry Kranz is a Workforce contributing editor. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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When are Preliminary and Postliminary Compensable? Supremes to let us Know (Maybe).

Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

"Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act."

“What does this mean,” you ask? In Busk, the plaintiffs claimed their employer illegally failed to compensate them for the time they spent passing through a required security check at the end of each shift. According to the plaintiffs, employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. They claimed that the checks were “necessary to the employer’s task of minimizing ‘shrinkage’ or loss of product from warehouse theft.”

The FLSA, as amended by the Portal-to-Portal Act, generally, precludes compensation for activities that are preliminary or postliminary to the employees’ principal activities. Preliminary and postliminary activities—those that are “integral and indispensable” to an employee’s principal activities—are compensable. To be “integral and indispensable,” an activity both must be (1) necessary to the principal work performed and (2) done for the benefit of the employer.

In Busk, the court concluded that the plaintiffs had sufficiently alleged that the security clearances were necessary to their primary work as warehouse employees and done for their employer’s benefit. Therefore, the district court erred in dismissing the wage-and-hour claim.

This case is the second in as many years that the Supreme Court will hear on this issue. Earlier this year, in Sandifer v. U.S. Steel, the Court concluded that the time employees spent donning (putting on) and doffing (taking off) their protective gear was not compensable under their collective bargaining agreement.

There are lots of other examples of preliminary of postliminary activities that could be occurring in your workplaces besides putting on and taking off protective gear, or security screenings. For example, your employees might spend time logging on to their computers before their work days officially begin. Or they might spend time at the end of their shifts transitioning to the next shift. I am hopeful that Busk will provide employers needed guidance on the compensability of these activities.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

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Mind Your Internal Emails to Avoid Discrimination Issues

Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a “sex-plus” theory of discrimination to save a plaintiff’s race discrimination and sex discrimination claims from the summary-judgment scrap heap. “Sex-plus” recognizes that race and sex are not mutually exclusive, and protects African-American woman as a class of their own. I recommend Shazor to your reading list for its interesting narrative on this issue.

I want to discuss, however, the other interesting aspect of Shazor — the evidence the plaintiff used to avoid summary judgment. She submitted various emails between two corporate executives, in which they unflatteringly referred to her as a “prima donna,” “disloyal, disrespectful,” and a “hellava bitch.” Shazor successfully argued that these emails were code for “angry black woman” or “uppity black woman.” The court used these emails as prima-facie evidence of discrimination in support of her “sex-plus” claim.

Email is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

“I have a solution,” you say. “What about apps like Confide, which erases a text message as soon as the recipient reads it.”

While these apps seem like a perfect way to communicate under the radar, their use for business purposes gives me great pause. The intent of this class of apps is to delete communications. I could very easily see a court, confronted with evidence that people have this app on their iPhones and use it for business communications have willfully destroyed evidence. Spoliation and evidence destruction discovery sanctions would result. For this reason, I believe that company mobile-device policies should police the use of apps like Confide, Snapchat, and their message erasing ilk. And, while your reviewing your policies, mix in some training for your employees about the responsible use of electronic communications.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

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NLRB: No Such Thing as an Online Picket Line

When is a picket line not a picket line? Apparently when the protests take place online, at least according to the National Labor Relations Board’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14) [pdf].

In the case, certain employees took to their union’s Facebook page to post threatening comments to co-workers who refused to participate in the union’s strike against their employer.

  • Prior to the strike starting, one of the posts threatened, “THINKING of crossing the line. THINK AGAIN!” Sixteen people commented on that post, included one that wrote, “If u cross … you will lose your eyesight … from the 2 black eyes.”
  • On the second day of the strike, another employee posted on the union’s Facebook page: “We found them!! We found out where they are housing the scabs.  We will be setting up lines at the hotel tomorrow.” Thirteen people comments on that post, including one that asked, “Can we bring the Molotov Cocktails this time?”

The employees argued that the union violated the National Labor Relations Act by not deleting or otherwise disavowing the statements posted on its Facebook page. The NLRB, however, disagreed:

Respondent’s Facebook page is in no way “an electronic extension” of its picket line…. A picket line serves a purpose quite distinct from that of the Facebook page. A picket line proclaims to the public, in a highly visible way, that the striking union has a dispute with the employer, and thus seeks to enlist the public in its effort to place economic pressure on the employer….

In contrast, Respondent’s Facebook page does not serve to communicate a message to the public. To the contrary, it is private….

Unlike a website in cyberspace, an actual picket line confronts employees reporting for work with a stark and unavoidable choice: To cross or not to cross. Should someone acting as a union’s agent make a threat while on the picket line, the coercive effect is immediate and unattenuated because it falls on the ears of an employee who, at that very moment, must make a decision concerning the exercise of his Section 7 rights…. 

This decision displays a fundamental misunderstanding about social media. Nothing about social media is private. It is public, interactive, and immediate. Even if the page on which the employees were posting was a “private” page or group, nothing stops employees from sharing the content via prints or screen caps. I am concerned that the agency that has taken such an active public stance regulating social media in the workplace appears to have such a fundamental misunderstanding about how this media operates.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.