Tuesday, March 26, 2013

Tracking the Wild Employee

The advent of cheap and relatively unobtrusive RFID technology, along with data crunching capacity on a large scale, is offering employers lots of new ways to monitor and improve productivity in the workplace. This article discusses a fairly scary trend (at least, it’s scary for me): the real time, full time tracking of employee movements during the workday.

The radio tracking of people is done for exactly the same reason that biologists fit radio collars to high value wild animals - it’s possible to glean a lot of useful information from simply watching them go through their daily routines. When you merge productivity measures with this data, you can start to develop strategies that can help make the workplace a better environment for collaboration, concentration, and productivity.

For example, knowing that your most productive workers are interacting directly and closely with a particular group of colleagues means that you should schedule your work breaks for those people as a group, rather than at fixed times for each individual. Similarly, noting a correlation between higher productivity and face-to-face interactions might lead a company to cut back on telecommuting and out-of-office time for its employees. An indication that people are using their lunch breaks, to eat at their desks and check emails might lead you to upgrade the quality of your in-facility cafeteria to encourage people to eat together. You might increase the size of your tables in the lunchroom so that more people can sit at them together, and cut down on the size of your conference rooms, so that you can have more of them so that people can meet in smaller groups that seem to foster more productive meetings.

Even employee advocate groups don’t seem to have much of a problem with this kind of tracking as long as it’s done at the group level, and individual employees are not singled out for reporting. But it seems to me that individual tracking and sorting will be the next and obvious step - most employers want to be able to identify their most productive and least productive people and structure their performance improvement efforts accordingly. Once employers start focusing on individual movements around the office, I’m guessing there will be some type of legislative backlash to address the issue. In any event, this "collaring" is just another indication of the way technology is shaping employment management

Is It Your Job To Evaluate Compliance with Corporate EEO Policies? Then You Might Not Be Able to File a Retaliation Claim

Looking through recent Supreme Court denials of certiorari (I have no life), I came across this case, which relates to an uncommon, but important aspect of employment retaliation law. The so-called “manager’s rule” is an key aspect of retaliation practice of which companies should be aware. It’s not found within the anti-retaliation language of the employment laws themselves, but is a result of interpretation by a number of federal circuit courts.  The rule holds that employees are not considered to have engaged in protected activity (a basic requirement for any retaliation case) if they express a disagreement with or oppose the actions of an employer that they consider to be discriminatory, if the opposition occurs as part of their normal job duties. More simply, if the employee’s job is to investigate claims of discrimination or ensure EEO compliance, she is not engaging in protected activity when she disagrees with a management decision or opposes a management action relating to application of EEO that is within the normal scope of her duties.

Typically, these cases arise with management employees in the human resources field, or with managers acting in some type of compliance capacity. For example, a manager who investigates a discrimination claim is not engaging in protected activity for retaliation purposes when she disagrees with the corporate response to her investigation, or challenges the conclusions reached by her supervisors as a result of her investigation, even though she believes that the decision is the result of illegal discrimination.

The manager’s rule bar for these specific types of employees is not absolute, of course. The employee can raise a claim of discrimination on his own behalf, or oppose some type of alleged discriminatory action in which he was not involved, and this would constitute protected activity. But employers should note that manager’s rule bar applies not only to EEO retaliation claims, but also FLSA, USERRA, FMLA, and Sarbanes-Oxley claims. Keep that in mind the next time you face such a complaint from someone who is charged with managing or overseeing employment law compliance in the organization.

Friday, March 22, 2013

The Murky World of LinkedIn Ownership

Many white-collared professionals (as well as a number of other folks) use the social media network LinkedIn as a way of promoting their name, reputation, and business-to-business interconnections. If you’re on the site frequently, and updating your contact lists and biographical data, the site can be of tremendous value for tracking the business activities of you and your networked acquaintances. Most people maintain a personal LinkedIn account that contains intermingled business development contacts and private acquaintances. So naturally, the question will arise as to who technically owns the business information contained in an employee’s personal LinkedIn account.

I’ve previously written on this subject in the context of a former employee’s use of LinkedIn information to violate a non-compete agreement. This latest variation on the personal/business overlap theme comes out of the Eastern District of Pennsylvania. In this case, a senior executive of a consulting company for the banking industry created a LinkedIn account using her company e-mail address. The company did not require its managers to operate a LinkedIn account and did not pay for LinkedIn premium accounts if the employee chose to upgrade. Moreover, the company had no policy in place with regard to use of social media accounts, and no standard practice with respect to the placement of business information on social media sites.

The employee/executive used her LinkedIn account extensively for business. She actually shared her LinkedIn password with other company employees, who then updated her account and also responded to business inquiries coming into the executive's site.

You can see how this co-mingling of business and personal information already appears problematic. When the executive was fired by the company, company employees immediately went into her LinkedIn account and changed her password, and then updated her LinkedIn account with the name of the employee’s successor.

Big red flag here – unless the company had a clear ownership claim to the LinkedIn account (it didn’t), doing something like this is an invitation to get sued.

Further inflaming the situation, the company did not change the LinkedIn homepage’s URL to remove the former executive’s name and also failed to remove her honors and awards listings. The company had full control of the account for approximately two weeks. After complaints by the executive, LinkedIn staff forcibly took over the account and returned access to the executive.

The effect of the company’s action was such that anyone searching for the executive’s name would be directed to the LinkedIn page of her corporate successor. There was no notice to someone searching for the executive that she no longer worked at the company. The clear implication, of course, is that the executive’s reputation was something that the company wished to take advantage of, even though she no longer worked there.

The executive sued for unauthorized use of name and likeness, invasion of privacy by misappropriation of identity, and misappropriation of publicity, as well as identity theft, conversion, tortious interference with LinkedIn’s contract, civil conspiracy, and civil aiding and abetting. She also alleged federal claims under the Computer Fraud and Abuse Act and Lanham Act for misuse of her likeness and interfering with her social media site.

Not surprisingly, the court had little difficulty finding against the company on the unauthorized use of the executive’s name, misappropriation of identity, and misappropriation of publicity. The company sought to exploit the executive’s reputation by keeping her name associated with the company after it terminated her, and took steps to screen that fact by diverting traffic to the successor’s LinkedIn account. Unfortunately, the executive was not able to prove any compensatory or punitive damages resulting from the company’s conduct. The court determined that there was insufficient evidence to support claims of lost business, and the expert witness offered on damages calculations could not point to a single piece of business that was diverted as a result of the company’s conduct.

A couple of lessons here. Don’t think that you can run willy-nilly through somebody’s social media account just because it has some business information located in it. If a company doesn’t have the rights to social media accounts, then those accounts are private property. Moreover, it wouldn’t be a bad idea for companies to start thinking about their social media policies in terms of ownership of this kind of information, and its use after termination. A policy or agreement stating that the employee understands that business information located on a social media site cannot be used to compete with the company  might have solved much of the problem here. Finally, even when there are clear violations, damages are notoriously difficult to establish in these cases. But that doesn't mean that the employer should invite litigation by not taking preemptive steps.

Friday, March 8, 2013

Obvious Obliviousness

Some folks say that if you're going to "go bad, go big."  Or, if you're going to lie, tell a lie so huge that no one will believe you're lying. I guess that works in some circumstances, but certainly not with respect to something that can be readily quantified and measured.

So, if you're going to claim that you billed 3600+ hours on legal work, you should not be surprised if somebody grabs a calculator and figures out that you worked 10 hours a day, seven days a week, for 12 continuous months.

As we say in the legal biz, "your claim proves too much."  More specifically, "you're lying."

The rest of the story follows naturally from there.

Tuesday, March 5, 2013

Touchy Questions at the NFL Combine

An interesting issue arose at the NFL rookie workouts held in Indianapolis several weeks ago. At least one player reported that he was asked about his sexual orientation during the club interviews.

The workouts for prospective NFL players, formally referred to as the "Combine", involve a variety of physical tests of speed, agility, and strength. The players are also required to take a kind of intelligence test (the "Wonderlic" test), and participate in hour after hour of interviews by the personnel departments of the respective clubs. As the NFL has become a higher profile sport, with the commensurate rise in player compensation, clubs are paying a lot more attention to the type of people on whom they are contemplating dropping millions of dollars, and who might become the face of their franchises.  Players get asked a lot of questions about their lifestyles, brushes with the law, substance abuse, disciplinary history with their college team, personal associations, and the like that would rarely pass muster in a normal job interview.  Again, because this is the entertainment business, clubs can usually point to a bona fide business basis for these questions. Because of a particularly high profile incident with a star college player this year, questions about sexual orientation apparently rose to the fore.

Such questions are not illegal per se under federal employment law. Sexual orientation is not a protected employment category under Title VII, nor is it considered a disability under the ADA.  A number of states, including many with NFL franchises, preclude discrimination on the basis of sexual orientation, however.  The NFL and its union have specifically agreed that sexual orientation cannot be considered in making employment decisions.

Of course, simply asking the question is not illegal. But if a player was to disclose his homosexuality, a club could not use that in an employment decision without violating the collective-bargaining agreement, and perhaps a state or local ordinance. The devil in such a case is proving it.

The truth is that most of these players will be drafted, so they will be employed by somebody. My personal opinion is that it is almost impossible for a draft-eligible player to prove that homosexuality was the basis for his draft position, rather than his performance as collegiate player, his physical stature and attributes, or some obscure response during the interview. The situation gets a little bit easier for openly gay players who have been in the league for a while. It's much easier to compare their performance with other players at their position, and extrapolate from there the player's value or desirability for a particular football team, which then might be affected by a consideration of homosexuality.

Given the public nature of pro football, gender orientation is a highly inflammatory subject. Moreover, coaching staffs and players have expressed concern about the impact of openly homosexual team members on the dynamic of the club.  These are not valid considerations under the collective bargaining agreement, but they obviously factor into the thought processes of club management everywhere.  This issue will likely surface again, and perhaps before the next combine takes place in 2014.

Monday, March 4, 2013

Telecommuting and the Modern Workplace--The Empire Strikes Back

Hailed as a significant move forward for American workers, the technology that enabled telecommuting, and specifically, working from home, has turned out to be something less of a panacea than originally thought. My personal experience with telecommuting, and with clients that have formally embraced it, is pretty mixed. While it's great for situations where people can't get into the office (in Chicago, that's almost always weather-related), or as a short-term accommodation for a disabling condition, most companies find that people who telecommute regularly tend to be less productive, and make fewer contributions to their work group.

The reasons for this are fairly straightforward-in virtually all telecommuting situations, it is simply not possible to focus on work to the same extent as it is at the office. Truly effective telecommuting requires the establishment of a virtual office, free of outside distractions.  Most people simply don't have the financial capability to set up a workplace in their house that mimics the office environment. For people with children at home (and let's face it, a major appeal of telecommuting is that it allows parents to be in the same house with their kids), effective telecommuting requires childcare during the workday.  If you have to spend money on a nanny, you might as well go into work.

Moreover, being away from the office has demonstrable group dynamic costs. There is something to be said for a basic workplace presence, where people can interact with you directly, brainstorm with you, and where seeing your face might cause someone to remember that they need to call you about that special initiative. A personal presence allows people to communicate "off the record", to float ideas without putting them into the office e-mail network, for example.

All of this was apparently driven home to the Yahoo CEO, particularly when she looked out her office window at 5 PM and saw a mostly empty parking lot. She realized, as many of my clients have, that the casual attitude towards coming to work led to a casual attitude about work. Although she's being pilloried by feminists and other moms-at-work type groups, her decision sends the right message-flexible work arrangements like this are a privilege, not a right. If you want to be given these privileges, you need to make the company profitable first.

UPDATE:  There have been discussions as to whether the company policy expressed by Yahoo is illegal. My take on this is that as long as Yahoo does not refuse to consider telecommuting as an accommodation for people with disabling conditions, then it is within its employer rights to dial out telecommuting as an option for its workforce. But I'm betting there are some challenges to the decision.

Sunday, March 3, 2013

This is a Pretty Good Code of Conduct for Civilian Mangers, Too

This list is proposed as a code of conduct for general officers, but I think it has some solid guidance for civilians, as well.

The best managers I ever worked for or with took on a proprietary outlook with respect to their work obligations to the company, and, more importantly, to their obligations to their subordinates and co-workers.  They made efforts to ensure that their people understood their roles in the company, how they were contributing, and worked to see that they developed in their profession, and understanding of the business.  They challenged authority when they thought there was a problem, but always worked to make their superiors look good.  At the mess tent, they always ate last, to make sure everyone else got fed.

In short, they acted like leaders, and not just supervisors.

And George Marshall is a good role model for anyone.

Pregnancy and Disability--Some Useful Guidance

Here's a nice opinion that lays out some factors to consider in one of the more confusing types of discrimination claims--disability claims.  These claims have increased under the amendments to the ADA, so it's helpful when a court does a nice job of delineating the requirements as in this opinion.

Plaintiff was a resident for a hospital.  She experienced a very difficult pregnancy that resulted in the death of one of her unborn twins.  After she delivered the remaining baby, she had complications that resulted in her requiring physical therapy.  On her doctor's insistence, the hospital allowed her an eight week maternity leave.  On her return, plaintiff was placed under the supervision of a physician with whom she had previous difficulties.  Less than two weeks after she returned, she was placed on probation for her work performance.  The hospital ultimately elected not to renew her employment contract. For some inexplicable reason, the hospital OB/GYN Program director indicated that the plaintiff was terminated from the program because of her "medically complicated pregnancy" and concerns about her academic work.  Unsurprisingly, she sued, alleging Title VII claims for gender and national origin, retaliation, and claims under the ADA for being disabled and being regarded as disabled.

The hospital moved to dismiss her claims, stating that her claims of pregnancy-related problems did not rise to the level of a disability under Seventh Circuit precedent.  But using the greatly expanded language of the ADA amendments, the court easily found that the problems the plaintiff alleged  (which extended for some eight months and passed the end of her pregnancy) were sufficient to establish a disability claim.  As for her perceived impairments claim, which affected plaintiff on her return to work, she had to allege that her termination was caused by this perception.  Because it was clear from the statement of the hospital that plaintiff was terminated as much because of her academic work, the court determined that this claim failed, and granted the hospital's motion to dismiss.

What are the takeaways here?  For one thing, be prepared to talk cogently about why you are letting someone go.  In this case, the hospital had to recognize that it was dealing with a potential problem; it should have planned accordingly and not put a returning mother on probation within two weeks of coming back to work.  And don't reference protected factors in your termination paperwork.  Stick to comments about work performance and related factors--that should be the only reason for the decision.