To see full course details, or to register for a program, click here.

As orginally published by SHRM's "We Know Next," found here.

We all know that powerful women face Catch-22s.  When Donald Trump exercises control, he is in control. When Martha Stewart exercises control, she is controlling.  Same behaviors; different labels.
A lot has been written about these Catch-22s.  Less has been written on how women with power can handle them.
Here are three of the many Catch-22s women with power face and my suggestions for how to navigate them.

1. Ice Queen

Women who maintain emotional control are sometimes described as Ice Queens.  Of course, those who demonstrate emotion may be equally criticized.
I once had a male client scream at me about how an emotional woman working for him was making him nuts.  I was glad he was not emotional.
It's okay to show passion, compassion and emotion.  Just make sure that it's in the framework of control.
Indeed, consider getting ahead of the curve. Whether you are male or female, educate your team on the importance of emotional intelligence. 
And, don't react to fears of being perceived as too emotional by being non-emotional.  That goes too far, unless you want your subordinates to wear winter coats in August.
Ice Kings and Queens are not likely to inspire passionate followers.  But subordinates tend to be tougher on the queens than the kings.

2. Tough

Women with power who are simply as tough as men are sometimes described as tough in either a disparaging way (“bitch”) or with surprise (“wow, is she tough”).  What were you expecting from the COO:  a shoulder to cry on?
Of course, if a woman is more collaborative, she may hear that she is not tough enough. Why can’t she make a decision on her own? Why does she need so much buy in?
Whether male or female, you need to be tough to lead.  And, regardless of gender, being strong is not inconsistent with being collaborative.
But, for women, this can be a more difficult balance in the eyes of the beholder.  Same behaviors may produce different responses.
People continue to tune in to hear The Donald say “You’re fired.”  People tuned out when The Martha said the same thing (in a less direct way). 
Be strong.  And that doesn’t mean out-toughing Cro Magnon man. 
Be collaborative. But be clear that you will make the decision (when it is your decision) and be decisive when you do.

3. Anger

When men are angry, they're often seen as powerful.  Anger is a very powerful emotion if coming from a Y chromosome.  When women are angry, they are sometimes viewed as one step away from Glenn Close in Fatal Attraction.
There are times when you should be angry.  But recognize the double standard and be careful that the anger be focused on what was done and less on how you feel about it.  Contrary to therapeutic advice, keep the focus on actions and not on feelings.
Related, when men complain, they push.  When women complain, they sometimes are labeled “whiners.”  Don't get me wrong:  incessant whiners, regardless of gender, are irritating.
But women often are judged more harshly when they complain so be careful when and how.
Compare:  “I am so mad I was excluded from the meeting” with “Glad to be here.  I’m sure you simply forgot to include me.”
Of course, not all women face all (or even some) of these or other stereotypes.  And, where they exist, they tend to be subtle pastels rather than the fluorescent lines I have painted to make the point.
The devil does not only wear Prada.  How easy it would be if it were that simple.
Where these stereotypes exist, they are often the product of unconscious bias and sometimes hard to detect.  Women with power need to deal with them consciously.  But, they do not need to go it alone.
There are plenty of progressive (and secure) men who do not hold these stereotypes.  To suggest that a progressive (white) male is an oxymoron is also an unfair and untrue stereotype.
 

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

As originally published by SHRM's "We Know Next," found here.

An important customer, client, colleague or business partner asks an executive if her son can intern with your company for the summer.  Don’t worry about the money, she says.  My son is only looking for the experience.

As we approach the summer, expect more of these requests.  I personally have received quite a few already!

Sounds like a classic “win-win.”  The intern learns something and you strengthen an important relationship at no cost. So, the executive says “of course.”  Not so fast, please!

There have been several recent high-profile cases in which interns have alleged that they were really employees and should have been paid. While mere allegations do not mean actual liability, the fact is that the Department of Labor and the plaintiffs’ bar are focusing very closely on this issue.

In September 2011, a case was filed against Fox Searchlight Pictures, Inc. by two interns who had worked on the production of “Black Swan.”  They claim that they were misclassified as unpaid interns and that they should have been paid.

In February of 2012, an unpaid intern who worked for Harper’s Bazaar sued Hearst Corporation, the publisher of the magazine, claiming that her unpaid internship did not meet the internship requirements, and she should have been paid.

And, just last month, a class action suit was filed against Charlie Rose and the production company Charlie Rose Inc., alleging that unpaid interns who worked for the Charlie Rose Show should have been compensated saying they were really employees, not interns, under the federal Fair Labor Standards Act (FLSA).

Under FLSA, six requirements must be met for an individual to qualify as an intern. Take the time to read the regulations now or you may find yourself reading them later -- responding to a DOL audit or answering a complaint.

The six requirements are:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Of the six factors listed, the fourth is typically the hardest to meet. It requires that the employer not receive any real benefit from the intern’s “work,” and that, at times, the intern’s presence actually impedes operations.  Ouch.

So, talk with your executives.  Let them know that before they say yes to an offer that sounds too good to be true, they should check with you -- because it may be too good to be true. You don’t want your unpaid internship to make a plaintiff's lawyer rich at your expense.

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.

THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP

As originally published by SHRM's "We Know Next," found here.

Mad About Mad Men

By: Jonathan A. Segal

Sexism is more than illegal. It is immoral and bad business.

There is more than a little bit of sexism in the roles portrayed in Mad Men.  So why are so many of us crazy about the show, even though we deplore the sexism that is part of it?

Of course, it is a TV show and not real life. And, the characters are not only psychologically interesting but also physically attractive.

And, there is great writing and acting.   The sex doesn’t hurt, either. I hear it sells!

But I think there may be something else going on.  But perhaps not consciously.

Today, fortunately, the stereotypic constraints for women (and men) are breaking down.   And, that is all good. But it can also be confusing for  supervisors and subordinates alike as they try to navigate life at the office.

Obviously, sexism in not entirely gone. Some men still visit strip clubs while away on business.  But only a knuckle dragger who has no place in the modern workplace would suggest that women should go along to get along.

But when roles are not clear, and the bias that exists is unconscious or covert, it creates ambiguity. With ambiguity comes anxiety.

While there is psychological complexity in Mad Men, there is not a lot of ambiguity in terms of gender roles.  And, perhaps one of the reasons we are fascinated by it is because we are seeking a workplace that’s a little less ambiguous, even though it is deeply flawed in its clarity.

Don Draper is the likeable but the licentious alpha male who pursues and gets what he wants from his workplace, economically as well as sexually. In contrast, Red is well...Red.  In addition to how she presents herself in the workplace, she makes sure that the other women "know their place" in the workplace.

All accept their gender-defined roles, except for Peggy. She will not accept the gender role assigned to her.   She is ambitious and we will see soon how far her ambition takes her.

But Peggy struggles with her own ambition.  And those in the 1960 Boys’ Club around her struggle with her ambition, too.

The ambivalence in and about Peggy still exists in our workplaces today.  Yes, it is less conspicuous and often unconscious, but we deceive ourselves if we believe it is not there.

Assertive women still face unfair “Catch-22s” every day.  Be directly assertive and you may be branded with Scarlett B.  Be more indirect and you may be seen as weak and/or underhanded.

And, many men are confused by the sea change.  How should we behave?

I recently gave a talk for executives about gender bias.  After the talk, I took the elevator down to the lobby with some of the participants.  When the door opened, no one knew what to do.  I had a “brilliant” suggestion: those closest to the opening leave first.

So we look with distaste at the sexism and all that which goes with it.  But, perhaps, we also yearn, to some degree, for greater clarity. Guess what: we can’t have it.

Stereotypes define roles. We now need to define our roles for ourselves without society unfairly assigning them to us.

The freedom is of course liberating and for the best. But it is not without some anxiety.

But, take a break from anxiety, and enjoy Mad Men this weekend.  I know I will.

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.

THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP

As originally published by SHRM in HR Magazine Vol. 57 No. 3.

Alcoholic employees present a range of legal risks.

3/1/2012          By Jonathan Segal

Al has been employed by his company for 15 years. For the first 12 years, he was a superstar. He worked hard and consistently exceeded performance expectations. Clients loved him. Employees admired him. During the past three years, Al's performance has steadily declined in quality and quantity. And he's had a number of exchanges with clients and employees that have been anything but positive. Al talks a lot about his three closest friends: Jack Daniels, Jim Beam and Old Grand-Dad. On occasion, colleagues smell what they believe to be alcohol on his breath. What do you do? Do you focus only on the declining performance? Or, do you address the elephant in the living room—Al likely has an alcohol problem?

Disability Defined

While the Americans with Disabilities Act (ADA) was designed to protect applicants and employees with disabilities from discrimination, one unintended adverse consequence is that it also makes it legally riskier for employers to deal directly with physical or mental disabilities that may be the cause of performance or behavioral issues.

Enacted in 1990, the ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. An individual may be protected if he or she has a present disability, has a record of a past disability, or is regarded as having a disability.

In a number of decisions, the U.S. Supreme Court construed the definition of disability narrowly. In response, in 2008, Congress passed and President George W. Bush signed the Americans with Disabilities Act Amendments Act, which was effective Jan. 1, 2009. Although the amendments did not change the definition of a disability, they did include provisions that compel a broader interpretation of the definition. Indeed, it now seems that almost everyone is disabled.

Critical to the "regarded as" disability prong, the amendments provide that an individual may be regarded as having a disability if he or she is subject to an adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity. This definition is so broad that any discussion by an employer of an employee's physical or mental condition may serve as the predicate for a perceived disability claim, discussed in detail below.

In 2010, the U.S. Equal Employment Opportunity Commission (EEOC) published regulations under the amendments. The regulations take the expansive provisions of the amendments further.

For example, the regulations provide that:

•           The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination occurred, not whether the individual meets the definition of disability.

•           While individual assessment is still required as to whether an individual has a disability, whether an impairment "substantially limits" a major life activity "should not demand extensive analysis."

•           "Substantially limits" shall be interpreted and applied to require a functional limitation lower than the standard applied prior to the ADA Amendments Act. Curiously, while the commission states that the standard is lower, it does not state what the standard is.

The regulations then include examples of conditions that "in virtually all cases" will meet the definition of disability. The broad list includes physical disabilities, such as cancer and HIV, as well as mental disabilities, such as bipolar disorder and major depression.

Substance Abuse

The regulations are conspicuously silent on alcohol and drug dependency. However, the law preceding the amendments to the ADA with regard to alcohol and drug abuse remains unchanged. The rules with regard to substance abuse generally are:

•           Alcoholism is usually a disability under the ADA. The same is true of dependency on prescription drugs, as long as the drugs were prescribed for the individual who has grown dependent on them.

•           Current use of illegal drugs is not protected. There is a specific carve-out under the ADA for this. Illegal drugs include drugs such as heroin and prescribed drugs used by someone other than for whom they were prescribed.

•           An individual who is in recovery from a problem with alcohol or with legal or illegal drugs is protected from discrimination under the ADA.

•           However, even if an employee is disabled—for example, an alcoholic—an employer generally can take adverse action against an employee who:

•           Uses or possesses alcohol or drugs in violation of the employer's policy.

•           Is unfit for duty because of alcohol or drug use.

•           Fails to meet the employer's expectations in terms of performance, conduct or attendance, even if the failure is because of substance abuse.

•           Two more background points:

•           Even if an individual is not protected by the ADA, he or she may be protected by the Family and Medical Leave Act (FMLA) or state law. For example, substance abuse is a serious health condition under the FMLA, and substance abuse is not limited to legal drugs.

•           The distinction between current and prior illegal drug use is easy to articulate but often difficult to apply. According to the EEOC, "current drug use" means "that the illegal use of drugs occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an ongoing problem." It is not limited to use on that particular day or in recent weeks or days, but is instead determined on a case-by-case basis, according to the commission's A Technical Assistance Manual on the Employment Provisions (Title?I) of the Americans with Disabilities Act.

Statistics vary, but at least 7 percent of the U.S. adult population is estimated to suffer from alcoholism.

Three Approaches

With this background, let's return to Al.

While there are varying statistics, at least 7 percent of the U.S. adult population is estimated to suffer from alcoholism. In some professions or cultures, the number is considerably higher.

Moreover, according to the U.S. Department of Health and Human Services:

•           7 percent of U.S. workers drink during the workday, usually at lunch.

•           9 percent of U.S. workers have nursed a hangover while working.

For purposes of our discussion, we will assume that an alcohol problem is causing Al's declining performance and behavior.

Generally speaking, there are three approaches for dealing with Al. One option would be to wait until he reeks of alcohol and then test him under your reasonable-suspicion policy, providing that you have one. This hits the issue head-on.

There are, however, a couple of potential problems with this approach. For one thing, his poor performance will continue in the interim. For another, even if Al is tested, he may test negative. Sometimes an alcohol smell comes not from the breath but from the skin.

The second option would be to deal directly with the performance issue and only the performance issue. There are two clear benefits to this approach: You focus on what you are qualified to judge (whether the employee meets performance expectations), and you minimize your risk under the ADA. If you focus on the performance issue and stay away from the alcohol issue, Al will have a more difficult time alleging that an adverse action was taken because you perceived him to be disabled.

However, there is a potential problem with focusing only on performance and ignoring the alcohol use: Performance management will not always work.

"Because the sense of denial is so strong, it needs to be pierced," says Paul Hokemeyer, an addictions specialist with Caron Treatment Centers in Boca Raton, Fla. "Sometimes you can pierce the denial by focusing on performance; other times, a more direct approach is required."

The third option is to address the performance problems as well as the alcohol issue—to pierce the denial. There are three variations of the third option:

Simply mention the issue and offer to help. It's possible that just raising the issue may be enough, but it's unlikely—unless the individual is ready to receive help.

Mandate an evaluation. Here, you ask a reputable substance abuse professional whether there is an objective reason to question the employee's fitness for duty and then require an evaluation if the answer is in the affirmative.

This approach carries with it greater legal risk because you are requiring a medical evaluation under the ADA and you are potentially setting yourself up for a perceived disability claim, too. Do not expect a "Thank you for caring."

"People who suffer from addictions may react like a mother tiger protects her young. The individual may feel trapped and threatened and could respond with hostility and anger," Hokemeyer says.

Hire a substance abuse professional to conduct an intervention to encourage the employee to submit to the required evaluation. When conducting the intervention, the professional often elicits the help of family and friends.

This approach involves the greatest legal risk, but it has the greatest likelihood of being successful. Be sure to hire a skilled professional who knows how to respond to the denials and inevitable attacks.

Risk Selection

It is not illegal to address the alcohol use. It is simply a course of action that carries with it legal risk. But not taking the legal risk in some cases can carry with it other types of risks; in these cases, you are engaging in risk selection, not risk avoidance. In other words, simply doing nothing for Al is not risk-free. To the contrary, an employer may "buy" other risks.

There are the human and employee relations costs. The employee's alcohol problem is often recognized by everyone but the employee, and most people care about the deterioration they see.

Alcohol and other substance abusers often abuse more than alcohol. Sadly, but indefensibly, addicts sometimes abuse those who work for and with them.

There is a financial cost of ignoring the alcohol issue. "Alcoholism is an acidic cancer that will ultimately turn the performer's gold into lead," says Hokemeyer. "We also see performance not just recover but reach even higher benchmarks after the person enters a recovery program."

Finally, depending on the employee's job, if you focus solely on performance and avoid the alcohol use, you may be setting yourself up for a claim by a third party injured by the impaired employee's conduct. For example, in health care, would you rather have a wrongful death claim or a perceived disability claim? Pick your plaintiff.

Such discussion invariably leads to the question "How many elephants do you have in your corporate living room?"

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.

THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP

In a recent case, an ALJ of the NLRB held that an employer's at will statement in its Employee Handbook violated the NLRA.  I told you that you needed to breathe deeply before reading.  Take another deep breath before continuing.

Of course, the Board has not yet ruled on the ALJ's decision. While I am not a betting man, I think the Board  is as likely to reverse the ALJ as is former Chair Wilma Liebman is to apply for a job with the National Right to Work Legal Defense Foundation.

Does this mean employers should eliminate the at-will language from their handbooks? Of course not!

But, based on the ALJ's "analysis," there are at least two steps we can take to minimize the risk under the NLRA as rewritten by the NLRB.

First, do not make a general statement that the at-will principle cannot be modified "in any way." Make clear it cannot be modified by any supervisor, manager or other representative of the company unless in writing. That way we are not impliedly stating, or so it may be interpreted, that a union could not negotiate a change.

Second, we should require only that employees acknowledge receipt of the handbook as opposed to requiring their agreement, too.  We don't need their agreement and requiring their agreement irritated the ALJ, who wrote: "For all practical purposes, the clause in question premises employment on an employee's agreement" not to engage in union activity that could result in a collective bargaining agreement. 

Independent of the NLRA, requiring agreement may undo the disclaimer that the handbook is not a contract. A results-oriented state court judge might say that, if you are going to require employees to agree to it, you as the employer better comply with it, too.

Of course, independent of both NLRA and state law contract claims, failure to comply with a handbook may be evidence of bias. So make sure your policies provide you with the agility you need to operate in this increasingly fast moving world. 

If you are feeling strong, emotionally and physically, you can read the entire ALJ opinion: American Red Cross Arizona Blood Services Region, Case No. 28-CA-23443 (February 1, 2012)

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

HOOKING UP ON TWITTER (A CAUTIONARY TALE)

by Jonathan Segalon February 27, 2012

Originally posted on www.weknownext.com

I begin this cautionary blog with a story. After the story, you'll understand why I began the blog as I have.

I wrote an article on holiday parties for Business Week. I discussed the risks, including too much alcohol consumption and sexual harassment. Of course, the two often are connected.

Well, the article included a little sarcasm. Perhaps a little more than a little. So it was tweeted pretty heavily.

As you know, when people tweet, they can add their own message. As I learned later, one tweeter included the words party, alcohol and sexual. They forget the harassment. No Freudian miss there.

So one night I went to the movies and came home late (10 p.m. for me) and decided to go to bed without checking my e-mail. I try to do that twice a year to deceive myself into believing that I am mentally healthy.

The next morning, I logged on and noticed that I had many new Twitter followers. Twit that I am, I am very happy.

Until, I see the followers. They saw alcohol, sexual and party and were very interested.

But they were not interested in legal issues. They were selling sexual services, quite literally and explicitly.

I immediately sent messages: do not follow me. But I don't think Candy Cane is a big reader.

So, now I decided it was time to ratchet things up. I copied my bio (hoping a big law firm would intimidate) and, to my delight, they went away. I would like to think that it was the law firm and not the fact my bio has a picture!

After cleaning this up, I learned of a very important twitter feature: block. And, when it comes to social media it is a critical tool... beyond responding to sex workers.

All too often people tweet or follow and think more is better. Not always.

Social media is a form of communication. And, at the risk of the obvious, it is a two way street.

Check your followers and make sure there is no one you do not want following you. I have advised clients to do this, and they have found among their followers piranhas masquerading as plaintiff's lawyers. Block!

If you follow someone, read their tweets. If their tweets are offensive or unseemly, unfollow. I followed a reporter. I thought one of his tweets was sexist. Unfollow.

In social media, it is the quality of your relationships that counts, not the number of them.

Gotta go. Wrote a blog last month for WeKnowNext on Valentine's Day called  "I Love You." They're back!

Jonathan Segal will speak at the SHRM 2012 Employment Law & Legislative Conference on Tough Love: What Your CEO Won'tTell You About HR, But I Will and Inside the Mind of the State Rep. For more information, please click here.

As originally published by ALM's "Law.Com," found here.

From the Experts: 7 Ways Employers Can Protect Their Ass(ets)
Some things you need to know about labor law in 2012.
A list of seven action items for employers to help minimize exposure to labor and employment law litigation.

We’re in the first quarter of 2012, and the government and plaintiffs’ lawyers are continuing their assaults on businesses. Perhaps the biggest job growth this year will be in the employment of defense counsel. Here are seven areas where employers already are—or are likely to be—challenged in 2012 and recommendations for minimizing exposure to such attacks.

1. GINA

The Genetic Information Non-Discrimination Act generally prohibits employers from asking employees about genetic information. You may be tempted to skip this section because most of your managers don’t start Monday mornings by asking: “How was your weekend, and do you have any genetic information that you would like to share with me?”

Yet, under GINA’s regulations, our managers may be doing just that. More specifically, the regulations make clear that there are some very particular dangers regarding an employee’s genetic information. When you ask for medical information, if you do not tell the employee’s doctor not to disclose the genetic information to you, and if you then get genetic information, it is as bad as if you had actually asked for it.

The regulations include a “safe harbor” disclaimer that is recommended be included with all requests for medical information. If you include the disclaimer and you receive genetic information, you still cannot use it, but it will not be treated as though you had asked for it.

Action Item: Review your policies and practices to make sure that you include a GINA disclaimer whenever your HR manager asks for medical information to support a leave under the FMLA, an accommodation under the ADA, etc.

Also, make sure managers are trained in what to do and not do if an employee discloses that a family member has a medical condition. If an employee tells her supervisor that her mother has breast cancer and so did her grandmother, the supervisor may be tempted to encourage the employee to be screened.

But if the employee later is subject to an adverse employment action, the employee may claim it was because of the supervisor’s concern about her genetic likelihood of getting cancer. Sad but true, like the ADA, GINA can make kindness risky.

Tell the employee she is in your thoughts and prayers. Even offer to help. But stay away from medical recommendations.

2. ADA and Leaves of Absence

The EEOC loves consistency, except when it doesn’t. The subject of maximum leave provisions is one of those areas where it doesn’t.

To maximize consistency, many employers have policies that provide that employment will terminate automatically if an employee is absent a certain number of weeks, for example, 26 weeks. The EEOC has taken the position that these automatic termination provisions violate the ADA and has sued numerous employers—and includes on its website the multimillion dollar settlements it has extracted from employers.

Action Item: Revise your policies to make clear that an employee’s employment will not terminate automatically when the “flexible maximum leave” is reached. Rather, before the maximum is reached, the employer will reach out to the employee to determine whether there are any accommodations that would enable the employee to return to work or whether the employee needs additional leave, and whether such additional leave may be a reasonable accommodation. Develop a protocol to implement the policy.

3. FLSA—Remote Work

The FLSA was enacted in 1938 when people worked at work. We now work everywhere—all the time—and the question now becomes: how does the FLSA apply to work outside of the workplace?

Last year, the U.S. Department of Labor developed a smartphone application so that employees could keep track of their own time. The DOL also created hard copy “exhibits” for employees to track their time. In taking these steps, the DOL has stated that employees must be paid for any work they do, regardless of where they do it.

Some have suggested that the DOL is encouraging claims rather than adjudicating them. Whatever the intent, the effect will be to add wind to the tsunami of wage and hour claims. The number of collective actions has increased by more than 400 percent since the 1990s.

Action Item: Focus on off-duty work in terms of your wage and hour practices. Make it clear that non-exempt employees cannot do work remotely, absent prior permission from their supervisor. For example, if BlackBerries or other PDAs are given to non-exempt employees, tell them when they can use them, how to record their time, and pay them for such time.

4. Like Me Bias

We all know that there is not only conscious bias but also unconscious bias. Of course, the unconscious bias exists only at your competitors but never in your own organization!

The EEOC and private plaintiffs’ lawyers are attacking subjective hiring practices where hiring managers hire or promote someone who is like them—in other words, “like me” bias.

When white men look in a mirror, they don’t see a woman of color. Of course, the converse is equally true. So, if we hire and promote our mirror images, we may be engaging in unlawful bias, albeit often unconsciously. At a minimum, we may be excluding talent to our detriment.

Action Item: Have a diverse team make your key hiring decisions. It would be hard to argue that a diverse team hired its mirror image. Plus, diverse teams tend to come up with better decisions by including different perspectives.

Also, be careful of “cultural fit,” which may be seen as a proxy for bias against someone who differs from the group. Where cultural fit is an issue, focus on behaviors exhibited or expectations expressed that were problematic. If you cannot explain them, you have a problem. And if the explanation sounds stereotypical, you have a problem.

5. Social Media and Disparagement

Before the advent of social media, when employees were unhappy, they used to talk with their co-workers. Now, they may blog, tweet, or otherwise send a postcard to the world fulminating about their employer. The initial response may be to fire the employee. Be careful: the posting may be protected.

The National Labor Relations Board is beyond protective of employees who complain about the terms and conditions of their employment by way of social media. While the National Labor Relations Act protects only “concerted activity,” the NLRB has defined concerted activity so broadly that even narcissists who complain only about their individual treatment may be protected in some circumstances. And, remember, the NLRA applies to non-union employers too.

“Disparaging” postings may be protected by other laws, too. For example, allegations of unlawful bias or other unlawful activity may be protected by federal, state, and local non-discrimination and whistleblower laws. Plus, some states have off-duty conduct statutes that may provide further protection.

Action Item: Review your social media policy and minimize the risk that it will be deemed to prohibit protected activity. Prohibit supervisors from taking adverse action based on a social media posting without checking with HR/counsel first so you can assess whether the posting may be protected. And don’t forget the practical reality that terminating an angry blogger only gives him/her more time to post crazed vituperations about you!

6. Performance Management Guidelines

To ensure due process, many employers have progressive discipline policies. I am a believer in progressive discipline, but there are risks in spelling out in too much detail what you will do and how you will do it. If you don’t follow the policy and/or procedure, the employee will argue this is evidence of bias. Don’t let your best legal defense in these circumstances be the lame: “We never follow our policy and/or procedures anyway, so our failure here is not bias“ That’s hardly the sort of defense you want to assert if you want to be seen as a great place to work.

Assume that, over the next year and beyond, we will continue to expect more and have less time and tolerance for those who don’t meet our higher expectations. In the 70’s, Spiral Staircase sang, “I love you more today than yesterday, but not as much as tomorrow.” The update today could be, “I expect more from you than yesterday, but not as much as tomorrow.”

Action Item: Make sure you reserve the right to skip steps in any policy you may have. Consider listing possible steps without suggesting there is a progression from one to the next.

7. Retaliation

The U.S. Supreme Court has leaned toward employers in every area except one: retaliation. In retaliation cases, employees have won every case before the high court. In 2010, retaliation charges were the most common charge filed with the EEOC (for the first time). The same was true in 2011, and we can expect the same in 2012 again.

Sometimes retaliation claims happen because we wait too long to act. An employee knows he/she is in trouble. Before the manager approaches the employee, the employee consults with a lawyer. Then, the employee approaches his/her manager: “I know my performance is not what it should be. That’s because I am clinically depressed, ADA style, because you have been discriminating against me, Title VII style.” The retaliation claim has been set up if and when adverse action follows.

Action Item: Don’t put off the inevitable. When you have made a decision to take adverse action, do not delay. Delay creates a window of opportunity for a protected complaint. Develop a robust retaliation policy that tracks the broad holdings of the Supreme Court’s decisions—for example, prohibited retaliation is not limited to tangible employment actions, but also may apply to other material terms and conditions of employment. Emphasize in training that the fact that a complaint lacks legal merit is almost never a defense against retaliation claims.

And treat retaliation as seriously as discrimination and harassment, which we should treat very seriously. Remember, even if the regulators have taken certain legal rights to the extreme, discrimination, harassment, and retaliation are still wrong. Very, very wrong.

The enormous regulation and extreme litigation result in employers spending too much time and money on lawyers. While legal fees are unavoidable, they can be minimized with careful and proactive planning so that you can achieve your legitimate business goal with less risk.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Join us on March 14, 2012 for the start of another DMi semester. My colleague, Jonathan Wetcher, and I will present:

AM: Documenting Discipline  (Segal)

PM: Employment Agreements: Paperwork that Matters  (Wetchler)

You can attend one or both

Click here for full course descriptions and registration details.

We hope to see you!

Jonathan

215-979-1869

As originally published by SHRM's "We Know Next" found here.

I Love You

It is 9 am.  The secretary reports to her desk.  Waiting for her is a sealed card.

The secretary opens the envelope and it is a Valentine's card from her manager.  Having undergone sensitivity training, the manager signs it "fondly" as opposed to "lovingly."

The employee is creeped out and goes to HR.  HR talks with the manager based on a script we had prepared together.

HR asks the manager if he knows why the card is inappropriate.  He responds "no."

HR asks the manager to whom else he gave a Valentine's card and he answers his wife.  Again, it is asked:  do you know why card was inappropriate?  Again, he answers "no."

We now take out the crow bar.  Is there anything you do with your wife in privacy that you don't do with secretary?  Ding.  Ding.  Ding.

Every year, we get 1 or 2 calls about harassment claims arising out of Valentine's Day cards.  Employees can be so sensitive when their bosses tell them:

To the love of my life

I cherish our moments together

I love you

Recommendation:  no Valentine's day cards at work.  This is particularly true in terms of supervisory-subordinate relationships.

Of course, that does not mean that everyone who sends a Valentine’s day card is intending to convey a romantic message.  After all, there are now Valentine’s day cards for parents, kids, etc.

For some, the Valentine’s day card is simply a way to say you are important to me.  The problem is the nature of the holiday may confuse the reason as to why the employee is important.

Make clear to your employees, by your words and actions, how important they are to the organization.  Recognition and appreciation are the vitamins employees need every day. Just don't tell them that they are the loves of your life. Unless you want a plaintiffs’ lawyer to fall in love with you.

This blog should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship.

Dr. King's words:  http://abcnews.go.com/Politics/martin-luther-kings-speech-dream-full-text/story?id=14358231

With deep respect to his memory and with hope that we are closer to his dream becoming a reality.

As originally published by SHRM's "We Know Next" found here.

Au Revoir Bad Precedent

As we all know, in EEO termination claims, how we treat the "comparators" is critical.  Two (2) key questions:

• Did you let anyone else go for a same or similar reason?
• Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harsher than X because of my  [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2012, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2012 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially.  And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Of course, it is more complicated with unions.  You may need to negotiate with the union.  At a minimum, you always should provide the union with notice.

As always, talk with your counsel. Bad precedent is, well, bad.  Now is an ideal time to start making good precedent.

Article I wrote for Business Week:

 http://www.businessweek.com/management/