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Leadership = Influence


I am pleased to share with  my latest blog from SHRM's We Know Next (my first blog on leadership):

http://www.weknownext.com/blog/leadership-influence

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

 
 
 
 

Bullying at work: Hard to define, even harder to ban


I am pleased to post my most recent blog on bullying for CNN's Fortune.

http://management.fortune.cnn.com/2014/01/07/bullying-work-ban/ #bullying

Of course, we can help you prevent and correct this problem, please let us know.

Thanks

Follow me on Twitter at: @Jonathan__HR__Law

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

 
 
 
 

DMi - Change is Coming.


It is with great pleasure and excitement that I welcome you into the New Year on behalf of the Duane Morris Institute. This year is our 5th anniversary, and we’re excited to announce that we are beginning 2014 with a strengthened commitment to empowering your leadership.

In the coming months, you’ll notice a new, modern aesthetic rolling out across our organization. You’ve come to expect current, valuable, and relevant education from DMi, and we’re updating our look to reflect that. But, beyond the modern appearance, the new look reflects the deeper changes we’re making as an organization.

We’re updating our website to function in a more user-friendly manner, with easier navigation and course registration. The technology that powers our online webinars has been improved and updated to make the entire experience even more valuable for those participating. You’ll also notice a refreshed presence for DMi across social media, with new Facebook, Twitter, and LinkedIn accounts dedicated to keeping you in the know.

That leads us to the other major aspect of evolution: our mission and vision as an organization. As the result of an internal discovery process, we have defined DMi’s true value and position in the industry, helping us focus on our message and value proposition to the public:

Education that empowers your leadership.

Looking at this season’s new course line-up, you’ll see our mission reflected in education with a keen focus on leadership. From training managers on the benefits and risks of social media in the workplace, to discussing the most common mistakes made when firing an employee, our faculty has lined up a stellar course catalog that is full of timely and relevant topics.

Even more exciting, we’ve expanded our offerings to include additional leadership training and Lean-In Dialogue events, based on the success of last year’s. Stay tuned for updates on those as the year progresses.

We look forward to having you in class and hope that together we can help you accomplish your professional goals for 2014.

For a look at our updated brand and a preview of the new course catalog, please visit our new landing page Winter Courses.

 
 
 
 

The Holiday Tale By The Jewish Guy Who Wears a Chai - 2013


I am pleased to share with you my latest blog from SHRM's We Know Next:

http://weknownext.com/blog/the-holiday-tale-by-the-jewish-guy-who-wears-a-chai-2013

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

 
 
 
 

Forget the Fockers: Meet the Stored Communications Act


By way of legal background, the Electronic Communications Privacy Act (“ECPA”), enacted in 1986, is comprised of two statutes:  the Wiretap Act and the Stored Communications Act.  Historically, most litigation arising under the ECPA has involved the Wiretap Act, that is, where there are “interceptions” of wire, audio or aural communications (for example, listening to an employee’s phone call).

However, with the social media revolution, the Stored Communications Act (“SCA”) now is coming into play.  Generally speaking, in the employment context, the SCA makes it unlawful for an employer to have unauthorized access to an employee’s private social media sites.

More than a dozen states now prohibit employers from asking applicants or employees for their passwords to their private social media sites.  However, the SCA, which applies to employers in all 50 states and which comes with civil and criminal penalties, may go even further.

Ehling v Monmouth Ocean Hospital Service (D.N.J. 2013) is one of the first cases to focus on the application of the SCA to Facebook.  The facts of the case can be summarized succinctly.  The plaintiff-employee had a Facebook account.  The plaintiff friended a coworker.  The coworker, on his own initiative, provided management with copies of postings made by the plaintiff.

The plaintiff argued that the employer violated the Stored Communications Act.  The court held that the SCA applied.  However, the court also held that an exception to the general prohibition under the SCA on accessing stored communications also applied.

As the court noted, very few courts have addressed whether the SCA applies to Facebook wall posts.  There is no legislative history with regard to the intended application of the SCA to social media for a simple reason:  the SCA was enacted before the advent of social media.

However, the legislative history does provide some guidance.  As the court noted:  “The legislative history of the [SCA] suggests that Congress wanted to protect electronic communications that are configured to be private.”

The SCA  provides that whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided . . . shall be liable for damages” under the SCA.  The SCA also provides for damages where an individual exceeds the authorization provided to him or her to access a facility.

For the SCA to apply, four (4) requirements must exist:  (1) there is an electronic communication; (2) that was transmitted by an electronic communication service; (3) the communication is in electronic storage; and (4) it is not public.  The court noted that Facebook wall posts that are configured to be private meet all four (4) criteria.

More specifically, the court held:  (1) Facebook wall posts are electronic communications; (2) Facebook wall posts are transmitted by an electronic communication service; (3) Facebook wall posts are in electronic storage; and (4) Facebook wall posts that are configured to be private are, by definition, not accessible to the general public.

After concluding that accessing an employee’s Facebook page is covered by the SCA, the court then dealt with whether there was an exception that would make the employer’s conduct in this case lawful.  The court focused on the exception which provides that the SCA “does not apply with respect to conduct authorized . . . by a user of that service with respect to a communication of or intended for that user.”

The authorized user exception applies where:  (1) access to the communication was authorized; (2) by a user of that service; and (3) with respect to a communication intended for that user.  The court goes on to define access as not being authorized if the authorization was coerced or provided under pressure.

In this case, the court concluded that all three (3) requirements were met.  The first requirement, however, is the one which is most significant for employers; that is, whether the employer’s access to the employee’s Facebook wall posts was authorized.  In other words, did the co-worker who was friended by the plaintiff provide the information to management without any coercion or pressure?

In this case, the co-worker testified that he voluntarily provided the information to management.  Management also testified that it received the information without soliciting it in any way.  Under these circumstances, it was an easy call for the court to find that the access was authorized.

However, not all cases are quite so simple.  Sometimes employees will tell management about an offensive posting, for example, racial, ethnic or religious harassment, but not provide a copy of the posting itself.  In these circumstances, what is management to do?

There are a continuum of options available to an employer, each with corresponding risk.  The seriousness of the legal risk associated with the alleged postings may inform, in part, the level of risk the employer is willing to take under the SCA.

The most direct response would be:  “Please provide me with a copy of the posting about which you speak.”  No matter how politely that is stated, because of the inherent power differential, a court could find that a mere request is coercive.

Slightly less direct:  “It would be helpful for you to provide us with a copy of the posting to which you referred.  Please understand that there will be no adverse action taken against you, regardless of whether you decide to provide us with a copy of the posting.”

Even more gentle:  We thank you for the information but cannot investigate or take corrective action without seeing it.

Which option, or variation of  it, makes most sense turns at least in part, as noted above, on what is at issue.  Consider the following examples.

On the one hand, if the posting includes stupid, but not illegal material, then there is no reason to take any risk under the SCA.  On the other hand, if the posting could expose the employer to legal liability, for example, the allegation being that the employee has posted racist rants, PHI under HIPAA, or inside information under the SEC, then the employer must balance its risks under statutes regarding the preceding against the risk under the SCA.

When all is said and done, there are a few things that are clear:

One:  An employer should never ask an applicant or employee for his or her private password.  This is true in all states, even if there is no specific state law.

Two:  Where an employee voluntarily provides an employer with a posting, the employer should document the voluntariness with which it was provided.  That is, the employer should document that it did not request the posting, but rather an individual provided it to the employer on his or her own initiative.

Three:  Where an employee raises a concern about a posting, but does not provide a copy of the posting itself, if legal issues are potentially implicated, the employer should formulate a request for the posting to maximize the likelihood that the employee will share the posting and also minimize the risk that a court find will find there to have been threats or pressure.

No doubt that any request by an employer exposes the employer to some risk.  But not requesting the posting also may expose the employer to some risk.  It is risk management, not risk avoidance.

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

 
 
 
 

Leading the Disengaged


Leading the Disengaged

The Great Recession appears to have taken more than just jobs out of the economy. It has taken the spirit out of many workers

 

In June of 2013, a very disturbing poll was released by Gallup.com.  Workers were divided into 3 categories: engaged, disengaged and actively disengaged.

 

According to the poll, 70-percent of American workers are “disengaged.”  A full 20-percent describe themselves as “actively disengaged.” Only 30-percent reported feeling “engaged.”

 

One could read this otherwise: only a 30% approval rating for leadership. While you cannot make everyone happy--indeed you should not try-- a 30% approval rating is dangerously low.

 

The non-engaged may leave you.  Employees are beginning to take the “at-will” right very seriously and job hop when they are not happy.

 

The actively non-engaged may sabotage you. Sadly, some of my clients have experienced this. 

 

Of course, employees also may sue you. People sue people, even if the name of the defendant is an organization  

 

If you want your organization to be productive, your employees cannot be a cabal of  zombies injured and disillusioned by the recent economic contractions. You need them to have passion and commitment.

 

Gallup’s conclusion:  leaders are responsible for the lack of engagement.  The report states:  “Organizations should coach managers to take an active role in building engagement plans with their employees, hold managers accountable, track their progress and ensure they continually focus on emotionally engaging their employees.”

 

But how can we as leaders achieve this goal?  How do we inspire emotional connection when many employees feel exploited by the new normal?

 

There was a song in the 70s by Spiral Staircase that included the lyrics “I love you more today than yesterday, but not as much as tomorrow. “ The theme song for the corporate world today could be:  “I expect more of you today than yesterday but not as much as tomorrow.”

 

Pulling back in terms of our demands is not an option.  The competition, domestic and foreign, has never been more fierce.

 

So we can’t retreat. We must continue to move forward  but we need more employees to go forward with us as engaged participants.

 

How do we turn disengaged, often hurt, employees into engaged participants?  How do we make some progress with the actively non-engaged, too?

 

On October 14, 2013, Lead with Giants will have a tweet cast in which we hopefully can share our experiences and ideas with each other so that we can lead engaged employees who in turn will help keep us engaged.

 

 

Follow me on Twitter at: Jonathan__HR__Law

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Retaliation: Corrective Action Without Admission


I am pleased to share with you my latest blog from SHRM's We Know Next:

http://weknownext.com/blog/retaliation-corrective-action-without-admission

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

 
 
 
 

The Legal Intelligencer Animal Law & Rights Issue


 
 
 
 

Supreme Court’s Affirmative Action Case: Not About But Entirely About Employment


In Fisher, SCOTUS upheld (at least technically) affirmative action in higher education.  While the Court reaffirmed that student body diversity could be a compelling state interest, the Supreme Court has made the burden so high for a program to be "narrowly tailored" that the Court has all but gutted "honest" affirmative action.

What about employment?  While the Supreme Court’s case has nothing to do with employment, it has everything to do with employment.  Same decision makers!

Historically, SCOTUS has offered more flexibility for voluntary affirmative action in education than in employment.  And, now, SCOTUS has made it even harder in education. 

SCOTUS has never upheld voluntary affirmative action in employment absent a remedial purpose (narrowly defined).  The lower courts have held almost unanimously, if not unanimously, that, in the absence of a remedial purpose (narrowly defined), employers cannot give race,  gender, etc. a "plus," even where the goal is laudable, that is, to create a culturally-diverse workforce.

What does this mean for diversity programs?  It means employers, now more than ever, must do two (2) things:

  1. From a business perspective, make sure their legal hiring, promotional, mentoring, etc. practices are inclusive and tap into the talent in diverse communities.
  2. From a legal standpoint, focus on diversity in experience, perspective, contacts, etc. and not race, gender or other protected factor.

Please e-mail me at jsegal@duanemorris.com for articles that address the above two points in more detail.  

Please follow me on Twitter at Jonathan__HR__Law.

This blog should be construed as legal advice, creating an attorney-client relationship or applying to specific factual situations.

 
 
 
 

Employers in the Crossfire


From SHRM's HRMagazine

Employers in the Crossfire 

Federal and state gun laws have ramifications for employees and employers alike. 
6/1/2013  By Jonathan A. Segal 
 
 

Last year’s massacre at Sandy Hook Elementary School in Connecticut was beyond tragic—and there have been more school shootings since then. In response, lawmakers in Washington have launched a game of political football.

But this isn’t about political wrangling around gun control; it’s about guns in places like schools and worksites. In addition to school shootings, there have been many fatalities caused by people turning their guns on colleagues at work.

According to the U.S. Bureau of Labor Statistics, about 78 percent of the approximately 518 workplace homicides in 2011 were gun-related.

In just the last few months of 2012, there were several tragic examples:

In September, a Minneapolis man who had been discharged opened fire in the company break room, killing five former co-workers before committing suicide.

In November, a man who was about halfway through his shift at a Fresno, Calif., meat processing plant pulled out a handgun and shot four co-workers, killing two before taking his own life.

Eleven days after that incident, a worker at a food producer in Indianapolis shot and killed a co-worker and then himself.

These are not the only examples of workplace homicides carried out with guns in 2012.

Rights vs. Risks

A comprehensive plan to prevent and respond to workplace violence goes beyond a rule on firearms in the workplace, but such a rule remains a critical component.

Of course, most gun owners would never consider using their weapons unlawfully, let alone do so. Those individuals should not be maligned. At the same time, we cannot ignore the inherent risks that firearms pose to employees in the workplace.

Think about what happens when you terminate an employee. He or she may be angry. If his or her temper is hot enough, a cool-down period may be needed to prevent a violent reaction. Access to a firearm in the company parking lot could cut short that cool-down period.

But can employers ban firearms in their workplaces and in motor vehicles in their parking lots? What if an employee has a license to carry the firearm?

Employees 21 and older have the right to drink, but employers still can ban alcohol from the workplace. Are firearms any different?

Some say yes, citing the Second Amendment. However, the scope of the protections it guarantees is not clear. Yet, the Second Amendment clearly applies only to restrictions imposed by the government—not private-sector employers.

States’ Statutory Rights

While private-sector employees have no constitutional right to bring weapons to work, some may have statutory rights. Twenty states have passed laws that protect, to varying degrees, the rights of employees and others to carry firearms on an employer’s premises. Tennessee’s legislation takes effect in July. In most cases, an employee’s right to bring a firearm onto an employer’s premises is limited to keeping the weapon in his or her motor vehicle.

Texas Labor Code Section 52.061 serves as a good example of these laws. It states:

“No employer may prohibit an employee who holds a license to carry a concealed handgun, who other­wise lawfully possesses a firearm, or who lawfully possesses ammunition, from transporting or storing a firearm or ammunition in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.”

There has been litigation about whether laws that allow employees to possess weapons on an employer’s property are inconsistent with, and therefore preempted by, the U.S. Occupational Safety and Health Act. The act’s general duty clause provides that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Employers won one case at the district court level, when the court held that the state law was pre-empted by the general duty clause. But this decision was overruled, and employers have yet to win another case.

In 2009, in Ramsey Winch Inc. v. Henry (555 F.3d 1199), the 10th U.S. Circuit Court of Appeals ruled in 2009 that the general duty clause does not pre-empt state law, disallowing the maintenance or enforcement of policies prohibiting the transportation or storage of firearms in vehicles on private property. The circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

Also, in a 2008 case, Florida Retail Ass’n Inc. v. Att’y Gen. (576 F. Supp. 2d 1281), a Florida district court held that the general duty clause does not pre-empt Florida’s guns-at-work law. The state law allows employees with concealed-weapons permits to keep guns locked in their vehicles while at work.

As of April, legislatures in at least 12 additional states were considering laws that would restrict the right of employers to prohibit employees and others from possessing firearms on their property and in their parking lots.

Pennsylvania legislators were pondering one of the most restrictive measures. House Bill 448 would allow an employee to possess a firearm locked in or “locked to” a private motor vehicle. The plain language would suggest that an employee could have his or her hunting rifle in plain view.

If enacted, to whom would this bill potentially pose the greatest risk? Hint: Which department is involved in most terminations?

Again, most hunters are law-abiding individuals. But if a gun is visible, anyone with a lock cracker can get ahold of and use the gun. As noted at the outset, this article is not about a political issue; it is about a workplace issue. However, political issues turn into legal ones when legislation is enacted, so employers need to be aware of gun laws in states in which they operate.

HR professionals may want to speak up when gun-related issues arise in their state legislature. After all, those in HR are involved in more terminations than other managers.

The Society for Human Resource Management’s position is this:

SHRM opposes any restrictions on the right of employers to determine their own worksite policies regarding weapons on company property (including parking lots). SHRM’s position in no way involves the broader issues of gun control or gun ownership.

Assessing Your Policy

With this background, employers are well-advised to look at their rules on weapons.


Ask these questions:

How do you define weapons? Yes, the definition should include guns, but it should not be so limited. A machete has no place in the workplace, either. While we cannot ignore guns, to focus solely on them creates significant risk of violence.


How do you define workplace? If you intend the definition to cover motor vehicles on your premises, make that clear. In this regard, consider what constitutes your premises. If you lease offices or parking lots, for example, you may control them. The answer may be different if the garage is open to the public. Of course, check state law to make sure you don’t overreach and end up with a claim under the laws in one of the states in which gun rights trump property rights.


If you are going to allow firearms in employees’ vehicles, what steps will you take to minimize risks? Will you require that they be locked in the trunk? That ammunition be kept separately in the vehicle and hidden from view, such as in the glove compartment? These are real issues for workplaces in which large numbers of employees leave work to go hunting, so an absolute ban may not be realistic, even if it is lawful. Focusing on these details may literally have life-or-death consequences.

If you have an exception for security guards, what steps are you taking to ensure that they are hired or engaged only after being screened with appropriate background checks? What guidelines and supervision do you have in place to minimize the risk of guards improperly using the weapons you may allow them to possess? Of course, be careful not to back into a discrimination claim. U.S. Equal Employment Opportunity Commission officials are looking closely at employers’ use of background checks.

This article is not about the right to bear arms. I leave it to the courts to determine that right.

This article is about the right of employees to have safe workplaces. Protecting that right is the responsibility of employers. 

Jonathan A. Segal is a contributing editor of HR Magazine and a partner with Duane Morris LLP in Philadelphia

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

 
 
 
 

Holocaust Days of Remembrance


The United States Congress created the Days of  Remembrance as our nation’s annual commemoration of the Holocaust.  This year, the Days of  Remembrance begin on Monday April 8, 2013.

During the week, may each of us remember, even if  for only a moment, the millions who were murdered (including, but not limited to, 6 million Jews) by the Nazi Regime and their willing collaborators.  As a result of the Holocaust,  approximately 2 out of 3 European Jews were murdered.

May we also remember the countless "Righteous Gentiles" who risked their own lives to save those who were targeted for genocide simply because of who they were. 

On a personal note, my family tree is overwhelmed with tombstones for Holocaust victims.  At the same time, we have some survivors.  For example, one aunt survived only because she was hidden by the the courageous inhabitants of a Catholic Church in Poland.

Each year, I try to read at the Holocaust Museum in DC a few of the names of the many millions murdered.  I will do so this afternoon as my way to remember and to respect those who were taken from us.  

Never should these people be forgotten. Never again should this happen to any people. 

 
 
 
 

Friends Don't Let Friends Use HR-Ese


I am pleased to post a blog I wrote for SHRM's We Know Next on using plain speak in the workplace. It can be found here.

Thank you,

Jonathan

 
 
 
 

Downton Abbey, Inc


What can we learn from Downton Abbey in terms of workplaces? It is with pleasure that I post the blog I wrote this month for SHRM's WeKnowNext: http://www.weknownext.com/blog/downton-abbey-inc
 
 
 
 

A Valentine's Day Warning


As oiginally published by SHRM's We Know Next: http://www.weknownext.com/blog/youre-the-love-of-my-life

 

 

 
 
 
 

PA SHRM State Council Legislative and Legal Conference (April 19)


Register today for PA State Councel of SHRM's Legislative & Legal Conference.

 

 
 
 
 
 

Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.