employment law

Nov 28, 2016 ∞

Poultry Fraud

Failing to record injuries is one strategy to create the illusion of a safe workplace. Another is to fail to refer workers to doctors for proper tests and diagnoses. Each time an injury causes an employee to miss a day of work or to receive medical treatment beyond first aid, the company is required to record it in an OSHA log book. This data is reported each year to the Department of Labor and is used to identify industries with high injury rates—whose facilities will then face increased inspections. An industry that reports low injury rates is less likely to receive scrutiny from OSHA’s overstretched investigators.

If employers can self-report why can’t employees?

The argument against employee reports would be:

Well, employees will inflate injury rates!

Let’s think about this: employers are already fraudulently minimizing the rates. Now, that doesn’t mean it’s okay for employees to do it, too. It isn’t okay for anyone to massage the numbers in their own favor. But they do, and they will, because self-interest is a helluva drug.

So my thought is that having an inflated employee-reported rate to compare with minimized employer-reported rates may help regulators find the truth, somewhere between the two numbers.

Jul 19, 2015 ∞

Google's alleged gender-based pay disparity

Ex-Googler says she exposed company-wide pay inequality with crowdsourced spreadsheet

Kristen V. Brown wrote for Fusion about Googler Erica Joy’s recent salary spreadsheet. Google had no response to her request for comment, which is the worst kind of response to something like this. Apple released, deliberately, a dismal diversity report (read: majority male, majority white) last year, and Tim Cook took responsibility for fixing it.

If there is a pay disparity problem at Google, or even the illusion of a pay disparity problem, Google PR needs to be on top of this story. The only time silence is ever okay is when you’re prepping a statement that will include unequivocal evidence that there is no disparity.

May 8, 2015 ∞

The Amazon Noncompete Clause

Here it is, in all its overbroad glory:

During employment and for 18 months after the Separation Date, Employee will not, directly or indirectly, whether on Employee’s own behalf or on behalf of any other entity (for example, as an employee, agent, partner, or consultant), engage in or support the development, manufacture, marketing, or sale of any product or service that competes or is intended to compete with any product or service sold, offered, or otherwise provided by Amazon (or intended to be sold, offered, or otherwise provided by Amazon in the future) that Employee worked on or supported, or about which Employee obtained or received Confidential Information.

Whew. All that legalese is translatable into American English as:

You can't work in another warehosue that, you know, contains stuff people buy, with money, that is, um, anywhere, pretty much in the world.

The linked report by The Verge resulted in a much-needed revision to the policy, but it’s a powerful reminder that behind all the random stuff we order online are people who are sometimes commoditized and mistreated by their employers.

Image credit: “Amazon.com Customer Service Center (Huntington, West Virginia) 003” by Leonard J. DeFrancisci. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

Mar 25, 2015 ∞

Employee Manuals Need Spring Cleaning Thanks to the NLRB

Jason Shinn, writing at Michigan Employment Law Advisor:

But this is where employers really need to be concerned: The distinction between what is permissible and what is not is somewhat anemic to begin with, and if your company’s policies are too broad or poorly worded, then whatever distinction existed may be obliterated.

The full report is available in PDF format. The National Labor Relations Act is a federal law, and Section 7 applies whether or not employees are unionized. That means, as Shinn advises in the article, that every company with employees of any kind should perform a revision of their HR policies and procedures.

Dec 19, 2014 ∞

Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964

It’s about damn time. According to a DOJ press release:

Attorney General Holder announced today that the Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status. Attorney General Holder informed all Department of Justice component heads and United States Attorneys in a memo that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination, reversing a previous Department of Justice position. Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex,” among other protected characteristics.

The Washington Post reported the story, saying:

According to the 2011 National Transgender Discrimination Survey, a survey of 6,450 transgender people in the United States, transgender people experience twice the rate of unemployment as other Americans and are much more likely to live in poverty. Advocates attribute those facts in part to the difficulty transgender people face in finding a job.

Direct antidiscrimination legislation addressing the prejudice so many LGBTQ people face would be much better than the DOJ’s reinterpretation of Title VII of the Civil Rights Act of 1964. But this is a good start. Read a PDF of the related DOJ memo here.

Dec 17, 2014 ∞

Employees sue Sony over email leaks

Saba Hamedy and Meg James, at the LA Times:

Hackers began releasing sensitive data after the studio’s security breach became public on Nov. 24. The group, calling itself Guardians of Peace, has released data including thousands of pages of emails from studio chiefs, salaries of top executives, and Social Security numbers of 47,000 current and former employees.

Many are warning of the intellectual property fallout of hacks like this. And that could, indeed, lose companies much potential revenue. But the more serious liability here is failure to secure employee information. I anticipate we’ll see many similar class actions unless companies get serious about security.

Jul 25, 2013 ∞

NLRB: Overbroad social media policies may violate NLRA

Sue Reisinger, writing at Corporate Counsel:

In a warning to employers, the National Labor Relations Board has “unliked” certain social media policies that restrict an employee’s right to speak critically of the employer online, unless the policies were set in collective bargaining.

It’s clear many companies didn’t consider the National Labor Relations Act (NLRA) implications when they developed their social media policies. It’s often HR professionals that have to draft these policies, but the onus can’t be placed solely on them to catch how the new rules might implicate nuances of the NLRA. Any company who has implemented or plans to implement a social media policy is well-advised to have a labor and employment attorney review it first.

Jan 29, 2013 ∞

Veganism as religious belief

I must admit that I never thought about it in that light, but I’d love to read the plaintiff’s essay.

Jan 23, 2013 ∞

NLRB refines position on employee social media and workplace criticism

My personal policy is to refrain from discussing work on social media. In all my years of Twitter-ing and Facebook-ing, I’ve posted only a very few work-related updates, invariably focused on interpersonal minutiae like elevator rudeness. I think it’s just best to leave work at work. However, as the Times's Steven Greenhouse reports, the National Labor Relations Board recently ruled that conversational exchanges about working conditions between multiple employees on social media may be construed as the kind of concerted activity protected by the National Labor Relations Act.

The Times story to which I link in this post’s headline mentions at least two instances (here and here¹) where the termination of lone complainers was upheld by the NLRB. This ruling suggests that my personal policy is a safe bet: there’s no way to engage in concerted activity if you’re venting alone.

I really like those fancy paragraph-specific links the Times has on its digital articles. ↩

Aug 18, 2012 ∞

U.S. will not challenge computer fraud case to high court

The Computer Fraud and Abuse Act prohibits, among other things, accessing a computer without authorization or in excess of authorization. Employers have been known to use it against employees where the latter has used a company database to poach clients for a new venture or otherwise used proprietary company information for personal benefit and to the employer’s detriment.

The Reuters article correctly points out that many jurists look at such issues as employer/employee matters undeserving of criminal prosecution, at least to the extent that they don’t violate other laws pertaining to trade secrets, securities law, and other potentially-applicable law.

I agree: an employee’s exceeding authorized access to further goals contrary to the company’s interests, unless the information retrieved is properly considered a trade secret or otherwise is protected, should be a firing offense but not a prosecuting one.