So much social media, so little time

I just read (thanks, @MollyDiBi) about an attorney in Indiana who was fired for tweeting his views on how pro-labor protesters in Wisconsin should be handled. Perhaps an employee management course is in order for him? But I digress.

I read about this shortly after giving a presentation to a client's workforce about social networking, the workplace, and the blurry line that defines who they are professionally from who they are personally.

Some employees think it's unfair that they aren't allowed to "speak their minds" on matters that are important to them. I fall into that category from time to time (more so during The University of Tennessee's football season than other times of the year). The reality, though, is that we are "followed" by more than just our closest friends on Facebook, Twitter, LinkedIn and blogs. Thus, many people don't know us well enough to understand when it is "Laura A. Steel, attorney at law" speaking versus "Laura Steel Woods, rabid UT fan" speaking.

And that's our trade-off for participating in, and allowing employees to participate in, the social media web. I'm fine with that exchange since I understand my firm's policy on taking stands and sharing views. Are your employees familiar with your policy? If you aren't sure, it's best to over-educate than to learn the hard way that someone thought her innocuous post about the Communism-inspired traffic light cameras actually stirred up a little trouble in the community.

An employee filed a complaint? Facebook probably isn't an appropriate place to vent. . .

Even though it's turning the tables a bit, one would think it goes without saying that managers/employers should not use Facebook to comment on employee complaints. Well, apparently, it doesn't:

http://www.pittsburghlive.com/x/pittsburghtrib/news/s_717409.html

Virginia lawmakers introduce gay rights bill

Virginia's lawmakers have a bill before them that would prohibit discrimination on the basis of sexual orientation in the Commonwealth's workforce and Virginia's National Guard.

Read more about it here.

Take Your Tie And Go “Packing”

A car salesman in Chicago was fired recently for refusing to remove his Green Bay Packers tie. Many are already calling for the former salesman to find a lawyer and “sue the dealership for all it's worth.” While wearing a tie emblazoned with the Packers logo the day after the Packers beat the Bears is probably not the best way to make friends (or sell cars) in Chicago, does it really give the geographically-challenged salesman grounds for suing his former employer? Certainly not. Unfortunately for this former employee, there is no law protecting Packers fans from being discharged from their jobs. Some may believe that firing the salesman for his choice of neckwear was unfair or harsh, but unfairness does not mean the discharge was illegal or grounds for a lawsuit. If this Packers fan wants to sell any 2011 models, he will have to do so at a different (and more Packer-friendly) dealership.

NLRB faces off with 4 states over constitutional amendments

The National Labor Relations Board announced on January 14 that it believes constitutional amendments passed in four states violate/are preempted by the National Labor Relations Act. South Carolina, Utah, South Dakota and Arizona passed amendments to their respective state constitutions that govern how unions can achieve representation of workers. The NLRB sent notices to the states advising of its position concerning the conflict and warning that suits will be filed to prevent enforcement of the amendments.

3rd party retaliation under Title VII? US Supreme Court says it's possible

One of the cases we were following at the U.S. Supreme Court is Thompson v. North American Stainless. That is the case where one employee (Miriam Regalado) filed a charge of discrimination against the Defendant while she was still working for it. Her fiance, Eric Thompson, also worked for the Defendant. He was fired three weeks after the Equal Employment Opportunity Commission notified the Defendant of Regalado's charge. He filed a retaliation claim under Title VII, alleging that his firing was because his fiancee engaged in protected activity.

The district court in Kentucky disagreed, dismissing Thompson's case on summary judgement. The Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee) affirmed the decision of the district court.


The U.S. Supreme Court said two questions needed to be answered:

1. Did the Defendant's firing of Thompson constitute unlawful retaliation?
2. If it did, does Title VII grant Thompson a cause of action?

The Court held unanimously that:

1. Title VII's anti-retaliation provision, which is more broadly construed than its anti-discrimination provision, prohibits more than conduct which only impact the terms and conditions of employment.
2. The anti-retaliation provision prohibits actions by an employer that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
3. Title VII did give Thompson the right to sue, because he is a "person aggrieved" under the statute.
4. To be "aggrieved" under Title VII means that Thompson is someone who has interests that are sought to be protected by Title VII.
5. If you accept the facts as Thompson represents them, he was collateral damage of his fiancee's charge of discrimination, squarely placing him within the zone of protection intended by Title VII's anti-retaliation provision.

What are the take-away points?

1. Remember that this case decides a procedural point, but it does not decide whether Thompson actually experienced retaliation. Rather, the decision only means that Thompson should be allowed to present his case to a fact-finder (judge or jury) and let that body decide whether Title VII was violated.
2. It also means that where someone raises a claim for third-party retaliation, the chances of disposing of the case at the summary judgment level have been greatly diminished. The Court acknowledged that its holding does raise a question about who is a protected third-party? Is being something less than a fiance going to be enough? What about if you're a close friend, acquaintance, or simply a co-worker with no defining relationship outside the workplace? Regardless of this gray area, the Court believed that the anti-retaliation provision's breadth could not be limited by creating bright-line relationship rules for its application.
3. The Court ruled unanimously. This means that the Court wants to send a clear message about its holding and the intended consequences of the same. (Justice Kagan, the newest Justice, did not participate in the deliberations.)

Employer I-9 handbook from USCIS

US Citizenship and Immigration Services unveiled the latest I-9 Handbook for Employers on January 6. You can get your copy here. For anyone in your organization who has responsibility for completing, reviewing, correcting, and storing I-9s, the handbook will be, well, handy.