The Social Media Trifecta – The SHRM, Nielsen and NLRB Reports – Part One

Posted on October 11, 2011 by

There has been so much talk lately about the future of social networking and the need for a well-drafted social media policy that I can hardly keep up.  Good thing I don’t have to. Several reports – from SHRM, Nielsen, and the NLRB Office of the General Counsel – have caught my eye. Together, these reports tell the story of where we are and where we are going with social media and the impact social media has had on the evolving policies and practices of companies throughout the U.S.

In the first report highlighted in this series, SHRM published its survey findings on the use of social media in the workplace. According to this report, only 26% of organizations report using online search engines to screen candidates. This number has gone down over the past several years. As you can see in the chart below, the decline is largely due to concerns about the legal risks of discovering information about an applicant’s protected class.

Source: SHRM

For example, what happens if a prospective employer finds out an applicant belongs to a certain religion when looking him up online? Even if the prospective employer does not consider this factor if/when it decides not to hire the applicant (because it would be improper and illegal to do so), he might still allege that it did. The applicant could claim that the prospective employer decided not to hire him after learning this information. And even if the company had a valid reason to not hire the applicant and did not improperly exclude him based on his religion – it is oftentimes better to not even tread near the murky world of the Internet when deciding whether or not to hire a candidate.

Another interesting key finding by SHRM:

In 2008, 72% of organizations had no formal or informal policies on the use of these sites for candidate screening. Today, this figure has dropped to 56%. In addition, 29% of organizations plan to implement a formal policy in the next 12 months, up from 11% in 2008.

Part two on the Nielsen Report to come…

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Employment and the Law Named Top Labor and Employment Law Blog for 2011 by LexisNexis

Posted on October 3, 2011 by

Thanks to all my readers and the Lexis community members who voted Employment and the Law the Top Employment Law Blog of 2011.

I truly appreciate your support. I try to focus on the newsworthy issues that matter most to in-house counsel, HR professionals and the business community, with an emphasis on developments in the Ninth Circuit and the Supreme Court. And whether it’s a quick email from a new subscriber or a vote for Top Labor & Employment Blog honors, I am grateful for the new friends and relationships that have developed through this blog.

Employment and the Law is still in its infancy. Less than one year ago I was working on the preliminary format and concept. I look forward to the many changes that the next year will inevitably bring.

A special thank you to LexisNexis for its continued support of my blog. If you haven’t already, check out the Lexis Labor & Employment Law Community. It regularly features posts from Employment and the Law and provides free content and resources related to employment law.

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The American Jobs Act – Prohibition on Discrimination Against the Unemployed

Posted on September 19, 2011 by

President Obama has sent the American Jobs Act to Congress and it includes some noteworthy provisions that affect employers. In particular, the Act prohibits discrimination in employment on the basis of an individual’s status as unemployed. This prohibition is within the subsection titled the Fair Employment Opportunity Act of 2011. The Act makes it unlawful for an employer to publish a job announcement stating that an applicant’s status as unemployed will disqualify him or her from employment or that the applicant will not be considered. Additionally, it makes it unlawful for an employer to refuse to consider for employment or refuse to hire an individual because of his or her status as unemployed, or to direct or request that an employment agency take into account an individual’s status as unemployed to disqualify the applicant for consideration, screening, or referral for employment. Similarly, an employment agency is also prohibited from screening or classifying someone in a manner that would limit their consideration solely because of the applicant’s status as unemployed.

“Employers” include entities that have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

Nothing in this Act is intended to preclude an employer or employment agency from considering an individual’s employment history, or from examining the reasons underlying an individual’s status as unemployed, in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual. Such consideration or examination may include an assessment of whether an individual’s employment in a similar or related job for a period of time reasonably proximate to the consideration of such individual for employment is job-related or consistent with business necessity.

The EEOC would enforce violations of this Act in the same manner that Title VII is enforced, and the same procedures would be followed. An individual who prevails may be awarded (a) an order enjoining the company from engaging in the unlawful employment practice, (b) reimbursement of costs expended as a result of the unlawful employment practice, (c) an amount in liquidated damages not to exceed $1,000 for each day of the violation, and (d) reasonable attorneys’ fees (including expert fees) and costs attributable to the pursuit of the claim.

As you might recall, I wrote about the EEOC public meeting that explored whether the process of excluding unemployed job applicants from hiring pools discriminates against protected groups. The testimony suggested that such a practice may have an affect on women, African-Americans, Hispanics and Native Americans. Therefore, even if President Obama’s legislation does not pass, companies should still think twice before making any employment decision because of an individual’s status as unemployed.

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Employment and the Law Named One of the Top Employment Blogs by LexisNexis

Posted on September 19, 2011 by

I am honored to share that Employment & the Law was named one of the top employment law blogs for 2011 by LexisNexis. Regular readers of this blog know that I am a big fan of Lexis and my blog is often featured on its Labor and Employment Law Community.

Every now and then you will hear me in a Lexis podcast sharing my perspective on recent rulings and events in employment law.  The podcasts are available for download on iTunes, and are a great way to get legal news on the go.

If you are a fan of Employment & the Law, please vote for the blog for Top Blog honors. There are a lot of great blogs on there – so every vote counts.

To vote, click here and “follow this link to vote now” and select “Employment and the Law.”

Thanks for your support!

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The Failure to Exhaust Remedies

Posted on August 9, 2011 by

The failure to file a formal EEOC charge of discrimination addressing specific claims of discrimination can be fatal to Title VII claims that proceed to court. This lesson was learned in Brown v. Department of Public Safety, State of Hawaii, as the Ninth Circuit affirmed summary judgment in favor of the Department after the plaintiff/employee failed to supplement his formal EEOC charge with specific information relating to his allegations of race discrimination.

The employee claimed that his employer failed to investigate his complaints of “insubordination and rule violations” on 52 separate occasions – creating a hostile work environment due to his race. However, these allegations were not included in his charge of discrimination, which only addressed his claim that he was discriminated against because of his race when a subordinate referred to him in a derogatory manner, and he was later removed from his temporary assignment.  The new allegations were not “’like or reasonably related to the allegations contained in the EEOC charge.”

As a result, he could not pursue the claims in court because he failed to exhaust his administrative remedies. Notably, federal court jurisdiction is only established for Title VII claims after plaintiffs exhaust their administrative remedies.

Even if an employee files a charge of discrimination, if the scope of the investigation does not include claims later raised at trial, then the claims may be dismissed. EEOC charges are construed liberally, but this does not provide employees with a free-for-all when they receive a right to sue that is based on narrow allegations unrelated to those raised in litigation.

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Decertification and the Effect of Wal-Mart v. Dukes

Posted on July 18, 2011 by

And so it begins. Wal-Mart v. Dukes has already changed the course of class actions in 2011. In Cruz v. Dollar Tree Stores, Inc., the Northern District of California decertified a class of store managers as a result of the court’s heightened concerns following Dukes.

The plaintiffs claimed that they were misclassified as exempt executive employees and denied overtime pay and meal and rest breaks in violation of California law. As a preliminary matter, there seemed to be plenty of proof issues, even without consideration of the issues raised in Dukes. The class had already been narrowed to include only those store managers who answered “no” on the payroll certification forms (indicating whether they spent more than fifty percent of their actual work time each week performing seventeen listed duties that Dollar Tree believes to be “managerial” in nature) at least once during the class period. And the court discussed its serious concerns regarding the payroll forms being offered as common proof.

As a result, the developments in the case and case law persuaded the court that continued certification would present unmanageable difficulties. Just as in Dukes, the plaintiffs failed to provide the common proof that would permit a class-wide determination. Since the store managers were unable to provide common proof as to how they spent their time on a weekly basis, the commonality and predominance inquiries of Rule 23 were not met.

Rule 23(b)(3) requires that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Among the issues central to the predominance inquiry is whether the case, if tried, would present intractable management problems.

Since a district court’s order to grant class certification is subject to later modification or decertification, I am sure we will be seeing more and more plaintiffs meeting the same fate as those in Dollar Tree and Dukes.

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Employment Law – Class Action Update

Posted on June 30, 2011 by

I talked last week with Steve Berstler, the producer and anchor of LexisNexis® Legal News audio podcasts, regarding the Supreme Court’s decision in Wal-Mart v. Dukes. The highlights of our conversation are featured in the Legal News Podcast for June 21, 2011.

As discussed in the podcast, the Court ruled that (1) the plaintiffs could not meet the commonality requirement of Rule 23(a)(2), requiring there be a question of law or fact common to the class, and (2) plaintiffs were improperly certified under 23(b)(2).  In explaining the commonality requirement, I was thrilled to see that Justice Scalia cited an article by one of my favorite law professors from Vanderbilt – Professor Richard Nagareda. Professor Nagareda explained that the commonality requirement is easy to misread since “any competently crafted class complaint literally raises common questions.”  However, the mere fact that an employee has suffered a Title VII injury does not mean that the employee’s claims can automatically be productively litigated with others.

For more in-depth coverage of Dukes, check out SCOTUSblog and its analysis of Wal-Mart’s two messages.

I also recorded a podcast just prior to the Dukes decision – discussing employment law class actions in 2011. You can listen to that podcast here. It covers some of the big cases and verdicts in 2011 and provides a summary of employment practices that can have the effect of disproportionately excluding certain groups – which can lead to class action litigation.

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