How to Implement Your Social Media Policy

Maria Ogneva from Yammer, an internal social network product for companies, recently wrote an article highlighting several tips on getting employees to buy-into your social media policy.  I especially like her focus on educating, empowering, and teaching employees WIIFM (“What’s In It For Me”) rather than on disciplining them:

The best way to ensure buy-in to your social media policy is not through threat of disciplinary action.  Rather, it’s by providing education and resources, and building the right processes.

She also included in her article an outstanding video on the topic prepared by, of all things, the Department of Justice in Victoria, Australia.  Check it out!

Tips for Using Social-Networking Sites to Screen Applicants

Molly DiBianca recently wrote a helpful 3-part series on The Delaware Employment Law Blog regarding tips for employers to follow when using Facebook or other social-networking sites to screen applicants.  Here are a few of her key suggestions:

  • Do not try to gain access to an applicant’s profile directly through tactics such as asking a friend of the applicant to show you the applicant’s profile.
  • Develop a written checklist of key things to search for.  The list should include (a) key things about an applicant that would give you concern about the applicant, such as the the use of hate language or promoting the use of illegal drugs, and (b) key things that you would like about an applicant, such as authoring a well-written blog.
  • Have someone not involved in the hiring decision perform the actual search for items on the list.  This insulates the decision maker from learning things about the applicant’s protected status such as his or her race.  It makes it much easier to defend against a claim that a decision not to hire was because of an applicant’s protected status when the decision maker was unaware of that status!

Molly’s tips regarding having a checklist and having a non-decision maker perform the search apply equally to employers performing general internet searches about applicants.

Independent Contractor Issues Continue to Plague “Employers”

The ABA Journal published an article this month by Susan A. Berson concerning increased scrutiny by the IRS and DOL regarding classification of workers as independent contractors.

I strongly agree with the recommendations in the article regarding business auditing use of independent contractors:

We recommend businesses conduct a comprehensive audit of the written independent contractor agreements in place,” Idalski says. “Provisions covering the day-to-day operations, who does what, who’s in charge, equipment, policies and procedures should be included.

To that suggestion I would add that Washington employers must also look to the different tests under state law for whether someone is an independent contractor as well as what obligations the business has to toward an independent contractor.

For example, the Washington legislature defined a “worker” for purposes of industrial insurance to include independent contractors when the essence of the contract is for personal labor.  As a result, under some circumstances, Washington businesses are required to make industrial insurance contributions on behalf of workers even though they are independent contractors.

This is a complex area of the law, but the consequences of misclassifying employees as independent contractors or failing to make required contributions for covered workers can be extremely costly.

New Pattern Jury Instructions

The entire chapter on pattern jury instructions for state employment cases was just updated.  Pattern instructions are templates used by lawyers and judges to draft instructions to be read to the jury.  The instructions tell the jury what an employee has to prove for each type of employment claim and, where applicable, employer defenses to such claims.

The instructions also include a short description, which is not read to the jury, about the statutes and relevant case law involved in each type of employment claim.

In addition to their use at trial, the instructions can be used by managers, supervisors, and HR professionals as a concise summary of the different types of employment claims employees can bring, the elements employees have to prove to win, employer defenses, and relevant case law.

The instructions can also provide employers involved in litigation an outline of what their attorneys are trying to prove or disprove to improve better communication about litigation strategy.  The instructions can be found at Part XVI, Chapter 330 here.

Photo by ElvertBarnes from Flickr.

National Labor Relations Board Expands Definition of Concerted Activity

A company recently implemented a new casual dress rule requiring that shirts be tucked in.  While waiting for a sales meeting to begin, one salesman asked the Vice President of Sales about the new policy.  Another salesman then made several statements to the VP including “It [the rule] is pretty restrictive.  You know, I might not want to tuck in my shirt;” “I didn’t sign up for this crap”; and “I don’t need the money.”  The VP asked the salesman to discuss the rule with him later, but the salesman persisted  By the end of the discussion, seven or eight sales reps were watching.  The second salesman was later given a written warning for arguing with the VP.

In Wyndham Resort Development Corp., the NLRB concluded that the warning was unlawful because the salesman was disciplined for engaging in protected concerted activity.   Historically, “concerted activity” has required proof that the employee was not acting solely on his or her own behalf, but “with or on the authority of other employees.”

As described by dissenting Member Hayes, what is new about this case is that the Board is  “conflating the concepts of group setting and group complaints.”   Now, the Board apparently extends the cloak of protected concerted activity to cover any complaint about working conditions merely because the complaint is voiced within earshot of fellow employees.

This protection of concerted activity applies to both union and non-union workplaces.

Final ADAAA Regulations Issued

The EEOC as finally released the new ADAAA regulations to the public.   You can get a copy of the new regulations here.   The regulations will be published in the Federal Register on Friday.

We are still analyzing the  regulations, but one significant change from  the proposed rule is  the inclusion of nine rules of construction for deciding whether something is a disability.  The rules are as follows:

  • The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.
  • An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
  • The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.
  • The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
  • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.
  • The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage in § 1630.15(f) does not apply to the definition of “disability” under paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii) (the “record of” prong) of this section. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.

The ADA applies to all employers with least 15 employees.   Washington employers who have at least 8 employees must analyze disability issues under Washington’s Law Against Discrimination, as well as under the ADA if they have at least 15 employees, which has a definition of disability different from that under the ADA.

Do You Really Need that Employee Policy?

I enjoyed reading the new book Rework, by 37 Signals founders Jason Fried and David Heinemeier Hansson, which is filled with straight-forward tips for running a successful company.  Regarding employment policies, they say:

The second something goes wrong, the natural tendency is to create a policy.  “Someone’s wearing shorts?”  We need a dress code!”  No, don’t.  You just need to tell John not to wear shorts again.

Policies are organizational scar tissue.  They are codified overreactions to situations that are unlikely to happen again.  They are collective punishment for the misdeeds of an individual.

This is how bureaucracies are born.  No one sets out to create a bureaucracy.  They sneak up on companies slowly.  They are created one policy – one scar – at a time.

So don’t scar on the first cut.  Don’t create a policy because one person did something wrong once.  Policies are only meant for situations that come up over and over again.

After writing and revising hundreds of policies and employee handbooks, I wholeheartedly agree with Fried and Hansson.  I would add to their suggestion that many policies already adopted should be discarded.  Some policies, such as an anti-harassment policy, are needed.  But many other policies are unnecessary and may create an unintended liability risk.

For example, some employers have a policy telling employees it will recall employees based on certain factors, such as seniority.  When the rehire decision is actually made, the employer often wants to ignore the policy by basing the decision on other factors or hiring someone new rather than recall anyone.   Because of the policy, someone not recalled pursuant to the factors now has an argument that the employer is liable for not following its policy.  In essence, the company made things worse by creating a risk that otherwise would not have existed.

In return for this increased risk, I think the company got little, if any, benefit from having the policy.  I doubt that the when the employee got the policy he or she felt any better about the company because of the policy.   Many times, employees read a policy once, if at all, when hired and then not again until after they are no longer employed and have consulted a lawyer.   It is then that many policies become important for the first time — as weapons against the employer.

You may disagree on the benefit or risk of this or any other policy.  The important thing is to not have any policy without first thinking through how the policy will really work in practice, what it actually accomplishes, what are the risks, and whether any benefit actually outweighs the risk.

How to Avoid Misclassifying Independent Contractors

I just finished preparing an upcoming presentation for the National Business Institute on independent contractors.  To determine whether a worker is an independent contractor, the courts and agencies apply a number of complex tests that focus on different factors.  The consequences of misclassifying an employee as an indpendent contractor can be significant including back taxes, back pay, fines, penalties, interest, attorneys’ fees, and liquidated damages.

I like Kathleen Barrow’s take on the issue in an article she wrote for the Society for Human Resource Management.  She gave an easy-to-apply example that incorporates many of the complex factors that the courts and agencies look at.  She calls it the “Joe the Plumber” test:

A plumber is someone a company calls to fix a unique problem. Assuming the company is not in the plumbing business, the duties the plumber performs are neither central nor critical to the company’s ability to make a profit. The company calls the plumber only when events trigger a need for services. The plumber has a number of clients, the company being one of many that the plumber assists in a similar manner. The plumber advertises his or her services to third parties, drives his or her own truck, and brings his or her own tools to the workplace to perform the required job. The plumber would go out of business, not the company, if the plumber is not good at what he or she does.

The more your situation is like that of “Joe the Plumber” example, the more likely it is that you have a contractor relationship rather than an employer-employee relationship.

Here is my list of Best Practices to consider when structuring a relationship so that it is more likely to be deemed a contractor relationship rather than an employer-employee relationship:

  • Avoid having the independent contractors perform work vital to the company’s core business.
  • Avoid having independent contractors perform the same work as employees.
  • Have a written agreement.
  • Require some type of “cause” for terminating the agreement rather than “at will” agreements.
  • Require the independent contractor to have a business license and any professional licenses and to provide you with a copy.
  • Obtain copies of insurance certificates.
  • Obtain a copy of a signed W-9 form.
  • Create a structure under which the independent contractor has a substantial risk of loss and profit.
  • Require the independent contractor to provide his or her own tools and equipment.
  • Require the independent contractor to pay his or her own expenses.
  • Require the independent contractor to perform services for others as a practical matter and not just as a matter of contract.
  • Avoid training the independent contractor.
  • Avoid directing the independent contractor how to perform the work.
  • Avoid requiring the independent contractor to have constant contact with the company, to regularly come to the company’s location, or to attend meetings.
  • Avoid requiring regular status updates from the independent contractor.
  • Permit the independent contractor to reject work.
  • Do not require the independent contractor to personally perform the work.
  • Require the independent contractor to be responsible for damages caused by its actions.
  • Pay the independent contractors by an invoice with the independent contractor’s federal tax identification number.
  • Pay the independent contractor by the project, a fixed fee, achievement of goals, or some other method other than by the hour.
  • Require the independent contractor to obtain workers’ compensation insurance and provide evidence of the coverage.
  • Use language in communications that is consistent with a contractor relationship and not an employment relationship.
  • Contract for project or other discrete period rather than for regular or continuous services.
  • Allow the independent contractor to set hours of work.
  • Manage for results and avoid giving instructions about how to achieve the result.
  • Keep independent contractor files with other vendor files and away from employee files.
  • Collect evidence indicating independent contractor status such as business cards, yellow page ads, and other marketing material.
  • Do not have independent contractor complete employee application.
  • Do not provide the independent contractor with an employee handbook.
  • Do not provide the independent contractor with employee benefits.

Protecting Employees from Workplace Violence

The horror in Connecticut today reminds us of how real the danger of workplace violence is.  It was not that long ago that a former employee here in Seattle was convicted of killing two coworkers and wounding two others at a local shipyard.

Dennis Schwartz, himself in Connecticut, provides some valuable insights about workplace violence on his Connecticut Employment Law Blog and suggests steps employers can take to address the danger.   Among his suggestions are:

  • Provide training to employees. Recognizing the signs of potential workplace violence is crucial to any prevention campaign. Teach employees of the “warning signs” to look for and ensure that employees are sensitive to this area.
  • Encourage an “open door” policy. Much like New York Transit’s “If you see something, say something” slogan, the employer should encourage employees to report potential safety risks or unusual behavior.
  • Don’t be afraid to contact the police. Some employers take the view that they can handle a matter “internally”.  Resist the urge. Contact law enforcement when appropriate; they may already have information on the subject that would help with an existing case or have knowledge of a prior history.  Obviously, not all incidents rise to that level, but some do.
  • Take incidents seriously.  While some employers have instituted “zero tolerance” policies, a one-size-fits-all policy may not be appropriate. Employers should consider what type of approach they want to take to workplace violence incidents or incidents of lesser severity that still indicate a problem.  Employers should immediately respond to such incidents when they happen.

To his suggestions, I would add considering consultation with someone experienced in threat assessment.  For example, I have worked with James S. Cawood out of San Leandro, California a couple of times.  He did an excellent job of helping realistically assess the specific nature of the risks posed by employees based on our specific circumstances rather than on just a generalized fear.  With his help, our responses were appropriately tailored to match the nature of the actual risks we faced.