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States Continue to Weigh in on Social Media Access
By: Donald Berner

State legislatures continue to debate and pass laws restricting employer behaviors with respect to the access to employee/applicant social media accounts. 

At the present time, six states (CA, IL, MI, MD, NM, and UT)  have passed legislation on this topic and there will likely be others in time. The primary focus of the legislation to date has been to prohibit employers from requiring candidates/employees to provide passwords and access to private accounts. Most of the state efforts have not tried to prevent employers from reviewing publicly available items published via social media. 

This trend is likely to continue and employers with multi-state operations should be paying attention to these developing statutory enactments. Furthermore, even if you are in a state that doesn't prohibit you from requiring employees to show you private social media areas, you might consider whether you truly want to engage in that type of behavior. There is a pretty strong element of it just not feeling right. Those are the types of feelings jurors and other fact finders are likely to have as well. In addition, who knows what those private pages/areas are going to teach you. There are plenty of facts that you don't really want to know when considering a candidate/employee and their future with your company.


Half Past the Point of No Return
By: Boyd Byers

I’m a sucker for great song lyrics. A clever or poignant turn of phrase set to music can stick with you for a lifetime. Here are some of my all-time favorites:

  •  How many roads must a man walk down / Before you call him a man? (Bob Dylan, “Blowin’ In the Wind”);
  • There are places I'll remember / All my life, though some have changed.  (John Lennon, “In My Life”);
  • Then I fumbled through my closet for my clothes / And found my cleanest dirty shirt. (Kris Kristofferson, “Sunday Morning Coming Down”);
  • People talking without speaking / People hearing without listening. (Paul Simon, “The Sound of Silence”).
And, of course, the greatest lyrics ever written: 
  • Freedom's just another word for nothin’ left to lose / Nothin’ ain’t worth nothin’ but it's free.  (Kris Kristofferson, “Me and Bobby McGee”).
I recently heard a newer song on the radio with a refrain I couldn’t get out of my head. It went, “It’s only half past the point of no return.” (The song is “Glitter in the Air” by Pink.)
I kept thinking about that line all day. It brought to mind the words of writer Pearl Buck: “Every great mistake has a halfway moment, a split second when it can be recalled and perhaps remedied.” And I reflected that it is the decisions made at these crucial moments—at half past the point of no return—that define us as people and organizations.   
More Bad News About I-9's
By: Donald Berner

Immigration and Customs Enforcement (ICE) is continuing to issue Notices of Inspection (NOI) to employers across the country.  These ICE NOIs require employers to provide I-9 forms and various payroll related information to ICE.  The increase in these type of inspections being conducted by ICE is significant.  Over the last three to four years, the number of inspections has more than tripled.  For employers getting a NOI, it can be a costly experience.  While some of the inspections may be being conducted on a random basis, the more likely sceenario is that ICE has targeted the employer based on tips, complaints, or leads developed from a variety of sources. 

Employers should respond carefully upon receiving an NOI from ICE.  The real preventative medicine for employers is to conduct an audit of your existing I-9 documents as well as review your I-9 completion practices to ensure the documentation is all in order.  In addition, employers should consider the pros and cons of signing up to participate in the E-Verify system as part of the employer's comprehensive compliance strategy.

The $95,000,000 Sex Harassment Case
By: Donald Berner

Most employers understand the implications of sexual harassment in the workplace and have policies prohibiting inappropriate behavior.  Those same employers usually have a reporting mechanism embedded within those anti-harassment policies.  Both of these procedures are prudent.  So what should an employer do when a complaint arrives via the procedure established?  The answer is simple - go out and investigate and respond to the complaint.  Too often employers enact policies and procedures and then fail to implement them.  The cost of failure can be high in terms of monetary value and the lost time and energy in dealing with agency complaints and/or lawsuits that could arise down the road.  One employer recently learned the lesson of follow-up the hard way.  The allegations made by the plaintiff in Alford v. Aaron Rents, Inc. are extreme and the response by the company to the intial complaint appeared to be non-existent.  The takeaway from this $95,000,000 verdict against the employer is to always follow-up, investigate, and take action on complaints.  Otherwise the cost could be as extreme as the facts in this case. 

For the details click here for the story published in the St. Louis Post Dispatch.

The Monkey, the Cat, and the Army Reservist
By: Boyd Byers

Yesterday the U.S. Supreme Court ruled that an employer can be liable for employment discrimination based on evidence that a biased supervisor influenced, but did not actually make, an employment decision. The Court, pulling words and phrases from a legalese lexicon that only a lawyer could love, said, “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable ....” Leaving the legal jargon aside, this is sometimes called the “cat’s paw” theory of liability.

The term "cat's paw" theory derives from Aesop's fable about a clever monkey who persuades a gullible cat to retrieve roasting chestnuts from a fire. The monkey gets the chestnuts, and the cat gets nothing but burned paws. The analogy to employment discrimination is when a biased supervisor dupes an unbiased decisionmaker into taking an adverse job action against an employee based on inaccurate, incomplete, or misleading information.     

In this case, Vincent Staub alleged he was fired because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub presented evidence that his two immediate supervisors had an anti-military bias, and that they in turn had convinced the human resources manager to fire him. Staub argued that even though the HR manager, who actually made the decision, was not herself biased, the company could still be held liable for discrimination because she fired Staub based on information the supervisors reported to HR and put in Staub’s personnel file.  

The      Continue Reading...

The Rest of the Story
By: Boyd Byers

Earlier this week, Shirley Sherrod resigned her job with the U.S. Department of Agriculture after a video from a speech she gave at an NAACP event in March surfaced on the Internet. The edited clip gives the impression that Sherrod, who is African American, admits to refusing to help a white farmer because of his race. The video created a media frenzy, as Sherrod’s remarks were condemned by everyone from Fox News to the NAACP. Government officials quickly pressed her to resign.

Then we learned, as Paul Harvey would say, the rest of the story. When the video is reviewed in its entirety and in context, it is apparent that Sherrod is recounting something that happened 24 years earlier, before she worked for the government, that she had actually helped the farmer, and that the point of the story is the need to look past race. Apologies from White House officials, the NAACP, and Bill O’Reilly ensued, and the Agriculture Secretary offered her a new position. 
The lesson to be learned here, of course, is to conduct a thorough investigation and make sure you know all the facts before disciplining or firing an employee. Don’t jump to conclusions based on the first report or piece of evidence. Interview the alleged wrongdoer and get her side of the story. Then put it in writing and have her sign it. The things you learn could prevent a tragic mistake, or, conversely, confirm the need for discipline. An even-handed and well-documented investigation will also serve as      Continue Reading...
Tips & Tactics -- Government Investigations
By: Donald Berner

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

  • Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
  • Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
  • Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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