The return of the quarterback evangelist

April 21, 2015 - by: Andy Tanick 4 COMMENTS
Andy Tanick

With the NBA and the NHL heading into the playoffs and Major League Baseball’s 2015 season underway, one might think that the NFL would have a hard time breaking onto page 1 of the sports section these days. (For younger readers, that was a reference to something we used to call a “newspaper.”) Not so! Football fans in Philadelphia and the rest of the country were either thrilled or chagrined – because with this guy, there is no middle ground – to hear the news this week that the Eagles had signed quarterback Tim Tebow to a one-year contract. iStock_000004238126_Large

Tebow became a national hero in 2007 as the first college sophomore to win the Heisman Trophy, and he followed that feat by leading his Florida Gators to the BCS National Championship in 2008. His college success briefly translated to a modicum of NFL success with the Denver Broncos, but his style of play (and some would say, lack of skill) soon proved incompatible with the pros and he was released by the New England Patriots in 2013.

While Tebow became famous for his football exploits, he also received considerable media attention for his public displays of his Christian faith, both on the field and off. While still in college, his penchant for inscribing Bible verses in his “eye black” prompted the NCAA to enact the “Tebow Rule” prohibiting such displays. In the NFL, he popularized the act of “Tebowing” – kneeling on one knee in prayer, head bowed and arm resting on the other knee, which he often did on the football field. His public displays of religion made him very popular among fans and others who appreciated his willingness to use his public platform to “spread the word,” but led many others to criticize him for what they viewed as his over-the-top and self-aggrandizing mix of football with religion.

The fact that Tebow’s overt religious displays rankled some of his teammates and many football fans put his teams and the NFL in a position that many lower-profile employers often find themselves in: where to draw the line with employees who create disruption by bringing their religious beliefs and practices to the workplace. While the Hobby Lobby Supreme Court case and new state laws in Indiana and Arkansas have brought considerable recent attention to the issue of an employer’s right to bring “its” religion to the workplace, most employers are far more likely to deal with the issue of employees who, like Tim Tebow, want to bring their religion into the workplace.

Employers have a duty under Title VII and many state laws to provide reasonable accommodations to their employees’ religious beliefs, just as they must reasonably accommodate employees’ disabilities, as long as doing so does not create an undue hardship. Courts addressing the issue have held that irritating and inconveniencing co-workers does not make an accommodation unreasonable or create an undue hardship, but that at some point, the disruption to co-workers can become insurmountable and the employer is relieved of its obligation to accommodate.

In one well-known case, an office employee felt that her religious beliefs required her to wear a button at all times that depicted a graphic image of a fetus along with an anti-abortion message. The button was so distracting to the employee’s co-workers that it caused a 40% drop in productivity, led workers to threaten to walk off the job, and even resulted in two co-workers filing grievances with their union, claiming a hostile work environment. The employer attempted to accommodate the employee, while still respecting her co-workers’ concerns, by offering her several options, including wearing the button only in her own cubicle, covering the button while at work, or wearing a button with a similar message but no graphic picture. The employee refused, stating that these options would violate her promise to be a “living witness,” and eventually, she was discharged. In her ensuing lawsuit alleging religious discrimination, the court ruled in favor of the employer, holding that because of the employee’s unwillingness to compromise, accommodating her beliefs would have created an undue hardship for the company. As the court noted, “Title VII does not require an employer to allow an employee to impose his religious views on others.”

In a similar case, an employee felt that her religion required her to write critical letters to her co-workers for engaging in conduct she found immoral, such as swearing or committing adultery. The employer terminated her employment because of the negativity and disruption the letters caused in the workplace. When the employee sued for religious discrimination, the court ruled against her, holding that her conduct was not the type that an employer could reasonably accommodate because, among other things, allowing it to continue could expose the employer to legal claims by the other employees.

Of course, these two cases represent somewhat extreme examples of employees disrupting the workplace with their religion-based conduct. As noted above, in many cases, an employee’s workplace religious practices merely cause inconvenience to co-workers (e.g., having to cover for an employee during his prayer time) or create relatively minor morale issues (e.g., making exceptions to the dress code). In these less egregious and more common cases, the courts have generally ruled that the necessary accommodations are reasonable and do not create an undue hardship on the employer.

So what should you do, as an employer, when one of your employees begins to etch Bible verses in her mascara or kneel in prayer at the water cooler, like the newest member of the Philadelphia Eagles? Like most employment issues, the answer depends on the specific facts of your situation, and reasonableness and accommodation are the key words. Religion and work can and usually do co-exist, and a skilled employer can usually quarterback her team to success on this issue, which some would note is more than we can say of Tim Tebow in his NFL career thus far.

Live long and diversify your workforce

March 02, 2015 - by: Andy Tanick 1 COMMENTS
Andy Tanick

The death of Leonard Nimoy this week brought back many memories of the actor’s classic portrayal of Mr. Spock in the original “Star Trek” television series and subsequent movies, as well as his talents as a photographer, writer, and lecturer.Man giving Vulcan salute

Spock, as personified by Nimoy, embodied many qualities that employers value in their workforce, such as intelligence, logic, and loyalty. But as I was lying awake at night desperately trying to think of some justification for paying tribute to Nimoy–who was, by all accounts, truly a kind, thoughtful, and intellectual man–in a blog about employment law, something else struck me: how “Star Trek” depicted the ultimate diverse workplace, decades before anyone was even talking about such things.

Other television shows in the 1960s were beginning to introduce racial diversity into their fictional workplaces, such as Linc Hayes in “Mod Squad” and Peggy Fair in “Mannix,” but Star Trek took the concept to a whole new level. The U.S.S. Enterprise’s crew included not only an African-American communications officer, an Asian helmsman, a Scottish chief engineer, and a Russian ensign, but also a first officer, Spock, who was not just from another nation, but from a different planet and indeed a different species altogether (well, half of him anyway). With apologies to those who believe men are from Mars and women are from Venus, this was the first truly interplanetary workforce.

While the other diverse members of the Enterprise crew did not (as far as I can recall) really act any differently from their American, Caucasian counterparts such as Captain Kirk and Dr. McCoy, Spock was a different story. Being of two different worlds, Spock would occasionally let his human emotions show, but for the most part, he conducted himself in accordance with his Vulcan heritage: cold, unemotional, and of course, very logical. The ways in which his personality and conduct varied from his human counterparts often produced conflict on the Enterprise, as well as comic relief. But ultimately, the other crew members embraced Spock and appreciated the different viewpoint and perspective he brought to their traveling workplace.

Today’s diverse workplaces often deal with similar issues, as employees learn to live and work with co-workers from different cultures–albeit not different planets or, for the most part, species. We have learned, for example, that some employees may dress differently based on the customs of their ancestry. Or maybe that a particular female co-worker from a different background may not feel comfortable shaking hands with a male client. We know that during company events, the culinary offerings should include alternatives for those employees whose cultures do not eat beef or other types of foods. And of course, different cultural backgrounds often mean different religious backgrounds. Thus, we try not to make non-Christian employees feel excluded by having “Christmas” parties or scheduling events during those employees’ important religious holidays, and we accommodate employees’ beliefs by allowing days off for religious holidays, providing prayer breaks, broadening the dress code to allow for religion-based clothing preferences, etc.

Not being a “Trekkie” myself, I can’t identify any specific “Star Trek” episode where Captain Kirk had to pause in the mission of “going where no man [or woman] [or other gender] had gone before” to order a special vegetarian meal for Officer Spock, nor do I recall any instances when Kirk had to call time out from his inter-species romantic liaisons to cover for Spock while he had the day off from work for a Vulcan holiday. But hey, it could have happened. If the Starfleet’s Human–make that “Species”–Resources professionals were earning their keep, they would have made sure that the Crew Handbook addressed the need to accommodate the cultural and religious beliefs and practices of all employees–even the ill-fated, red-shirted, anonymous crew members who would accompany the show’s stars in landing expeditions. And if any members of Starfleet didn’t want to accommodate members of different species, I’d like to think that Mr. Spock would have told them that their opposition was “highly illogical.” After all, when it comes to adapting to changing workplace demographics, resistance is futile.

Now showing at a workplace near you

January 12, 2015 - by: Andy Tanick 0 COMMENTS
Andy Tanick

The air is bitterly cold, especially here in Minnesota. The kids are back in school, and the Christmas decorations have all been put away. For followers of pop culture, those signs can mean only one thing: Now you finally have time to see all those prestigious, blockbuster movies that came out in late 2014.shutterstock_141495676

Business owners and human resources professionals are especially fortunate this year, because so many of the top movies of 2014 had employment-related themes. What HR manager has never had to deal with the fallout from “Horrible Bosses,” after all? And what business hasn’t worried that at some point, “The Judge” could be deciding the outcome of a legal claim filed by a disgruntled former employee?

And those aren’t the only ones. While I may not have actually seen any of the following films, I’m quite sure I can tell, just from their titles, what they are about and how they relate to HR issues.

“The Interview,” for example. I was surprised that this movie caused such an international furor. What could be so controversial about a movie concerning the questions an employer can and cannot ask while meeting with a job applicant? Granted, it doesn’t exactly sound like a blockbuster, but then again, who ever imagined millions of people would line up this year to see a movie about LEGOs?

In another popular spellbinder, all the company’s managers are asking, “Where’s that new employee we hired for the steno pool?” (It’s a period piece.) Turns out she’s absent again, without calling in. Where did she go, and how many warnings will they give her before she’s fired? If these questions have you on the edge of your seat, run, don’t walk, to the nearest theater to see “Gone Girl.”

Then there’s the story of three plucky employees who taunt their HR Director, Jay, while they file a complaint over having to work a full eight-hour shift without a lunch break. Yes, it’s “The Hunger Games III: Mocking Jay.”  Poor Jay; they’re mocking him so much they had to split it into two movies.

We’ve all seen those Equal Employment Opportunity Commission (EEOC) charges where every box is checked. You know: “My employer fired me because of my age, race, religion, sex, national origin, and disability. Also, it was retaliatory.” What exactly is this former employee’s legal theory? Well, they wrote a movie about it: the “Theory of Everything.”

Then there’s the flick about the director of research and development who jumped ship and went to work for the competition. Suddenly, the competition’s products looked, sounded, felt, tasted, and, yes, smelled just like the first company’s products. A lawsuit about trade-secret theft may not make for boffo box office, but it might stop that thieving employee from playing “The Imitation Game.”

So if “The Fury” of the short, cold days of winter has got you down, don’t try to escape by running “Into the Woods” or spending a “Night at the Museum.” Wouldn’t you rather relive your “Boyhood” and be a “Big Hero” by grabbing your friends “Selma” and “Annie” for a “Wild” night at the movies, as long as the theater’s projector is “Unbroken”?

Got a movie favorite of your own that sounds like it’s about HR issues? Tell us about it with a comment below. But be forewarned: Trying to come up with these bad movie puns can be “Hobbit”-forming.

The naked truth about nude celebrities in your workplace

November 17, 2014 - by: Andy Tanick 2 COMMENTS
Andy Tanick

Celebrities lately seem to be having a hard time keeping their clothes on.

Whether it’s one of the Kardashian sisters baring her bottom or Keira Knightley baring her bosom, you can hardly look at any social media site these days without being assaulted by celebrities in various degrees of naked-idity, as Radar O’Reilly once called it. While the exhibitionism has recently arisen mainly among the ranks of female celebrities, there has been no shortage of male body parts on display in recent years, what with NFL quarterbacks, New York politicians, and others seemingly unable to resist the urge to use their smart phones to do dumb things.  NSFW

All of which raises an interesting employment law issue: How does a company’s policy against sexual harassment deal with conversations that employees might have about current events, when those events can at times be sexually charged? If an employee forwards the Kardashian photo to a co-worker, is he violating the policy? What if he merely references the photo as further proof (as if we needed it) that nothing Kardashian-related has any redeeming social value? What if several coworkers engage in a spirited intellectual debate about the statement of female empowerment that Knightley claims she was making with her revealing photo?

As a side note, readers who are of a certain age may remember that a similar issue arose in the late 1990s, when a Wisconsin jury awarded $24 million to an employee who was fired for telling a female coworker about a “Seinfeld” episode with sexual overtones. While that case, contrary to its media portrayal, was not really about the right to discuss adult-themed sitcoms in the workplace, it didn’t matter in the end, because the verdict was thrown out on appeal.

Anyway, when does a discussion of current events turn into a violation of your sexual harassment policy? Like many other employment law issues, (1) it’s complicated, and (2) it really turns on common sense. An employee who forwards a nude celebrity photo to a coworker accompanied by a lewd comment does not somehow gain legal protection because the photo appeared in a classy magazine rather than Penthouse. By the same token, the employees having an intellectual discussion about Knightley’s political motivations are clearly not engaging in a communication of a “sexual nature,” even if the topic does involve a partially nude actress. In other words, just because a conversation relates to a subject that in certain contexts can be sexual (e.g., nudity), it’s not necessarily sexual in other contexts.

Similarly, there are words that can be sexual in some contexts, but not in others. One particular well-known and popular “swear word,” for example, clearly has a sexual connotation in some contexts, but at other times can simply mean “Go away, now!” or “What the … heck?” Not even the most creative plaintiff’s lawyer or aggressive EEOC investigator would likely claim that such utterances constitute sexual harassment, although to be sure, the use of such language in the workplace certainly might violate other company policies.

To put it even more simply, ask yourself, “Would I be embarrassed if my parents walked in on that?” A scholarly discussion of the nude body in late Renaissance art? Dad may find it awfully boring, but it’s probably not an example of sexual harassment. An employee displaying a life-sized poster of Will Ferrell streaking? You probably wouldn’t want Mom to see it, so that’s a good indication that it’s probably time to train your employees on that sexual harassment policy. Because really, the Kardashian sisters are distasteful enough already–why make it even worse by having them pop up as Exhibit A in a sexual harassment lawsuit you’re defending?

Some extra points about fantasy football and your workplace

September 15, 2014 - by: Andy Tanick 2 COMMENTS
Andy Tanick

Although the actual games have been overshadowed lately by the off-the-field misbehavior of some of the players, the NFL season opened last week. And if you listened closely enough, you could almost hear HR managers and small business owners across the country yelling at their employees, “Get off your fantasy football website and get back to work!”shutterstock_134095112

Like college basketball’s March Madness, fantasy football’s massive popularity arises in large part from the fact that it gives zealots and non-enthusiasts alike a chance to “get in on the action,” and not just enjoy a sporting event but also win bragging rights over all of their friends. Indeed, anyone who has ever participated in either endeavor is sure to have bitter memories of losing the NCAA pool to someone who picked teams based on uniform colors or mascot cuteness, or losing a fantasy football championship to someone who couldn’t pronounce Tim Biakabatuka’s name if his life depended on it. Let’s just say, there is a certain amount of luck involved (except when I win).

In any event, what does this have to do with workplaces, and in particular, YOUR workplace? A lot. Challenger, Gray & Christmas, a global employment consulting firm, recently estimated that employers worldwide suffer $13.4 billion per year in lost productivity due to fantasy football. In other words, employers these days no longer worry about their workplace becoming a modern-day “Peyton Place.” Instead, they worry about their employees wasting valuable work time trying to guess whether Peyton Manning will throw his customary three touchdown passes this week.

What can employers do about it? Some businesses block fantasy football websites from their employees’ computers, but with everyone carrying a smartphone in their pocket these days, that’s kind of like going for a field goal when you’re down by 28 points in the fourth quarter. Of course, employers can hardly ban their employees from participating in fantasy leagues altogether; not only is it impractical, but most employees do save their fantasy sports obsession for after work, and some states have statutes forbidding employers from taking adverse action against employees for engaging in lawful activities on their own time.

The answer is actually deceptively simple, like benching your quarterback when he’s playing on the road against the Seahawks. Just remind your employees about, and continue to enforce, your existing practices and policies about workers devoting their time and energy–during working hours–to their jobs. The issue is really no different from the employee who spends all day scanning Facebook or looking for deals on Craigslist. Or for that matter, playing solitaire on his computer or engaging in personal telephone calls. Any of this conduct, if it rises to an inappropriately high level, more than likely violates company policy and therefore warrants corrective action by the employer.

And don’t forget, distractions like NCAA office pools and fantasy football leagues, if handled appropriately, can actually be positive factors in the workplace. What better way for employees to get to know each other than talking trash about their teams and debating  age-old questions like “If I bench my kicker because he’s playing in a snowstorm in Lambeau Field, am I being incredibly clever, or am I over-thinking my way to the consolation bracket?” (From personal experience, I can tell you it’s the latter. Curse you, Mason Crosby, circa 2009.) Just be sure that the league doesn’t intentionally or inadvertently exclude certain employees, for example, along the lines of gender. “He got more face time with the boss because of the office fantasy football league, and therefore he got the promotion” could well show up in a discrimination lawsuit in your company’s future; it has already shown up in some cases across the country.

Bottom line, fantasy football leagues can be fun team-building events for your workplace, but like all things HR-related, they must be monitored closely. And when problems arise, don’t be afraid to call a time out or throw a penalty flag, or your employees’ fantasy may become your company’s worst nightmare.

All you need is employment law

August 04, 2014 - by: Andy Tanick 1 COMMENTS
Andy Tanick

Our blog seems to have focused quite a bit recently on stories from the world of sports, and given the number of professional athletes behaving badly lately, that comes as no surprise. So for this week, we’ll take a break from litigious punters, abusive running backs, and egotistical power forwards to focus on another area of entertainment. Our diversion is well-timed, because I was fortunate enough to attend Paul McCartney’s concert last weekend at Target Field in Minneapolis, where the hapless Minnesota Twins are usually the athletes playing badly, if not behaving badly.  Beatles

What do Paul McCartney and the Beatles have to do with employment law? Well, plenty as it turns out. In fact, with a little creativity, we can conjure up an employment-law subtext to many of the top hits by Sir Paul and his bandmates.

Let’s start with some obvious ones. What HR manager hasn’t had the nightmare of dealing with a lecherous employee who is fond of telling his coworkers, “I Want To Hold Your Hand”? On those seemingly rare occasions when such advances are welcome, the resulting workplace relationship almost always ends badly, and on those more frequent occasions when the proposition is declined, a sexual harassment complaint may not be far behind.

Many popular Beatles’ songs take on a whole new meaning when we view them through the prism of the reasonable accommodation provisions of the Americans with Disabilities Act. According to the Equal Employment Opportunity Commission (EEOC), it seems that an employer should begin engaging in the interactive process any time an employee says, “Help! I need somebody!” That’s when a top-notch HR manager will tell the employee, “We Can Work It Out,” if it can be done reasonably, without undue hardship. And once that employee has been accommodated and can resume happy and productive employment, he or she is sure to respond to any inquiries about work by saying, “I Get By With A Little Help From My Friends.” Or if the employee is Joe Cocker, something unintelligible that sounds sort of like that. (Too obscure a reference? Prove me wrong, readers!)

Of course, physical disabilities are not the only ones that employers are required to accommodate. So if one of your employees announces one day, “I Am The Walrus,” or even “I am the egg man,” for that matter, a whole different type of accommodation may be required. Unless of course, the employee does not suffer from a disability at all, but simply reported to work while Hi Hi Hi. (Yeah, I know, that’s the Wings not the Beatles; it’s called artistic license, and it’s a method well known to any Paperback Writer.) If that’s the case, you may need to look at your state’s drug and alcohol testing laws, rather than considering an accommodation.

While we’re on the subject of different protected classes, with today’s aging workforce, many senior employees may be asking their employer, “Will you still need me? Will you still feed me? When I’m 64.” An employer who gives the wrong answer to that question may find itself on The Long And Winding Road of an age discrimination lawsuit.

Switching to a different area of employment law, we’ve all seen a lot more wage and hour claims over the past few years. Having said that, however, I have yet to see an overtime claim arising from an employee being forced to work Eight Days A Week. Of course, we know that claim is false. Why? Because that employee may have been working a lot lately, but our time records show that she didn’t work Yesterday.

When viewed through the eyes of an HR manager, an employee’s plea to stay here and not go to work Back In The USSR turns into a somewhat outdated request for help with an H1-B visa. And in the event of a workplace injury, you’d better hope that the shop foreperson’s motto was not “Live And Let Die.”

Sometimes, despite the superhuman efforts of the HR Department and the company’s employment counsel, the employee may still have a valid claim. No employer is perfect. But even in that unlikely scenario, all is not lost; while money Can’t Buy Me Love, it can usually buy a reasonable settlement.

What HR pros can learn from Casey Kasem

June 23, 2014 - by: Andy Tanick 1 COMMENTS
Andy Tanick

If you were a teenager in ’70s or ’80s who loved pop music, you undoubtedly recall huddling next to your AM transistor radio, maybe with your cassette recorder on standby so you could hit “record” at the just the right time, listening to “American Top 40” with its mellifluous host Casey Kasem. Each week, Casey would count down and play the current top 40 songs, as determined by Billboard magazine, over the course of his three-hour syndicated radio broadcast. In addition to the songs, Casey would sprinkle in trivia about the recording artists, dig back into the “AT40 Archives” for a few “golden oldies,” and bring a tear to our eyes with the “long-distance dedication” of a special song from a star-crossed lover to his or her far-away soul mate.
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Those of us who grew up with Casey were saddened this week upon the news that he had passed away at age 82. Although many of the recent headlines followed his family’s unseemly bickering over his care in his final days, most observers were able to ignore that side-show and remember the legacy of the man who not only popularized the idea of the “top [fill in the number]” countdown list, but also provided the voice of Shaggy in 40 years’ worth of Scooby-Doo cartoons.

What better way, then, for an HR blog to honor the memory of Casey–to give him our own “long-distance dedication,” if you will–than to publish our list of the top ways to maintain a work environment free of employment lawsuits? Here, then, in tribute to the great Kemal Amin “Casey” Kasem (1932-2014), is our countdown of the Top 5 ways for an employer to avoid being sued by its employees.

5.  Properly train your managers. No matter how smart you are, all those seminars you attended, webinars you sort of paid attention to, and articles you read, or at least glanced at, will do your company no good when one of your managers fires an employee with a disability because she’s not quite ready to return to work after her 12-week Family and Medical Leave Act (FMLA)  leave runs out.   Or worse. The time you or your employment lawyer spend training your managers now will be time you don’t spend later sitting in on their depositions, after the company gets sued.

4.  Update those policies. Is your company using an employee handbook that was last reviewed by your employment lawyer in 2006, or worse yet, that isn’t customized for the specific states in which you have employees? That’s not good. If you work in HR, you know that employment law is constantly changing, and you also know that much of it is state-specific. Your 2011 handbook’s social media policy might violate the most recent pronouncements by the National Labor Relations Board, and your one-size-fits-all handbook probably doesn’t address that one quirky statute in that one quirky state where you just opened a (quirky) new facility. It’s time for your employment counsel to review and revise that handbook.

3.  Reasonably accommodate, and engage in the interactive process. Got an employee who suffers from a disability and needs help in order to do his job? Got an employee who wants time off during the workday for her prayer breaks? The law likely requires you to provide a reasonable accommodation to the first employee’s disability and the second employee’s religion, unless doing so would create an undue hardship. The law also likely requires you to engage in the “interactive process,” to work with those employees to try to figure out a practical solution you can both live with.  Mess it up, and the Equal Employment Opportunity Commission (EEOC) will be spending so much time at your work site that they’ll be playing shortstop on your company softball team.

2.  Know the four R’s of a harassment complaint. What are the four R’s of a harassment complaint, you may well ask? First, recognize whether that employee’s complaint is, indeed, the sort of harassment complaint that has potential legal implications. If it is, then second: respond appropriately by promptly investigating the complaint. Third, once you have investigated, then if warranted, take prompt remedial action. The fourth R stands for retaliation, as in, don’t allow anyone to retaliate against the employee who made the complaint.   Once you do all these things, you can add a fifth R: rest.

1.  Wage and hour claims are your newest nightmare. All those attorneys who wanted to sue your company for sexual harassment in the past now would like to sue you for wage and hour violations. Not only that, but state and federal agencies have basically declared war on employers in this area of law. Those lawyers and agencies may have a different view than you do as to whether a particular worker is an employee or a contractor, is exempt or nonexempt, or is entitled to be paid for that time they spent donning and doffing their special work gear. In the world of employment litigation, these issues are now “number one, with a bullet.” Have your employment lawyer review your wage and hour practices before you end up on the wrong side of that complaint.

We could go on and on, of course, but it looks like we’ve run out of time. So until next week, to borrow Casey Kasem’s classic sign-off, “Keep your feet on the ground and keep reaching for the stars.” Good-bye, Casey, and thanks for the memories!

With pals like this, who needs enemies?

May 12, 2014 - by: Andy Tanick 2 COMMENTS
Andy Tanick

For those entrepreneurs who have struck it rich thanks to the Internet, Al Gore’s invention has been a wonderful thing. But a news story last week illustrated that the Internet also can cause a lot of headaches–even for the same people whose children and grandchildren may never have to work a day in their lives because of the worldwide wealth created by the worldwide web.

This story comes to us courtesy of the Internet payment processing giant, Paypal. According to Paypal, the company’s former director of strategy, Rakesh “Rocky” Agrawal, responded to anshutterstock_166165568 offer to take on a new role at the company last week by “choosing to turn a career-defining moment into career-destroying infamy.” Specifically, “Rocky” responded to the offer by inexplicably posting a series of angry, profane, and bizarrely nonsensical tweets on Twitter. Those tweets that were actually comprehensible included suggestions that Paypal executives perform physically impossible feats that best not be described here. Those tweets that were less decipherable included messages such as, and we quote, “jjjjj 999 I’mk nokkkkkiikkknokkkkkiikkkkkkjjnmo88iok99okkoolooolo.” Rocky has since claimed that his tweets were meant to be private (oh, THAT explains it) and has apologized, but Paypal isn’t buying what he is selling–probably even if he offers to accept payment via Paypal.

The Paypal situation provides yet another example of the havoc that employees can wreak on their employers through social media. Gone forever are the days when employees limited their sexual harassment, defamation, and just plain old stupid behavior to old-fashioned media such as memos, letters, emails, and the spoken word (remember that one?). These days, men and women who are intent on behaving badly have so many more ways to do so. “Older” employees (i.e., those over 30) still use Facebook and Twitter, while the millennials have long since moved on to things like Snapchat, Instagram, and other social media that the author, being decidedly well beyond millennial status, doesn’t even know about.

What can an employer do to minimize its risks arising from employees’ social media use?  For starters, adopt a written social media policy that makes the following points:

  • Communications that would violate the company harassment policy are equally prohibited if posted on the Internet.
  • Confidentiality policies, including policies regarding client or patient confidentiality, apply with equal force to Internet posts.
  • Employees should state that any controversial (e.g., political) views expressed in their posts are personal and not those of the company.
  • Employees should not post statements, photos, or videos that reflect poorly on their employer, unless the post is legally protected (see below).

In addition, employers should revise their existing harassment, misconduct, and confidentiality policies, among others, to make sure they cover online conduct.

Of course, employers also need to avoid violating their employees’ rights with regard to social media. While there is no right to “free speech” in connection with private employment, the National Labor Relations Act (NLRA) provides both union and nonunion employees with certain protections that can apply to their use of social media. Specifically, the NLRA provides employees with a right to “engage in concerted activity for the purpose of collective bargaining or for other mutual aid and protection.”  To be protected, the activity must be undertaken by two or more employees, or by one employee with the authority of others, and it must relate to terms and conditions of employment. The NLRA also makes it illegal for an employer to interfere with employees in their right to engage in such protected activity, and forbids rules, policies, or actions that “reasonably tend to chill employees in the exercise” of these rights.

In addition to the NLRA, other laws can come into play when employers affirmatively seek out information about employees via social media. The Stored Communications Act (SCA) prohibits unauthorized access of disclosures of stored communications, like emails or social media postings. The Computer Fraud and Abuse Act (CFAA) prohibits obtaining information via intentional unauthorized access to “protected computers” involved in interstate commerce. The Fair Credit Reporting Act (FCRA) may come into play when employers seek out certain background information about employees. And there’s always a basic claim for invasion of privacy.

So, what’s the lesson here? Like Paypal recently learned, your employees’ use of social media, even on their own time, in their own homes, on their own computers, can still create headaches for you as their employer. A good social media policy can help reduce the risks, but tread lightly, because your employee’s post–no matter how irritating–could be legally protected.

If Bill Cosby is wearing a garish sweater, this must be 1980s TV!

March 27, 2014 - by: Andy Tanick 0 COMMENTS
Andy Tanick

A few weeks ago, I saw a news story about how the last of the baby boomers are turning 50 in 2014. “Wow, that’s old,” I thought, until I realized that I’m 53. Then, as if I needed any further reminders of my elder statesmanship, one of the legal assistants in our office, a 20-something, accused me of “making up” the fact that there used to be a popular singer named Bing. Sigh. (And for the record, he was popular way before my time.)  CosbySweater

That’s it, I decided. Time for a blog post about popular culture from an era that none of those rascally whippersnappers will even remember: the 1980s.  That’ll teach ‘em not to be so darn … er, young. So charge up your brick-sized cellular phone, press “play” and “record” simultaneously on your 150-pound manually-operated VCR, and run your comb through that mullet: We’re going to take a spin through “Employment Law in1980s TV-Land.”

Of course, when you talk about HR nightmares from 1980s TV, the first thing that probably comes to your mind is the bar where everybody knows your name: Cheers. Who can forget owner Sam Malone’s puckish flirtations with Diane, Rebecca, and virtually every young woman who wandered into his bar wearing a short skirt and a jacket with three-inch shoulder pads? Those not-too-subtle propositions may have been cute in the ’80s, but they would translate into about 487 sexual harassment claims in this century, thank you very much. Not to mention the claims Cliff Clavin could bring against the bar for all the abuse waitress Carla Tortelli heaped on him. Once Sam was aware of Carla’s propensity to torment patrons, Cliff could have sued the bar for negligent retention. Sure, we all dabbed our eyes and stifled a whimper when Sam turned out the lights one last time in the show’s famous final scene, but if he operated his business like this nowadays, closing time would have come several years earlier, just as a result of all the legal fees.

Speaking of legal fees, what better place in TV Land to spend them than the firm of McKenzie, Brackman, Chaney and Kuzak, the swanky setting of that 1980s fixture “LA Law.” Although (or maybe because) it was set in a law firm, the show featured bad employment practices galore. Bon vivant divorce lawyer Arnie Becker was the west coast version of Sam Malone, with better suits, romancing young law clerks and clients with alarming regularity. And that workplace affair between Stuart Markowitz and Anne Kelsey, although both were partners, was still fraught with potential HR landmines. But the HR nightmare that made “LA Law” famous had to do with workplace safety. Who could forget ill-fated attorney Rosalind Shays stepping through the elevator doors only to find, to her everlasting (but not for long) dismay, that there was no elevator there – just an empty shaft, and a long, long way down? Could Rosalind’s grieving heirs have sued the law firm for her untimely demise? Probably not. In most states, the sole remedy for a workplace accident is through workers’ compensation.  But you can bet the Occupational Safety and Health Administration (OSHA) would have been out the next day to determine whether McKenzie Brackman should be fined for maintaining an unsafe workplace.

Finally, another popular, albeit much-maligned, hit show from the 1980s was “thirtysomething,” with an ensemble cast full of attractive but angst-ridden yuppies trying to figure out the meaning of life while coping with bratty kids, cancer, interfaith marriage, and of course (25-year-old spoiler alert), occasionally getting killed in car accidents. But let’s not forget that much of the (melo)drama in this show derived from the issues that business partners Michael Steadman and Elliot Weston faced when they worked at DAA, an ad agency run by the evil Miles Drentell, one of the greatest TV villains of all time. At one point, fed up with Miles’ unscrupulous and unethical tactics, our heroes clandestinely tried to help a competing agency, “Minnesota Brands,” conduct a hostile takeover of DAA. Apparently, Michael and Elliot were not aware that under common law principles, employees have a duty of loyalty to their employer. I think secretly orchestrating the downfall of your own company would probably qualify as disloyal, don’t you?

Interestingly enough, all of these issues – sexual harassment, workplace safety, and employee loyalty – have not gone anywhere since the days when we were listening to “Men at Work” sing about vegemite sandwiches on our Walkman. But we’re sure that your company’s employment practices have changed for the better over the intervening quarter-century. Now if only you could find a use for those leg warmers and parachute pants that are still tucked away in a corner of your closet.

“You’ve got mail! And it just might be a warrant for your arrest”

February 13, 2014 - by: Andy Tanick 0 COMMENTS
Andy Tanick

You don’t have to try very hard these days to find employment law references in pop culture. Movies and TV shows examine issues of employment discrimination, politicians seem unable to resist the urge to text photos of their private parts to their disgusted subordinates, and professional athletes provide ample fodder for lawyers in desperate search of HR blog topics. But when’s the last time a major news story emerged about the Health Insurance Portability and Accountability Act, or HIPAA? Now it is true that HIPAA made the news when it was initially signed into law by President Clinton, because (to greatly oversimplify) it served the laudable goal of guaranteeing continued health insurance coverage for employees who change jobs, without regard to preexisting conditions. But since those initial kudos, publicity about HIPAA has been about as hard to find as a day of calm weather in the American winter of 2013-14. AOL

That all changed last week, when the CEO of AOL, Tim Armstrong, publicly blamed unpopular changes to the company’s 401(k) policy on costs AOL had incurred because of two employees’ “distressed babies.” Specifically, Armstrong stated that AOL had to enact the new policy because, in part, “We had two AOL-ers that had distressed babies that were born, that we paid a million dollars each to make sure those babies were OK  in general. And those are the things that add up into our benefits cost.”  Suddenly, every pundit and commentator in the country became a HIPAA expert.

What was all the fuss about? Well, in addition to guaranteeing the “portability” of group health insurance, HIPAA also protects individuals from certain disclosures of their “protected health information,” or PHI. Of course, HIPAA only covers certain types of entities, only protects certain people, and only applies to certain information. Did it apply to Armstrong’s comments?

First, it does appear that HIPAA would apply to AOL’s group health plan. The law’s coverage includes certain health care providers, health care clearinghouses, and group health plans. AOL’s group health plan is a self-insured group health plan, meaning that while a carrier might administer claims, AOL would be intimately involved in the claims process and its benefits administrators and company executives might receive PHI obtained through the group health plan to administer and make decisions about the health plan.

Another relevant inquiry is how Armstrong received his information about the “distressed babies.” If he received it through employment records, as opposed to from AOL’s health plan, the information might not be considered PHI, and there would be no HIPAA violation (although other violations might have occurred).  However, if he received it in connection with the group health plan, a HIPAA violation was possible.

Armstrong also didn’t identify the babies at issue, let alone their parents. Can a violation occur when the employee isn’t specifically named? Again, the answer is “maybe.” To violate HIPAA, the inappropriate disclosure need not specifically identify the person with the condition; the law also applies where “there is a reasonable basis to believe [the disclosed information] can be used to identify the individual.” While most of AOL’s 5,000 employees probably had no idea who Armstrong was talking about, the mother of one of the “distressed babies” reported that within minutes of Armstrong’s statement, her husband began receiving calls from curious colleagues. Clearly, some co-workers were able to surmise from Armstrong’s statement the identity of the employees at issue.

Finally, while a comment about “distressed babies” clearly isn’t very specific about the medical conditions at issue, HIPAA prohibits statements about a person’s “physical condition,” among other things, as well as “the provision of health care to the individual” and the “payment for the provision of health care to the individual.” Armstrong’s comments here hit the trifecta: He commented about the babies’ physical condition, he made it clear they were receiving significant health care, and he mentioned the payment for the care.

Having said all of that, we don’t know what information Armstrong received, how or from what source he received it, or what independent investigation he might have done, all of which would be relevant to a detailed analysis of the issue. If either affected employee files a complaint with the Department of Health and Human Services, these are just a few of the questions the agency will ask Armstrong and AOL. Meanwhile, his comment has caused a whirlwind of negative publicity, culminating in AOL’s rescinding its 401(k) policy change.

What can an HR official learn from all of this? When it comes to employees’ health, conditions, health care, or payment for that health care, the less said, the better. HIPAA includes some significant potential monetary penalties, not to mention criminal penalties such as imprisonment for up to 10 years. While it’s unlikely that an inadvertent mention of an employee’s health condition will land a company official in the hoosegow, the lesson here–like the lesson in so many HR situations–is that when discussing employees, discretion is the better part of valor.

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