Proactive Lawsuit Prevention

The Show: My Session June 25, 2012 10:45am Social NOTworking

noreply@blogger.com (JKP) — Fri, 22 Jun 2012 04:11:00 +0000

SHRM 2012 Annual Conference
Tomorrow I leave from LA to go to Atlanta, Georgia to speak at "The Show." I know it is hard to believe that I have been in the business of counseling Human Resource professionals for over 15 years and have yet to attend or speak at the biggest Human Resource conference in the nation. For the most part, I was trying to keep my business small and local while raising three little kids. Now, I am ready to go big or go home. I envision this conference much like Bull Durham's Crash Davis described his experience in the Big Leagues of Baseball. He said, "Yeah, I was in the Show. I was in the show for 21 days once - the 21 greatest days of my life. You hit white balls for batting practice, the ballparks are like cathedrals, the hotels all have room service, and the women all have long legs and brains." So, if you see "my brain" at the Show, either because you are attending my session, Social NOTworking, on Monday, June 25 at 10:45am or we meet along the way, please introduce yourself. If you have the time or inclination, pass a little "Crash Davis" advice along to me if you been to the Show before. I'd love to make it at least 3 or 4 of the greatest days of my life. Here is a little promo video I did for the SHRMStore to promote my book signing. See you there.

FINALLY! Social NOTworking The Book Is Available for Purchase or Download!!!

noreply@blogger.com (JKP) — Mon, 30 Apr 2012 19:17:00 +0000

I have finally finished my book, Social NOTworking! For those of you who have not heard me speak on this topic, I wrote about Social NOTworking for employers and HR so that you can help your companies EMBRACE Social Media in the workplace and still protect the company from Social Media related LAWSUITS.

It is chalk full of practical advice and guidance, especially for the HR professional who is often the person in the organization who is faced with "the dark side" of Social Media abuse when employees do not follow the "rules." If your company doesn't have rules about Social Media, Social NOTworking also includes my Sample Social Media Policy and all the tips you will need to draft your own policy.

I truly enjoyed the process of writing this book. I hope that you will enjoy it. You can always download the first chapter free, but if you decide to buy it, please use the discount code SOCIAL to receive a 15% discount. I'm so grateful for your continued support.

Social NOTworking covers:

Chapter 1: I Like #SM

Introduction

What is Social Media?

What is Social NOTworking?

What Are the Benefits to Social Media Use in the Workplace?

What Are the Detriments to Social Media Use in the Workplace?

Why Can’t You Just Stop All the “Madness?”

If You Can’t Beat ‘Em, Join ‘Em

Chapter 2: Designing Your Social Media Policy

A Pound of Cure

Leave Your Message At the Tone

What Do You Value?

Time Thief

Privacy Shmivacy

Don’t Pretend-Friend

Step Away From The Ipad

There Are Weiners Among You

Where’s Your Loyalty, Man?

Is It Chilly In Here? Ask the NLRB

Do You Know the Code?

Let’s Be Clear

Shh! That’s A Secret

Chapter 3: Which Laws Are Social Media Laws?

Oldies But Goodies

Social Media “Discrimination & Harassment” Laws

Social Media “Privacy” Laws

Social Media “Labor” Laws

Social Media “Intellectual Property” Laws

It’s Business, Not Personal. Or Is It Both?

Chapter 4: Recruiters, Bloggers, PR, Oh My

The Sandbox Is Sandy

Online Recruiting: TMI

Best Practices for Online Recruiters

A Monster, Indeed!

Let’s Be Crystal Clear

Consistently Consistent

I Did Not Just See That

Am I Being Redundant?

At the Speed of the Internet: It's Time to Update Your Social Media Prevention Policy

noreply@blogger.com (JKP) — Sat, 03 Mar 2012 01:00:00 +0000

Get ready to recycle. If your Social Media Policy was written prior to January 2012, it is now trash. According to the recent Operations Management Memo issued by the National Labor Relations Board (NLRB's) Acting General Counsel on January 24, 2012, social media policies that:

make broad prohibitions against "disparaging" managers
make broad prohibitions against disclosing confidential information
broadly prohibit employees from using the company logo
require employees to use disclaimers, such as "these opinions do not reflect the opinions of my employer"
use a "savings" clause, such as "this policy is not intended to interfere with an employee's rights under the National Labor Relations Act"

are too broad.

(Remember, the Memorandum gives guidance to employers in how to craft policies in a manner that avoids infringing on employee's National Labor Relations Act, Section 7 rights. The actual limits on an employer's ability to regulate employees' social media activity has yet to be developed or addressed by the NLRB or by the federal appellate courts that review its decisions.)

In my experience, that is almost every Social Media Policy that I have come across to date. Therefore, in order to comply with the new Acting General Counsel's Memorandum's recommendations, it is time to revise or redraft your company's Social Media Policy as a narrowly drafted policy. Even if your company only recently created a Social Media Policy in the past year or two, it is time for a new one. Welcome to the speed of the Internet.

After reading and analyzing the Memorandum and cases mentioned therein, I have applied the recommendations to my own Sample Social Media policy and the 2012 Newly Revised Proactive Lawsuit Prevention Sample Social Media Policy is here for your viewing pleasure.

Take a look at the recent Memorandum and my policy and let me know what you think.

Remember, this is a SAMPLE policy and should not be considered legal advice. It should be reviewed by your own employment counsel to ensure it is consistent with the laws of your state, your industry and your company mission and goals. It also must be consistent with the many policies referenced within it that are already part of your company handbook or procedures.

As an aside, I'm sure this will be a hot topic at the upcoming SHRM Legislative and Employment Law Update. On the first day, 3/5/12, I will be on a Social Media Panel of experts called "#theafterchat" after Eric B. Meyer's presentation, "Social Media for HR: Practical Guidance from a Generation Y Attorney." Hope to see you there.

On the Brink

noreply@blogger.com (JKP) — Mon, 27 Feb 2012 03:25:00 +0000

As California employers (and employment lawyers) await the California Supreme Court's opinion on Brinker Restaurant Corp. et al. v. Superior Court of San Diego, S166350, which involves the duty of employers to provide meal and rest breaks to hourly employees, employers are still in Meal/Rest Period LIMBO. You can see the oral arguments on YouTube. The question we hope to have resolved soon (April 12, 2012) is whether employers have to make sure their employees take their breaks or whether they need only make the break times available. A recent California case, Flores v. Lamps Plus, Inc., held that "[i]t is an employer's obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time." The Court continued that the mandatory language of the California Labor Code §§ 226.7 and 512 and the IWC Wage Orders does not mean employers must ensure employees take meal breaks, but rather, employers must only provide breaks. The Court interpreted the word "provide" in the Labor Code's meal period provision to mean "to supply or make available" and in its rest period provision to mean "authorize or permit." The Court rejected plaintiffs' assertion that employers must ensure employees take meal and rest breaks finding this "utterly impractical" for employers. The Court concluded that Lamps Plus made it clear to its employees it upheld California's meal and rest period laws and went so far as to discipline employees who skipped these required breaks.

This case provides temporary comfort to employers, at least until Brinker is decided similarly, which will allow employers to exhale. In the meantime, I am making my hourly nonexempt employee TIMESHEET for employees available to you. What I have noticed is that most employers have timesheets for these employees, but the timesheets do not have columns to document that rest breaks are taken, only meal periods. In other words, the employee is on the honor system for their 10 minute rest, which they are entitled to every four hours or major fraction thereof. That is, until they file a claim with the California Labor Commissioner for the wages/penalties owed for their missed breaks. Hopefully, you will find this helpful until we get some added clarification from the California Supreme Court.

Proactive Lawsuit Prevention Strategies to Prevent Meal/Rest Period Class Actions:
1) Have clear policies in your Employee Handbook that set forth that employees are required to take their meal periods and rest periods. Providing employees with a sample time table of when the meal and rest periods should occur in a typical shift is always helpful.
2) Have timesheets for your nonexempt hourly employees who do not punch time clocks. The timesheets should include a column for rest breaks as well as meal periods.
3) Train your managers to make sure that employees are actually taking their breaks and filling out their timesheets accurately each day.
4) Make sure supervisors know that a meal period is TIME AWAY from work and that they should not call or text employees during that time.

What is your opinion of Brinker? Are employers on the brink of salvation or disaster?

Upcoming Speaking Engagements for SHRM

noreply@blogger.com (JKP) — Sat, 11 Feb 2012 08:26:00 +0000

I'm looking forward to two upcoming programs that I am presenting for the Society of Human Resource Management (SHRM.) In March, I am presenting for their Legislative and Employment Law Update March 4-7 on Preventing Retaliation
and in June I am presenting at their Annual on Social NOTworking (June 24-27).
You can register here for either or both. I am also happy to host a meetup for Investigators as a member of the Association of Workplace Investigators at one or both of these conferences. (Time and place TBD.) If you are planning on attending, please let me know (jodypritikin@proactivelawsuitprevention.com) so that we can meet and I can add you to my network of respected colleagues (and friends.) For fun and as a preview, here is a video of me speaking recently for PIHRA at their various districts on these topics. Hope you enjoy!

Social Media Recruiting: TMI (Part II)

noreply@blogger.com (JKP) — Tue, 03 Jan 2012 06:34:00 +0000

Best Practices for Recruiters to Prevent Lawsuits
Part I of this series focused on the legal risks that recruiters should be aware of when they recruit using Social Media. In Part II, I will discuss some Best Practices or Guidelines for Recruiters to implement on the job so as to avoid these landmines.

A company must have a Social Media Policy for all of its employees, but Recruiters, as employees who use Social Media as part of their role on a daily basis, must have enhanced rules or guidelines for their specific and unique role in the organization. This will ensure that recruitment is handled in a consistent manner throughout the organization, regardless of who is doing the recruiting or where the recruiting takes place.

Most Social Media policies that are specific to recruitment are called “Best Practices” as opposed to “Policies.” This term seems to highlight the flexibility required when recruiting unique individuals as “Best Practices” can be interpreted as “suggestions” as opposed to mandated rules. It is important to consider whether your organization wants to allow the recruiter to have discretion as to whether to implement the suggested practices or whether it makes more sense to mandate the requirements by calling them “rules” or instituting a recruitment “policy.”

Whether your company calls it “Best Practices” or a “Recruiting Policy” or something else, recruiters should do the following when recruiting while using Social Media sites:

Identify which Social Media sites your company will use in recruitment.
Identify yourself as a recruiter for the Company. Act as a Company Representative.
Be consistent in your company's recruitment approach.
If possible, insulate protected category information from the hiring manager.
Maintain proper documentation and tracking throughout the recruiting process.
Create a user experience that highlights the company as a wonderful place to work.

A Monster, Indeed!

Before incorporating Social Media searches in recruiting, the organization should identify the Social Media sites they wish to use, focusing on securing relevant, work-related information. The choice should not be random (or based on the sites that the C-Suite has heard of.) For example, According to Kissmetrics, Digg has the largest demographic of users with a graduate degree and Stumbleupon is popular among graphic designers. Each site has unique user information and should be selected with careful consideration as to why/how it will help your organization recruit effectively. The reasons should be documented in the event that the company needs to offer a business justification later on.

For example, Unisys, an Information Technology company, explains its recruitment strategy this way, “In aligning with our corporate strategy, there were four main social networks that we wanted to focus on for our recruiting effort: YouTube, Twitter, Facebook, and LinkedIn...In addition to these big name online communities, we worked closely with Unisys regional operations around the world to identify niche social recruiting sites that worked well for their regions, such as Orkut in India and Brazil. Facebook, for example, was not allowed in China, so we are exploring alternative social media outlets there. Unisys uses each social media outlet differently...LinkedIn, on the other hand, is a network whose members are looking for information about and opportunities for professional growth. As such, it’s become a powerful and cross-promotional part of our social media strategy. …After all, hiring the right talent is a business objective, not simply an HR objective."

The search should seek publicly available information. Recruiters should not allow the searcher or others in the recruiting department to “friend” an applicant in order to see private profile information. Recruiters must remember that all “conversations” and “searches” can be retrieved and used as evidence in litigation. Recruiters should be careful and conscious when engaging in online conversations about discussing “protected category” or personal information. Recruiters should remember that even though they are/have “Friends” and “Fans,” that they are actually creating professional connections and to act accordingly in all communications.For example, P&G wants its company recruiters to use Social Media to create relationships with Generation Y as part of P&G’s Next Generation Attraction campaign. In pursuing this business initiative, P&G is clear that it wants the students (future hires) to initiate the first contact with P&G. As part of its Social Media and Recruiting Best Practices, it states, “Etiquette: Students can often feel anxious about companies’ access to their personal profiles. Therefore, our stance in using social media tools for recruiting will be passive. When communicating with students, it is imperative to let the student initiate first contact with the Company. Focus on maintaining communication with only those students that have expressed an interest in P&G – from there, please feel at ease using sites as communication tools to build relationships with candidates. Additionally, we should never send mass messages or “spam” candidates.”

Let’s Be Crystal Clear

Recruiters must be transparent about their role as recruiters and that they work for your company when recruiting candidates online. This will not only ensure that your company does not run afoul of FTC transparency requirements, but will allow talent to identify them as trusted allies in the hiring process. It is important, however, that you inform your recruiters to not only identify themselves and their company while engaging potential hires online, but that they must either keep their personal sites separate and use a disclaimer to set forth that their personal opinions are their own, or in the alternative, that they solely act as company spokespeople, do not have personal sites, and act with all of the responsibility that this role entails.

Recruiters should use the official company logo and brand as official company spokespeople acting in that capacity. Continuity of logo, brand and corporate strategy should be consistently used in Social Media, even by recruiters, so as to ensure potential hires know and trust your company as a trusted potential employer. Finally, company recruiters should be told clearly that company sites, logos and the followings that gather there are company property. That means that even when the recruiter leaves your company, that the recruiter understands that they may not unilaterally change the profile name to their own and take the “Friends” and “Followers” with them as their own following.

For example, in a case that may be one of first impression, Phonedog, a mobile news and review company, is suing a former employee for “taking” 17,000 Twitter followers with him when he left the company. According to Forbes.com, Noah Kravitz worked as a mobile phone reviewer for Phonedog for four and a half years. He had been part of a “virtual office,” so when he left the site in October 2010, the only thing he really ‘packed up’ was his Twitter account. He had started it in 2007 and chose the Twitter handle @PhoneDog_Noah. When he left Phonedog, he had approximately 17,000 followers and changed his Twitter handle to @noahkravitz. Phonedog is suing Kravitz for the value of those followers and for stealing their trade secret information (in the form of followers, much like a customer list) and Kravitz’s password. Although Kravitz was not a recruiter for Phonedog, this case stands represents for employers that they must set the ground rule out early that recruiters’ relationships made online and on behalf of the company are proprietary information owned by the company.

Consistently Consistent

Recruiters must approach online resumes with a consistent approach. That means that searches should be conducted either before the initial interview or after the first phone screen, but at the same time for every applicant. The same process should be followed for each candidate without regard to protected categories. If the company is not conducting Social Media screening for every applicant, than the company should objectively designate particular job categories or departments that are included and consistently follow those guidelines. Consistency based on objective criteria and job qualifications will help your recruiters defeat a claim that they had intent to discriminate against any one candidate. Consistency is the key. Therefore, in larger companies that employ many recruiters, (especially those that work virtually and do not have the opportunity to talk-shop with their peers) training the recruiters about these consistency requirements is critical.

Every applicant must be informed that the application process includes a Social Media check, if this is part of the process. In some states and for some applicants, this will include a notice and waiver, as we discussed previously, to comply with the federal and state consumer reporting requirements. All of this must be consistent and proactively prepared ahead of time with every recruiter having a thorough understanding of the company’s consistent processes. Recruiters must understand the unique Social Media “paperless process” of online recruiting from posting a job description, receiving the resumes, following up with a contact for interviewing, providing the appropriate FCRA notice/waivers, ending eventually with an offer letter. If all of this is done virtually, the recruiter must be a literal “expert” on topic so as to field the email questions that many applicants have throughout the process. For example, is your recruiter prepared to explain the notification process when an adverse action (no hire) occurs based on information that surfaced as a result of a Social Media screening of the applicant? Training recruiters about this “paperless process” can prevent an uniformed mistake from turning into a lawsuit, evidenced by your recruiters smoking gun email.

Watch out for the rogue manager/interviewer who does not know the laws about lawful recruitment and hiring. I have seen many companies invest huge sums in educating the recruiters and hiring managers about lawful hiring practices and interviewing, only to have an applicant interview one-on-one with the person they will be working with or working for…who knows nothing about these laws. Without proper education about protected categories, for example, a casual conversation between potential colleagues will quickly trail to questions about the kids, the wife, and even religious practices. All of which are taboo in the interview process. To make matters worse, when the interview is conducted via chat or by email, as is often the case when recruitment is done virtually, these inappropriate questions leave an online trail that can be used against the employer in litigation.

I Did Not Just See That

If only we had the ability to erase some things from our memories. Certainly, the eighties for me are long gone, but that is not by choice. By now you understand that there are serious legal implications for employers who know personal information about applicants, such as their age or that they are pregnancy that give rise to discrimination lawsuits. The idea is not to pretend that you do not know this information if you do know it, but rather to take as many steps as possible to show that all recruitment and hiring decisions are made based on legitimate job criteria, qualifications and experience, rather than on the personal information we learn about candidates.

Because Social Media undermines that effort simply by providing recruiters with pictures of applicants and their user profiles, the best strategy for companies that can have more than one person doing the recruiting and hiring or who outsource this, is to insulate the decision maker from the recruiter or screener who may see protected category information at first blush (pun intended). The searcher or recruiter may cover up, redact or eliminate the protected category information, which will allow the ultimate decision maker to decide whom to interview or hire based on the information that is not protected under the law, such as how many years of experience the employee has had doing the job for others. That may not help a recruiter avoid a claim that there was discrimination in the recruitment process, but it will help defend against a claim of discrimination in the hiring process, which is more common, as vested applicants are more likely to sue than those who never reached the interview stage.

Am I Being Redundant?
It is my perception that employment lawyers tend to fall into two categories: those that advocate a lot of documentation by managers and those who do not. The latter fear the smoking gun, which emanates from an overly documenting, yet untrained workforce. The former group says document everything. I fall into the former group. I say, “document, document, document.” Am I being redundant? In online recruiting, one Best Practice, in my opinion, is for recruiters to consistently document the results of the Social Media searches, (removing any protected information). Search results should be maintained consistently with the organization’s record keeping policies. Also, the legal, legitimate reasons for ultimate hiring decision should be documented. If the company rejects applicants based on Social Media search results, this decision should be based on a legitimate, job-related reason (for example, the applicant lied on their resume about having a graduate degree) and documented.

Don’t forget to inform all of your employees that they should not be doing their own Social Media searches, investigations or “Googling” candidates, as tempting as that may be.

You Will Love It Here
Another key distinction between recruiting online as opposed to traditional means of recruitment is that recruiting employees through Social Media requires recruiters to actively create a user experience for the applicants. That is, recruiters should not just post jobs on job boards, they should also engage in conversations about recruiting, about their company’s unique talent, about what it is like to work at the company, about the amazing initiatives or causes that the company supports and responding to job seekers questions, concerns and commentary. Therefore, another Best Practice for recruiters is to leverage the unique nature of Social Media to engage potential applicants in dialogues that will ultimately, but indirectly, attract the best talent to your company. That being said, recruiters must be diligent about monitoring these Social Media conversations. When the conversations turn "ugly" or a disgruntled ex-employee begins to post, recruiters must partner with PR and Legal to ensure that the company's brand is protected and no "protected concerted activity" is taking place, before the recruiter can "react" in writing.

In Careerbuilder’s “Best Practices For Using Social Media to Recruit,” it says, "Create A User Experience: Social Media is about creating an open dialogue and building relationships with others. Create a space where current and potential employees can interact – sharing success stories about working with your organization – and responding to job seeker’s questions. Listen Learn and Engage: The most important thing you can do on any site is to listen to your audience – both what they are saying to you and what they are saying about you. Don’t be afraid to respond: There is no better way to build trust with your community. Highlight Specific Jobs: Go beyond posting all your job openings: Provide talent unique job information about the company itself. Help candidates understand why your company is the right place for them. This is the most important practice, in my opinion. Engaging the community in dialogue about how amazing your company is to work for and how they can help your company succeed. Do not, however, make any promises that guarantee employment or create a contract for employment by discussing start dates, wages or benefits until the offer letter is sent out.

Another example of leveraging Social Media to recruit talent is the US Army’s official game "America's Army" that allows players to virtually participate in training missions and fight one another online. "America's Army" is a free-to-play game that has become a more effective recruiting tool for the Army than all other Army advertisements combined. In addition to attracting recruits through gaming, the America’s Army website provides inspiring personal video stories of soldiers who “found their strengths with an Army lifestyle.”

Certainly, there are many potential lawsuits to “fear” when engaging in Social Media recruitment. The “fear” however should not preclude you or your company from advancing, along with technology, into the foray. Rather implement these Best Practices, and do not be afraid to enjoy the benefit that comes from Social Media recruiting, which is getting to know your audience, engaging them in conversations about what you love, namely recruiting for your company or organization, and brag about the many positive accomplishments it has achieved.

Do not fear the Social Media savvy applicant. Many employers are wary of employees that use Social Media a lot, especially when the job for which this applicant is being recruited would not benefit from this skill set. They question whether they should even hire an executive assistant who in her spare time blogs voraciously about cooking and has over 15,000 followers dedicated to her Twitter profile. Many states, including California, do prohibit discrimination in the recruitment and hiring process based on lawful off-duty conduct. Deciding not to hire someone just because they are active Social Media users, may qualify as lawful off-duty conduct. The decision to hire or not to hire should always be based on legitimate, objective criteria related to the specific job qualifications.

*The use of company examples and policy examples, herein are not an endorsement by me of any of these practices or a legal opinion about these company practices or policies, which I did not write or review.

Social Media Recruiting: TMI (Part I)

noreply@blogger.com (JKP) — Tue, 03 Jan 2012 04:17:00 +0000

How Recruiters Can Prevent Social Media Lawsuits (Part I)

According to a 2011 Society for Human Resource Management Survey on the topic of recruiting online only 18% of the companies surveyed use Social Networking sites to recruit talent. According to the Survey, “It appears that only a small number of organizations are using online search engines and social networking websites to screen job candidates. The primary reasons for not using these methods are the legal risks, the lack of verifiable data and the lack of the job-relatedness of much of the information found online.”

Although there are true benefits to recruiting online, namely access to a wider diverse talent database, efficiency in the computerized process of screening qualified candidates, reduced time-to-hire in a 24/7 search method and reduced recruiting costs, just to name a few, the “fear” of lawsuits is still holding companies back from using Social Media to assist them in recruitment. Why do employers think that Social Media is “riskier” than traditional recruitment methods? Because Social Media is “transparent” with information – or should I say, “TMI” (Too Much Information.) That is, the information that recruiters have long been trained to “avoid” such as not asking an employee how long he’s been married, or what church his family visits on Sundays, in order to avoid a claim of discrimination, is transparently glaring at the recruiter via the employee’s Social Networking profile.

The most obvious difference between recruiting talent online using Social Media sites, such as LinkedIn , and recruiting offline, using traditional means, such as newspaper advertisements for example, is the profile picture of the potential candidate that often accompanies their online site resumes. Why is the “picture” of a candidate or their “user profile” such a problem for recruiters now? Because the picture of your potential hire is worth a thousand words.

What is visible from a LinkedIn profile picture that gets a recruiter into legal trouble? From a single profile photograph, a recruiter can guess a candidate’s gender, national origin, age, race, color and ancestry, among other things. From a user profile, a recruiter can guess about marital status and sexual orientation. From Facebook Wall postings or other blog postings, a recruiter can guess religion, medical condition or disability, or even genetic information. In doing so, a recruiter is open to allegations that hiring decisions are based on “protected categories” that federal and some state laws, such as California, prohibit as categories that can be considered in making a hiring decision, including the recruitment process. Collectively, these anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, the Rehabilitation Act of 1973, and the Genetic Information Nondisclosure Act of 2008, among others federal statutes as well as state statutes, including California's Fair Housing & Employment Act, and local ordinances, prohibit recruiters on behalf of the their employers from intentionally discriminating in the recruitment and hiring process.

For example, your company wants to recruit talent for an open Customer Service position and you have identified a hot-shot that seems perfectly qualified for the role. The hot-shot interviews throughout the company and seems a good fit until one manager informs you that she isn’t a “culture fit” because her LinkedIn profile shows she is a member of the Muslim Business Network group. Using this information as the basis for any employment decision, including the decision not to hire or recruit can get you and your company in legal hot water and violates the anti-discrimination statutes which prohibit discrimination on the basis of religion.

As a fun exercise, check out your own LinkedIn or Facebook profile and see how many protected categories you can infer. Someone recruiting me can identify from my LinkedIn profile and my linked blog entries information about my gender, my marital status, my national origin, my religion, my race, my sexual orientation and my age (from my year of graduation, not from my picture, which is ten years old.) What can I say? I haven’t looked that good since.

Moreover, these anti-discrimination statutes also prohibit recruiters from unintentional discrimination in the recruitment process by prohibiting conduct that creates a disparate impact on the workforce and is also not justified by a business necessity. The EEOC uses this example to explain disparate impact in recruitment: “An employer's reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.” Disparate impact is a problem for recruiters using Social Media because of the transparency about these sites’ user’s demographic. For example, if your company chooses to only recruit talent through Twitter, posting tweets about open positions on your company’s Twitter profile, this can expose your company to a disparate impact claim. Quantcast.com has posted Twitter’s user’s demographics as 67% Caucasian and 3% Asian. An Asian applicant might argue that the recruitment process has a disparate impact on Asian applicants. Without a business justification for this, the company will be hard-pressed to demonstrate otherwise.

Certainly, one might think that the best way for a company to protect itself from a claim of intentional discrimination in the recruitment process is to outsource the recruitment process to a third party that will screen the applicants and eliminate or redact “protected category” information, thereby allowing the company to assert a defense if needed that it was not aware of the protected characteristics throughout the hiring process. This is, in fact, what many companies do. However, these are “best laid plans” because in reality, outsourced recruitment gives rise to additional statutory requirements, namely, compliance with the Fair Credit Reporting Act (FCRA) and its state statutory equivalents.

In June 2011 the Federal Trade Commission (FTC) published a blog article, ‘The Fair Credit Reporting Act & Social Media: What Businesses Should Know,’ which clearly stated that employers who use outsourced “Credit Reporting Agencies (CRAs)” are obligated to comply with FCRA. The FTC said, “Employment background checks can include information from a variety of sources: credit reports, employment and salary history, criminal records–and these days, even social media. But regardless of the type of information in a report you use when making hiring decisions, the rules are the same.” Therefore, the Companies providing reports to employers–and employers using reports–must comply with the Fair Credit Reporting Act.”

Certainly, handing over Social Media screening in recruitment to a third party may seem like the best way out of a discrimination allegation, but in doing so, you may be allowing the third party to substitute their judgment for yours. In a recent online Wall Street Journal article, Kim Harmer, a partner at Harmer Associates, a Chicago based recruiting firm, stated "I look at their Facebook and see how they approach what they put on it. Is it immature? Appropriate or inappropriate? I'm not judging their activity but looking at how they communicate what they do and their thoughts and their judgments to the public as a reflection of what they will do with clients and team members." Although the use of outsourced Social Media recruiting and screening agencies can allow an employer to filter out protected category information, ultimately, the employer is also taking a legal risk by putting their trust in another’s judgment to determine the criteria for screening out applicants and redacting information.

Of course, an obvious solution is to not screen applicant’s Social Media activity at all. Certainly, this is what the 82% of those surveyed by SHRM are thinking. Unfortunately, this also leaves an employer vulnerable legally. An employer who could have easily discovered an applicant was terminated for cyber-bullying his former coworker by simply viewing his public Facebook postings, may be accused of negligent hiring when that employee repeats this behavior after your company hires him.

So, what can employers do to avoid the double-edged sword of online recruitment? First, in order to avoid a claim of intentional discrimination, employers must be able to justify that the recruited employees are being recruited based on objective, measurable job related qualifications and that these are the only qualifications being considered. This is accomplished with a well designed job-description, carefully crafted interview questions that ask about job qualifications, not personal characteristics, and training everyone who interviews the applicant or meets the applicant about legal hiring practices and protected categories. If the employer outsources the Social Media screening process, a carefully designed list of sought-after qualifications should be designed by the employer so as not to “hand over” the process to a third party that may not understand your company’s needs. Finally, the employer must ensure that the third party recruiters are adhering to the credit reporting statutes, both state and federal throughout the process. If the process is not outsourced, it is wise to ask applicants to sign Social Media waivers anyway, thereby notifying them that their Social Media activity is being evaluated in the process.

It is not wise to require your applicants to give you their passwords to access their high privacy setting or “pretend-friend” them to see information you think they are hiding from you. The City of Bozeman, Montana required applicants to supply their username and password information to Social Media sites, but the public outcry against it made them curtail this practice. Whether unlawful or not, your company may run afoul of the Terms of Use of some Social Networking sites that prohibit sharing passwords or the Stored Communications Act by “asking” for passwords, as most employee-applicants will want the job so badly that they will “agree” without truly wanting to give you this information. Notwithstanding, surreptitious means for gaining information is never a good employment practice.

I know what you are thinking. What’s the point? If you tell them you are going to check their Social Media, then they will just clean it up or delete their drunken party twitpics. Now, how will you really know if your potential new-hire has a cocaine addiction or a penchant to bad-mouth his supervisors? But, the legal truth is, if you want to screen your potential employees, legally, without exposing yourself to increased liability, the only way to do it is to tell them you are going to do it, get their permission to do it, and then if something bad pops up, give them a chance to explain it. In the end, it isn’t about “catching” someone in the act of online foolishness, but about making sure that the person you hire is the “right” person for the job, based on the objective, qualifications of the job or based on the company’s stated goals and values.

In order to defeat a claim of disparate impact, the best practice is to diversify the online Social Media sites you use so that one site’s demographic profile does not define your recruitment strategy. Second, use an online aggregator, such as indeed.com or careerbuilder.com, which will aggregate from various Social Media sites. Third, compliment your online recruitment strategy with traditional means, such as paper postings, internal job postings, and college and university recruitment and job fairs. The more diversified your approach, the more diversified the pool of applicants. Thus, defeating a disparate impact claim.

It is a good practice to include offline recruitment as part of your recruiting strategy if for no other reason that some people do not have access to these sites or prefer not to participate in Social Networking or share information on the Internet, including their personal phone numbers, which would be something that one might include on a resume.

Certainly, if your decision to recruit online is based on reducing the costs of recruitment, implementing all of the above strategies will undermine this economic purpose. If that is your motive, than the best advice is to do your homework about the sites you choose to recruit from. Research and learn their user’s demographic. Make an informed decision based on the statistical information available to you. In other words, do not go blindly into the night of recruiting online. Know the publicly available demographic information of the sites you are using for recruitment purposes before they are used against you. Remember, that a business justification can defeat a disparate impact claim. If you need your new-hire to be bilingual in English and Spanish, it may be justifiable that you only posted the job on ihispano.com. Therefore, giving due consideration to the business justification for your open position is worth it. Another good idea is to always post and promote your company’s positions on your own company’s website. This will open the job to the entire web and defeat a claim that you limited the recruitment process based on protected categories. Finally, always include the fact that your company is an “equal opportunity employer” on all job postings. Thereby, encouraging all qualified applicants of any color, gender, religion, or condition to apply for the position.

Part II of this series will focus on Social Media Recruiting
Best Practices for Recruiters

Happy New Year! 2012 is going to be AMAZING! Thank you for your business, friendship, collegiality, and loyal support. I'm grateful beyond words!

noreply@blogger.com (JKP) — Mon, 26 Dec 2011 16:31:00 +0000

Lead Your Industry By Preventing Slavery and Human Trafficking In the Supply Chain

noreply@blogger.com (JKP) — Thu, 10 Nov 2011 19:25:00 +0000

On January 1, 2012, California’s Transparency in Supply Chains Act, (“SB 657”)
California Civil Code Section 1714.43(a) becomes effective.

This means that every “retail seller” and “manufacturer” “doing business” in California that has annual “gross receipts” in excess of $100 million (as of January 1, 2011) will need to:

1) To disclose to what extent, if any, it evaluates and addresses the risk of slavery and human trafficking in its products supply chain and whether a third party conducted the evaluation.

2) To disclose whether it audits its suppliers and whether the audits are independent and unannounced.

3) To disclose whether it requires its direct suppliers to certify that materials of the products comply with applicable laws on slavery and human trafficking.

4) To disclose whether it holds employees and suppliers accountable and if so, what the internal accountability standards are for employees or suppliers who fail to meet the standards.

5) To disclose whether it trains employees on mitigating the risk of slavery and human trafficking in the product supply chain.

The required disclosures must be posted on the company website with a conspicuous and easily understood link to the information on the homepage. (If the company does not have a website, a consumer must be provided the disclosures in writing within 30 days of requesting it.)

In the event that you might wonder how big an issue slavery and human trafficking is, here are some staggering statistics provided by CASTLA*:

· According to CIA estimates, as many as 15,000 to 17,500 men, women and children are trafficked into the United States every year.

· States such as California, Florida, New York, Nevada and Ohio are particularly vulnerable to human trafficking because of factors such as: proximity to international borders, number of ports and airports, significant immigrant population, and large economy that includes industries that attract forced labor.

· Los Angeles is one of the top three points of entry into this country for victims of slavery and trafficking. The diverse communities of this sprawling city make it easier to hide and move victims from place to place, making it very difficult for law enforcement to locate potential survivors.

· It is the fastest growing criminal enterprise in the 21st century – a nine billion dollar industry.

SB657 was enacted with the intent to inform consumers as to which companies are acting socially responsible so that consumers can choose not to patronize those that are not socially responsible, and to even the playing field for socially responsible companies that refuse to work with suppliers that use forced labor in competing against companies that have reduced costs because they do.

What is interesting about SB657, however, is what it does NOT do. It does NOT require anything beyond the disclosures set forth above. For example, a company can comply with the Act my stating that it has no policy regarding and does not monitor labor conditions involved in the production of its products or the materials incorporated in its products. It also does not have to actively ensure that its suppliers monitor labor conditions. Also, it does NOT apply to companies with annual gross receipts less than 100 million dollars. Last, it’s remedy for violating SB657 is an action by the State attorney general for injunctive relief. In other words, there is no financial penalty, which in itself undermines its “bite,” so to speak. (The Act does not limit remedies for other statutory violations that give private right of actions, injunctive relief, damages and attorneys fees.)

Despite these limitations, SB657 gives all companies that manufacture or sell products and their suppliers an opportunity to demonstrate leadership by going beyond the statutes disclosure requirements. Companies can “raise the bar” and act beyond the basic disclosure requirements of the statute. These “above and beyond” actions may include:

1) Raising awareness in the industry about slavery and human trafficking with press releases and PR campaigns that show their company's commitment to eradicating slavery and human trafficking.

2) Auditing the companies supply chain and ensuring that there are multiple avenues for employees to file grievances in the event that they are aware of unsafe work conditions, unfair labor practices and other conditions which give rise to human trafficking.

3) Training their suppliers about steps to take in preventing human trafficking and slavery in their countries and industries.

4) Refusing to do business with suppliers known for employing recruitment agencies that make the workers pay broker/agent/ recruitment fees or work visas.

5) Donating to nonprofits and organizations dedicated to eliminating human trafficking around the world.

Some online resources* on the topic include:

· Verite has a website, which is dedicated to stopping human trafficking and has many downloadable documents on topic.

· Apple has been transparent with its audit and report: It's audit was conducted a nongovernmental organization, Verite and the Fair Labor Association.

· The Human Rights Organization just put out a 2011 report.

Finally, companies that do not have to comply with the statute because they do not have receipts less than $100 million or do business in California can also take a stance against slavery and human trafficking thereby making them attractive as potential partners already in compliance to companies that are required to comply with it.

For companies that do not do business in California, note that on August 1, 2011 Rep. Carolyn Maloney (D-NY) introduced H.R. 2759, the Business Transparency on Trafficking and Slavery Act, a bill modeled after the California Transparency in Supply Chains Act. The bill would require companies to disclose efforts to identify and address the risks of human trafficking, forced labor, slavery, and the worst forms of child labor in their supply chains.

* I do not endorse or do business with any of these businesses or organizations.

I'm Perfect. Why Should I Change?

noreply@blogger.com (JKP) — Fri, 30 Sep 2011 18:37:00 +0000

I’m Jewish. Shocking - a lawyer born Katz and married to a Pritikin, who knew? Being, Jewish, I have just come out of High Holiday services where I celebrated Rosh Hashanah, the Jewish New Year. One of the things we do on the New Year is reflect on the past year to determine what types of conduct or behavior we can improve upon for the next year. This is actually something that I feel is an important corporate lesson to pass on to the many Human Resource professionals who read my blog (thanks to all 7 of you.) It is also a good time of year, in September/October for this type of reflection, as opposed to January 1, the other New Year, because it is this final quarter when many of you are preparing your Proposals for Training to the budget committees or business group for approval. Keeping in mind that my business mission is to proactively prevent lawsuits, it is my opinion that two critical topics have been glossed over or absent from many companies training agendas: 1) Preventing Social Media Abuse and 2) Preventing Retaliation Lawsuits. I have blogged and taught on these topics in the past year a great deal in order to raise awareness to these two areas where I believe companies are increasingly vulnerable to related litigation yet corporations are doing the least to prevent them. Certainly, you may read my rationales for this bold assertion in my previous blogs on Social Media and Preventing Retaliation. In a nutshell, Social Media Abuse is the “smoking gun lawsuit” of the future and Retaliation lawsuits are the #1 claim being made in the nation.

Perhaps preventing lawsuits isn’t a good enough reason for you to change the stellar Training Budget or Proposal that you put together last year that you know will be approved if you only switch out 2011 for 2012. If that is what you have in mind, let me relay a humorous anecdote that the rabbi told during his service yesterday. He said a manager was upset that after 20 years of dedicated service to his company, he was passed over for promotion at his company. The promotion was given to another gentleman who had been with the company for only 5 years. When the 20-year veteran complained that he had more tenure and demanded to know why he was passed over, the HR professional responded that the young man was bringing more experience to the job. The veteran asked, “How can that be so?” The HR professional explained that the other man was bringing 5 years of experience to the role, while the veteran was merely bringing one year of experience that he had performed over and over again for 20 years. The morale of the story that the rabbi conveyed was that people need to continue to grow and learn, whether it be in life or their jobs. We need to continue to push ourselves each year to learn new skills and have new experiences, instead of repeating the status quo each year. I would add, that for HR professionals, the onus is on this department to ensure that all of your employees are given the opportunities for new growth through trainings on topics that are newly relevant and impactful, with follow up to ensure that the trainings are implemented or transferred down the line throughout the year.

In designing training proposals, keep this in mind. Ask, “What topics and skills do my managers want/ need to know about to help them “lead” employees best in next year?” One of the biggest gifts you can give managers is the peace of mind that they know the rules and laws so that they can manage their teams without the worry of being sued for their missteps. The two topics I think that are critical for 2012 are trainings that cover Preventing Retaliation Lawsuits and Social Media Abuse. Happy New Year.

Green Light, Yellow Light, Red Light

noreply@blogger.com (JKP) — Fri, 26 Aug 2011 22:11:00 +0000

How to Abide by NLRB’s Social Media “Traffic Signals”

Social Media use is altering the employment law landscape in many ways, but the most recent trend is emerging from the National Labor Relations Boards (NLRB’s) aggressive protection over an employee’s right (whether the employee is a member of a union or not) to use social media sites as a venue for “protected concerted activity” as it is defined by Section 7 of the National Labor Relations Act (NLRA).

On this topic, two beneficial documents have been published recently to assist employers in drafting their social media policies and in navigating social media disciplinary decisions so that the employer does not violate the employee’s rights in this arena.

On August 5, 2011, the United States Chamber of Commerce issued a helpful “Survey of Social Media Issues Before The NLRB” (“the Survey.”) The Chamber had sent a Freedom of Information Act request to the NLRB and received 129 cases back. According to Michael Eastman, the Executive Director of Labor Law Policy at the US Chamber of Commerce, “the issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
On August 18, 2011, the NLRB’s Office of the General Counsel released its own Memorandum that summarized the most recent social media cases issued by the NLRB (“the Memorandum”.) In the Memorandum, Associate General Counsel, Anne Purcell, states, "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media."

From the Survey and the Memorandum employers can gain insight, not only into how to narrowly draft their own social media policies so that it does not prohibit conduct that might be “protected concerted activity,” but also how and when to discipline employees who violate their internal policy. Since I have previously blogged about essential provisions of a social media policy and provided my own Sample Social Media Policy (which carves out for Section 7 protected concerted activity) this entry will focus on employer's disciplinary decisions when an employee acts in contradiction to the company's social media policy.

Proactive Lawsuit Prevention Strategies for Social Media Abuse Related Disciplinary Actions

Although the Survey and Memorandum do not explicitly set forth clear rules for employers to abide by, employers can infer “Traffic Signals” from these documents to obey when determining how and when to discipline employees for social media use that undermines the employer’s interests. The traffic signals for employers are:

Red Light.
STOP employer. This is the instance when an employee is using social media in a way that may undermine or threaten the employer, but the employer should not discipline or terminate the employee for this social media use. Red Light employee actions exist when

1) the employee is using social media to create a site or page or use a site or page where the stated purpose is to organize his or her coworkers to join together to protest working conditions or vote in a union.

2) the employee is using its own social media site or page to complain about wages, working conditions, or management and he or she is explicitly asking other employees for their opinions and support and/or other employees are giving their opinion and support about the working conditions at that company.

3) the employee is using social media to whistle-blow the employer’s illegal activity.

Yellow Light

SLOW DOWN employer. This is the instance when an employee is using social media in a way that may undermine or threaten the employer, but the employer should proceed with caution, and hopefully seek legal advice, before it makes a decision to discipline or terminate this employee for this social media use. Yellow Light employee actions exist when

1) the employee is “venting” about his/her own work, working conditions, wages or manager, but he/she is not seeking support from coworkers, yet other coworkers are commenting on it and/or “liking” the comment.

2) The employee is “griping” about work, working conditions and wages, in general, or management, but no one is commenting about it, although the employee’s friends or followers include his/her coworkers.

3) the employee is using social media to “out” the employer or managers for what the employee erroneously perceives as illegal or unethical activity.

4) the employee is name calling or bad-mouthing the company or its employees, but the comments are all true and not harassing or discriminatory

Green Light
INVESTIGATE, BUT DISCIPLINE ACCORDINGLY employer. Assuming the following activities are appropriately investigated and also prohibited by the company’s policies, if the employer determines that the employee is engaging in the following activities while using social media, the employer should discipline the employee for violating the company’s social media policy. Green Light employee actions exist when

1) the employee is posting violent threats, harassing and/or discriminatory comments about his coworkers, managers or customers and the comments unreasonably interfere with the targets ability to perform his/her job, especially when it is clear that these comments have nothing to do with working conditions.

2) the employee is posting comments that are so disloyal, reckless, or maliciously untrue about the company, and the company can prove the employee knew this when he/she posted it.

3) the employee is disclosing the company’s trade secrets and/or confidential information.

4) the employee is spending so much time on social media during work hours that it is interfering with the performance of his or her job (but remember to enforce this policy consistently.)

5) the employee is expressing a personal vendetta or gripe about his/her manager or coworkers, but it is not directed at coworkers and only his family and friends see it.

Remember, bad words or profanity are not determinative. It is about the motive behind the name-calling that the NLRB cares about. Also, how the company learned about the social media abuse will be taken into account. In other words, employers should not force employees into giving up their passwords to privacy protected groups or chatrooms. (See Pietrylo v. Hillstone Restaurant Group.) Also, do not pretend to be someone you are not to trick the employee into “friending” you or “accepting” you, especially if you are an attorney-investigator as this may be in violation of your code of professional conduct. Finally, using unlawful surveillance, interrogation or threats to get information about an employee’s social media postings violates California’s and other state statutes, which protect employees from this conduct.

Last, recognize that these “Traffic Signals” are merely my interpretation of the Survey and the Memorandum at this moment in time and the interpretation may change as the laws and rules surrounding social media use are in constant motion and continually change based on new cases and emerging law.

Do You Know Where Your Glass Slipper Is?

noreply@blogger.com (JKP) — Mon, 13 Jun 2011 06:28:00 +0000

Retaliation Prevention Policy Must-Have Provisions
I am looking forward to my upcoming NEW program for PIHRA's 2011 Annual Conference. It isn't too late to register. I am speaking on 2 topics: Social NOTworking and also Retaliation: Shoulda Put A Ring On It.

What I learned in researching the latter topic, is that Retaliation Prevention Policies have a Cinderella complex in most companies. The employers expect it to do all the work, by protecting it against retaliation claims, but they don't give it any glory. That means, that much like Cinderella's mean step mother expected her to keep things tidy, but didn't let her go to the ball, Retaliation Policies are usually buried deep inside a company's handbook, in two sentences at the end of the Harassment Prevention Policy. The company expects them to protect it from lawsuits, but doesn't highlight it as a stand alone policy, the way it should.

The fact is, now that Retaliation Lawsuits are the #1 Equal Employment Opportunity Commission claim, Cinderella need a new dress, new shoes and a white coach to take her to the ball. The bottom line is that Retaliation Prevention needs to take the center stage. In order for an employer to effectively prevent Retaliation claims and protect itself from Retaliation lawsuits, it needs a stand alone, detailed Retaliation Prevention Policy.

The Retaliation Prevention Policy should have the following iron-clad provisions:
1) It should make a stand alone commitment to a Retaliation-free workplace.
2) It should define Retaliation
3) It should give examples of Retaliatory conduct
4) It should set forth a complaint procedure
5) It should provide alternative means for making complaints
6) It should not promise confidentiality
7) It should set forth the consequences for retaliatory conduct

Here is my new Sample Retaliation Prevention Policy.* Hope to see you at the conference.

*This sample policy is not intended to be "ready for use." In addition, it is not to be construed as legal advice. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

Other blogs on topic: He's Just Not That Into You

Social NOTworking PIHRA District Meetings

noreply@blogger.com (JKP) — Tue, 10 May 2011 09:02:00 +0000

I am looking forward to presenting Social NOTworking to PIHRA Districts 19,12 & 1 in the next few weeks. In anticipation, here is my Sample Social Media Policy* and a link to a great article by CNN Money showing examples of Social Media abuse, entitled "6 All Time Favorite Social Media Screw Ups." If you plan on attending the meetings, you can anticipate learning the Proactive Lawsuit Prevention Strategies to implement to prevent "screw ups" from happening at your company? I'll give you a hint. "Choo Choo The Train Stops Here." See you soon.

* The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

He's Just Not That Into You

noreply@blogger.com (JKP) — Fri, 22 Apr 2011 21:18:00 +0000

A New Twist On Workplace Romance After Thompson v. North American Stainless

Workplace romances have always been a breeding ground for employment lawsuits. Claims of sexual harassment, discrimination, favoritism and retaliation erupt from the aftermath of two “romantic souls” finding each other (and often losing each other) at work.

The recent United States Supreme Court ruling in Thompson v. North American Stainless, LP, (Jan. 24, 2011) added a new twist to the “workplace romance-begets-litigation” scenario. In Thompson, Eric Thompson and his fiancé, Miriam Regaldo, both worked for North American Stainless (NAS). In 2002, Regaldo filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified NAS of Regaldo's charge. Approximately three weeks later, NAS terminated her fiancé, Thompson. In his lawsuit, Thompson alleged that he was terminated in retaliation for his fiancé's EEOC charge, while NAS contended that performance-based reasons supported Thompson's termination.

The US Supreme Court ruled that NAS’s firing of Regaldo’s fiancé was a retaliatory act designed to punish her for filing the EEOC complaint and that Thompson – the fiancé who did not engage in any protected activity such as make the complaint or act as a witness in the investigation did have standing to sue for retaliation as a person in Regaldo’s “zone of interest.”

Refusing to define which third party relationships are defined as within the “zone of interest,” the Court referred back to an earlier decision it made in a retaliation case, Burlington N.S.F. R. Co. v. White and stated, “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize."

In leaving the door open as to which relationships are within an employee’s “zone of interest” the Court expanded the number of people with standing to sue for retaliation. Not only will this contribute to “retaliation cases” being the number one claim filed with the EEOC, as it was last year, but it has added new “language” to the workplace romance scenario. Now, if a person wants to know if their relationship is heading towards the altar, they can inquire whether their beloved considers him or herself within their “zone of interest.” If the answer is “No,” that’s a definite sign that he or she’s just “not that into you.”

Some Proactive Lawsuit Prevention Strategies that employers can implement to Prevent Retaliation Lawsuits are:

1) Draft and implement a No Retaliation Policy that is separate and apart from your harassment prevention policy. Most employers have a one or two sentence prohibition against retaliation in their other policies. This is no longer enough in light of the prevalence of retaliation claims.
2) Train your employees and managers on retaliation (again, not just an add on topic to their sexual harassment prevention training). Spend time explaining to them what types of behavior constitute potential retaliation, (including conduct that doesn’t detrimentally affect pay) and to be aware that third parties who have close relationships with a complainant and witnesses are now within the “zone of interest” for retaliation.
3) Review Anti-Fraternization Policies, if the company has them, to ensure that they are consistently enforced, but watch out for selective enforcement right after a complaint is filed.
4) Involve HR when disciplining complainants, witnesses and people within their zone of interest, especially when doing so right after the complaint is filed, or an investigation takes place.
5) During an investigation into the underlying claim, remind employees to come to HR if they feel that they are experiencing retaliation so that the company can investigate the retaliation claim and help protect the parties and witnesses in an investigation, as well as those individuals within their zone of interest.

Straight from the SHRM Legislative & Employment Law Update 2011

noreply@blogger.com (JKP) — Tue, 15 Mar 2011 22:20:00 +0000

Having just finished up two days of speaking at the SHRM Legislative & Employment Law Update in Washington DC, or as the Tweetups are calling it, #SHRMLEG11, I am blogging to express my deep gratitude and appreciation for the SHRM staff and volunteers, the kind press coverage from Michael VanDervort, the positive tweet commentary, the AMAZING audience attendance and the lively audience participation. I am especially grateful for those who stood throughout the long programs each day. I hope that I have another opportunity to participate with SHRM in the near future.

P.S. I taped a video interview for SHRM's website on INVESTIGATIONS, so stay tuned for the url/when that posts.

It's Business, Not Personal...Or Is It?

noreply@blogger.com (JKP) — Wed, 23 Feb 2011 01:39:00 +0000

Courts Are Drawing Imaginary Lines In the Social Media Sand.
Cases that center on an employee's use of social media or email use are making a distinction between "business use" and "personal use" of technological devices and services in order to determine whether an employee has a "reasonable expectation of privacy" of their postings, blogs, or transmissions when the employer reads these messages. Consequently, the best Social Media policies are those that clearly set forth a company's ownership of its devices and that an employee does not have an expectation of privacy when using company equipment, devices, servers and services. Here is my Sample Social Media Policy

Perhaps, however, the real question is, whether or not, the case law is creating a false line in the sand when it tries to draw this business use versus personal use distinction for liability purposes. In the very near future, there will likely no longer be a distinction between business and personal use of social media. Let's define Social Media as communications online, including personal and professional websites, blogs, chat rooms and bulletin boards; social networks (Facebook, LinkedIn, Twitter and MySpace), video-sharing sites (YouTube) and e-mail.

Already, employees blur the distinction between business and personal use. They (a) work from home, (b) use their PDA's for business and personal calls, videos, emails and updates, (c) "friends" on Facebook are colleagues or customers and (d) YouTube has transitioned from a site that shows personal home videos to a strategic marketing tool for Company branding. The rules for using these sites, email, and technology should be clear, not based on who owns the servers, who owns the email account, or who owns the device used. Is there a reasonable expectation of privacy for social media use? Whether the answer is "yes" or "no" should not depend on whether the use is business or personal.

Two recent email cases highlight how difficult the courts have made it to determine "privacy" based on the business or personal distinction. In Holmes v. Petrovich Development Co. LLC, (1/13/11) _Cal.App.4th_, 2011 WL 17230, a California Appellate Court determined that an employee who sent an email to her attorney from her company's computer, did not have the protection of attorney-client privilege, let alone an expectation of privacy, when her employer read that email because the employer's policy stated that it would monitor and read transmissions. Compare this case to Stengert v. Loving Care 973 A. 2d 390 - NJ: Appellate Div. 2009 where a New Jersey court determined that the employee was entitled to her attorney client privilege when she sent her attorney an email through her password protected yahoo email, even though it was sent from the company provided laptop. These are two cases with very similar facts, trying to draw a line in the sand between use of business and personal servers and coming up with contrasting case law, as a result.

Shouldn't the rules be clear: Yes, there is an attorney client privilege for any types of communications between a client and her attorney? And, no, there is no expectation of privacy when using social media? Instead, the courts are once again falling behind the times, by trying to create rules for passe technology when in the future there will no longer be this business/personal distinction?

What do you think?

Other blogs on topic:
To Facebook or Not to Facebook
Elvis Has Left the Building

P.S. I'm looking forward to my upcoming program for SHRM Legislative & Employment Update, Social NOTworking. There is still time to register.

Speaking Engagement: PIHRA Legal Update 2011

noreply@blogger.com (JKP) — Wed, 12 Jan 2011 21:10:00 +0000

Jan. 24th Ontario, January 25th Universal City, January 27th Garden Grove

I am sincerely looking forward to another opportunity to present for the members of PIHRA. In anticipation of my program, Lawsuit Proof Investigations, and with gratitude for the members who attend and participate in this program, here are some Sample Forms* for investigators.

Sample Sexual Harassment Complaint Form
Sample Investigation Questions for the Accused
Sample Investigation Suspension With Pay for the Accused
Sample Investigation Conclusion and Recommendations

You may also purchase a complete SEXUAL HARASSMENT INVESTIGATOR's KIT with all the forms (CD included) and the power point show of LAWSUIT PROOF INVESTIGATIONS. If you would like to purchase this click this button:

Please also send me an email: jodypritikin@proactivelawsuitprevention.com so that I know you have purchased this item through paypal.

If you attended the program, please take a moment to let me know if you found it informative and if these Sample Forms are helpful to you.
All the best, Jody

* The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.
Previous blogs on topic:
Lawsuit Proof Investigations
To Facebook or Not to Facebook? That is the Question for Investigators
Another Reason to Shop at Costco

Happy 2011... or HOPpy 2011!

noreply@blogger.com (JKP) — Mon, 27 Dec 2010 06:02:00 +0000

I'd love to wish all of my friends, colleagues and clients the most wonderful, healthy, happy and prosperous New Year! Enjoy this video of my kids celebrating life's adventures on the Frog Hopper and remember to be grateful for all of our blessings. I am grateful for your business, support and friendship. Happy New Year!

What Is Worse Than A Worm In Your Apple?

noreply@blogger.com (JKP) — Mon, 29 Nov 2010 00:57:00 +0000

Getting You and Your Company Past the Past Lawsuit.

“What’s worse than finding a worm in your apple? Finding two worms in your apple.” I know, it’s not hilarious, but, if you are my five year old, it’s a real side-splitter. Besides, it’s a clean joke and it inspired my blog. Because… there is only one thing worse for a company’s morale, balance sheet and culture, then a lawsuit. Another lawsuit.

One of the most important Lawsuit Prevention Strategies that a company can implement after a lawsuit is to strategize about what steps it can take so that it will protect itself from being sued again. Is this a real threat? Absolutely. Plaintiffs’ lawyers that succeed in a lawsuit against a company for failing to properly pay overtime, for example, will come back time and again to sue the same company for additional wage and hour violations, such as failure to provide meal and rest periods. It’s easy money. They already have the pleadings written, the class identified, they just have to switch out the code violated and they are back in action. What many “target” companies fail to realize is that there are many Proactive Lawsuit Prevention Strategies that a company can implement to ensure that plaintiffs’ lawyers lose their number.

Announce Your Company’s Triumph. Immediately after a lawsuit, a company should meet with employees to announce the “triumphant” conclusion of the lawsuit. Whether the lawsuit ended in a successful verdict or a harsh liability, the company should set the tone of this meeting as a time to step into the future with optimism. This is a critical step to ensure that employees recognize that the time for “blaming,” financial insecurity, job instability and crisis are over. The tone for the future is a gleeful return to prosperity and positive change, thanking the employees who withstood the challenge of a lawsuit for their tenacity and deep loyalty. This prevents lawsuits because it demonstrates to your employees that their best bet is with you. The next time grievances are raised, the employees will look first to the company for resolution before seeking a lawyer or agreeing to join a class action.

Reflect for Accountability. Ensuring that ground rules are set to avoid the “Blame Game,” begin an honest and candid look into company policies, procedures and “unwritten rules” that allowed for the circumstances that gave rise to the lawsuit. If it is a safety violation, begin to determine how safety can become a priority – not just in words, but in practice. If it is a hostile work environment claim, consider retraining, or policy revisions, or investing in culture change programs that will help employees confront or speak up about hostile or harassing behavior before it becomes the next lawsuit.

Take Ownership for Unpredictable Externalities. Some lawsuits really are impossible to predict. Accidents do happen. Natural and man-made disasters occur. Companies that plan for unforeseeable events with insurance and preventative training are usually the ones that survive them. After a lawsuit is an excellent time to reevaluate insurance. Did your worker’s compensation insurance coverage help your company face this lawsuit? Was the carrier responsive and timely? Was the coverage enough? Was the appointed attorney up to the task? Were your interests served? Were there loop-holes or exigencies that you did not know about? Determining the right kind of insurance, the right amount, the right carrier, can help deter a plaintiff’s lawyer from future litigation, or at the very least, it can help cap the amount of liability your company might incur.

Change. Even if it is painful. Even if it is costly. Change after a lawsuit. Do not go on, business as usual. Or you will end up paying double. Punitive damages exist to “punish” the unrepentant employer. The best evidence of a lack of remorse is “business as usual.” Even if your company was victorious, or the lawsuit was frivolous, be prepared to demonstrate how your company used the challenge of the lawsuit to exceed company or industry standards of behavior. Keep records of the change, the associated costs and the leadership examples established as a result. The law prevents future litigants from using these changes against your company as proof of culpability; however, your company can use them to demonstrate compliance or leadership as of the date of the change.

Don’t Be Bitter. Move on. In the infamous words of Cher in Moonstruck, “Snap Out Of It!” Literally, move past the lawsuit by refusing to let it bring you and your company down. This includes refusing to bad mouth the plaintiffs, refusing to interfere in their ability to seek future employment, if they still work for you, refusing to target them for disciplinary action or termination, and refusing to be open and forthright in your behavior with current employees. Many managers, who have experienced the pain and embarrassment of a sexual harassment allegation or ethics violation, go back to work too bitter, too embarrassed or too fearful to comfortably interact with their subordinates. My advice, “Snap out of it!” Otherwise, risk becoming, at the very least, ineffectual. At the most, a target for future defamation, interference with future contract and wrongful termination claims. Those “burned” by lawsuits cannot prevent becoming future targets by isolating themselves from their coworkers. Instead, these individuals must share the wisdom of their battle with their colleagues, sometimes, humbly or publicly, and then step forward into the future using their talents to create a positive impact for their employers. The sexual harassment and/or assault allegations and associated litigation made against Mark Hurd, Bill Clinton, Kobe Bryant and David Letterman will, most likely be but a footnote in their biographies. (Maybe not for Bill Clinton.) Whether that is wrong or right, it reflects their ability to move past those allegations and use their talent to help themselves and their employers overcome the negative brunt of their respective lawsuits.

What steps have you or your company taken to get past the past lawsuit?

WEBINAR INVITATION: Unlawful Harassment Prevention (AB1825 PLUS)

noreply@blogger.com (JKP) — Thu, 14 Oct 2010 02:46:00 +0000

November 16, 2010 10:00am - 12:30pm (PDT)

Jody Katz Pritikin, Esq. brings her unique style and energy to the very difficult topic of Unlawful Harassment Prevention. Not at all a “typical” lecture - this program will teach your managers and executives unlawful harassment law. This program goes beyond the minimum requirements for California’s sexual harassment prevention training requirements (as described in Assembly Bill 1825/Government Code section 12950.1) and will cover other forms of unlawful harassment prohibited by California's Fair Employment & Housing Act and Title VII.

STAY COMPLIANT! AB1825 requires employers with 50 or more employees to provide at least two hours of "classroom or other effective interactive training" to all supervisory employees on the prevention of sexual harassment, discrimination and retaliation. Also, employees hired or promoted to supervisory positions must be trained within 6 months of hire or promotion to the position. This program will help you ensure that ALL of your employees are trained and no single employee undermines your compliance efforts.

In this program attendees will learn:
● What is unlawful harassment
● What is sexual harassment
● What are managers and executives rights and responsibilities in the workplace
● What are managers, executives and company liabilities in the workplace
● How to prevent unlawful harassment in the workplace
● What to say and do when faced with an uncomfortable/ unlawful situation
● What procedures to follow when an employee complains or a manager sees it
● How to stop unlawful harassment before it even starts

Your managers will love this entertaining program! Certificates are provided upon seminar completion.

About your presenter: Jody Katz Pritikin, Esq.
After working as an attorney in Los Angeles, Jody identified early in her legal career that almost all employment lawsuits are preventable. Recognizing that businesses need to prevent lawsuits, she founded Katz Consulting & Associates to teach business how to proactively plan for and consequently prevent lawsuits and save the considerable expense of litigation. With over thirteen years devoted to preventing lawsuits, her expertise lies in conducting investigations, teaching management, counseling HR and in designing policies to protect corporations from lawsuits.

Jody Katz Pritikin, Esq. grew up in Southern CA and received her J.D. from USC Law. She is a member of the CA State Bar, the LA County Bar Association's Labor & Employment Group, the CA Org. for Workplace Investigators (CAOWI), SHRM and PIHRA. Her clients include small and mid-size companies as well as many Fortune 500s and 100s. She is an outsourced, neutral investigator used by her corporate clients and attorneys in highly sensitive investigations. She is a featured author/ blogger in trade publications and on the blogs of LACBA, ABA, Lawlink and PIHRA.

More information about this presenter, other Lawsuit Prevention Strategies and upcoming Seminar/ Webinar topics are available at: http://www.proactivelawsuitprevention.com/.

This program is currently being offered at a SPECIAL RATE of only
$200.00 per attendee. Companies that want to register more than 10 employees can contact us for a reduced rate. Do not wait to register as space if limited.

Click to reserve your spot.

Note: Upon registering, you will automatically be directed to a page that allows you to pay by credit card. If you do not want to pay by credit card, please contact me directly (310) 930-9200. Once you have paid, you will still need to complete the second Registration Page to receive the confirmation email with information on how to join the webinar.

System Requirements
PC-based attendees
Required: Windows® 7, Vista, XP or 2003 Server

Macintosh®-based attendees
Required: Mac OS® X 10.4.11 (Tiger®) or newer

Starting Out On the Right Foot

noreply@blogger.com (JKP) — Wed, 13 Oct 2010 04:36:00 +0000

Well Drafted Job Descriptions Prevents Lawsuits

When I am asked about whether a company needs to write job descriptions, I am reminded of a well-versed passage from Dr. Seuss.

“So be sure when you step. Step with care and great tact and remember that life's a great balancing act. Just never forget to be dexterous and deft. And never mix up your right foot with your left." — Dr. Seuss (Oh, the Places You'll Go!)

No one, it seems, enjoys the tedious task of writing job descriptions. Moreover, when human resource professionals learn that no law requires a company to have job descriptions, the individual tasked with the job wants to find a way out of it. So, they call me and ask, “Do I have to?” My answer is, (though I don’t rhyme it), the same as Dr. Seuss’. If your company is not dutifully writing and updating job descriptions, you are “mixing up your right foot with your left.”

A job description is simply a clear, concise depiction of a job's duties and requirements. A well drafted job description, however, is a key proactive strategy to preventing lawsuits. Think of it as starting off on the right foot with a prospective employee.

Job Descriptions Can Prevent Disability Discrimination Claims
When an employee sues his or her employer for violating the Americans with Disabilities Act (ADA), or an analogous state law, in California we have the Fair Employment and Housing Act (FEHA), the employee is alleging that he or she was treated unfairly because he or she has a disability, but was otherwise qualified to perform the essential functions of the job. The conduct that is at the heart of the allegations may occur at any point in the employer-employee relationship. It can occur during the hiring process, through compensation determination, during performance reviews, consideration for promotion, disciplinary actions and in termination. The federal and state laws ask employers, under certain circumstances, to reasonably accommodate employees with disabilities, so that the disability is not a reason for any job related decision. That is, a company may be asked to provide a sign language interpreter for a hearing impaired employee during training seminars so that the employee does not miss out on critical training and is able to participate in meeting as was the subject of the case in EEOC v. UPS No. 08-56874, 9th Cir., 2010.

When employers are sued for discriminating against someone with a disability or failing to provide a reasonable accommodation, the company’s defense may be that the employee or applicant is unable to perform the essential functions of the job, and that the employee cannot reasonably be accommodated. The job description, if written before the alleged discriminatory conduct occurs, is “evidence” of the essential job functions. (Obviously, if written afterward, it could be conveniently drafted to exclude the employee’s known inabilities. This was the case in a recent EEOC lawsuit filed against Woodman’s Food Market because they conveniently changed the “lifting requirements” in the essential functions of their disabled employee’s job, which she had been successfully performing, in order to terminate her.) When written beforehand, the job description demonstrates that an employer has put the employee on notice that if he or she cannot perform this function (with or without a reasonable accommodation, in California,) the employee is not “qualified” for this position.

Well drafted job descriptions should provide objective, quantifiable functions. For example, “the job requires the employee to move and lift packages” is subjective as to what a person might consider “too heavy to lift” and how often that is done. If the mail room attendant must move one small bag of mail per day, this can be done easily by someone with a weak back, but if the job requires “lifting mail bags, which weigh 20-80 lbs each, 75% of each shift scheduled” this should be stated, this specifically, in the essential functions of the job so that individuals with bad backs who cannot perform this arduous labor are on notice and cannot state that this requirement wasn’t “part of their job” when they sue you for wrongful termination. Remember to be open-minded about how the function is done so as to allow for differently-abled employees to accomplish the results of the tasks in different ways. For example, a mail room attendant who uses a wheelchair may be able to move mail bags using a cart or mechanized lifting device.

Job Descriptions Can Prevent Other Types of Disparate Impact and Disparate Treatment Claims
The job description should be a blueprint for hiring, performance review, and progressive discipline to demonstrate a company’s fair, consistent and objective standards for measuring an employee’s abilities. When hiring, for example, the interviewer will use the “job duties” set forth in the job description to avoid asking the “wrong questions.” Wrong questions demonstrate subjectivity, mirror image favoritism (i.e. hiring the applicant that reminds the interviewer of themselves), or questions about “protected categories” i.e. about religion, marital status, veteran status, etc. By simply sticking to the “script” of job duties’ questions set forth in the job description, the interviewer will avoid a claim of discriminatory hiring practices. For example, instead of asking an applicant if their planning on having more children, as casual conversations often flow, the interviewer will ask, “How will you approach the task of designing a course catalog for our company?” The same holds true for how managers can approach performance reviews, promotions and progressive discipline. That is, they can use the job duties and responsibilities set forth in the job description to demonstrate that the employee met, exceeded or failed to meet the expectations of the job. This will help defeat a claim from the employee that he or she was treated “unfairly” or targeted by their manager in the process.

Of course, the job description should not contain duties or functions that are designed to exclude groups of individuals. That is, requiring that a “Social Media Manager” be “youthful or energetic” is asking for an age discrimination claim because it is based on a stereotype and will most likely exclude or discourage older applicants.

Job Descriptions Can Prevent Wage & Hour Claims
Job descriptions can help demonstrate whether an employee is properly classified as exempt or nonexempt. In cases where an employee is suing his or her employer over lost wages, such as overtime pay that he or she alleges she was denied because he or she was misclassified as exempt, the courts look to the duties performed by that employee. In California, job titles don’t determine exempt status, but job duties and salary are determinative. Therefore, if an employer wants to ensure that an employee is exempt, he or she must ensure that the employee is getting paid a certain salary and is performing certain “exempt” work more than 50% of the time. This expectations of duties should be stated in the job description. In addition, if the employee is exercising independent judgment or discretion with respect to matters of significance, these areas of significance should be set forth clearly in the job description. If the employee is supervising others, if the role requires certain certification, licensing, specialized training or knowledge then this should be set forth clearly in the job description as it pertains to exempt status as well. Last, just writing these duties in the job description doesn’t automatically make a job exempt, the employee must actually be performing the exempt duties the majority of the time. Nevertheless, setting these expectations out in writing will help ensure that the employee understands these expectations and strives to meet them or attempts to manage his or her time accordingly. Of course, when job duties and roles change, the job descriptions should be updated as well to reflect and/or maintain the expectation of exempt/nonexempt duties and salary expectation.

Job Descriptions Can Make You an “Employer of Choice” - Employees Don’t Think About Suing Them
Bottom line, employees want to work for companies that demonstrate leadership and value diversity. These are companies that have few employee lawsuits because they value employee for what they can do, not what they can’t do; for who they are, not how they are. Employees don’t feel compelled to teach these employers lessons through litigation, because they are grateful that they have a job with an employer that exhibits a raised awareness already. The job description sets this tone. Job descriptions that encourage differently-abled applicants and diverse applicants to apply demonstrate this commitment to employees and this raised awareness about how to value employees.

If cost is a concern, consider that the average accommodation costs $600 or less, according to research conducted by the Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s (DOL) Office of Disability Employment Policy (ODEP), and many valuable support services are offered at no cost, not to mention the tax write-offs for hiring disabled veterans, some employers actually make money in the process of hiring disabled employees, experts say.

The job description will help your company prevent these types of lawsuits. I am including a Sample KC&A Job Description* to provide guidance if you feel tripped up. But, remember that in order to be proactive about drafting job descriptions, you must try not to mix up your right foot with your left.
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

It’s Never “Too Little Too Late...To Be Proactive.”

noreply@blogger.com (JKP) — Thu, 16 Sep 2010 05:52:00 +0000

Why EXIT INTERVIEWS Are a Key Proactive Lawsuit Prevention Strategy.

An Exit Interview is an interview that is usually conducted when an employee is leaving or exiting the company, hence the name. It is often done after an employee gives notice, resigns abruptly or on occasion, upon termination. The Exit Interview can give a company many insights into how it can improve its management style or benefits since the exiting employee is frequently honest with candid criticisms of the company, his or her manager or the industry – thinking they have little to lose heading out the door. More importantly, the Exit Interview can be a strong lawsuit prevention tool used to identify potential lawsuit grenades and diffuse them before they turn into expensive litigation.

The Exit Interview Can Be Used to Prevent Trade Secret Theft and Unfair Competition.
The interviewer should carve out time in the exit interview to “review” contract provisions or handbook provisions that the employee agreed to during employment that bind the employee after he or she leaves the company. For example, if the employee signed a contract that prohibits the disclosure of confidential information or trade secret information, that information cannot then be used or disclosed to a subsequent employer. Upon exit, the interviewer should ask the employee if he or she remembers signing this agreement and if he or she understands that the company will protect itself if these trade secrets are disclosed to competitors. If an employee begins to argue about the wording in these provisions or whether or not they are legal, this is a red flag for the employer that the employee is considering violating the provisions or agreements.

In recent headlines, Hewlett Packard’s CEO, Mark Hurd was “asked to resign” for ethics violations. Soon afterwards, he was hired by Oracle, Hewlett Packard’s competitor. Hypothetically, if Hurd had been interviewed as he was leaving HP and he indicated that he intended to work for Oracle soon after leaving HP, the former employer might have structured a severance payout over time, rather than pay him all up front. Moreover, the statements he made during the interview regarding his understanding of confidential information and trade secrets could then be used to ensure he upheld those agreements in the future. Any “differences of opinion” could have been negotiated into his severance agreement beforehand. The Exit Interview might have prevented the existing lawsuit HP filed last week to recover the multi-million dollar payout and prevent Hurd from disclosing HP’s trade secrets to Oracle.

The Exit Interview Can Be Used to Prevent Unfair Competition and Ringleading Behavior.
Although covenants not to compete which prohibit employees from competing with their former employer are, generally, prohibited in California, some states do allow them. Also, California has carved out exceptional situations where a covenant not to compete is permissible, such as the sale of a business or in LLCs. In these circumstances, the Exit Interview is an ideal time to inquire as to what plans for employment the departing employee has and whether he or she intends to directly compete within the industry or ask other employees to leave with him or her. If the employee volunteers that he or she is intending to compete, this is an ideal time to remind the employee of their continuing obligations and that the company will vigorously protect its interests from unfair competition.

In addition, many employees are unaware of provisions within contracts they have signed or handbooks that prohibit them from ring leading other employees out the door. In the event that the exiting employee says that that they are aware of other employees leaving, it is the right time to explain that unfairly competitive actions, such as destroying documents, refusing to return property, leaving at once, or other malfeasance that impairs day to day business operation are actionable. These questions and the information that they solicit can protect a company from the “shock” that a mass exodus causes.

The Exit Interview Can Be Used To Prevent Theft or Disclosure of Intellectual Property
In technology industries, for example, many employees sign agreements that state that their ideas and inventions made during their employment term are owned by the company through assignment. During the Exit Interview, the interviewer can ensure that the exiting employee truly comprehends that he or she may not own the work that they spent five years on when they leave, even if their name is on the patent. Any “confusion” or “disagreements” can be worked out well before the employee begins working for a competitor and attempts to use this technology for the benefit of another so that future injunctive relief is proactively prevented.

The Exit Interview Can Be Used to Prevent Unlawful Solicitation of Customers or Clients.
In industries where customer lists are the primary asset, the interviewer should ask the exiting employee whether he or she understands that using the customer list to “solicit” new business with a new employer is not allowed. Although many employees understand that they are permitted to “announce” their departure to customers, the interviewer should ensure that the departing employee understands the difference between a professional announcement and a solicitation. In addition, he or she should be informed that downloading password protected customer information before leaving violates company policies.

The Exit Interview Can Prevent Ongoing or Future Harassment or Discrimination.
Finally, an interviewer should always ask an employee if she or she is leaving because of discrimination or harassment experienced on the job. Although many employers would rather not open the Pandora’s Box of a harassment or discrimination investigation, it is always better to be on notice before receiving a DFEH (in California) or EEOC complaint. If the answer is yes, this gives the employer many opportunities to appease the disgruntled employee before he or she retains counsel or initiates an expensive lawsuit in vengeance. Also, if an employee is leaving because of discrimination or harassment, the problem is often much larger than that one employee walking out the door and the “alleged harasser/discriminator” is still employed to wreak havoc on current employees. The Exit Interview answers can help prevent future lawsuits from current employees by bringing the alleged wrongdoer to the attention of the individuals in the organization that are in the position to help remedy the wrongdoing.

The bottom line is that disgruntled employees most often file lawsuits soon after they leave their former employer. The last, best effort a company has to proactively prevent a lawsuit is …the Exit Interview. So as not to leave you out there on your own…my own Exit Interview is available for download here: Sample Exit Interview*
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

Webinar Invitation

noreply@blogger.com (JKP) — Mon, 13 Sep 2010 00:45:00 +0000

Lawsuit Proof Investigations
(Based on Federal and California State Law)

October 5, 2010
10:00am - 11:30am (PDT)

This Webinar is designed for professionals who conduct investigations into employee misconduct. Whether you are in human resources, in-house counsel or an outsourced expert, this Webinar will show you how the opposing counsel will try to attack and undermine your investigation.

Once you learn the 6 common "ATTACKS" that opposing counsel will use in litigation, you will know how to avoid the actions which will make your investigation vulnerable. You will learn how to make your investigation "Lawsuit Proof" against these attacks so that it withstands intense scrutiny during depositions, arbitration or courtroom testimony.

About your presenter: Jody Katz Pritikin, Esq.
After working as an attorney in Los Angeles, Jody identified early in her legal career that almost all employment lawsuits are preventable. Recognizing that businesses need to prevent lawsuits, she founded Katz Consulting & Associates to teach business how to proactively plan for and consequently prevent lawsuits and save the considerable expense of litigation. With over thirteen years devoted to preventing lawsuits, her expertise lies in conducting investigations, teaching management, counseling HR and in designing policies to protect corporations from lawsuits.

Jody Katz Pritikin, Esq. grew up in Southern CA and received her J.D. from USC Law. She is a member of the CA State Bar, the LA County Bar Association's Labor & Employment Group, the CA Org. for Workplace Investigators (CAOWI), SHRM and PIHRA. Her clients include small and mid-size companies as well as many Fortune 500s and 100s. She is an outsourced, neutral investigator used by her corporate clients and attorneys in highly sensitive investigations. She is a featured author/ blogger in trade publications and on the blogs of LACBA, ABA, Lawlink and PIHRA.

More information about this presenter, other Lawsuit Prevention Strategies and upcoming Seminar/ Webinar topics are available at: http://www.proactivelawsuitprevention.com.

This program is currently being offered at a SPECIAL RATE of only
$150.00. We expect this program to fill up quickly so please do not wait to register for it.

Click REGISTER NOW to reserve your spot.

Once registered you will receive an email confirming your registration
with information you need to join the Webinar.

System Requirements
PC-based attendees
Required: Windows® 7, Vista, XP or 2003 Server

Macintosh®-based attendees
Required: Mac OS® X 10.4.11 (Tiger®) or newer

Lawsuit Proof Investigations

noreply@blogger.com (JKP) — Mon, 09 Aug 2010 19:00:00 +0000

One of the best Lawsuit Prevention Strategies that I advocate to my clients is how to anticipate the myriad of ways a plaintiff’s lawyer will undermine the investigation that you, the employer (or in many cases the human resource investigator or in-house counsel), conducted. Why does this prevent lawsuits? Because (1) a Lawsuit Proof Investigation may deter a plaintiff’s lawyer from even taking a case. It demonstrates that the employer acted reasonably and will limit or mitigate the damages that an employee can collect (i.e. it’s not worth the plaintiff lawyer's time or money, if he (or she) takes the case on contingency, and (2) it shows the employee considering litigation against your company what a “fair” result might be if he or she decides to pursue litigation. That is, if the employee has “made their case” to the investigator and believes that the investigator is fair and neutral, then the conclusion that the investigator makes, even if it is not the employee’s desired result, will be the likely conclusion that a judge or jury will make after hearing all of the same facts. At this point, the employee will hopefully realize that a lawsuit will be expensive, time consuming and possibly, pointless.

The six ways that a plaintiff’s lawyer can undermine or “attack” an investigation are:

o The “Neutrality” Attack
o The “Time” Attack
o The “Fair & Thorough” Attack
o The “Taint Free” Attack
o The “Retaliation” Attack
o The “Burden to Remedy” Attack

The details of these attacks are the subject of a program which I will be presenting to the attendees of PIHRA District 15 on August 17, 2010, 11:30am-1:30pm. If you are interested in learning more about them in an entertaining format, please register and attend: http://www.pihra15.org. Nonmembers are permitted to attend as well.

To demonstrate my gratitude to PIHRA in supporting Katz Consulting & Associates’ mission to proactively prevent lawsuits, I am also including downloadable Sample Documents that are helpful in conducting investigations of sexual harassment.
Sample Sexual Harassment Complaint Form*
Sample Investigation Questions for the Accused*
Sample Investigation Suspension with Pay for Accused*
Sample Investigation Conclusion and Recommendations*
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

An Occasion For Reeducation from the Lebromination

noreply@blogger.com (JKP) — Mon, 19 Jul 2010 04:16:00 +0000

Lawsuit Prevention Strategies Employers Can Gain From Dan Gilbert’s Reaction

Most employers do not lose employees in the public and spectacular way that Dan Gilbert’s Cleveland Cavalier’s lost Lebron James to the Miami Heat on July 8, 2010. Yet, almost all business owners and CEOs can relate to the potential damaging effect that a key employee’s abrupt exodus can reek on future business profits and worth. That is why it is critical that business owners and managers learn from the mistakes that Gilbert made in writing an Open Letter to Fans on the Cavalier’s website in immediate reaction to James’ decision. The Open Letter not only created potential for legal ramification and lawsuits, but was a blistering example of poor leadership in the wake of an employment crisis.

Nevertheless, using it as an example of how employers/managers should not react when an employee announces his/her departure, the following Lawsuit Prevention Strategies emerge:

Lesson #1: Amend Before You Send
Obviously, for many managers and employers, business is not always “just business” and can become very personal. Gilbert, who felt he had a personal relationship, an expectation of loyalty and an alliance with Lebron James, expected James to respond in kind with a decision to re-sign with the Cavaliers. Feeling deeply wronged, Gilbert’s Open Letter was a reactionary, scathing rebuke of Lebron James departure. He said,

“This shocking act of disloyalty from our home grown "chosen one" sends the exact opposite lesson of what we would want our children to learn… this heartless and callous action can only serve as the antidote to the so-called "curse" on Cleveland, Ohio. The self-declared former "King" will be taking the "curse" with him down south…and will unfortunately own this dreaded spell and bad karma.”

Ouch! Making a common mistake that managers make in anger that often creates litigation, Gilbert posted his comments on the web without first getting advice about the legal ramifications of this publication. Had he consulted an employment lawyer or even the Cavalier’s counsel (presumably he did not), he would have been advised to amend his comments and informed that brutal and personal criticisms about one’s former employee can leave an employer and company open to devastating liability. Suppose, for example, the Miami Heat decide to drop James, fearing that they signed a “problem” employee. Although unlikely, this is a scenario that does occur frequently in today’s corporate America. In this case, Lebron James (or the former employee) can sue Gilbert (his past employer) for interference with future contract, defamation and intentional infliction of emotional distress. Perhaps a Cavalier fan will feel justified or empowered by Gilbert’s stating,

“Some people think they should go to heaven but NOT have to die to get there.”

If they harm James or his family, he can sue Gilbert personally for the foreseeable damages incurred.

Lesson #2: Minimize the Damage, Don’t Compound It
No one wants to lose a key employee and the worst way to do so is without notice or a plan for succession, but when that does happen, as it does in business, management must act in a way that minimizes the damage done. In the case of Gilbert’s Open Letter, not only did he compound the damage done by receiving a fine for $100,000 from Commissioner David Stern, but he also undermined the future of the Cavaliers’ ability to attract free agents that could succeed James in talent and experience. Will free agents desire to work for Gilbert in light of his unprofessionalism and vitriol? If so, it will be with Rod Tidwell-esque familiarity - “Show Me the Money.” That is, Gilbert will be paying a premium for his demonstrated unattractiveness as an employer. Consequently, his actions have cost the Cavalier’s even more than the loss of James, alone.

Lesson #3: Show Leadership in Crisis
Finally, Dan Gilbert may go down in history as the biggest example of poor sportsmanship that there ever was. Soon after James announced his decision to leave the Cavaliers, Gilbert changed the price of the Lebron James Fathead poster (pictured above) to $17.41. Fathead is a company owned by Gilbert and the new price is a reference to the birth year of Benedict Arnold, a U.S. general who defected to the British side during the American Revolutionary War and whose name has become synonymous with “traitor.” Rather than finding innovative ways to lament the past, Gilbert should be using the days after James’ announcement to reinvigorate his remaining employees, talent and fans for the future. In the wake of a key employee’s departure, remaining employees look to management for reasons to stay, reasons to reinvent and reasons to remain optimistic. Managers and owners must use the crisis as a leadership opportunity to remind those “left behind” that the “company” is not defined by one employee and that the remaining employees extra efforts to sustain the entity throughout uncertainty are appreciated and recognized.

Can you think of other example of good/bad leadership in the wake of a key employee’s departure? Let me know.