Seminar Next Week: Social Media in the Workplace
On Wednesday, May 1, I will be in Aurora giving a talk on how to navigate employee social media use at work. It’s a free seminar put on by Aurora University’s Human Resources Institute. If you are in Aurora-land next week (Sugar Grove! Sandwich! Geneva! I’m looking at you!), come have breakfast and find out whether you can fire your employee for whining about you on facebook.
Here’s the details from the HRI folks:
Social media sites such as Facebook and Twitter have become an integral part of our lives and workplaces – we can now meet, talk, market and hire without ever leaving our desks. But with employee’s 24/7 access to the social web, and government agencies weighing in on employer limitations of workplace social media use, the ground is shifting constantly.
This talk will explain current regulations and best practices for HR professionals and business owners, as well as give them a road-map for what’s coming soon.
As I said, this is a free presentation. For more information or to register, contact Shawn Green at 630-844-5527 / sgreen@aurora.edu.
Hope to see you there!
Why Do We Work Hard?
Or, maybe more importantly, why don’t your employees? What motivates people to put their all into their jobs?
In this TedX talk, Dan Ariely has some pretty amazing answers. Take 20 minutes and change your perspective on how to get your employees to really kill it on the job.
Can We Be a Christian Company?
Every once in a while, someone randomly asks me a question that sends me down a rabbit hole of employment law that is nearly impossible to escape from. This happened recently, in a discussion of the corporate entities challenging Obamacare’s contraceptive requirements.
Skirting that political minefield completely, the question was this:
Is it ok for a private employer to call itself a “Christian Business”?
…or a Muslim, Jewish, Buddhist, Confucian, Pastafarian, or any other kind of faith-based business, for that matter?
We know it’s done – an Ichthus innocently dropped on the corner of a billboard is not too hard to find – but is it ok? In other words, by declaring your small business “Christian” are you just teeing up a religious discrimination claim? What if you go beyond just calling yourself a faith-based business? What if you actually use your company as a way of spreading the good news, whatever your version of that news happens to be?
Let’s take this one in two parts: (1) whether you can call yourself a Christian business, and (2) how you can act on that label.
Faith-Based Companies Are A-OK!
As should be clear from recent media dust-ups with Chick Fil-A and Hobby Lobby, there is nothing prohibiting you from publicly associating your company with a religion or other movement. Turns out, as the one that runs the business, your company is appropriately a reflection of you.
In fact, your ability as a business owner to associate your company with your religion isn’t just any old privilege, it’s your right under the First Amendment to the Constitution. That means you cannot be sued by an employee simply because you call your company a “[Insert Religion] Business” or slap a crescent moon or an icthus on your marketing materials.
What you can’t do, of course, is allow your religious affiliation to affect your employment decisions. So what does that mean, exactly?
Remember: Evangelize Out. Not In.
In the Bible, when Jesus is on his way back to heaven after the whole Easter morning situation, he tells the apostles that their job is to “[g]o into all the world and proclaim the gospel to the whole creation.”
It turns out that’s great advice for employers with an evangelical streak, too. Sending your religious message out into the world is your constitutional right. Spreading it internally to your employees is a minefield of discrimination-based terror.
That means that you can add religious paperwork, symbols, and messages to your advertising, shipments, public appearances, charitable contributions, etc. without creating a discriminatory environment for your employees, even if they’re packing those shipments, or writing that ad copy. Those things are going out to the world – to your customers, vendors, and to the public.
But when that message turns inward — when it finds its way into handbooks, applications & interviews, annual reviews, company get-togethers — that’s when you run the risk of turning your faith into discriminatory folly.
Now, granted, there are some appellate cases that say providing religious opportunities for employees, like on-site worship services or prayer groups, isn’t discriminatory if (1) they’re 100% voluntary, and (2) they don’t have any effect on hiring, promotion, pay or other employment decisions.
But let’s be real for a minute. Let’s say you follow all those rules to the best of your ability, but end up having to let go of one of the employees who hasn’t been voluntarily partaking in your religious opportunities. What do you think’s going to happen? That’s right, you’re going to get sued.
And now you have to prove to a judge — and then, if you’re really unlucky, a jury — none of whom were there when your employee was screwing up, that your decision didn’t have anything to do with the fact that he never showed up for worship. And up against the outward signs of religious affiliation, the normal HR paper trail just doesn’t carry as much weight.
The bottom line is this: as a private employer, you are legally obligated to ignore a person’s religious status when making employment decisions. That means, for nearly all of us, we will work in places with multiple denominations, creeds, beliefs and the lack thereof represented. But it doesn’t mean you have to leave your faith at the door as a business owner.
Make sense? Got questions? Feel free to comment below, or drop me an email.
“Last Chance” Agreements: A Good Tool Misused
Another day, another EEOC announcement to use as a cautionary tale…
If you’re an employer with a progressive discipline policy, you probably know what a “last chance” agreement is – even if you’ve never used or heard of the phrase itself.
True to its name, a Last Chance Agreement is a formal contract that is signed by the employee and a company representative, detailing specific issues that need to be remedied in specific ways, in order for the employee to keep his or her job. It is a PIP on steroids, presented to an employee as a take-it-or-leave-it opportunity: either sign this deal and get one more chance, or we’ll terminate you today. And, like its less-formal disciplinary sibling, a Last Chance Agreement can be a great way to separate a troubled-employee-with-potential from a total-lost-@#$@-cause. A properly-drafted Last Chance Agreement creates a roadmap for an employee eager to set his career back on track, and leaves little room for the f***up to come back later and say they didn’t understand what was required of them when they get fired.
The key phrase there, of course, is “properly-drafted”. Because — like all HR documents — it’s easy to get carried away when preparing an LCA, or worse: just plain sloppy. And — like anything with the word “Agreement” in the title — when that happens, the results can be catastrophic.
Case in point: Last year, the EEOC won a case against Cognis Corp. for improper use of an LCA without ever having to go to trial; the court granted the employee summary judgment, which is unheard of for a discrimination plaintiff. Last month, the agency announced that BASF (which recently bought Cognis) had agreed to pay $500,000 in damages to settle the case.
Why was Cognis’s use of its LCA so cut-and-dry actionable? Well, the way the company wrote it, by signing the agreement, the employees who were trying to save their jobs also agreed to waive any claim or charge of discrimination based on any adverse employment action that happened to them in the future.
You can’t do that.
Like it or not, every employee, even the one you hate, has the right to file a charge of discrimination against you. You can’t require them to waive that right as a condition of keeping their jobs. Let me say that again, but bigger.
You can’t require an employee to waive their right to accuse you of discrimination just to keep their job. Period.
And I’ll go one farther for you: Last Chance Agreements should not include any promises by the employee beyond their assurance that they will perform the tasks contained in the agreement to the satisfaction of management. Period. No promises about forgoing pay increases, waiving time off, losing weight, whatever. I don’t care. An LCA has one purpose, and that is to give a problem employee an understanding of their job, and an out, if they can step up to the plate. If you try to use it for more than that — punishment or catharsis or (God help you) as a way to push someone out the door — you’re asking for it.
Now, when most people read that bold precaution up there, they’re going to go: “Well, yeah, obviously. That makes total sense. This is just one company’s stupid mistake. No one in their right mind would…” and I’m going to stop you right there. Remember when I said that the worse evil was sloppiness? Right. So, the language Cognis used in its Last Chance Agreement is actually standard, boilerplate, important language for a severance agreement. You never want to pay severance without getting a waiver of claims in return. Standard. Boilerplate. Important. Just the kind of thing that, were I an over-burdened HR generalist needing to get this done, I would probably leave in without even thinking, when I tweaked the severance agreement and used it as my LCA.
I’m not saying this is what Cognis did — I have no way of knowing that — but it happens all. the. time. And the smaller the company, the more likely I am to find Franken-contracts riddled with minefields like this one in random personnel files, or even handed out to every employee that gets hired. So what I am saying is that, if you’re going to have your employee sign something that you’ve put together, even if it’s just cut-and-pasted from other agreements — no, especially if it’s just cut-and-pasted from other agreements — you have to have an experienced employment attorney look it over. Not an HR consultant. Not your boss. An employment attorney. If you need to get it done today, email them with that little exclamation point box checked, call them immediately and tell them so. IT HAS TO BE REVIEWED. Whatever time you spend will be less than years in court. Whatever money will be exponentially less than a $500,000 settlement and defense/negotiation fees.
So, if you like Last Chance Agreements, by all means use them. But use them right. And for the love of God let a L&E lawyer look at them first.
The $100k Problem with “It’ll Never Happen to Us”
See this picture? This is the South Loop Club, a dive bar about a mile from where my wife and I lived when we were hip and urban. The place has been around for a million years, acting as the cornerstone tenant for a defunct tenement hotel. It’s a hole in the wall, is what I’m saying, with 60 different types of beer and a full menu ’til last call.
It’s not a gastropub. It’s not a famous chef’s side project. It’s not a fast-food franchise or a breastaurant. It isn’t reinventing comfort food– hell, it isn’t reinventing anything. It has bartenders, cooks, servers with aprons. It has sports on TVs. The windows and walls are covered in the free cardboard cutouts of curvy women in ill-fitting referee uniforms that places like this get from beer distributors.
In other words, there is nothing special about the South Loop Club. There are thousands of bars just like it in every city, town and rural route in every state in the country.
And that’s the point.
Because you know who did think the South Loop Club was special? The EEOC. To the tune of a cool $100,000:
The EEOC had alleged that South Loop Club fostered a culture where sexual harassment and retaliation against female employees went unchecked. South Loop Club opted to settle the case shortly after it was filed and before answering the complaint.
That’s from the EEOC’s press release about the settlement. Yeah, they love sending out press releases about companies. But here’s the line that should really get your attention:
“This case is a reminder that federal law protects women working in bars from sexual harassment as much as women working in high-end business environments,” said John Rowe, the EEOC district director in Chicago. “It doesn’t matter whether your collar is blue, pink or white — sexual harassment is illegal, and the EEOC will combat it.”
Mr. Rowe’s statement here is not just about bars. What he’s really saying is that the EEOC doesn’t care if you’re Wal-Mart or Wally’s Stop-and-Shop. There is no such thing as “it’ll never happen to us.” Whether you’re a national chain or a dive bar, all it takes is one employee with a complaint and a free afternoon to tip off the EEOC. The rest is just rolling the dice.
I’m sure the SLC never thought the full force of the Federal Government would be trying to nail them for workplace harassment and retaliation. Kind of like how you’re pretty confident you’re too small to be on their radar, too, right? Might want to start socking that settlement money away.
Or better yet, just call a labor & employment attorney. See, the real kicker in the South Loop Club settlement is the list of non-monetary things the company has to do to comply. Things like:
- Adopting and Distributing an Anti-Harassment Policy
- Providing Training on Workplace Discrimination Protection
- Establishing Record-Keeping Procedures for Employee Complaints & Investigations
Guess what? This is what I do! If the poor SLC had just called me or one of my kind, we’d have told them to do exactly what they are now paying the EEOC for the privilege of doing. And now they have to do it all at once, right away, and report their progress to Judge Korcoras at the Northern District of Illinois. Oh, excuse me, I mean they have to pay their attorney to report it. Which I’m sure they’re thrilled about.
And, if they had talked to an employment lawyer, I guarantee putting all this policy compliance stuff together wouldn’t have cost $100,000 on top of their attorney’s fees. But they didn’t.
Hey, weren’t we just talking about how you were kind of like the SLC? So… I’ll just leave the phone on. Call any time.
The Death of FLSA Class Actions Has Been Greatly Exaggerated
I got this tweet this morning, from my old law school compatriot and plaintiff’s employment attorney, Walker Lawrence:
Is this the death of collective and class action wage cases in the 7th Circuit? 1.usa.gov/11PWF4F
— Walker Lawrence (@FLSALawyer) February 5, 2013
After some technical issues, I got to the case in question – Espenscheid v. DirectSat USA, LLC. And, needless to say, it’s not good for the plaintiffs. The 7th Circuit affirmed de-certification (i.e. broke up the class action) because damages couldn’t be calculated for all of them as a whole. But FLSA group action death knell? Meh.
In Espenscheid, three employees sued the company collectively – an FLSA version of a class action – on behalf of themselves and 2,341 of their colleagues. They claimed that DirectSat had failed to pay them appropriately for overtime and had forced them to work through lunch and other breaks. The problem was, the employees weren’t paid hourly. They were paid per job. This isn’t a problem in and of itself – you can still file a wage-and-hour case if you weren’t paid by the hour. But you have to show that what you were paid, when divided by the hours you worked, falls below minimum wage, or that it doesn’t include all the overtime you’re due, or whatever.
And here’s where things fell apart for the plaintiffs. They claimed DirectSat tried to obscure the amount they worked by telling them not to report their time (though some did), among other things. Because of the pay structure, there were no records of how long any of the employees worked on any of the jobs for which they were paid.
So how do you figure out what 2,341 people are owed, when you don’t know how long any of them worked? And how do you divvy up the recovery?
The plaintiffs wanted to present a representative sample of 42 employees as a statistical rubric. Based on these 42 employees, the Plaintiffs wanted the court to extrapolate an amount for the whole group of 2,341 employees. You know, statiscital-like. Funny thing about representative samples, though – they have to actually be representative of the whole. Which, per Judge Posner, these were not:
There is no suggestion that sampling methods used in statistical analysis were employed to create a random sample of class members to be the witnesses, or more precisely random samples, each one composed of victims of a particular type of alleged violation.
Stupid science!
The real reason I think this case was so badly destroyed was not because damages are hard to prove; it’s because – in Posner’s view, anyway – the attorney’s didn’t do their job dealing with those difficulties. Right before the quote above, Posner said this:
The plaintiffs proposed to get around the problem of variance by presenting testimony at trial from 42 “representative” members of the class. Class counsel has not explained in his briefs, and was unable to explain to us at the oral argument though pressed repeatedly, how these “representatives” were chosen–whether for example they were volunteers, or perhaps selected by class counsel after extensive interviews and hand picked to magnify the damages sought by the class…
So… that’s not exactly a gold star.
No, this case is not an evisceration of wage and hour class actions. I wish. What it is is a cautionary tale to the attorneys who bring those cases: Make sure you are buttoned the hell up. How will you determine actual damages? How will you differentiate between variations in what members of the class are owed? You have to know these answers before you file that complaint. Because I will definitely be demanding those answers when I respond to your claims.
In this case, the plaintiff’s attorney should’ve looked at the way in which these folks got paid and realized the damages issue was going to be a huge hurdle to jump. Not impossible – as Posner noted – but really, really tough. To show up with 42 people and no explanation for how you found them is not going to cut it.
One last note: Posner does mention that, under these facts, there is no good way to divvy up the recovery fairly. In other words – two guys could have the same jobs for the week, but they could take one guy 20 hours, and the other guy 60 hours. That second guy – the slow one – he’d be entitled to overtime, which means he should get more out of the recovery. But the “representative sample” wouldn’t make those distinctions at all. That’s true, and I’m sure scary for Plaintiff’s attorneys, because it basically craps all over the idea of any statistics ever being sufficient in these types of cases.
But that’s the point – it’s these types of cases. Maybe if every employee had such a different experience, it’s not a great candidate for class action litigation in the first place. There are plenty of workplaces where employees punch time cards, or have policies in place that create uniformity. That just wasn’t the case here.
Well, that’s my two cents. Hopefully I can get a response from Walker. And also you people. Comments are right down there.
MLK on Labor & Employment
“I look forward confidently to the day when all who work for a living will be one with no thought to their separateness as Negroes, Jews, Italians or any other distinctions.
This will be the day when we bring into full realization the American dream—a dream yet unfulfilled. A dream of equality of opportunity, of privilege and property widely distributed; a dream of a land where men will not take necessities from the many to give luxuries to the few; a dream of a land where men will not argue that the color of a man’s skin determines the content of his character; a dream of a nation where all our gifts and resources are held not for ourselves alone, but as instruments of service for the rest of humanity; the dream of a country where every man will respect the dignity and worth of the human personality. That is the dream…”
December, 1961
“We are neither technologically advanced nor socially enlightened if we witness this disaster for tens of thousands [losing jobs to automation] without finding a solution. And by a solution, I mean a real and genuine alternative, providing the same living standards which were swept away by a force called progress, but which for some is destruction. The society that performs miracles with machinery has the capacity to make some miracles for men—if it values men as highly as it values machines.”
April, 1961
“The limited reforms we have won have been at bargain rates for the power structure. There are no expenses involved, no taxes are required, for Negroes to share lunch counters, libraries, parks, hotels and other facilities. Even the more substantial reforms such as voting rights require neither monetary or psychological sacrifice. The real cost lies ahead. To enable the Negro to catch up, to repair the damage of centuries of denial and oppression means appropriations to create jobs and job training; it means the outlay of billions for decent housing and equal education.”
May, 1967
“When there is massive unemployment in the black community, it is called a social problem. But when there is massive unemployment in the white community, it is called a Depression.
We look around every day and we see thousands and millions of people making inadequate wages. Not only do they work in our hospitals, they work in our hotels, they work in our laundries, they work in domestic service, they find themselves underemployed. You see, no labor is really menial unless you’re not getting adequate wages. People are always talking about menial labor. But if you’re getting a good (wage) … that isn’t menial labor.
What makes it menial is the income, the wages.”
March, 1968
Happy Martin Luther King Day.
- TRE
[Originally Posted Jan. 19, 2009.]
2013 New Years’ Resolutions for Employers
Hey! It’s 2013! Congratulations for making it another year everybody.
In case you’re looking for a few more things to change about your life at the start of the “year of the lucky number” as we call it in the Eavenson household, here are a few employment law-related action items for your Resolution lists. I’ll be posting on each of these issues in more detail throughout January, so stay tuned.
Update Your HR Policies
This should be a no-brainer. With the new year traditionally comes a list of legal changes that require you to re-examine those HR policies to make sure you’re still in compliance.
In Illinois, the big one is the new “Facebook privacy” law, that makes it unlawful for employers to ask applicants or employees for their online passwords. As I’ve said before, even without the law there are a million reasons why demanding facebook passwords is a patently bad idea, but now the $200-plus fine should drive the point home pretty well.
A note: you can still legally request usernames in order to see what is publicly displayed by your applicants and employees, you just can’t get access to the stuff they’re keeping private. Sort-of makes sense, right?
Aside from that, I’ve been harping on you guys to review your policies all year, given the NLRB’s continued focus on the legality of standard HR policies. If you’ve been putting it off, now’s the time – for real.
Hire Smarter
Looks like the economy’s getting better and better - hallelujah. Let’s hope it keeps going throughout 2013. But if you’re hiring for the first time, or the first time in a few years, you had better make sure you’re doing it right. Laws like the aforementioned social media privacy bill, as well as shifts in focus by the EEOC and the fact that so many applicants have been out of work for longer than you probably expect may require you to tweak your normal line of questioning.
Take a Hard Look at Your Managers & Supervisors
Management training is one of those things that sounds so great, but gets pushed to the back burner so much it ends up getting stuck behind the stove. Don’t let it happen in 2013. Seriously, go back and look through the posts on this blog, or click any link on the blogroll down there and do the same. 90% of the cases that we talk about on these sites could’ve been avoided by hiring and training and monitoring managers. And with the Supreme Court possibly loosening the rules on what a “manager” is, training and clarity in job descriptions are going to be all the more important in 2013 and beyond.
…And one for the Growing and Big Companies (100+ Employees):
Take A Look At Your Legal Provider Options
Is this one a little self-serving bit of propaganda? You bet. But I mean it. I’m going to devote a post to this soon, so here’s all I’ll say right now: At the moment, I am a solo. And there are certain situations – like bet-the-farm class actions, for example – where I’m going to be the first to tell my smaller clients that they need to go bigger than me. But the opposite is just as true. There is no logic behind paying a first year associate at a international mega-firm to rep you in a pro-se discrimination claim that you know isn’t going anywhere when you can call me, get more experience, and save some coin.
That’s all I got for now. I’m going to go formulate my plan for making 2013 my @#+$%. Did I miss anything? Let me know.
What Exactly is a Right-To-Work Law?
Yesterday the Governor of Michigan signed legislation officially making the state a “right-to-work” jurisdiction.
That makes Michigan the 24th Right-to-Work state in the nation — but only the third in the union-fortified Midwest, and the second in over a decade. A super-quick poll of people I know indicated that most people know the following about “right to work” laws: (1) unions hate them; and (2) the name is somehow misleading. Both of those things are true, obv. But they are the tip of the iceberg when it comes to what Right-to-Work is, and why it’s soooooo controversial.
What is “Right-to-Work”?
Ahhh, Scabbie. (Via Terry Hall)
When the National Labor Relations Act was passed in the 1930’s, the law allowed unions and employers to enter into “closed shop” agreements, which made union membership a term and condition of employment. That meant that, if you didn’t pay your dues or somehow violated union rules and got kicked out, you could also get fired, even if you didn’t violate any of your employer’s policies.
When congress passed the Taft-Hartley labor reforms in the 1940’s, they outlawed closed shops, creating the scenario in which employees could choose to be a part of the union or not, and (if not) pay a maintenance fee to the union for the benefits they received from the collective bargaining process. They also gave states the ability to go even farther if they wanted to, by passing laws that outlawed those obligatory maintenance payments, as well.
And that’s Right-to-Work. It’s a law that says that, even if your workforce is unionized, you are not required to join the union, or to pay them any money at all. But you are still, in theory, covered by the benefits of the collective bargaining agreement.
What’s the Big Deal?
It should be pretty obvious what the controversy here is. Proponents of RTW legislation say that it encourages businesses to move (or stay) in a state, and creates more jobs. Opponents say that it drives down wages. So who’s right? Everyone, actually. Businesses do gravitate toward right-to-work states (just ask the foreign car companies that set up plants in Mississippi and Georgia), and federal labor statistics show that RTW states have more jobs overall than non-RTW counterparts. But their median income is lower – across the board. So if you work in a RTW state, your income is statistically lower even if you’re not in a union-covered job.
Opponents also argue that Right to Work laws create a “freeloader problem”, where the union is working on behalf of employees who do not contribute anything back into the organization. They supposedly reap the benefits of representation on the backs of the dues-paying members. And here is the only place in this post where I’ll get a little opinion-y:
While I don’t like the way many on the Right go about fighting for these laws, I can’t agree with this “freeloader” analysis, either. People who don’t like the idea of organized workplaces don’t see themselves as receiving a “benefit” from the union – they think they could get more on their own. Moreover, these aren’t small collections of altruistic workers we’re talking about here; claiming that the AFL-CIO needs each individual employee to pitch in in order to stay afloat is not being honest about the bureaucracy of organized labor.
The Bottom Line
Most of us probably thought that Michigan would be the last place on the planet to pass Right-to-Work legislation. The state that built the automobile also built its unions, and the thought that something like this could happen in the home of the UAW, especially after their failed attempt at passing a pro-union referendum in November, has to be jarring.
The other odd part of this was just how fast it all went down. When Indiana passed its right-to-work law, it took months, and the state Democrats hid in Illinois for a stretch to keep the thing from coming to a vote. I’m sure the Michigan GOP was paying attention. They hardly gave organized labor a chance to, well, organize before this thing was sitting on Governor Snyder’s desk.
I have always been sort-of fatalistic when it comes to labor legislation; there are successful businesses in pro-labor states and plenty of failing companies in longstanding Right-to-Work states, too. We work with what we get. If Michigan teaches us anything, it’s to be prepared. It seems that political winds can change a lot faster than any of us thought possible.
Friday Diversion: The Art of Work
Been a while since I posted a Friday Diversion, but I tripped over this on Vimeo the other day, and it had to be shared. I love celebrations of good, hard work, and this video by the Athens art collective Deep Green Sea is one of the best I’ve seen. (It looks like it’s part of a series they’re working on. Click here for one on making a flamenco guitar. Seriously.)
We need more celebrations of our craftsmen, artisans and other forgotten experts. We need more of them, and we need to do a better job of showing them how in awe we are. These folks that straddle the fence between workman and artist show everything that the human race has the capacity to be and become. This is everything that is amazing about work.
Oh, and it may be worth it making this thing full-screen. My little embed down here really doesn’t do it justice, imho.
The Art of Making, The Carpenter from Deep Green Sea on Vimeo.
