Employment Law Blog Carnival- Res Ipsa Edition

Last modified on 2011-09-22 16:19:12 GMT. 5 comments. Top.

Welcome to the Employment Law Blog Carnival- a great collection of articles on the hottest issues in employment law from some really smart lawyers—who blog.

About a year ago, John Sumser hosted the HR Carnival. It was the brainstorm of Shauna Moerke, aka HR Minion. A few months ago, Eric Meyer, who knows a good idea when he sees one, decided to do an employment law version. And here we are again.

It’s customary for the host to say something clever or interesting about each link to entice you to read them.  But I think I misplaced my wit somewhere between writing pre-trial motions and arguing with weasels this week. So I am doing the res ipsa loquitur edition.  Res Ipsa Loquitur is legal/latin term that means “it speaks for itself.”  So here are the posts with excerpts, and a little bit about the authors—check them out.   –Heather Bussing, EAB Editor and Employment Attorney

1.            Eric B Meyer, Employment Attorney, Dilworth Paxson LLP in Philadelphia,                           Pennsylvania

Blog:     The Employer Handbook

By The Numbers: Employment Laws by Total Employees

With so many employment laws out there, it’s not easy to keep track of what those laws say — let alone under which of them your business may be covered.

Well, who loves ya! After the jump, it’s employment laws by the numbers — number of employees that is — that your business must employ to be covered under certain specific federal employment laws. (I’ll even throw in a few extra state statutes for my PA/NJ/DE readers). . . .

2.            Heather Traver, Alabama Employment Attorney

Blog:      Human Resource Updates

Is it Lawful to Not Hire a Pregnant Woman Because She’ll Need Time Off for Maternity Leave?

We all know that employers subject to Title VII and the Pregnancy Discrimination Act (PDA) cannot discriminate against pregnant women. But what happens when you want to hire someone, only to realize they will  be taking maternity leave at either 1) a critical time in the business calendar and/or 2) while they are on a probationary period and not eligible for any type of leave? . . .

3.            Adam Whitley, Employment Attorney at Morisi & Oatway, PC, Quincy, Massachusetts

Blog:     Damned if You Do; Damned if You Don’t!

You Could Be Damned if You Fire an Older Worker. You Could Be Damned if You Don’t.

If we are being honest we must admit that many of us will eventually get “too old” to do our jobs. This won’t happen to everyone. I have had cases against lawyers in their 90’s who were quite capable. I imagine that Jack LaLanne would have been a fine lifeguard or firefighter even in his 80’s. But most of us could not do those jobs in our 80’s.

Don’t take this post the wrong way; I’m strongly against age discrimination. . .

4.            George Lenard, Employment Attorney in St. Louis, Missouri, with intern Beth Hanson, senior at Beloit College

Blog:      George’s Employment Blawg

Employment of Women: Survey of Issues & Initiatives — Equal Pay

The Wage Gap–Though it’s been nearly 50 years since the Equal Pay Act was passed in 1963, there still remains a wage gap between women and men. The median earnings of full-time women workers are about 80 percent that of full-time male workers. This represents a large improvement over the 59 cents-on-the-dollar average of 1963, but it obviously remains a substantial, stubborn gap. Also, it has not improved significantly over the last decade. . . .

5.            Donna Ballman, Employment Attorney, Ft. Lauderdale, Florida

Blog:      Screw You Guys, I’m Going Home

Can My Employer Fire Me Because I Was a Domestic Violence Victim?

If you need time off for medical treatment or to seek an injunction against domestic violence, some state laws and city and county ordinances protect you, but most still don’t. Some states provide that employers must give you a leave of absence to deal with the effects of domestic violence. Other states have laws that protect crime victims if they need time off to go to court. A few states have laws saying you are entitled to unemployment if you have to leave your job due to domestic violence.

6.            CPEhr-  Los Angeles based HRO firm

Blog:      Small Biz HR Blog

Double Jeopardy: The New Risks of Employing Undocumented Workers

Labor Secretary Hilda Solis recently stated that all migrant workers, regardless of their legal status, will be offered the full protections of U.S. workplace laws. Solis went so far to state that foreign workers need to know their legal rights under US employment law so they can effectively lodge complaints against their employers, without the fear that they will be deported or fired. According to Solis, “No matter how you got here or how long you plan to stay, you have certain rights.” . . .

7.            Janelle Milodragovich, Employment Attorney, Foster Pepper PLLC in Seattle, Washington

Blog:     Washington Workplace Law

Fired Because Of Facebook: NLRB General Counsel Addresses Offensive Facebook Posts In The Context Of Protected Activity

Three recent National Labor Relations Board (NLRB) memoranda concluded that employees posting complaints about their jobs on social media websites may not be protected from disciplinary action even if their complaints are job-related. In each of the three cases, the NLRB Division of Advice recommended dismissal of the claims that employers violated the NLRA when they disciplined or discharged employees for Facebook activity. . . .

8.            John Hyman, Employment Attorney, Kohrman, Jackson & Kranz, PLL in Cleveland and Colombus, Ohio

Blog:      Ohio Employer’s Blog

“Never pick a fight with an ugly person, they’ve got nothing to lose.”

In Sunday’s New York Times, University of Texas economics professor Daniel Hamermesh penned an op-ed entitled, “Ugly? You May Have a Case.” He argues that the law should protect “ugly” the same as race, sex, and disability. Here’s his thesis: [B]eing attractive … helps you earn more money….

9.            Casey Christensen, Employment Attorney, Christensen Law Group, PC in Walnut Creek, California

Blog:     California Workplace Law Blog

Just How “Independent” is That Contractor, Really?

Your small business is doing better than you’d hoped, and you could use a little help.  But you don’t want to pay workers comp insurance, payroll taxes, or other employee-related costs.  And you want to maintain a little flexibility, in case the business trend suddenly shifts.  What’s an entrepreneur to do?  Hire an independent contractor (IC), of course.

Not so fast. . . .

10.            Phillip K. Miles, Employment Attorney, McQuaide Blasko in State College, Pennsylvania.

Blog:        Lawffice Space

Details on Proposed Unemployment Status Discrimination Law

Ladies and gentlemen, we’ve got text. On Monday, I reported that President Obama’s American Jobs Act would include provisions that prohibit discrimination against job applicants on the basis of their unemployment status. As a follow-up, you can now read the full text of the proposed legislation here. The “Prohibition of Discrimination in Employment on the Basis of an Individual’s Status as Unemployed” runs from pages 129 through 134. Here’s a brief overview: . . .

11.            John Holmquist, Employment Attorney, Demorest Law Firm, Michigan

Blog:       Michigan Employment Law Connection

Guns in the Workplace Revisited

Guns in the work place…this doesn’t sound like such a good idea unless you are talking about the military.  A recent incident which occurred in  Benton Harbor, Michigan involving the attempted robbery of a pharmacy highlights the issues of work place violence, employee self help, and the scope of an employer’s obligation to provide a safe workplace.

According to media reports, on May 8, two men entered a Walgreens pharmacy.  One of the men pushed an employee down the aisle and jumped over the counter and confronted the pharmacist.  The man pointed his gun at the pharmacist who was trying to call 911 and tried to shoot him; the gun misfired.  The pharmacist, who a had a concealed weapons permit and was carrying a gun, opened fire. . . .

12.            Dawn Lomer, i Sight, Case Management Software Provider

Blog:         i Sight Blog

How to Fire Someone Without Getting Sued

There’s a right way and a wrong way to fire someone, even when it’s a case of workplace misconduct. Do it the right way and you preserve your employee’s dignity and your company’s reputation. Do it the wrong way and you risk an expensive legal battle.

It’s never easy and it’s never pleasant, but knowing how to fire someone the right way will take some of the sting out of the process and will reduce the chance of a backlash from disgruntled ex-employees.

13.            Robin Shea, Employment Attorney, Constangy, Brooks & Smith, LLP in Winston-Salem, North Carolina

Blog:        Employment and Labor Insider

Staking Out the EEOC and its Wave of ADA Suits Against Employers

I feel as if all I ever do these days is write about the Americans with Disabilities Act, but what else can I do? In the last six weeks, the Equal Employment Opportunity Commission has filed 21 lawsuits — count em, 21! — against employers alleging disability discrimination.

This is in addition to the $20MM settlement with Verizon (which I reported on earlier), not to mention a record high of ADA charges in fiscal year 2010, the most recent year for which statistics are available. . . .

14.            Robert (“Bob”) B. Fitzpatrick, Employment Attorney, Robert B. Fitzpatrick, PLLC, in Washington DC

Blog:        Fitzpatrick on Employment Law

Second Circuit Rejects New Haven’s Post Ricci Argument . . .

On August 15, 2011, a panel of the Second Circuit in Briscoe v. City of New Haven, 2011 U.S. App. LEXIS 16834 (2d Cir. Aug. 15, 2011), rejected the City’s argument that Justice Kennedy’s language in Ricci v. DeStefano, 129 S. Ct. 2658, 174 L. Ed. 490 (2009) established a symmetrical companion to Ricci’s holding that a disparate-treatment claim is avoidable based upon concerns about disparate-impact liability only if there was a “strong basis in evidence” of such liability. . . .

Top 100 Influencers in HR v1.81 Craig Fisher

Last modified on 2011-09-23 13:32:38 GMT. 0 comments. Top.

When I asked Fishdogs about influence, he said, “The only place influence matters is within your own network.”

It’s been a long time since someone made me think when I asked the question. At this point, I’ve asked about 1100 people about influence. Fishdogs surprised me. It isn’t the first time.

Fishdogs, a nickname Craig Fisher acquired in college, came in handy a dozen years ago when the craigfisher.com domain was already taken. Originally a site devoted to Craig’s work, his dogs and job postings, Fishdogs has come a long way. He says,

“I live at the intersection of marketing and recruiting. I help people and businesses leverage social media, mobile, and other new communication tools to get matched with the *right* customers, the *right* talent, and the *right* jobs. As VP Sales for Ajax Social Media, I handle sales and training for the 1st Linkedin-Certified training company in North America. I work with sales and recruiting teams around the globe to implement social media and mobile strategies for both business and career development.”

That doesn’t begin to tell you how influential he is. Or why. The bottom line is that he combines a love of the details of recruiting , a ceaseless curiosity about new technologies and a desire to teach.

Craig Fisher works like a dog. That’s probably the origin of the nickname. During college, he held as many as five simultaneous gigs. His favorite was selling ads for the college spoof newspaper (The Greek Inquirer)

He rolled out of school into a stint in the medical device sales world. He was such a hot shot sales guy that the company got him to move into training and developing new sales people. It was a short step to recruiting from there.

Craig did an interesting thing. In order to find the candidates he was looking for, he went to school on the job hunting process. His notion was that finding the right candidates was going to be easier if you understood their experience and psychology. The move paid off in big ways.

He moved quickly into Physician Recruiting with Matrix Resources. That was the start of a 20 year love affair with Recruiting. he spent a solid fifteen years in the trenches and management of a range of staffing and recruiting companies.

As social media, beginning with a very early blog at Fishdogs.com, caught his eye, Craig began his conversion to social media evangelist and experimenter.

These days, Craig has a portfolio of businesses, all interlocking and driving each other. He’s the VP of Ajax Social Media, the first certified LinkedIn training company. He runs the notorious TNL (Talent Net Live), a series of small unconferences focused on Social Media and Recruiting Effectiveness. He’s widely sought as a consultant on employment branding projects.

Mostly, he’s at the heart of the explosion of the next generation of leadership in HR and Recruiting.

There are two kinds of businesses emerging on the scene today. One, blessed with resources from investors, is heavily oriented towards tool creation in social technology. The other, personified by Craig, is being built by people with substantial time in the trenches.

These players (among them Geoff Webb, Jessica Miller Merrell and Bill Boorman) come at social technology with a deep understanding of the problem to be solved. Each of the four come at the problem with a unique perspective and a deep commitment to moving the technology forward. Each, in one form or another offer training and insight as a a part of their work.

The basic freedom from investors approach to business development can be vastly more opportunistic and creates businesses that are less structured that typical MBA driven operations.They win hearts and minds faster than the more well endowed crowd.

Craig sits at the center of a cyclone from which he has a very clear picture of the real practical truths of social recruiting. Be sure to catch him at one of the many places he turns up for a conference or a conversation. He’s changing the world.

Candor Versus Civility

Last modified on 2011-09-23 13:40:47 GMT. 0 comments. Top.

Dr. Todd Dewett | Founding member, HRExaminer Editorial Advisory Board

Dr. Dewett returns as a member of the HRExaminer Editorial Advisory Board. Dr. Dewett is a leadership expert and professor at Wright State University, author, speaker, trainer, consultant, and Harley nut.  Full Bio…

Candor Versus Civility

by Dr. Todd Dewett

Here is a harsh truth I see in many teams. Otherwise competent professionals can’t bring themselves to discuss the most basic realities that define their teams: members who behave rudely, members who produce poor quality work, members who are not completely honest about issues, sacred cows that have existed in the group for years…

This is unfortunate since getting past these barriers is required for real performance improvement.

You cannot choose civility over candor.  Civility is vital, but without candor it is useless.  Let me be specific.  When I say candor I am referring to positive, as-needed, on-the-fly, performance-related, frank and honest conversation.  Great conversation is never heavily nuanced, political, or politically correct – and in the best conversations there is very little beating around the bush.  The main goal is not to save someone’s feelings, but to get the point across accurately so that everyone gets it immediately.  With few exceptions, great teams choose candor over civility.

In order to successfully embrace candor as a team norm, keep a few things in mind.  First, do your best to address issues, not people – and choose a positive frame for your comments.  Any idea can be framed negatively or positively.  The more emotionally loaded the issue, the more necessary a positive frame.  Next, admit any shared blame you have – i.e., own your contribution to the current state of affairs being addressed. Another great piece of advice is to only engage candor when you can offer solid ideas and solutions, not merely indictments and criticisms.

To have candor is not to lack civility.  It simply means that you have set performance as the highest priority.  To name the “elephant in the room,” to tell the Emperor he has no clothes –  these are difficult tasks.  Leaders must be honest and look in the mirror. If your group can’t manage a little candor, you are choosing mediocrity.  Time to start having real conversations.

Facebook Career Apps – Another Look at the Race

Last modified on 2011-09-23 13:45:43 GMT. 2 comments. Top.

I’m up to my eyeballs in technology reviews and evaluations as I wrap up the Social Technology in HR and Recruiting Report. (It will publish on the 15th of October). Interviews with 70 companies, 40 industry leaders and a heap of research are turning it into a real gem.

Last week, I told you about the fact that BeKnown‘s basic facebook traffic had caught up with Branchout. (Those links point to the best source of measurement data) I was surprised to discover that BeKnown was very effectively leveraging the Monster brand and traffic to surge to a level that Branchout has been building for a year. It’s a pretty amazing feat.

Today (Monday, September the 19th), the numbers look like this.

• DAU = Daily Average Users
• MAU = Monthly Average Users
• Ratio = DAU/MAU

A TechCrunch article talks about understanding these figures:

“Real retention numbers for other people’s products are notoriously hard to come by, but in Facebook there is good 30 day retention data called the DAU/MAU Ratio – which can also be called Stickiness. This is the ratio of Daily Active Users to Monthly Active Users. For example, a DAU/MAU ratio of 50% would mean that the average user of your app is using it 15 out of 30 days that month. It turns out this simple metric is enough to predict, with a high level of probability, the success of a product..”

In other words, the average user of both BeKnown and Branchout is there one day a month. It might even be reasonable to suggest that visitors go to both sites and find little to return for. (By comparison, the Cityville ratio is 19.9% or about 6 days a month.) There is no history from which to judge the effectiveness of a career oriented professional network. It is worth noting that LinkedIn claims that their users average about 3 days a week month of usage on LinkedIn (which would be a 35% 9% ratio if LinkedIn measured that way)

I seem to have stepped on some sort of hornet’s nest.

After last week’s piece on the subject, I got a breathy piece of email titled “error on your article today” from one of the other analysts. He went on about the fact that these numbers (MAU) were not the most important part of the story. According to the analyst, Branchout is something like “1,000 times the size of BeKnown”.

That afternoon, I had conversations with him, the team at BeKnown and the CEO of Branchout.

While the folks at BeKnown were extremely matter of fact about the news, the analyst and the Branchout team wanted to be sure I had the whole story. They claimed that that after 14 months with an average of 2,000,000 MAUs, they’d managed to accumulate “tens of millions of registered users” while BeKnown had only “350,000″. I was never able to pin down the claim that Branchout was 1000x larger than BeKnown. Tens of millions of registered users seems like a bit of hyperbole.

It was a weird set of conversations.

At this point, both Branchout and BeKnown are very interesting ideas with a lot of miles to go before they are useful. As I understand it, the point of the various stories I received was to illuminate the difference between registered users and visitors to the site. The best explanation I can offer is that users means traffic to the app while registered users is roughly equivalent to the number of resumes in the resume database (or, if the resumes are on LinkedIn, the number of profiles).

In the early days of the job board business, lots of money was made by people who substituted braggadocio for substance. That’s often how emerging markets work. In those days, it was Monster and HotJobs battling to make their assertions seem true. It was a little like visiting the past.

Autofill Confusion: the New Guilt By Association

Last modified on 2011-09-23 13:47:07 GMT. 0 comments. Top.

Google's automated search suggestions can potentially change how potential employers view you as satirized above by cartoonist/humorist Matt Inman of The Oatmeal

The number you hear tossed around is that 80% of employers do some level of background checking using the Internet. That’s pretty unbelievable – in the ‘I don’t believe it for a second’ form of unbelievable. Most employers don’t do any sort of background checking.

That said, people who do use the web as a way of vetting candidates ought to have some form of training in reputation management. Understanding what you see online takes some sophistication. And, the problem is just going to get worse.

This is not another screed about the legal risks of using the web to do some level of background checking. People are doing that, going to do more and ought to. The likelihood that a company will be successfully sued on this topic is almost directly proportional to the degree to which it is covered by a policy manual. The more specific the coverage and the more effective the policing, the more likely that there will be a successful suit. That’s the problem with policies and the topic of a different conversation.

The question here is ‘how to avoid doing things that make your hiring process less effective.’ (That’s corporate speak for ‘not doing stupid stuff’.) While the EEOC is never going to figure this one out, the net is changing rapidly and some of the changes can make you miss important things

The title refers to autofill confusion, the new hazard in sourcing. (The geek form, Guilt By Algorithmic Association, doesn’t exactly roll off the tongue.)

Autofill Confusion is a computer generated form of Rickrolling. In Rickrolling,

" a person provides a hyperlink seemingly relevant to the topic at hand, but actually leads to Rick Astley’s video. The link can be masked or obfuscated in some manner so that the user cannot determine the true destination of the link without clicking. Persons led to the music video are said to have been rickrolled." (Wikipedia)

In autofill confusion, as Google tries to guess what you’re looking for, may make suggestions that are misleading. When Google makes suggestions as you search for a specific name, those suggestions create an impression of the person you’re searching for. It turns out that your reputation is now partly a function of what people search for when they search for you.

Effectively, the search engines now amplify reputation with information about what people are most likely to search on when they search for you. This is how the autosuggestions are generated.

This is an impossible area to regulate since recruiters and background checkers use consumer tools. It does, however, expose the silliness of most concerns about the web as a source of discrimination. The only way around these sorts of problems is education and training. Prohibition just makes dumb things more likely.